Hugh Mbatha vs. Lowvelder

This ruling is based on the written submissions of Adv H. Mbatha and the Lowvelder newspaper.

Adv Hugh Mbatha, municipal manager of the Ehlanzeni Regional Municipalty, complains about three stories in Lowvelder headlined Calls for the immediate suspension of Mbatha (March 12, 2010), Samwu dispute deadlocked (March 19) and Mob chases Mbatha (March 26) – all written by Desireé Rorke.

Citing all three stories together, Mbatha denies that he:

In Mbatha’s reply to the newspaper’s response to his complaint, he adds a few issues other than what he originally complained about. As the newspaper did not have an opportunity to respond to the new allegations and the 14 days restriction has been exceeded, our office could not entertain them.

Amongst these are Mbatha’s denials that he was:

We shall now proceed to look at the merits of the complaint.

The story says Mbatha’s employees accuse him of abuse of power, corruption, tender manipulation and victimization. It adds that Mbatha stood trial on three criminal charges of fraud during 2005 when he was working at the same municipality. Mbatha, who is said to “have” four luxury cars, is also accused of authorizing the payment of his own legal fees (about R500 000).

The complaint with regards to this story comprise of the following:

The story mentions an allegation that Mbatha, in 2006, manipulated a tender to appoint Pasqua Africa Consulting Engineers as project managers for the construction of new municipal offices. It is reported that an evaluation committee suggested another company; Mbatha then appointed a second committee, who recommended Pasqua Africa for the job. The story says that he was suspended for dishonesty but restored to his position by a court interdict in 2008, adding that he faced a disciplinary hearing after returning to work in 2008, but that he was cleared of all charges.

Mbatha says the allegation about tender manipulation is false – a committee handles the tender process through proper adjudication and evaluation procedures.

However, the story bases its reporting on a report by the Forensic Unit in the Office of the Premier, in which Mbatha is held accountable for various irregularities. The fact that he was cleared of all charges does not negate the possibility that his employees could still be suspicious of him – which is what the story is all about.

The story says Mbatha “allegedly” authorized the payment of R500 000 for his own legal fees while the council was still considering his request to this effect. According to the story the speaker, Mr Kerswell Malulke, later “confirmed” that the council had denied Mbatha’s request, saying that “at face value it appeared that Mbatha had in fact paid himself…” By the time the council denied Mbatha’s request, it was too late as the payment had already been made, it is reported.

Mbatha says the mayor and the council approved the payment – the decision was theirs, not his.

Rorke replies that two sources (the speaker and another councilor) told her that the payment of Mbatha’s legal fees was pushed through before the council could decide on it.

With two credible sources it seems reasonable for the journalist to have believed that Mbatha was instrumental in obtaining the money. Besides, Rorke did not state it as a fact – she says Mbatha “allegedly” authorized the payment.

Two days before publication the newspaper did attempt to verify this allegation. Rorke says she received a document in response to her e-mail only after the first article appeared. There is no reason to disbelieve her.

However, this matter will come up again – this time it will be a different story.

The story quotes from a memorandum by Samwu union members, stating that Mbatha “has up to four luxury vehicles” and that he has been seen coming to work in a BMW, a Mercedes-Benz, a Range Rover and a Volvo – adding that Mbatha’s salary might not be able to cover the expenses that these vehicles may incur.

Mbatha says he owns only one vehicle – a Mercedes-Benz sedan.

The newspaper (quite correctly) says Rorke merely quoted the memorandum that states that union members had seen Mbatha coming to work in all these cars, and that the union members questioned it.

Rorke also attempted to verify this allegation.

We shall come back to this issue as well.

This story reports on striking Samwu workers who demanded Mbatha’s suspension.

The issues Mbatha complains about are the following:

The story says Samwu’s memorandum stated that Mbatha appointed staff members at “very high salaries” without interviews or letters of appointment.

Again: The story does not present the statement in dispute as a fact – it merely quotes from the memorandum.

Quoting some placards that the striking workers carried, the intro states: “Suspend the culprit! Away with corruption! Away with Mbatha and away with iwewe (sexual favours)!”

Mbatha says that he is a happily married man and denies having had any kind of sexual contact with any employee.

The newspaper argues that it never accused of Mbatha in this regard – the story merely referred to slogans in the placards that striking members carried.

Again, Lowvelder’s argument is convincing.

The story says that striking Samwu workers at the municipality demanded Mbatha’s immediate suspension and that they allegedly even wanted to physically throw him out of the building. The story also covers a press conference held by Mbatha where he reportedly denied all allegations leveled against him by Samwu workers.

This is what Mbatha complains about:

The story says that Mbatha, at the press conference, denied having favoured employees by awarding them high salaries – this falls outside his jurisdiction (he says salaries are for the National Bargaining Council to decide on).

However, the story (again) quotes from memorandum and the newspaper story covers both sides.

As far as the first story is concerned, the newspaper says it failed in its attempts to verify the issue of the authorization of the payment of Mbatha’s legal fees.

Granted.

However, the true facts did come to the newspaper’s attention later. In a document, dated March 11 (the third story was published on March 26), signed by the Manager: Corporate Services of the Ehlanzeni District Municipality and furnished to the newspaper, the following statement is made: “No, Mr Mbatha did not pay himself for the legal fees incurred by him. Based on the recommendation of the Mayoral Committee, the Executive Mayor wrote to the Department of Finance and Supply Chain Management requesting for the payment to be made.”

The omission of this (essential) information is not explained by Lowvelder. It should have been published, even if the newspaper thought that these statements were in dispute – it was an official response to an official request for information by the newspaper. It had a perfect opportunity to do so in the third story.

The letter by the Manager: Corporate Services (quoted above) also says: “According to Mr Mbatha, it is not true that he owns the luxury cars listed in your questionnaire. He owns a Mercedes Benz sedan and not the others.”

The story also omitted this piece of information.

Rorke’s way of quoting the Samwu memorandum (directly or indirectly) cannot be overlooked:

The following sentence in the story is an example: “We (Samwu) do not intend to disturb the community with this strike action…” Within the context of the story, it is reasonable to assume to come from the Samwu memorandum – but it does not appear anywhere in the (quoted) memorandum.

On the contrary – the following words do appear in the memorandum: “…we are busy preparing an application…for a…legal strike with a view for a total labour blackout and rendering the municipality ungovernable, until such time that our demands are met.”

Rorke explains this discrepancy by saying that the workers initially had (verbally) told her that they do not intend to disturb the community. Later, in the memorandum, they changed their minds, she explains.

That is not good enough. Not only should Rorke have mentioned the fact that those words were not contained in the memorandum, but she also chose to use older (the more militant stance was the latest development) and ignored the latest news. This raises questions as to her motives.

The second paragraph quotes directly from the memorandum. Some words are left out, but it is not indicted as such. For example, the words “corrupt and abuse of power tactics” appear in the memorandum, but not in the quotation. It is in order to leave out words in a direct quotation, but then it must be indicated as such (and it must not change the meaning of the sentence – which, in this case fortunately did not happen).

In the third last paragraph of the first story (that deals with the four luxury cars) some changes between the memorandum and the quotation occur. For example: The memorandum says: “…Mbatha is living large with up to four luxury vehicles…” The (direct) quotation changes the words “is living large with” with “has”. Although this probably does not change the meaning, it still is unacceptable. When quotation marks are used, it should be identical with the first text (or, if changed, it should be indicated as such).

The last sentence of the first story again leaves out words without any indication to this effect.

In this story it is said that the memorandum handed to the municipality contains these words: “…Samwu states that it has consulted in vain with the municipality’s management, which negotiated in bad faith by becoming defensive”. However, there is nothing to this effect in the memorandum furnished by the newspaper to our office.

The following quotation from the memorandum could also not be traced: “We are fed up with the poor administration displayed on a daily basis. Our main focus is on service delivery and the poor communities that are suffering…”

This rather loose way of dealing with direct and indirect quotations is disturbing as it compromises the credibility of the story and of the newspaper.

The complaint about the first two stories is dismissed in its entirety.

The third story: The newspaper did not publish the Municipality’s official response with regards to the authorization of the payment of Mbatha’s legal fees and the latter’s denial that he owned four luxury vehicles. These omissions are in breach of Art. 1.2 of the Press Code which states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

The reckless way of quoting is in breach of Art. 1.1 of the Press Code which states: “The press shall be obliged to report news…accurately.”

Lowvelder is reprimanded for omitting the Municipality’s official response with regards to the payment of Mbatha’s legal fees and the four luxury vehicles as well as for its reckless way of quoting. The newspaper is directed to publish a summary of this finding. Our office should be furnished with this text prior to publication.

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at [email protected].

Johan Retief

Deputy Press Ombudsman