Thobekile Emelda Gama vs. Sunday Times


Sat, Mar 4, 2017

Ruling by the Press Ombud

4 March 2017

This ruling is based on the written submissions of the firm Ngcingwana Incorporated Attorneys, on behalf of Dr Thobekile Gama, the former Chief Operations Officer of the SAPS medical scheme (Polmed), and those of Susan Smuts, legal editor of the Sunday Times newspaper.

Gama is complaining about a story in Sunday Times of 17 July 2016, headlined Officials ‘lived high life on police medical aid funds’.

The complaint was lodged out of time, but the Public Advocate decided there were reasonable grounds to accept it (based on Section 1.3 of the Press Ombud’s Complaints Procedures).

Complaint                                            

Gama complains the article inaccurately and unfairly stated that she had:

·         been “suspended over allegations of fraud and financial misappropriation involving almost R2-million during local and overseas trips” (regarding International Federation of Health Plans conferences);

·         a corrupt relationship with Metropolitan Health; and

·         manipulated Polmed’s budget, and pocketed money from the scheme.

She adds that:

·         these statements were damaging to her dignity and reputation;

·         Sunday Times had no reason to believe the story was reasonably true;

·         the newspaper made no genuine attempt to obtain comment from her prior to publication, thereby making no attempt to verify its information; and

·         the newspaper has not published a follow-up story on new information which became available.

The text

The article, written by Thanduxolo Jika, said that luxurious overseas trips, expensive gifts and “looting” of police medical aid scheme funds had resulted in the suspension of two top executives and a former high-ranking police officer (Gama). This was reportedly due to “allegations of fraud and financial misappropriation” involving almost R2-million during local and overseas trips.

Jika added that Gama reportedly travelled abroad annually, hosting the International Federation of Health Plans conference. She also “lived it up” at the Cape Town International Jazz Festival and the Durban July on all-expenses-paid trips, staying at five-star hotels and driving a rented car thanks to Metropolitan Health (between 2007 and 2014).

This came to light in a report by the Council for Medical Schemes (CMS).

Gama reportedly declined to comment.

Gama elaborates

Gama says she declared the hospitality gifts described in the article in the relevant Gifts Declarations Register, adding that Polmed withdrew the disciplinary process against her, including all allegations of misconduct, as corroborated by a public statement published on 25 October 2016.

She also says that the newspaper should have published a follow-up story, based on Section 1.9 of the SA Code of Ethics and Conduct, which reads, “Where a news item is published on the basis of limited information, this shall be stated as such and the reports should be supplemented once new information becomes available.”

Sunday Times responds

Introductory comments

Smuts replies that the newspaper would not deal with complaints regarding developments subsequent to the publication of an article (as Gama does), “[a]s we are required only to deal with what was reasonable to publish at the time of publication”.

She also places on record that the newspaper, during the mediation phase, offered to consider a follow-up story to reflect on the developments. However, Gama ignored this offer “[a]nd we regard it as lapsed. In any event, the developments do not invalidate our story,” the legal editor asserts.

Smuts says two sources who were privy to internal communication alerted the newspaper to the suspension of the three executives. She adds that the newspaper confirmed the information with a source at the CMS, and also obtained copies of three investigations by that body which led to the suspension of the executives.

“Our story,” Smuts continues, “as based on the contents and outcomes of the investigations... The information was properly attributed to the reports.”

Suspended over allegations of fraud

Smuts says it is unclear what is being objected to.

She adds: “We reserve the right to supplement our submissions once this is clarified. For the record, the story did not allege that Dr Gama alone was responsible for misappropriation of funds or that the funds were used only for her trips to the International Federation of Health Plans Conferences. We submit there is sufficient detail in the story to explain the variety of people and events involved in the misappropriation.”

Corrupt relationship with Metropolitan Health

Smuts refers to the following section in Polmed’s Report A (headlined, The relationship between Polmed & Metropolitan Health):

“The Metropolitan Report concludes that there is no evidence of a corrupt relationship between any Polmed officers and Metropolitan. We do not agree with this. The fact that these gifts and hospitality were provided to Polmed officers in the amounts that are recorded above, points towards such a relationship. We could not find any justification for Polmed extending the administration agreement without following proper procedure and Polmed not going out on tender, even if just to test the market.

“It is very difficult to take an adverse decision when the officers of the entity that the decision is taken against wines and dines you, send you on overseas trips, pays for your entertainment, etc.

“The monies spent on Polmed officials were considerable. In our opinion these gifts and hospitality, even if not given with the intent to bribe them, had the same effect, namely making it less uncomplicated when difficult decisions had to be taken. When one receives gifts that include funding for an overseas trip or several exclusive functions, it surely cannot be said that decisions will be taken that remain untainted, unbiased or that is not subject to some form of inducement.

“Officers are therefore precluded from making decisions that remain wholly unfettered and therefore lose the ability to make decisions that are not subject to some form of conflict of interest or wholly in the interests of the members of the Scheme, whose interests they have to serve in a completely unbiased manner.”


The legal editor adds, “Furthermore, the details of the conflicts of interest on which we reported are contained in the report. We do not deal with these in detail since the complaint does not take issue with the specific statements in the story.”

Manipulating Polmed’s budget; pocketing money

Smuts refers to the following section in Polmed’s Report B (headlined, Polmed International travel):

“The Scheme paid for attendance of spouses of the executives. This includes their airfare, extra hotel costs and entertainment. In our opinion this is unacceptable and the monies so spent must be recovered from the executives.

“The executives manipulated the budget item and the Travel Policy and took pocket money that the scheme paid for and which we regard as indefensible.

“The executives also stayed on longer than the conference at Scheme cost and the monies so misspent are also recoverable.”


She adds that the story properly attributed the statement in dispute to the report.

No genuine attempt to obtain comment

Smuts denies that the newspaper made no genuine attempt to obtain comment from Gama – she says Jika telephoned Gama ahead of publication and appraised her of the allegations in the CMS report. She asserts, “She declined to comment and said Polmed should respond. We reflected the fact that she declined to comment.”

Gama again

Gama replies that if the Sunday Times relied on a source who leaked the information and was also provided with the CMS investigation reports as basis for the article, why did the newspaper blatantly ignore Polmed’s response to the CMS reports? (She says at that stage Polmed had submitted a substantive response to the CMS reports.)

She also asks why Sunday Times failed to verify the accuracy of the information in its possession and afford those implicated the right to comment prior to publication.   

Gama reiterates that she was not afforded the right to comment fairly – the journalist spoke with her for less than a minute late in the evening at a stage when the article had already been finalised. This, she asserts, was not a genuine attempt by Sunday Times to verify facts and allow her to comment fairly prior to the publication of the article.   

Analysis

Introductory comments

In the main, I agree with Smuts that developments subsequent to the publication of the article should fall outside the scope of the complaint and the adjudication.

A follow-up story, though, is a different issue.  Section 1.9 of the Code makes it incumbent on a newspaper to publish a follow-up article when a story was based on limited information and new information becomes available – irrespective of the wish of the subject of the story.

In other words, Gama cannot decide for Sunday Times whether or not to do a follow-up (which is what Smuts’s argument about the “mediation phase” boils down to) – it is up to the publication to make that decision.

If Polmed, then, has responded to the CMS reports, I would expect the newspaper to report it.

Secondly, the legal editor’s arguments about the newspaper’s sources (people and documentation) as well as the fact that the information was properly attributed to the reports are convincing.

Suspended over allegations of fraud

If there is any evidence that the story inaccurately and unfairly stated that Gama had been “suspended over allegations of fraud and financial misappropriation involving almost R2-million during local and overseas trips” she neglected to provide me with such information.

In light of this, I have no reason to find for her on this specific issue.

Corrupt relationship with Metropolitan Health

Smuts’s reference to a section in Polmed’s Report A, as quoted above, justified the reportage.

Manipulating Polmed’s budget; pocketing money

Smuts’s reference to a section in Polmed’s Report B, as quoted above, justified the reportage.

No genuine attempt to obtain comment

Gama’s argument that the journalist spoke with her when the article was already written does not hold water – it was indeed in time, as her refusal to comment was incorporated into the story.    

Finding

The complaint is dismissed.

The matter of a follow-up story, however, is still outstanding.

Appeal

The Complaints Procedures lay down that within seven 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.

Johan Retief

Press Ombud