City of Tshwane (Office of the Executive Mayor) vs. The Citizen

SUMMARY

The headline to the story in dispute read, Sixth of Tshwane’s budget spent on ‘illegal contracts’ (published on 27 January 2016).

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

 

The article quoted the Auditor-General’s Management Report, stating that if had been found that irregular expenditure amounted to R4-billion in Tshwane – the most recorded in any metro. This amounted to a sixth of Tshwane’s operating budget, the DA reportedly claimed. The story mentioned some examples of irregular expenditure.

The report made it clear that the final AG report had not yet been made public, which was why neither the AG nor Tshwane would comment on the matter.

The City of Tshwane complained that the:

• newspaper did not ask it for comment – instead, it intentionally withheld information, which led to the following false statements (all with reference to a final report by the AG):
  • The AG found that a sixth of Tshwane’s budget was spent on illegal contracts;
  • Irregular expenditure amounted to R4-billion;
  • The City failed to disclose R2.38-billion of irregular expenditure; and
  • The AG was in breach of the Municipal Finance Management Act for a delay in tabling the report (while the report was delivered on time).

Tshwane added that the journalist and her publication were malicious and / or negligent.

Retief dismissed the complaint, mainly because:

• the newspaper did ask Tshwane for comment;
• the article consistently made it clear that the information had been garnered from a media briefing held by the DA. If the latter’s information was wrong, Tshwane could take up the matter with the DA – in this instance, The Citizen was merely a messenger; and
• he could not find any ground that the publication had been malicious or negligent in this matter.

 

THE RULING ITSELF

This ruling is based on the written submissions of the Executive Mayor of the City of Tshwane, Kgosientso Ramokgopa, and those of Antoinette Slabbert (whose reportage is often used by The Citizen).

Complaint

The City of Tshwane (Tshwane) is complaining about a story in The Citizen of 27 January 2016, headlined Sixth of Tshwane’s budget spent on ‘illegal contracts’.

Tshwane complains that the:

·         newspaper did not ask it for comment – in fact, it intentionally withheld information, which led to the following false statements (all with reference to a final report by the Auditor General, the AG):

·         The AG found that a sixth of Tshwane’s budget was spent on illegal contracts;

·         An amount of R4-billion was irregular expenditure;

·         The City failed to disclose R2.38-billion of irregular expenditure; and

·         The AG was in breach of the Municipal Finance Management Act (MFMA) for a delay in tabling the report (while the report was delivered on time).

Tshwane adds that, given all of the above, the journalist and her publication were malicious and / or negligent.

The text

The article, written by Antoinette Slabbert and quoting the AG’s Management Report, said that AG Kimi Makwetu had found irregular expenditure amounting to R4-billion in Tshwane – the most recorded in any metro. This amounted to a sixth of Tshwane’s operating budget, the Democratic Alliance (DA) reportedly claimed. The DA mayoral candidate for Tshwane, Councillor Solly Msimanga, told a media briefing, “The amount included R2.38-billion of irregular expenditure the city failed to disclose that was only discovered during the audit”.

The story mentioned other examples of irregular expenditure.

Slabbert made it clear that the final AG report had not yet been made public, which is why neither the AG nor Tshwane would comment on the matter.

The Citizen responds

Not asked for comment; withholding information

Tshwane complains that The Citizen did not ask it for comment – in fact, it says it intentionally withheld information from the City (which led to incorrect statements).

Slabbert replies that on January 20 she sent Tshwane’s spokesman, Selby Bokaba, an e-mail, enquiring about the delay in the finalization of the AG’s report and the finding in the Management Report of a conflict of interest in a contract. Later that day, she sent him a screenshot of the specific page in the Management Report. She says he replied that Tshwane would revert back to her, but by the end of that day she had not received any response.

She then phoned Bokaba, who advised her to contact the AG and confirmed that the final report was not yet available.

Slabbert says she did not approach Tshwane for comment on the AG’s final report, as Bokaba expressly said two days earlier that the City would not respond to enquiries regarding the final report (before it was officially released). She adds that he also refused to comment on the Management Report.

She says the details of the DA’s allegations were well-known to Tshwane – its claims were made at a media conference and the allegations were widely reported. Moreover, Tshwane has responded to numerous queries about this matter, even if only stating that it would not comment at that stage.

“The complainant cannot say they weren’t aware of the allegations, as the report in question merely repeated the DA’s allegations which have been in the public domain… The Citizen report didn’t raise any new allegations,” she submits.

She also denies that she acted in bad faith, as is evidenced by the continued communication between her and Bokaba.

In conclusion, she says, “When the final AGSA report was tabled in Council on January 28, The Citizen did attend the City’s media briefing and did report on its unqualified audit report.”

Inaccurate statements

Tshwane complains about the statements, as outlined above.

Slabbert denies that the complaint has any basis.

She says the article dealt with a media briefing by Msimanga – and the story clearly reflected that these were statements made by the DA at this briefing.

She adds that the AG’s final report (to which Tshwane refers in its complaint) was only made public a day after the story was published. The article was not based on the final report, but rather on a Management Report penned by the AG, dated 30 November 2015 and discussed by the DA – a document that was in Tshwane’s possession at the time. “In fact, the article quotes the [DA] saying it was distributed by City officials to members of Tshwane’s Public Accounts Committee by mistake. The City has never denied being in possession of the Management Report, It has never denied the accuracy of this AGSA report.”

With regard to the statements featured in Tshwane’s complaint, Slabbert says:

·         The Citizen accurately reported on the DA’s allegation that the AG found that Tshwane had spent R4-billion irregularly –a sixth of it annual budget of R24-billion;

·         she made sure that the DA had some rational basis for its claims before reporting that an amount of R4-billion was irregular expenditure – she says this was the sum of the amount of irregular spending disclosed by Tshwane, an amount that it had not reported, and the amount carried over from the previous year, as disclosed in the Management Report; and

·         it was factually reported that the DA stated that Tshwane failed to disclose R2.39-billion of irregular expenditure, and that the AG was in breach of the MFMA for a delay in tabling the report.

Regarding the last bullet, Slabbert says this statement was based on section 126 (3) b and (4) (of the MFMA), dealing with the submission of the audit report to the accounting officer, and not on the tabling in the Council, as claimed by Tshwane.

She cites these sections – a matter on which I shall comment below.

Analysis

Not asked for comment; intentionally withholding information

The Citizen did ask Tshwane for comment. The only question is whether Slabbert withheld information from the City.

On January 20, Slabbert sent Bokaba some questions – but in her e-mail she addressed the Management Report (and only mentioned the AG’s final report once, asking for a reason for the delay, if there was one).

I can understand why officials at Tshwane think that the journalist withheld information from the City as they are talking about the AG’s final report – while the story was not about that report but rather about the Management Report (about which Slabbert says Bokaba did not want to comment – a statement that Tshwane did not deny).

Given this situation there can be no breach of the Code of Ethics and Conduct.

Inaccurate statements

I am satisfied that the article consistently made it clear that the information had been garnered from a media briefing held by the DA. If the information that party communicated was wrong, Tshwane may take up the matter with them – in this instance, The Citizen was merely a messenger. Nothing more, and nothing less.

Slabbert’s explanations are also satisfactory.

I do not make any finding regarding the delay of the AG’s report, as Tshwane has no standing to complain on the AG’s behalf.

Malicious, negligent

Given all of the above, it follows that I have no grounds to find that either Slabbert or the publication has been malicious or negligent in this matter.

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

Johan Retief

Press Ombudsman