Appeal Decision: Business Day vs Trillian Capital Partners

SUMMARY

The headline to the story in dispute read, GE accuses Eskom of rigging tender – Claims contract favoured Chinese company; Politically connected Trillian supported bid (published on 26 April 2017). The latter article was revised soon after its publication. It was headlined, GE claims Eskom favoured Chinese firm’s bid, with backing of Trillian – General Electric has gone to court to stop the utility implementing a contract with Dongfang.

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 story said that General Electric (GE) had accused Eskom of rigging a tender for building a new boiler at its Duvha power station in Mpumalanga to go to Chinese state-owned company Dongfang, even though its bid was R1bn more expensive than that of its rivals. Trillian Capital Partners (TCP) reportedly gave this the “thumbs up” in a last-minute risk assessment of bids submitted.

TCP’s main complaint was that the reportage had been devised to impel readers to wrongly conclude that it had been involved in improper conduct or corruption by assisting Eskom to rig the outcome of a tender awarded to Dongfang.

The Ombud directed Business Day to apologise to TCP for:

• neglecting to report its denial that it had been appointed by Eskom to find a supplier to replace a broken boiler; that it had any prior knowledge of or relationship with Dongfang; and that it had been involved in a conflict of interest; and
• in this process, creating the impression that TCP might have been involved in improper conduct or corruption.

Some parts of the complaint had been dismissed – after which both parties applied for leave to appeal.

Judge Ngoepe granted both parties leave to appeal (without motivating his decision, as that could have influenced the Appeals Panel on whose desk this matter was going to land), but dismissed the publications application to appeal against the sanction imposed by the Ombud.

THE RULING ITSELF

In the matter of

BUSINESS DAY                                                                                          APPLICANT

AND

[1]     Business Day (“applicant”) wants leave to appeal the Ruling of the Press Ombud, dated 24 June 2017, in which the Ombud had found in favour of Trillian Capital Partners (“respondent”).  The latter had filed a complaint against the applicant in respect of a story which appeared in the applicant’s edition of 26 April 2017, with the headline “GE accuses Eskom of rigging tender – Claims contract favoured Chinese company; Politically connected Trillian supported bid”.  The story also appeared on applicant’s website with more or less similar headlines: “GE claims Eskom favoured Trillian bid – General Electric claims contract favoured Chinese company and politically connected Trillian supported bid”. The headline on the website was amended the following day; but the complaint persisted.  As far as the content of the story is concerned, the gist of the complaint was that it gave the impression that respondent, when assisting Eskom in getting a company to render services to it, had acted in a corrupt manner, and was also conflicted. The other complaint was that whereas the journalist had sent questions to the respondent, and the respondent duly respondent (denying certain allegations), the applicant did not reflect those denials.

[2]     In his Ruling, the Ombud dismissed all the complaints barring one: that the applicant did not properly reflect the respondent’s denial of certain allegations – more about this later.  A sanction was imposed.

[3]     Both parties were dissatisfied with certain findings of the Ombud, with the respondent also filing an application for a counter-appeal.  Unusually prolific papers were filed; so much so that the case manager could only email the papers to me in instalments.  In dealing with both applications, I am going to cut to the chase in answering the only question which should really be asked, namely, whether there are reasonable prospects of appeal.

[4]     The Ombud has, in the midst of all the documentation, correctly paraphrased the complaint as follows:

“Complaint.

TCP (respondent) complains that, construed together (headlines and articles), the reportage was devised to impel readers to wrongly conclude that Trillian was involved in improper conduct or corruption by assisting Eskom to rig the outcome of a tender awarded to the Chinese company Dongfang.

The company also complains that the reporter did not adequately reflect the contents of its responses to his questions”.  Of course, the responses comprised the denial of the alleged corruption.  The remedy sought was for the applicant to publish a corrective story, with an apology.

[5]     After a thorough analysis of the stories, arguments and counter-arguments, the Ombud came to the following conclusion:

“I do not believe that the article(s) impelled readers to wrongly conclude that Trillian was involved in improper conduct or corruption by assisting Eskom to rig the outcome of a tender.

It is an established principle that a publication cannot be held liable for conclusions drawn by some readers if the statements complained about are factually correct”.

[6]     The Ombud then proceeded to apply his mind to the question whether or not the applicant violated the Press Code by not reflecting certain information given to it by the respondent in answer to questions that had been sent by the journalist.  His finding was that the applicant wrongly omitted those responses.  He accordingly held that the applicant breached articles 1.1, 1.2 and 3.3 of the Code, and imposed a sanction.  Applicant also seeks leave to appeal the sanction, which it says is too severe.  One of the questions which may fall to be answered is how material is the omitted information if the content of the stories and the headlines are found not to be carrying any allegations of corruption or wrong doing; or if that is not the impression given to the reader. There are other aspects which weigh with me but which may not be appropriate for me to go into, given the fact that I am inclined to give leave.

[7]     Less convincing is the applicant’s application for leave to appeal against the sentence. The Ombud correctly ategorized the breach, and the sanction cannot be said to be too sevre.  On that aspect, the application is declined.

The respondent’s application for leave to persue a counter-appeal

[8]     The respondent seeks leave to appeal the Ombud’s dismissal of the complaint relating to the gist to the stories and the headlines (accusations of corruption and conflict).  Reading through the Ombud’s Ruling, it is clear that he wrestled with the issues.  This is also apparent from the way he wrestled with the expression “thumbs up”, to give an example.  Clearly, this was not an easy matter.

[9]     For either application to succeed, it has to show reasonable prospects of success.  There were several key points on the basis of which the decision could have gone either side.  Because of my inclination to grant leave to both sides, it would be inappropriate for me to deal further with the merits of the case, save to say yet again that this was not an easy matter.

Conclusion

[10]   After considering the Ruling and the parties’ submissions contained in their respective applications, I am of the view that either party has reasonable prospects of success before the appeals panel.  The following Order is therefore made.

(a)     Both parties are granted leave to appeal the Ombud’s Ruling.

(b)     Business Day’s application to appeal against the sanction imposed by the Ombud is dismissed.

Dated this 29^th day of August 2017

Judge B M Ngoepe, Chair, Appeals Panel