Sekunjalo Investments Ltd vs. Sunday Times

This ruling is based on the written submissions of Mr George van Niekerk from Edward Nathan Sonnenbergs, on behalf of Sekunjalo Investments Ltd, and Susan Smuts, legal editor of the Sunday Times newspaper.

COMPLAINT

Sekunjalo Investments (SI) complains about two stories, headlined Three damning blows for Zuma – Calls for president’s impeachment as reports paint picture of plunder, patronage and rot (front page), and Report slams minister’s R800m fisheries bungle – Recommends stern action against Joemat-Pettersson (page 4), both published in Sunday Times on 1 December 2013.

SI complains that:

• the publication breached the Public Protector Act by prematurely publicizing details of a provisional report;
• because of the above, it was not able to respond to statements contained in this report; and
• the following statements in the stories were inaccurate, misleading and/or unfair:
  • Public Protector Thuli Madonsela’s three damning reports “expose gross misconduct, deceit, unlawful acts and outright corruption” at the highest level of government;
  • These reports show cabinet ministers leaning on their officials to ensure “their cronies land lucrative state-funded deals…and obtaining improper personal benefits… – all at the taxpayers’ expense”;
  • The report on Minister of Agriculture, Forestry and Fisheries Tina Joemat-Pettersson would be “made public on Thursday”;
  • The tender award process (regarding the above) “showed evidence of collusive tendering and/or bid rigging by the Sekunjalo consortium”; and
  • SI chairman “Iqbal Survé has close ties to Zuma” (second story).

THE TEXTS

The first story (written by Thabo Mokone, Caiphus Kgosana, Bobby Jordan and Stephan Hofstatter) said that Madonsela had delivered a searing indictment of Pres Jacob Zuma’s administration in three damning (provisional) reports that exposed gross misconduct, deceit, unlawful acts and corruption at the highest level of government. These reports were about Zuma’s Nkandla home, Joemat-Pettersson, and former communications minister Dina Pule.

The second article, authored by Bobby Jordan, concentrated on the Joemat-Pettersson report, which reportedly revealed that she had wasted taxpayers’ money, had behaved unethically, and had tried to interfere in an investigation into alleged misconduct by her and her department.

ANALYSIS

Illegally, prematurely publishing information

SI complains that Sunday Times breached the Public Protector Act by prematurely publicizing details of its provisional reports.

I submit that SI does not have the standing to complain about this matter. According to Section 1.1 of our Complaints Procedures, somebody can complain on behalf of another person “who cannot act in his or her own name”. Surely, the Public Protector is able to complain about this matter herself – and Madonsela has not done so (neither has she given SI permission to complain on her behalf, as far as my knowledge goes).

Therefore, I can only entertain the aspect of SI’s complaint that specifically concerns the company itself, which is not having been able to respond to statements contained in this report (see the next sub-section).

No chance to comment

SI complains that it “was constrained, prior to publication, to decline to comment in advance of the publication of the article.” In other words, SI could not have responded to the story, because the reports were confidential.

This part of the complaint is about Section 2.5 of the Press Code (publications should obtain comment from subjects of critical reporting prior to publication).

Sunday Times denies that it published the stories without regard to SI’s response, and gives details of its attempts to obtain its comment.

The issue is about SI not having been in a position to comment.

The story made it clear that the reporting was about a draft (read: preliminary, yet to be finalised and released) report. I therefore do not believe that this materially prejudiced SI.

Statements objected to

For convenience sake, I repeat the statements to which the SI objects:

• Madonsela’s three damning reports “expose gross misconduct, deceit, unlawful acts and outright corruption” at the highest level of government;
• These reports show cabinet ministers leaning on their officials to ensure “their cronies land lucrative state-funded deals…and obtaining improper personal benefits… – all at the taxpayers’ expense”;

·                                 The report on Joemat-Pettersson would be “made public on Thursday”;

·                                 The tender award process (regarding the above) “showed evidence of collusive tendering and/or bid rigging by the Sekunjalo consortium”; and

· SI chairman “Iqbal Survé has close ties to Zuma” (second story).

Van Niekerk says that these statements imply that SI was guilty of misconduct, which is exaggerated reporting, misrepresentative of the true position, and contains “a material omission of the true and accurate facts”.

Smuts replies that the stories described the three reports collectively as exposing gross misconduct, deceit, unlawful acts and outright corruption, as well as showing cabinet ministers leaning on officials to ensure that “cronies land lucrative state-funded deals and obtain improper personal benefits at taxpayers’ expense”. She adds that the reference to Sekunjalo (fourth bullet above) was an accurate reflection of the finding in the draft report.

In its response to the newspaper’s reply, SI says that:

• the suggestion of its involvement in collusive tendering and/or bid rigging was misleading in the absence of the fact that Madonsela could not make a definite finding in this regard and instead referred the matter to the Competition Commission (as stated in the final report); and
• the observation that Survé had close ties to Zuma was to suggest that this somehow validated the allegations of gross misconduct, etc. “If [these] statements are wrong, then the ties between Dr Survé and President Zuma are irrelevant in the context of the article.”

(In earlier correspondence, Smuts explains that the follow-up story reflected that the matter had been referred to the Competition Commission.)

My considerations

SI does not have the standing to complain about issues regarding Joemat-Pettersson or government, for the same reason as outlined above.

Therefore, I am not going to entertain the complaint regarding the following statements:

• Madonsela’s three damning reports “expose gross misconduct, deceit, unlawful acts and outright corruption” at the highest level of government;
• These reports show cabinet ministers leaning on their officials to ensure “their cronies land lucrative state-funded deals…and obtaining improper personal benefits… – all at the taxpayers’ expense”; and

·                                 The report on Joemat-Pettersson would be “made public on Thursday”.

This leaves me with only one statement in each story, namely:

·                                 The tender award process “showed evidence of collusive tendering and/or bid rigging by the Sekunjalo consortium” (first story); and

·                                  SI chairman “Iqbal Survé has close ties to Zuma” (second one).

To establish the veracity of the first matter in question, I have obtained a copy of the relevant draft report; I have also asked the newspaper for clarification on the second matter.

This report (that the Sunday Times based its story on) is confidential and I shall therefore refrain from quoting from it. However, I do need to state that I am satisfied that the sentence in question (evidence of collusive tendering and/or bid rigging by Sekunjalo) was indeed justified – the reporter quoted Madonsela correctly from her preliminary report, and also made it clear that the report was not final.

Regarding the alleged “close ties” between Survé and Zuma, Sunday Times says that:

• the Sekunjalo consortium that bought Independent Newspapers was linked to Zuma’s economic adviser, Sandile Zungu;
• the consortium included Lindiwe Barbara Ngcobo, whose business partners include Zuma’s sons Edward and Mxolisi, as well as Zuma benefactor Vivian Reddy and Zweli Mkhize;
• Survé was a regular on South African business dealings abroad, including Zuma’s state visit to the UK and the 2012 business delegation to China, amongst others; and
• Survé was one of five businessmen making up SA’s Brics Business Council. The inaugural meeting, held in Johannesburg last year, was attended by Zuma.

The newspaper adds: “We must emphasise that we did not say Dr Surve and President Zuma shared close personal ties. We submit, however, that the above examples indicate that the two men do have close ties. Various sources have also told our reporter anecdotally that Dr Surve likes to boast about his political connections ‘at the highest level’. And he has a picture of President Zuma on his Twitter account. Dr Surve is also famous for telling people he treated Robben Island inmates.”

Not all of these examples are equally convincing, but when seen in context I do submit that the newspaper was justified in saying that Survé had close ties to Zuma (not “close personal ties”, as the newspaper correctly points out).

I also do not believe that the suggestion in question “somehow validated the allegations of gross misconduct”, as SI argues. Why would “close ties to Zuma” necessarily validate allegations of misconduct?

FINDING

The complaint is dismissed.

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