Thabang Makwetla vs Mail &Guardian

Thu, Apr 2, 2020

Finding Complaint 4214

Date of article September 23, 2018

Headline: “Cyril accused of double standards.”

Author: Matumo Letsoalo

Page:

Online: Yes

Particulars

This finding is based on a written complaint from the legal representatives of Mr Thabang Makwetla, a written reply from M&G deputy editor Beauregard Tromp, and further written replies to the Ombud’s queries by Mr Tromp.

Complaint

Mr Makwetla, at the time the article was published, the Deputy Correctional Services Minister, through his legal representatives, complains that an article in the M&G that reported that he had “confessed” at an ANC national executive committee meeting that he had received a cash “bribe” of more than one million rands which he had returned to an unknown business six weeks later. Mr Makwetla’s legal representatives complained that the article was inaccurate, fabricated and defamatory to him “as it painted him out to be a person who received or received and accepts cash bribes”.

Although not specified, the complaint suggest that the following clauses of the Press Code were transgressed:

1. 1 The media shall take care to report news truthfully, accurately and fairly.
1. 2 News shall be presented in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions or summarisation.
1. 3 Only what may be reasonably true, having regard to the sources of the news may be presented as fact, and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour, or supposition, it shall be presented in such a manner as to indicate this clearly.

1. Text

1. 1 The story ran under the headline “Cyril accused of double standards”.
1. 2 The introduction described a “confession by Deputy Correctional Services Minister Thabang Makwetla at an ANC national executive meeting that he’d received a R1-million cash bribe and returned it to an unknown businessman six weeks later” that would be at the “centre” of a debate at an upcoming NEC meeting.

1.3  It then goes on to report that Ace Magashule’s supporters are “angry” about an “attack on him by President Cyril Ramaphosa over rumours of his involvement in meetings to plot the president’s removal.” The article said they planned to use Mr Makwetla’s “confession” as an example of “selective persecution” of the leaders who did not support him (Mr Ramaphosa).

1.4 It quotes Mr Makwetla’s spokesperson, Ntime Skhosana, saying: “If anything, that’s an ethical stand worthy to be celebrated by upright activists and society in general, notwithstanding the fact that the source’s account is riddled with inaccuracies.” Specifically he questioned the six weeks “it allegedly took Makwetla to return the money”.

1.5 He then adds “in respect of party discipline, we prefer not to express unauthorized comments in internal party discussions”, and refers the newspaper to the ANC Secretary-General.

1.6 Mr Makwetla also declined to comment. He is described as a “vocal critic of former president Jacob Zuma”.

1.7 The article notes that the then ANC spokesperson Pule Mabe did not respond to requests for comment.

1.8 There is then some analysis/speculation in the article, noting that the “pro-Magashule” group will use “Ramaphosa’s inaction against senior ANC politicians who benefited” from alleged bribes from the Bosasa group as “evidence of selective persecution”. It recaps how the company, now known as African Global Operations, allegedly  installed security facilities for various ministers and ANC politicians. It notes that this grouping “will also raise concerns at the NEC meeting about the use of state resources to investigate” Ace Magashule, former Free State premier.

1.9 It goes on to recount Mr Ramaphosa’s condemnation of apparently secret meetings (reported previously) of those who were opposed to his presidency, and his call for unity.

1.10 It describes what can broadly be called the “anti-Ramaphosa” camp of accusing his supporters of also holding “secret meetings” and the  “marginalisation” of some.

1.11 It quotes ANC leaders sympathetic to President Ramaphosa as saying he was correct to condemn the secret meeting held by Ace Magashule and Supra Mahumapelo with former president Jacob Zuma, as well as to promote “organisational renewal.”

2. An explanation of the lateness of this adjudication
   2. 1 There were numerous delays in this case. After the article was published in September 2018, Mr Makwetla tried to negotiate directly with the M&G, including trying to get a retraction to the article
   2. 2  He  wrote a letter to the M&G which was published on 5 October, 2018. Apparently this was not what he intended; instead he wanted to engage with the newspaper.
   2. 3 On the 23 October, he wrote again to the M&G asking for a right of reply or a retraction of the article
   2. 4  On November 11, 2018, the M&G replied denying the request.
   2. 5 Mr Makwetla then sought legal advice, which took some time.
   2.  6 The December holidays “came and went”, and on January 24, 2019, the Public Advocate, Mr Joe Latakgomo, received the complaint. His attorneys, Mdhhluli, Pearce & Mdizikwa,  also asked for late condonation.
   2. 7 Mr Latakgomo began a correspondence with one of the attorneys but this was complicated by the fact that the attorney handling the matter changed at some point. It also seemed the attorneys were not happy with only the right of reply in the form of the letter (which had already been published).
   2.  8 The attempts at mediation failed and on 26 March, Mr Latakgomo handed the complaint to the Ombudsman for adjudication.
   2. 9  In early June, 2019, fairly new in this position, I began a correspondence with Mr Makwetla’s attorneys to try to get more details from them as to whether Mr Makwetla had availed himself of the offer of an interview, mentioned to Mr Latakgomo by the M&G, about the clauses of the Press Code they believed had been transgressed, whether in fact the incident of the attempted “bribe” had occurred in 2004 as Mr Makwetla had stated in his letter to the M&G, and what redress he was asking for.

2.10 The contact person at the office of the attorneys also changed during this time making for very delayed correspondence. Moreover, they said they could not consult with their client as he was in Parliament at the time.

2.11 After they did not respond to many reminders, this complaint was put aside until such time as they did.

2.12  I did get a response to my queries from the M&G, but by the end of 2019 I still had no response from Mr Makwetla’s attorneys.

2.13 Thus I have decided to try to settle this complaint in any event in the interests of fairness and of closure.

3. The arguments

Mdhluli, Pearce & Mdizikwa for Mr Makwetla

3. 1  Mr Makwetla was represented by attorneys from Mdhluli, Pearce & Mdzikwa.
3. 2 The attorneys sent this office a letter recounting how they had first dealt with the M&G directly sending it a letter on 23 October, 2018, arguing that the assertion that Mr Makwetla had “recently confessed to the National Executive Committee that he had received more than R1 000 000 …cash bribes from an unknown businessman” and then returned it some six weeks later” was “substantively inaccurate and/or fabricated with the intention of implying that the Deputy Minister recently received and/or receives cash bribes.”
3. 3 They said the article “wrongly and intentionally defames the character of our client without proper content or substantive reference.”
3. 4The attorneys demanded that the M&G retract the “unfounded allegations and defamatory statements”.
3. 5  The letter also recorded, though, that Mr Makwetla did not believe that the article was written in a “malicious attempt to defame him” and he did not think it was “untenable” that the article be retracted or that he be given the right to respond to the allegations.
3. 6 However, the attorneys said, their pleas to the M&G had fallen on “deaf ears” and thus they sought the intervention of the Press Ombudsman.
3. 7  Because they felt they had reached an impasse in negotiations with the newspaper, they asked the Ombudsman to condone the lateness of the complaint.
3. 8 In a letter filed with the then Public Advocate Joe Latakgomo on 24 January, 2019, they re-iterated that the M&G’s article had the “effect of diminishing our client’s reputation.”
3. 9 They also argued it was written out of context “in the sense that the writer therein spoke in present tense which any reasonable reader thereof would interpret as a current event having taken place. The incident…was not a recent event.” The amount of money referred to was also incorrect.
3. 10  Mr Makwetla wrote a letter to the M&G “setting the facts straight” to which he received no response. However, the newspaper published it online on 5 October, 2018.
3. 11 The attorneys then wrote  to the newspaper on 23 October, 2018 demanding a “clear right of reply”, or alternatively “publish an article that retracts the unfounded allegations and the defamatory statements”.
3. 12  On 11 November, the attorneys received a reply from M&G deputy editor Beauregard Tromp saying, among other things, that in his view the article was not defamatory.

Mail&Guardian

3.13 In his initial response, Mr Tromp argued that the newspaper had “fully reflected”  Mr Makwetla’s views both in the story itself and in the fairly lengthy right of reply published as a letter. The paper had also offered him an interview. In correspondence with Mr Latakgomo this was confirmed.

3.14 In email correspondence with myself, Mr Tromp, the deputy editor gave a more substantial reply. 

3.15 He said even by Mr Makwetla’s own account, he was offered a bribe.

“He speaks of his initial reluctance and refusal when offered the bribe

(information that was not available to us for the original article).  Regardless, he is left with the moneys concerned, which he then returns at some later stage.”

3.16 “The receipt or possession of said moneys then surely cannot mean anything other than him having received the bribe.” But in the opening sentence of the article, it is reported that he returned the money.  According to the article it was six weeks after this “bribe” was received.  The question mark over this time period is recorded in the quote from Mr Makwetla’s spokesperson, Ntime Skhosana,.

3.17 However, in neither his reply, nor the lawyer’s letter, is the six week period disputed.

3.18 On the questions of balance and fairness, Mr Tromp argues: “The thrust of the article is clearly to discuss the factional battles that were and continue to take place within the ANC. There is a concerted effort to contextualise the state of

play, with supporters of ANC secretary-general Ace Magashule planning a push back against president Cyril Ramaphosa. The article explains that Makwetla's admissions regarding the bribe would  form part of that push back. “

3.19 He argues that political reporting requires “a constant balancing act, with the reporter inevitably finding themselves in conversation with players with clear political intent. It is the task of the journalist and editors concerned to ensure that they remain informed and balanced, to ensure that the reporting is offered without fear, nor favour. At times when popular narratives take hold, this is especially difficult.”

3.20 Mr Tromp argues that the newspaper has “had carefully considered the forces at play within the factional battles of the ANC, and provided a balanced report. This we have done prior to and subsequent to the publication of this report and will continue to do.”

3.21 He also notes that after the article was published the newspaper was contacted by Mr Makwetla. It “immediately” offered him a right of reply “which we published in the very next edition of the newspaper and online, after receipt.”

3.22 There were no further substantive arguments, partly because Mr Makwetla’s attorneys did not respond to my questions as they said he himself was unavailable, being in Parliament, and partly because in its initial response, they re-confirmed they wanted the matter to go for adjudication.

4. Analysis

4. 1  In many senses, the key to understanding this dispute and its dimensions is to be found in the reply of Mr Makwetla published in the Mail&Guardian on 5 October 2018 as a “Letter to the Editor”.
4. 2  In it he says he took the “extraordinary step” of “correcting the inaccuracies” of the article “because I believe the concocted nature of its narrative was not done out of malice or as a deliberate ploy but was as a result of the only information at the reporter’s disposal..”
4. 3  He says he expected the office of the ANC Secretary-General to set the record straight “regarding this unprecedented leak of confidential national executive committee deliberations, and to correct the distortions and insinuations created by them.”
4. 4  He writes that the allegation that he received a bribe and confessed to doing so at an NEC meeting is “absurd”. He says he has never received a bribe and “I will never accept a bribe in my execution of duties as a public office bearer.”
4. 5  He further says the “anecdote” he related to the NEC was part of a political overview in March (2018) at its first ordinary meeting after the ANC’s December elective conference. “It had nothing to do with the recent allegations against Bosasa and some ANC functionaries.”
4. 6  He recounts that how at the meeting he expressed the view that the ANC “needs to approach the problem of corruption in a more proactive, scientific and constructive way. I decried the practice where we continue to be timid to discuss corruption in the part in abstract terms.”
4. 7 To illustrate this point, he related that how, after he was appointed to the premier’s office in Mpumalanga in 2004, he was approached by  “persons in business through a third party offering me an executive case full of money.”.
4. 8  When he refused to accept it, the messenger refused to take it back “but stood up and left in the still of the night.” He says he “panicked” and drove three hours to Gauteng the following morning “anxious to seek protection and advice at ANC headquarters.” He was sent back “to convince the messenger to take that money back. Fortunately he relented and took it back.”
4. 9  “I argued that the party needs to consider devising strategies and conventions to deal with corruption by insulating and protecting its cadres who are deployed in positions of influence from pressures and temptation, I used this encounter as an example of how real the challenge is.”
4. 10 On the Bosasa issue, he says he has issued a media statement about why the payments for services are still “outstanding”.
4. 11 He says he trusts this “factual” account will contribute towards “eliminating smoke and mirrors around the formidable challenge we must confront, of ridding the premier vehicle for the transformation of our country, the ANC, of corruption.”
4. 12 As far as the article is concerned, there is a critical statement in this reply – that is that the apparent attempted bribe occurred in 2004, not in the recent past as indicated by the article.
4. 13 Although the paper was not technically wrong in its rendition of this anecdote, it did not make it at all clear that the incident took place several years before – in 2004. It does not stipulate a date at all but says that this attempted bribe would be “at the centre of debates during the next week’s NEC meeting.”
4. 14 Most of the article is an analysis about the tensions between a broadly Zuma/Magashule “camp” and the then newly elected president Cyril Ramaphosa’s “camp”. The details of this incident do not feature again in the story except insofar as it reports that the “Magashule” group intended to use the alleged benefits to Ramaphosa supporters from Bosasa/African Global Operations for political leverage. Thus it is odd that this anecdote was used as a “lead” into the story when in fact it played little part in the body of the story.
4. 15 I tried very hard to communicate with Deputy Minister Makwetla to give him a chance to put his views before me, but to no avail. The particular attorney in the firm dealing with the matter changed more than once, and when there was a response it was to say the deputy minister was “in Cape Town” and not available. I found this very odd as being in Cape Town – even in Parliament – does not make one incommunicado.
4. 16 The intro to the article was not clearly backed up, and was misleading because the incident was not a recent one. It seems likely that the anecdote was revealed in a discussion not attributable to sources and was not properly checked out or explained by the reporter.
4. 17 That said, it was not completely incorrect, as confirmed by Mr Makwetla himself in the reply published in the newspaper.
4. 18 The fact that Mr Makwetla’s reply was published in some length is already remedy for the oversights and misleading intro the reporter may have used in what is essentially a piece of analysis. Thus I do not see what other remedies can be brought to bear.
4. 19  Moreover, the lateness of the complaint, and the long delays in getting replies both to the Public Advocate’s queries and to mine (I did not get them at all) shows that once Mr Makwetla’s reply was published, the urgency of the complaint faded.

Finding

In the light of the above, the complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven (7) working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Pippa Green

Press Ombudsman

March 31, 2020