Kusaga Taka Consultants vs. Sunday Times

This ruling is based on the written submissions of Bowman Gilfillan Attorneys, for Kusaga Taka Consultants (KT), and the Sunday Times newspaper.

COMPLAINT

KT complains about a story headlined Directors of recycling plan have dodgy past, published on 10 November 2013 in Sunday Times.

The company complains that the story has implied it in alleged wrongdoings by mentioning its name.

THE TEXT

The story, written by Moyagabo Maake, reported that Charline “Charlie” Kirk and Stacey Davidson, who were implicated in a Financial Services Board (FSB) investigation of Kopano Employee Benefits (which is part of Cosatu’s investment arm), were running a multimillion-rand government-sanctioned recycling plan. The journalist added that RTK Attorneys, a law firm that Kirk co-founded, was also implicated in the FSB’s report. Maake mentioned several instances of alleged illegal activities by these parties.

The sentence in dispute read as follows: “According to company records, Kirk’s co-founder at RTK Attorneys, Sam Robertson, is a director of Kusaga Taka Consulting (a company that recycled old tyres), the management company for Redisa (the Recycling and Economic Development Initiative of South Africa).”

(According to Bowman Gilfillan Attorneys, the recycling plan referred to is the Integrated Industry Waste Tyre Management Plan published in terms of the Waste Tyre Regulations 2009 promulgated in terms of the National Environmental Management: Waste Act 59 of 2008. “The recycling plan clarifies objectives and processes for waste tyre management.”)

ANALYSIS

The arguments

KT complains that, by the mere mentioning of its name in the story, the company has been implied in alleged wrongdoings.

It argues that the story forged a link between itself and instances of wrongdoing attributed to the various other parties mentioned in the story. “No other purpose could be served by mentioning [KT] in the article” – it conveyed the message that the company was tainted by Kirk’s and Davidson’s “dodgy past”.

KT concludes that the story cast aspersions on its integrity and says it considered the article to be defamatory.

Sunday Times replies that the story was factually correct and that it did not attribute any wrongdoing to KT. It also argues that no apology or correction therefore was needed.

Attempts to mediate the matter

KT contends that, if Sunday Times did indeed not imply any wrongdoing, it should allow for a different interpretation and publish the following: “Nothing contained in the article entitled ‘Directors or recycling plan have dodgy past’ was intended to be defamatory of Kusaga Taka Consulting and any interpretation to that effect is incorrect and was never intended. The Sunday Times regrets any inconvenience occasioned to Kusaga Taka Consulting and Mr Sam Robertson as a result of the article.”

The newspaper rejects this proposal.

I then wrote to Bowman Gilfillan Attorneys and Sunday Times, saying that both parties have a valid point, and proposed the following text:

“Nothing contained in the story headlined Directors or recycling plan have dodgy past (published on 10 November 2013) was intended to be defamatory of Kusaga Taka Consulting and any interpretation to that effect is incorrect and regrettable.”

To my mind, this was a golden mean – it should have satisfied KT, while at the same time the newspaper did not admit that it was in the wrong.

KT accepted this proposal, but not the newspaper.

The latter said: “There has not been a breach of the Press Code… Not one of the statements that mention Kusaga say or imply that there has been any wrongdoing by the company.  Kusaga has been mentioned only to illustrate the relationships that link Charlie Kirk and Redisa. It is an unembellished statement of fact. Kusaga’s reading of alleged wrongdoing is…a wilful misreading of what the story says. Furthermore, there is legal precedent that says a non-defamatory interpretation should be preferred to a defamatory one… We are also not willing to open ourselves to publishing disclaimers for what we didn’t say. Where we are in breach of the Press Code, we will make amends…but we submit it would be grossly unfair for us to have to publish disclaimers if someone reads something into a story which is not there.”

My considerations

My first comment is a general one: The mere correctness or accuracy of a statement does in itself not guarantee that the Press Code is not breached – in certain cases, a correct statement may at the same time be unfair.

A case in point is my ruling on 19 July 2012 in the matter between Neil Diamond and The New Age. The story said that Diamond had been at the centre of a multimillion-rand land scandal several years ago. This statement was true, but unfair because the journalist neglected to state that he was greatly exonerated.

Now, back to the case at hand.

The accuracy of the disputed part is not in dispute; the fairness thereof is. This is why I initially said that both parties have a valid point: From the newspaper’s perspective the story was fair as it did not intend to imply any wrongdoing on KT’s part (and the information was correct); from the latter’s perspective it was unfair as the “story forged a link between the company and instances of wrong-doing attributed to the various other parties”.

I accepted both these arguments as valid from each of their respective perspectives. That is why I proposed a settlement that would satisfy KT, without asking the newspaper to admit that its story was wrong or unfair.

However, I now need to take this matter one step further – looking away from both parties’ perspectives, and focusing on that of the readers.

These are the questions: Was it reasonable for the normal reader to have thought that;

• the story linked KT to instances of wrongdoing; or
• Kusaga had been mentioned only to illustrate the relationships that linked Kirk and Redisa?

The answer to these questions will determine how reasonable it was for the newspaper to have mentioned KT’s name in the story.

In order to come to a responsible and sensible response to this question, I first need to look at the context (which is provided for in Section 2.2 of the Press Code) as that is as important as text.

This is how the story developed up to the mentioning of KT:

• Three years ago Kirk and Davidson were investigated for the alleged theft of employee retirement funds;
• Now they were running a multimillion-rand government-sanctioned recycling plan (Redisa);
• They were implicated in a FSB investigation of Kopano – which was part of an investment of Cosatu that allegedly stole more than R123-million;
• Davidson was Kopano’s operations executive at the time;
• RTK Attorneys, a law firm co-founded by Kirk, was also implicated in the FSB’s report, “suspiciously” having received R21.87-million from the fund; and
• Kirk and Davidson were also executive directors of Redisa.

This whole part was clearly about all sorts of alleged wrong-doings.

Then, after the mentioning of KT, the story continued in the same vein.

My first conclusion, therefore, is that the context provided by the rest of the story could only have pointed to a possible negative inference regarding KT. When seen in isolation, this fact may have amounted to unfair reporting.

However, I also need to keep other contexts in mind. That is why I (deliberately) said “possible negative inference”, as the story also did not explicitly state or even allege any wrongdoings on KT’s part.

Secondly, I have little doubt that the newspaper was justified to have mentioned that Kirk and Davidson were at the time of publication executive directors of Redisa. In fact, that was the whole point of the story – after having raked up (part of) their respective pasts regarding Kopano and RTK Attorneys, the story pointed out that these same people were now running Redisa.

I note that KT did not complain that the story mentioned Redisa – it only complained about the reference to KT (as Redisa’s management arm).

Given this specific perspective and context alone, it is hard to argue that Sunday Times was justified to have mentioned Redisa, but that it was wrong to have remarked on its management company – especially as Kirk’s co-founder at RTK Attorneys (Sam Robertson) was a director of KT.

I submit that the normal reader would have interpreted the mentioning of KT’s name in this way as well.

My conclusions

I conclude that the:

• broad context of the story made for a possible negative inference towards KT;
• story itself did not make such an explicit link;
• journalist was justified in mentioning that Kirk and Davidson were running Redisa; and
• mentioning of KT’s name as the management company of Redisa was also reasonable, especially as one of its directors was a co-founder of RTK Attorneys.

FINDING

The complaint is dismissed.

Despite this finding, I still believe that the publication of my proposal would do Sunday Times no harm, while it would do KT a world of good. I therefore leave this matter up to the newspaper’s good editorial staff to decide for itself whether to publish it or not.

APPEAL

Our 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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman