Bongumusa Ntuli vs. Ilanga

This ruling is based on the written submissions of Mr Bongumusa Ntuli, former municipal manager of the Jozini municipality (on the northern coast of KwaZulu-Natal), and those of Eric Ngobe, editor of the Ilanga newspaper, as well as on an informal meeting held between me and them in Durban (on November 25). Also present at this discussion was Ms Lulama Mbatha, financial manager at a commercial bank.

COMPLAINT

Ntuli is complaining about an article published in Ilanga on 30 October 2014, headlined ILANGA lisazobenekela izwe omasipala abenza inkohlakalo (ILANGA will expose corrupt municipalities).

He complains that Ilanga has published:

• unsubstantiated and misleading allegations from sources who have not been tested in a court of law – which have caused harm to his reputation (and to others);
• several incorrect statements (details below); and
• incorrectly that he and other managers refused to co-operate with investigators.

THE TEXT

The story, written by Thami Shangase, said councilors at Jozini municipality should confess and accept Ilanga’s efforts to expose theft of taxpayers’ money, favoritism in issuing tenders, mal-administration and victimization of workers who exposed the corruption.

The provincial Department of Co-operative Governance and Traditional Affairs (Cogta) reportedly contacted the Jozini council about the corruption, “most of which had been exposed by ILANGA the previous year”. Ms Nomusa Dube-Ncube, the responsible KwaZulu-Natal MEC, reportedly gave the municipality a deadline of 21 days, by which time somebody had to be arrested in relation to the corruption.

Shangase wrote that Municipal Manager Ntuli, CFO Siphindile Ngiba and the Director of Technical Services, Mr Sibusiso Hlatshwayo, had all resigned.

He added the independent auditing firm Deloitte had uncovered that the allegations were true, estimating that an amount of approximately R92-million could not be accounted for.

FURTHER DOCUMENTATION PRIOR TO THE MEETING

The complaint in more detail   Ntuli says the story: failed to report that, following resignation letters served on April 29 and 30 respectively, the municipality decided to suspend the managers on May 16 after failed attempts to persuade them to stay; misleadingly stated that the top managers had refused to provide information to investigators – while they had given the auditor-general (AG) and Cogta well-prepared files; undermined the rights of people to be regarded as innocent until proven guilty, failed to provide factual, accurate and balanced reporting, undermined the findings of the AG; and amounted to defamation that cast doubt on his credibility and morals, and jeopardized his career.   Ilanga’s response Ngobe says that Ilanga investigated the affairs of Jozini municipality after it had been tipped off about allegations of corruption. The newspaper managed to locate a source who was willing to give it a number of documents on tenders awarded by the municipality. “We then had a series of articles published with regards to dodgy tenders and we further sent our journalists to the area to investigate more. To our shock we discovered that in fact some of the projects in which state money was paid in fact did [not] even exist.” For a month Ilanga continued exposing these matters, to a point where the municipality refused further co-operation with the newspaper. Ngobe adds that Dube-Ncube later instituted a probe into the municipality. She stated that the municipality was plagued by corruption and recommended that a number of senior managers be criminally charged. The editor says the newspaper does not have the MEC’s investigation report in its possession – “but the information we received from our sources suggests is that it contains the bulk of the things the paper had reported about”. Ntuli again In his reply to Ilanga’s response, Ntuli adds some new elements to his complaint. I am not entertaining these, and shall focus only on issues to which the newspaper had the opportunity to respond. He says that: out of ignorance, Ilanga could not properly interpret the information provided by its sources; on 2 December 2013 the municipality received an unqualified AG opinion; the newspaper never saw the investigation report; and the publication cannot provide proof of the R92-million that was allegedly misspent. He concludes that the onus must be on the newspaper to provide proof of the allegations, and especially to explain where the “misleading millions” came from.

AT THE MEETING

After having agreed on a translation of the story (from isiZulu to English), we discussed the article sentence by sentence. I shall concentrate on the more serious matters causing Ntuli’s unhappiness and then comment on them (presented in boxes).

• The sentence: “[the] Department of Corporate Governance and Traditional Affairs (Cogta) informed all the councilors about the shameful acts of corruption of senior officials at the municipality…”

Ntuli said the story referred to “the shameful acts of corruption” as fact and not as an opinion.

When read in context, the reasonable reader would have understood that it was Cogta, in its press release, making the reference to corruption at Jozini municipality – Ilanga merely acted as the messenger in this instance.

• The sentence stating that Ntuli had “abruptly resigned” from the municipality.

He said this statement was false and misleading – he did not resign, and his attempt to do so was not “abrupt” either.

Here are the facts: Ntuli resigned at the end of April, but the municipality did not accept his resignation. It was then agreed that he would continue in his job (which meant that he withdrew his resignation), but during the month of May the municipality suspended him. Therefore, technically he did not resign. (The question of whether or not he was unlawfully dismissed falls outside the scope of my mandate.) I take into account that these developments took place months before the story was published. Therefore, there is no excuse for Ilanga not to have taken cognizance of precisely what had happened. However, even though the reference to his resignation was wrong, I do not believe that this in itself has caused Ntuli unnecessary harm – in fact, he did attempt to resign. It is the use of the word “abruptly” that concerns me more. This carries the undertone or suggestion of some sort of wrongdoing on his side. Yes, somebody may resign “abruptly” without such a suggestion – but when interpreted within the context of the story, it can only be understood that Ntuli’s “resignation” was due to dubious circumstances of some kind. While he may or may not be guilty of misconduct, it was not for the newspaper to suggest that this might have been the case.

• The sentence: “It is estimated that about R92-million cannot be accounted for.”

Cogta’s press release reads: “It is believed that…the municipality may have been prejudiced by irregular expenditure estimated at a value of R92-million.” Ilanga’s argument holds water – even if the amount of R92-million is wrong, the information came from an official press release. Again, the newspaper was merely the messenger.

• The sentence stating that the managers had “failed dismally” in handling the programmes of giving co-operatives “money vouchers”.

Ntuli said there was no such thing as “voucher projects” – which means, of course, that the managers could not have “failed dismally” in this regard.

Ngobe admitted that Cogta’s press release did not mention “money vouchers”, but he argued that previous newspaper reports did.

The fact that other stories referred to money vouchers cannot justify the use of a term that is incorrect. The editor’s only defence on this issue was that other articles had used this term – which is not a strong argument (as other stories cannot be primary sources). I therefore take Ntuli’s word on this matter.

• The sentence: “The Department sent investigators, but they were not welcomed or helped because the officials refused to hand in the financial books.” (Emphasis added.)

Ntuli denied that this statement was true.

Ngobe admitted that this was not part of Cogta’s press release, but argued that the statement in question was based on previous stories. He also emphasized that the use of the word “officials” did not necessarily refer to Ntuli.

Again: The fact that other stories referred to a refusal to hand in the financial books cannot justify the use of this statement. Also, even if the more generic term “officials” was used, I do believe that, given the context, the reasonable reader would have interpreted this statement as inter alia referring to Ntuli – which, I believe, could have caused him unnecessary harm.

• The sentence stating, “[it] is said that the managers ran away like ticks from a dog bitten by a snake when the investigation started”.

Ntuli denied that this statement was true; the editor argued that it had been based on the views of sources (admitting that it was not in Cogta’s press release).

The phrase “it is said that” appeared in previous sentences which, on all counts, referred to Cogta’s press release – and not to information gleaned from sources. The reasonable reader, therefore, could not have been expected to understand that the statement in question had been derived from “sources” and would invariably have thought that this statement came from Cogta. The story should have provided clarity – in the absence of which the reporting was misleading, and had most probably caused Ntuli some unnecessary harm.

• The sentence reading: “When [Ntuli] saw that Ilanga was ignoring him, he bought advertising in another newspaper…”

Ntuli said that, while he was present in the meeting where such a decision had been taken, he was merely implementing a decision taken not by him, but by the mayor and other officials.

The statement in question was accurate – but accuracy does not always guarantee fairness. The story strongly suggested that he had taken the initiative to buy advertising elsewhere – while (ironically) this time he was merely the messenger…

• The sentence stating that the municipal coffers “became like a cow carcass that had died of an unknown illness where everybody cut where they like without being questioned by anyone”.

Ntuli complained that this sentence was presented as fact, while the editor argued that it was “figurative language” which a publication was “allowed to use”.

I take into account that the sentence in question followed from the previous one, which clearly was about the result of the investigation that had been the focus of Cogta’s press release (and of the story). When seen in this context, I accept that Ilanga was “allowed” to use the words in question.

• The sentence: “An investigation by Ilanga was confirmed by the company during the investigation that the municipality did not follow guidelines in issuing out tenders to…Mafihleni Engineerings and Project Managers.”

Ngobe explained the “company” referred to Deloitte. However, the editor admitted that the newspaper had not seen the report itself, but had relied on a source for this piece of information.

Ntuli also said that “Mafihleni” should have read “Mafahleni”.

The story was misleading on this issue, as it created the false impression that the reporter had verified this information from the report itself, while in fact he was using unverified data gleaned from a source. I accept that “Mafihleni” was a typing error.

• The sentence stating that Mafahleni Engineerings and Project Managers had “received a tender of R489 920-million…”

The amount should have read approximately R4.9-million. Journalists should be careful when it comes to amounts (and percentages, etc.)…

• The sentences: “The issuing of the tender for fixing Organizational Performance Management Framework was unlawful. The company that got the tender was paid R483 450-million…”

The editor explained that this information came from a source, and not from Cogta’s press release. He added that the newspaper had documents to prove the veracity of these statements.

I shall return to the matter of basing statements on sources under the heading “General Comments”. The story is rather confusing on this point. From documentation provided to me by Ilanga, I figure that the company that got the tender for R483 450 (not R483 450-million, as the story incorrectly stated) was Mafahleni Engineerings. Also, there is nothing in this documentation suggesting that the issuing of the tender was unlawful. See also the related argument below.

• The sentences: “(The company that got the tender was given seven days to decide whether or not it accepts the tender.) Before the seven days were over the municipality had already started paying for this work.”

Ntuli denied this; the editor gave me documentation to prove the veracity of the statement.

The facts are as follows: The municipality awarded the contract to Mafahleni Engineerings on 18 April 2013; No mention of seven days was made in this document; Mafahleni Engineerings accepted the contract on April 23; and A payment to this company followed on April 26. This means that the sentence in dispute is untrue – the first payment was made eight days after the contract had been awarded, and also after it had been accepted. The issue here is not the seven or eight days, but rather that the story left the reader with the impression that something untoward had been going on. Based on the documentation at my disposal, I believe that such an impression was both inaccurate and unfair.

• The sentence: “There was over-expenditure on taxpayers’ money used for renovating halls.”

Ntuli denied this; Ngobe gave me documentation to prove the veracity of the statement.

These documents referred umpteen times to amounts spent for the renovation of halls. However, I do not know what the budget entailed, which means that I am not in a position to make a decision in this regard.

GENERAL COMMENTS

Firstly: At the meeting Ntuli said that Ilanga never asked him for comment, and argued that the story might have been accurate and fair if the newspaper had done so. Ngobe denied that the publication was in breach of the Press Code for not asking Ntuli for his side of the story.

Newspapers should not ask people who are involved in a court case for their views, as this may influence court proceedings. However, when a story is about a report, such as the one in question, there are no hard and fast rules – it is up to the newspaper to decide what to do on the merits of each case.

I submit that, if a report puts a subject in a bad light, and the gist of the story is about this person, it certainly is in the spirit of the Code to ask him or her for comment. The Preamble to the Code warns newspapers not to cause subjects unnecessary harm and does so for a reason.

Also, Sect. 2.5 states: “A publication shall seek the views of the subject of critical reportage in advance of publication…” Again, the intention of this provision is: Ask the subject for comment if he or she may be unnecessarily harmed by the story (hence the term “critical reportage”).

In my judgment, Ilanga should have asked Ntuli for comment.

That is why I asked Ngobe at the meeting if the newspaper had published a follow-up story (in which his comments were published). The answer was “no”. If it had done so, I would have ruled in Ilanga’s favour on this issue.

Secondly, the story was quite confusing in that it was about a report, but in a few instances statements were based on sources – without making that clear. This has left the false impression that the views of sources were in fact part of the report.

FINDING

Ilanga is in breach of Sect. 2.1 of the Press Code (“The press shall take care to report news truthfully, accurately and fairly”) for making the following statements:

·        Ntuli had “abruptly resigned” from the municipality;

• Managers have “failed dismally” in handling the programmes of giving co-operatives “money vouchers”;
• The Department sent investigators, but they were not welcomed or helped because the officials “refused to hand in the financial books”;
• The managers ran away like ticks from a dog bitten by a snake when the investigation started;
• When Ntuli saw that Ilanga was ignoring him, he bought advertising in another newspaper;
• An investigation by Ilanga was confirmed by Deloitte, namely that the municipality did not follow guidelines in issuing tenders to Mafahleni Engineerings and Project Managers;
• The misspelling of Mafahleni as Mafihleni;
• Mafahleni Engineerings and Project Managers had received a tender of R489 920-million;
• The issuing of the tender for fixing Organizational Performance Management Framework was unlawful;
• The company that got the tender was paid R483 450-million; and
• Before the seven days were over the municipality had already started paying for this work.

The newspaper is also in breach of Sect. 2.5 of the Code, as stated above (under “General Comments”).

The rest of the complaint is dismissed.

SANCTION

Not all of the above-mentioned breaches of the Press Code are equally serious. This will reflect in the sanction that is to follow.

Ilanga is directed to apologise to Ntuli for stating that he had:

• abruptly resigned from the municipality;
• run away like ticks from a dog bitten by a snake when the investigation started; and
• bought advertising in another newspaper when he saw that Ilanga was ignoring him.

The newspaper should also apologise to Ntuli for not asking him for comment.

Ilanga is reprimanded for stating that:

• managers have “failed dismally” in handling the programmes of giving co-operatives “money vouchers”;
• investigators were not welcomed or helped because officials refused to hand in the financial books;
• an investigation by Ilanga was “confirmed” by Deloitte (that the municipality did not follow guidelines in issuing tenders to Mafahleni Engineerings and Project Managers);
• Mafahleni Engineerings and Project Managers had received a tender of R489 920-million;
• the issuing of the tender for fixing Organizational Performance Management Framework was unlawful;
• the company that got the tender was paid R483 450-million; and
• before the seven days were over the municipality had already started paying for this work.

The newspaper is directed to correct the misspelling of Mafahleni.

Ilanga should publish this finding and sanction prominently and furnish our office with the text prior to publication. Please add to the text: “Visit www.presscouncil.org.za for the full finding.”

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