Appeal Decision: News 24 vs SA Security Solutions & Technology (PTY)LTD

SUMMARY

The headline to the story in dispute read, EXCLUSIVE: Gordhan orders Masutha to cancel R378m IT tender (published on 20 May 2016); the headline to the column in dispute read, Battleground 2: Gordhan’s R500 billion tender war (May 26).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

The news story reported that Finance Minister Pravin Gordhan had “advised” Justice and Correctional Services Minister Adv Michael Masutha in writing to restrict some companies from doing business with government, including South African Security Solutions & Technology (Sasstec). The column said that Gordhan had faced an “onslaught” from Masutha.

The Ombud reprimanded News24 for:

• omitting to state, both in the story and in the column, that National Treasury had denied giving the Department of Correctional Services an order of any kind; and
• stating the allegations as fact that SA Fence and Gate had been awarded government tenders worth millions by Eskom et al, and that ISS’s bid was the only one considered by the department.

The publication was directed to publish a suitable correction to the first issue and to clarify the second one. The Ombud dismissed the remainder of the complaint.

News24 applied for leave to appeal the decisions that went against it.

Judge Ngoepe dismissed the application, inter alia saying that:

• he did not find any fault with the Ombud’s reasons and finding that News24 had “wrongly stated that Gordhan had ‘ordered’ Masutha to cancel a contract.”   The word “order”, he added, left no room for discretion, as opposed to “advice”; and
• it was incumbent on News24 to mention that National Treasury had denied that Gordhan’s letter to Masutha amounted to an order.

THE RULING ITSELF

NEWS24                                                                                                        APPLICANT

AND

[1]     South African Security Solutions & Technology (Pty) Ltd and its related companies (“the applicants”) complained to the Office of the Press Ombud about two articles published by News 24 (“respondent”) online media platforms on 20 May 2016 (first article) and 26 May 2016 (second article).  The first article was headlined “Gordhan orders Masutha to cancel R378 IT tender”.  The second one was headlined “Battleground 2: Gordhan’s R500 billion tender war.”  The gist of both articles was that the Minister of Finance, Mr Gordhan, had questioned the regularity of some tenders awarded by inter alia by the Department of Justice and Correctional Services to the applicant and its sister companies, or some companies between which there was some sub-contracting agreements in relation to the tenders in question.

[2]     The applicant raised a number of complaints, a number of which were dismissed by the Press Ombud.  I will not go into them because this application is in respect of only two which were upheld by the Ombud, in consequence of which he imposed sanction on the applicant.

[3]     In paragraph 2 of its application for leave to appeal, the applicant identifies the Ombud’s findings in respect of which leave is sought as follows:

“2.     News 24 seeks leave to appeal against the following findings (“the main findings”) by the press ombudsman:

2.1    That a news story entitled Gordhan orders Mashuta to cancel R378m IT tender was in breach of section 10.1 of the Code of Ethics and Conduct (“the Code”), in that News 24 wrongly stated that Gordhan had ‘ordered’ Mashuta to cancel a contract.

2.2    That a column entitled Gordhan’s R500 billion tender war was in breach of section 7.2.4 of the Code in that it should have mentioned that National Treasurery had in fact denied that Gordhan’s letter to Mashuta constituted an order.”

Applicant says it seeks leave to appeal “only in respect of the main findings listed in paragraph 2 above.”  Accordingly, I restrict myself to these two findings by the Ombud.

[4]     I do not find any fault with the Ombud’s reasons and finding that applicant “wrongly stated that Gordhan had ‘ordered’ Masutha to cancel a contract.”  I have noted what the applicant says in relation to what was argued or said in court or in the papers.  I do not think that would detract from what an average reader would have understood, namely, that Gordhan ordered Masutha; this is a far cry from “advising”, which was in fact what Gordhan’s letter said.  The word “order” leaves no room for discretion, as opposed to an “advice”. Even if one were to accept that the Minister Gordhan “ordered” Minister Masutha, at best for the applicant the order would not have been to cancel, but for the latter to heed the facts and to consider the advice; it cannot have an order to cancel.

[5]     Regarding the R500 billion “war” finding, I again find no fault with the Ombud’s finding. It was incumbent on the applicant to mention that National Treasury had denied that Gordhan’s letter to Masutha amounted to an order.  No elaboration is needed.

[6]     In light of what is said above, I see no reasonable prospects of success for the applicant before the Appeals Panel; that being the case, the application is dismissed.

Dated this 14^th day of November 2016

Judge B M Ngoepe, Chair, Appeals Panel