Solly Mokoetle vs. Sunday Times

This ruling is based on the written submissions of Mr Jurgens Bekker, attorney for Mr S. Mokoetle, and the Sunday Times newspaper.

Mr Solly Mokoetle, former chief operations officer of the SABC, complains about a front page lead story in Sunday Times of January 3, 2010, headlined Fresh crisis rocks SABC – New board members vow to challenge imposition of CEO and written by Charles Molele.

The gist of the complaint is that the article in dispute creates the impression that Mokoetle was involved in the crime of fraud and/or corruption that “might” have been committed, whereas the Gobodo report (on which the article is mainly based) does not suggest it at all.

Mokoetle says the following (parts of) sentences are in breach of the Press Code:

The complaint continues:

The relevant articles in the Press Code state:

Art. 1.1: “The press shall be obliged to report news truthfully, accurately and fairly.”

Art. 1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts, whether by distortion, exaggeration or misrepresentation, material omissions or summarization.”

Art. 1.3: “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinions, allegation, rumour or supposition, it shall be presented in such a manner as to indicate this clearly.”

Art. 1.4: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.”

Art. 1.5: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication…”

Art. 1.9: “News obtained by dishonest or unfair means, or the publication of which would involve a breach of confidence, should not be published unless a legitimate public interest dictates otherwise.”

The story is about the appointment by the SABC’s outgoing interim board of Mokoetle (the former Chief Operations Officer) as the new boss of the public broadcaster. It is stated that the Gobodo report was unfavourable towards Mokoetle and that “angry members” of the new board would challenge his appointment.

The purpose of the Gobodo report was “…to investigate alleged irregularities in the commissioning process of certain productions, sourced from identified production companies.”

We shall now take a look at the merits of the complaint. We start with the (parts of) sentences in dispute, after which we shall address the gist of the complaint.

Mokoetle says this statement is untrue, inaccurate and unfair, as he remained COO until the expiry of his contract on December 31, 2006 – over two years after the Gobodo audit was completed. He says it also distorts, exaggerates and misrepresents the facts. He adds that the journalist had documentation in his possession that states this fact.

Sunday Times says it accepts that Mokoetle remained COO until his contract expired and is willing to correct the story in this regard.

Noted.

Mokoetle says the statement that he was escorted out of the SABC building is neither true, accurate, nor fair as he remained in the service of the SABC until his contract expired (at the end of 2006). It is therefore a distortion, exaggeration and misrepresentation of the facts, which cannot be reasonably true.

The newspaper says it got its information from two independent senior sources at the SABC. However, Sunday Times admits that it did not put this issue to Mokoetle and says it is willing to publish his denial to this effect.

The following should be kept in mind:

I cannot decide whether or not Mokoetle was indeed escorted out of the building or not. This is not a court of law. The question is how responsible the newspaper reported. Based on the first and third remarks above, it is reasonable for Sunday Times to report the way it did.

Mokoetle says this statement is not true, accurate or fair – those words are not used in the Gobodo report and therefore constitute an opinion and a deduction on the journalist’s part. He says the phrase “corporate duties” is also not contextualized, as the allegation only relates to the purchasing of programmes.

Sunday Times says that although the Gobodo reports did not use the phrase in dispute (“badly failed”), it was an accurate reflection of the report. The newspaper says the report quoted the minutes of the Operational Executive Committee of January 22, 2001, which stated that the COO is accountable for all the governance issues relating to purchasing of programs. According to the newspaper this means that breaches that took place on Mokoetle’s watch were his responsibility.

It is clear that the Gobodo report mentions on several occasions that Mokoetle, amongst others, was at least partly responsible for some questionable commissioning of programs. In the context of the whole report, it is therefore reasonable to accept that Mokoetle indeed failed in his “corporate duties” – even though:

As the purchasing of programs is part of Mokoetle’s “corporate duties”, the use of this phrase is not inaccurate.

“The report also found that a list of companies had received preferential treatment in the awarding of productions by corrupt SABC employees” (emphasis added)

Mokoetle says that the Gobodo report made no finding with regards to “corrupt” employees and there was no disciplinary enquiry on this issue. Also, the reference to a “suspicion” that the relevant crimes “may” have been perpetrated is misleading – based on suspicions, the newspaper pronounced judgment on SABC employees.

In its reply, the newspaper quotes from the report: “We conclude that the available evidence supports a suspicion that the crimes of fraud and/or corruption may have been perpetrated in the commissioning of productions investigated by ourselves.”

The fact that the Gobodo report does not use the word “corrupt” is irrelevant – the question is if that word is an accurate reflection of what is contained in the report itself. According to the sentence quoted by the newspaper itself, it is not a fact but a suspicion that crimes “may” have been committed – yet it is stated as a fact in the story that the report found that “corrupt” SABC officials were at work. Mokoetle is therefore correct: the newspaper called SABC employees corrupt based on suspicions, but stated it as a fact.

In the meantime the Gobodo report did not find anybody guilty – it merely recommended that disciplinary action may be considered (due to a disregard for the prescribed policies and procedures contained in the Commissioning Procedures).

The reference in the story to a “suspicion” that the relevant crimes “may” have been perpetrated is not misleading – it is a quote from the Gobodo report.

Mokoetle says a Labour Court Judgement states that the SABC was barred from taking action against him as a result of the Gobodo report. He adds that the journalist received a copy of this judgement – the reporter was therefore either negligent or he intentionally departed from the facts.

Sunday Times argues that the Labour Court judgment had scant bearing on its story – the court dealt with procedural issues rather than the merits of disciplinary procedures or the Gobodo report itself. The newspaper however admits that it was true that the Labour Court ruling would have precluded the board from taking action against Mokoetle.

It must be constituted as an omission on the newspaper’s part not to mention the fact that a Labour Court Judgement barred the SABC from taking action against Mokoetle. As it stands, the proper context of the Court Judgement is not taken into account, leading to an unbalanced sentence.

Mokoetle says it was unfair and unsubstantiated to present it as a fact that the Gobodo report was “damning” to him. The fact that the SABC did not act against him but, instead, renewed his contract should also have been mentioned in the article.

The newspaper says the fact that no damning consequences emanated from the report is irrelevant – the Gobodo investigators said there was prima facie evidence of “possible collusive tendering and/or unlawful conduct or irregularities”. Their recommendation was that the SABC consider to make the report available to either the Commercial Crime Unit or to the Scorpions. They also recommended that contracts for which they had not been provided relevant documentation be subjected to further scrutiny, and that the SABC should investigate appropriate civil remedies. The newspaper says these conclusions are indeed damning.

The report itself, in its conclusions, found wrong-doing on several counts. For example:\\

The report is damning, for sure.

As Mokoetle was at least partly responsible for dubious decisions with regards to the commissioning of programs, it is not unreasonable to call the report “damning” with regards to him.

Mokoetle says cannot be in the public interest to print confidential information when the very source of the report did not and cannot (due to a High Court decision) act upon it.

The newspaper says it strongly disagrees that the Gobodo report is not in the public interest – taxpayers fund the corporation and people have a real and pressing right to know when their money is misused or when procedures are not properly followed.

Correct. As Mokoetle was part of that report, Sunday Times was within its rights to report on him, whether it included confidential information or not.

The complaint states that Mokoetle was not given a right of reply to the negative allegations about him in the story. According to Mr Bongani Dlodlo, Bekker’s colleague, the reporter failed to give sufficient detail about the intended story – this lack of pertinent questions led to him (Dlodlo) issuing a bare statement of denial.

Sunday Times says its reporter tried for more than a week prior to publication (telephone and SMS) to get hold of Mokoetle. The attempt to contact him via the SABC’s spokesperson was also unsuccessful. However, the newspaper says the reporter put all material allegations in the story (with one exception) to Dlodlo, whose response on behalf of Mokoetle was reflected in the story.

This part of the complaint is frivolous. Dlodlo himself admits that the reporter did give him a right of reply (albeit insufficient, according to him). Dlodlo’s remark that the reported failed to ask pertinent questions is up for debate as it is a matter of interpretation.

The benefit of the doubt goes to the newspaper.

Mokoetle says the story creates the impression that he was involved in the crime of fraud and/or corruption that “might” have been committed, whereas the Gobodo report (on which the story is mainly based) does not suggest it at all.

I have already found that the Gobodo report indeed holds Mokoetle at least partly accountable for dubious decisions with regards to the commissioning of programs.

It was unfair, untruthful and inaccurate to report that Mokoetle left the SABC in a huff as he remained COO until the expiry of his contract – over two years after the Gobodo audit was completed. It is therefore in breach of Art. 1.1 of the Press Code

This part of the complaint is dismissed as it was not unreasonable or irresponsible reportage.

This part of the complaint is dismissed as Mokoetle was held at least partly responsible for some questionable commissioning of some programs and as that was part of his corporate duties.

The word “corrupt” is presented as a fact, while the Gobodo report is much more nuanced (the report says a “suspicion” is supported that fraud and/or corruption “may have been perpetrated”). It is found that the newspaper pronounced judgement on SABC employees based on suspicion, breaching Art. 1.2.

The statement that neither the Eddie Funde-board nor the next board acted on the report is misleading as it omits the undisputed fact that a Labour Court Judgment barred the SABC from taking action against Mokoetle. This omission does not take this specific context into account, leading to an unbalanced sentence. This amounts to a breaching of Art. 1.2.

As Mokoetle’s name was mentioned, amongst others, in connection with debatable commissioning of programs, it was not unreasonable to call the report “damning” with regards to him. This part of the complaint is therefore dismissed.

The Gobodo report was in the public interest; Mokoetle was part of that report. Sunday Times was within its rights to report on him. This part of the complaint is dismissed.

This part of the complaint is dismissed.

This part of the complaint is dismissed.

Sunday Times is directed to publish a retraction and an appropriate apology with regards to the following statements:

Sunday Times is directed to balance the statement that no board acted on the Gobodo report with the Labour Court’s judgment that barred the SABC from taking action against Mokoetle.

The newspaper is directed to publish a summary of this finding. Our office should be furnished with the 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