Appeal Decision: Collins Letsoalo vs Sunday Times

SUMMARY

The headline to the story in dispute read, Pay it back, AG tells Prasa’s 350% boss – Special audit finds that Collins Letsoalo was not due the hefty raise he gave himself (published on 14 June 2018).

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 article said the Auditor-General (A-G) had recommended that Collins Letsoalo, former acting CEO of the Passenger Rail Agency of South Africa (Prasa), should repay all the money he awarded himself after hiking his salary by 350%.

Letsoalo complained that the:

• article misleadingly / inaccurately / unfairly:
  • stated the A-G told him to pay back money;
  • referred to a “special audit report” which did not exist;
• headline was unfounded and unfair;
• sub-headline was misleading and untrue; and
• journalist broke his promises to him.

He also complained that the reportage had attacked him as a person and had unnecessarily tarnished his reputation.

The Ombud upheld the complaint. Sunday Times was directed to apologise to Letsoalo in particular, and to the public in general, and to retract the article in its entirety, for falsely, misleadingly and unfairly stating, both in the story and in its headlines, that the A-G had:

• issued a “special report” on this matter – which it never did; and
• ordered that he pay back money to Prasa – which it never did.

The newspaper was also directed to apologise to Letsoalo for creating the false, misleading and unfair impression that he had obtained money that he was not entitled to – thereby unnecessarily tarnishing his dignity and reputation.

Letsoalo applied for leave to appeal against the sanction, saying that it was too lenient.

Judge Ngoepe said a sanction was a matter for the discretion of the first tribunal. “An appeal tribunal would only interfere where the sanction is shockingly inappropriate or has been arrived at as a result of some misdirection. None of the two is the case here,” he opined.

The application for leave to appeal was dismissed.

THE RULING ITSELF

In the matter between

COLLINS LETSOALO                                                          APPLICANT

AND

1. Mr Collins Letsoalo (“applicant”) lodged a complaint against the Sunday Times (“respondent”) in respect of an article which had appeared in the respondent’s edition of 24 June 2018, with the headline “Pay it back, AG tells Prasa’s 350% boss”, sub-headline “Special audit finds that Collins Letsoalo was not due to hefty raise he gave himself”. The story was that there was a special report by the Auditor-General, calling on the applicant to repay a 350% increase to his salary which he had allegedly given himself.
2. The applicant’s complaint was summed up by the Ombud in his Ruling of 18 October 2018 as follows:

“Letsoalo complains that the:

• article misleadingly/ inaccurately/ unfairly:

• stated the Auditor-General (A-G) told him to pay back money;
• referred to a “special audit report” which did not exist;

• headine was unfounded and unfair;
• sub-headline was misleading and untrue; and
• journalist broke his promises to him…….

He also complains that the reportage has attacked him as a person, and has unnecessarily tarnished his reputation.

Letsoalo asks for a retraction and an apology in writing to himself, and for this to be published on the front page of the Sunday Times and on all online platforms.  He also requests that the article be removed from the newspaper’s website and archives.”

In support of his complaint, the applicant referred to a judgment of the North Gauteng High Court which said that the accusation that he had increased his own salary by 350% must be put to rest, thus ruling in his favour on the matter as against his (then) employer, PRASA.  He had referred the journalist to this judgment, but which, according to him, was not referred to in the article.

3. In its defence, the respondent said it had in possession a copy of a special report by the AG which called for the applicant to repay the money.  The document notwithstanding, the Ombud ruled that no such special report by the AG existed; this was chiefly because the AG disowned the document on which Sunday Times had relied.
4. In the end, the Ombud held that the respondent breached articles 1.1, twice and 1.2; so too the headline and the sub-headline.  He also found that article 3.3 had been breached.  He held that the breaches were all above Tier 3 offences. He directed an apology to applicant for the tarnishing of his dignity and reputation.  The apology to be published on page 3 (later corrected to page 5 where the story was) and online, and a letter of apology to the applicant.  He added:
   

   “Due to the seriousness of the matter,  I am also directing the newspaper to publish a kicker on page 1, above the fold, which should also include the words ‘apology’ and ‘Letsoalo’, and which should refer to the text on page 3”. He gave further directives regarding the publication.

5. The applicant ask for leave to appeal the sanction; he feels it is too lenient. The respondent opposes the application.  One of the issues raised by the respondent is that the Ombud wrongly said that the document the respondent relied upon, purporteding to be from the A-G, was a PRASA document.  I don’t think anything turns on this.  The fact of the matter is that the Ombud saw the document and rejected it on the basis that the office of the AG disowned it. True, the existance of the document could have reduced some culpability on the part of the respondent, but the Ombud took into account as well as a host of other factors.
6. For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.  While I appreciate the applicant’s frustration, particularly in light of the exonerating High Court judgment, I do not believe he has such prospects of success.  The reason is that punishment is a matter that lies within the discretion of the first tribunal. An appeal tribunal would only interfere where the sanction is shockingly inapproriate, or has been arrived at as a result of some misdirection. None of the two is the case here.  The application therefore fails.

Dated this 6^th day of December  2018

Judge B M Ngoepe, Chair, Appeals Panel