Appeal Decision: City Press vs Thamsanqa Jiyane

SUMMARY

The headline to the story in dispute read, Transnet: Brian helped to loot – A tender to buy locomotives for Transnet was inflated by R16 billion, and split between four suppliers, one a Gupta-linked company (published on 13 May 2018).

This ruling by the Prof Karthy Govender, a member of the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The article was about a report by the law-firm Werksmans into alleged irregularities pertaining to the purchase of locomotives by Transnet. It mentioned former Transnet Freight Rail chief procurement officer Thamsanqa Jiyane’s name twice – that the report had recommended that he be investigated, and that he was implicated in the ballooning of a contract to the amount of R54.5bn.

In essence, Jiyane complained that it was defamatory to be labelled a “Gupta lieutenant” and that he was not afforded an opportunity to comment prior to this critical reporting. He further contended that a proper investigation would have revealed that the allegations against him were false.

Ater a meeting with the parties, the Ombud said it was a main problem that the article did not clarify that the report by Werksmans was not official. He ordered City Press to apologise to Jiyane for tarnishing his dignity and reputation and to retract the statement about a Gupta lieutenant.

The newspaper applied for leave to appeal on procedural grounds. It said an informal meeting that the Ombud held turned into a hearing was unfair, as Jiyane’s legal representative was present, while City Press did not have its legal people present.

Govender said it appeared that there was a reasonable prospect that the Appeals Panel might conclude that an informal hearing was held, and that the newspaper might not have been given adequate and proper notice of the purpose of the meeting and was prejudiced consequently.

The application for leave to appeal was granted.

THE RULING ITSELF

Case number: 388/2018

IN THE MATTER BETWEEN:

City Press                                                                                                            Applicant

Thamanqa Jiyane                                                                                             Respondent

1. I was asked by Judge B Ngoepe to consider this application for leave to appeal on his behalf.  The respondent, in its complaint to the Press Council, alleged that an article published by the respondent on the 13^th of May 2018 titled ‘Transnet: Brian Helped to Loot’ transgressed various provisions of the Press Code. The article discussed the contents of a report prepared by Werkmans, a firm of attorneys, for Transnet regarding the purchase of 1064 electric and diesel locomotives. The article stated that the report recommended that the conduct of various officials together with that of the respondent be investigated. There is a further reference to the respondent when the article stated that ‘the report found that with the assistance of Gupta lieutenants Molefe, former chief Financial officer Anoj Singh, board tender committee chairperson Iqbal Sharma, and Jiyane, the contract ballooned to R54.5bn.’
2. In essence, the respondent complained that it was defamatory to be labelled a ‘Gupta lieutenant’ and that he was not afforded an opportunity to comment prior to this critical reporting. He further contended that a proper investigation would have revealed that the allegations against him were false. The respondent complained that the description of him as a ‘Gupta Lieutenant’ and reference to the costs ballooning to R54.5 billion from the initial cost of R 38.6 billion suggested that the respondent was involved in the wrongful and intentional inflation of the original tender price. The respondent contended that as he had no decision-making authority, he could not have corruptly manipulated the process.
3. The Press Ombud had access to the Werkmans report and it is not disputed that the report recommended that the conduct of the respondent and others be investigated. The applicant pointed out that it was in the public interest that the findings of the report be widely disseminated and that it was engaging in fair comment. Further it argued that it had sought the views of the Transnet spokesperson and contended that the generic response received expressly covered all the persons mentioned including the respondent.

4. The Press Ombud dismissed some of the complaints of the respondent and made other findings in his favour. Amongst his findings in favour of the respondent were the following:

• He found that given the allegation that the respondent was a ‘Gupta Lieutenant’, he should have been asked for comment on this specific issue;
• He also found that that the story had falsely stated as a fact that the Werkmans report found that the respondent was a ‘Gupta lieutenant’; and
• He found further that the publication failed to put the various statements into perspective and context by failing to mention adequately that the report was inconclusive and had not been accepted by the Transnet Board.

5. The applicant has appealed against the findings of the Press Ombud on what are termed ‘procedural grounds’. However, in their grounds of appeal, the appellant indicates their response to the merits of the findings against it.  The applicant contends that it was invited to a ‘clarification meeting’ by the Press Ombud but that the meeting turned into a hearing which heard legal argument from the respondent’s legal representative. The appellant contends that had it been informed that the meeting was in fact a hearing, it would have secured the attendance of its legal representative. They contend that the failure of the Press Ombud to inform them that this was a hearing as contemplated in terms of Section 3.3 of the Complaints Procedures and the failure to inform them of their right to legal representation prejudiced them from properly arguing their case before the Press Ombud. The appellant then details its reasons for arguing that the Press Ombud erred by finding that as it neglected to mention that the report was not accepted by the Transnet Board, this may have caused unnecessary harm to the respondent’s reputation. It appears from their application for leave to appeal that the appellant was not in a position to make these submissions to the Press Ombud at the meeting.

6. The respondent contends that the application for leave to appeal should be dismissed. The respondent argues that it is not for the Press Council to ‘babysit’ the appellant. It was submitted that the appellant could have arrived at the meeting with its legal representative but chose not to do so. The respondent also argues that the term representative in the e-mail should be given a wide interpretation to include legal representative.  The respondent also denies that the meeting was ever a hearing and was of the view that it remained a clarification meeting. He also asserts that the meeting was not a hearing as envisaged in Section 3(3) of the Complaints Procedures.

7. The issue is whether there are reasonable prospects that the Appeals Panel may come to a decision different from that of the Ombud.  Procedural fairness is important as it ensures that all parties are treated fairly and that proper outcomes or decisions are reached.  In terms of Section 3 of the Complaints Procedures, the Ombud can either convene a hearing or hold an informal hearing. It is accepted that the meeting was not a formal hearing. If an informal hearing was convened in terms of Section 3(3), the issue is whether the appellant was given adequate and proper notice of the purpose of the informal hearing so as to enable it to prepare adequately and engage meaningfully in the process. There are also issues of whether the legal representative of the respondent, Ms N Galaktiou, was given the opportunity to argue before the Ombud at the meeting.  If Ms Galaktiou was given an opportunity to make arguments on behalf of the respondent then it would appear that the meeting may have been more than a clarification meeting.

8. If the meeting that was convened was not an informal hearing as contemplated in Section 3.3 of the Complaints Procedures, then one needs to know under what authority or section of the Complaints Procedures, the meeting was convened. It does appear that there is a reasonable prospect that the Appeals Panel may come to the conclusion that an informal hearing was held and that the appellant may not have been given adequate and proper notice of the purpose of the meeting and was prejudiced as a consequence. It is inappropriate for me to go into any greater detail into the merits of the application for leave to appeal. The matter will be considered and detailed reasons given by the Appeal Panel for its conclusions. At this stage, it suffices to state that there is a reasonable prospect that the Appeals Panel may come to a decision different from that of the Ombud. In the circumstances the following order is made:

Order

9. The application for leave to appeal to the Appeal Panel is granted

Prof K Govender

Member, Adjudication Panel.

Dated at Durban on the 18^th of December 2018.