Appeal Decision: Mbulelo Ndlovu vs Business Day

SUMMARY

The headline to the story in dispute read, Aurecon’s contract exposes ACSA to conflict of interest claim – Lulu Gwagwa, CEO of Lereko Investments and a board member of Firstrand, Massmart and Sun International is also the chair of Aurecon SA (published on 18 September 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 was about a possible conflict of interest relating to a contract between Airports Company of South Africa (Acsa) and Aurecon SA, as Lulu Gwagwa reportedly was the chairperson of both organisations.

The crux of Acsa’s complaint was that Business Day had relied on an unauthenticated document regarding an alleged contract between the two companies and that the newspaper did not independently verify its information but merely relied on a single, anonymous source – which led to inaccurate and unfair reportage. The company inter alia added the article falsely stated that the alleged contract was worth R400-million, that the headline was misleading, and that the journalist did not seek comment from itself, or from Gwagwa.

Acsa applied for leave to appeal after the Ombud had dismissed the entire complaint.

Judge Ngoepe said the Ombud had duly analysed and dealt with the case of each party, adding that he was highly impressed, amongst others, by the following:

“What also counts in (respondent’s) favour is that (the journalist) in fact reported that the document could not independently be authenticated, and that Acsa had questioned its veracity. The statements, I believe, have adequately balanced out the rest of the reportage”.  The judge said that alone killed Gwagwa’s prospects of success before the Appeals Panel.

He inter alia added that, just because Gwangwa denied the authenticity of the information of the document, it did not mean that it could not be seen as being reasonably true; or as not being appropriate to be published.  He also noted that the matter was of public interest.

The application for leave to appeal was dismissed.

 

THE RULING ITSELF

In the matter between

NDLOVU MBULELO (FOR ACSA)                                           APPLICANT

AND

1.        On 18 September 2018 Business Day (“respondent”) published an article with the headline: “Aurecon’s contract exposes ACSA to conflict of interest claim”.  The sub-headline explains it all: “Lulu Gwagwa, CEO of Lereko Investments and a board member of Firstrand, Massmart and Sun International is also the chair of Aurecon SA”.  Acting on behalf of Airport Company of South Africa (ACSA), Mr Mbulelo Ndlovu (“applicant”) lodged a complaint against the article with the Office of the Press Ombud.  Part of the story was that Ms Gwagwa was appointed to the board of ACSA and was its chair; whereas she was the chair of a company known as Aurecon SA, to which ACSA had allegedly awarded a tender or given some remunerative work. The article also reported that it was announced on 10 September 2018 that Ms Gwagwa would no longer take up the appointment to ACSA’s board.  The article said that the publication was in possession of a letter which stated details “of a R400m poject, called Midfield Cargo Development, (allegedly)….. allocated to Aurecon SA in July 2018, as confirmed in a letter to an Aurecon official signed on July 26 by Mthuthuzeli Mboniswa, group manager of Acsa’s supply-chain management unit. The buyers for Acsa were identified in the letter, which was seen by Business Day, as Thami Mncube and Louis Kombora, and the project manager as Kenosi Mokolobate.

The letter could not be independently authenticated and Acsa has questioned its veracity, saying that the tender was cancelled in April and that it has not been republished”.

2.        The issue of conflict of interest was not the centre of the complaint.  The complaint was about the nature and scope of the R400k project.  The respondent summed the dispute this way:

“a.   Business Day’s source document shows that the contract is for ‘Engineering Services’ on the ‘Midfield Cargo Development’ project at OR Tambo International Airport, valued at R400-million, commencing in July 2018.

b.    ACSA claims the contract is for ‘scoping and professional services for the development of a new midfield cargo terminal’ valued at R4.9-million”.

3.        The matter fell to be adjudicated by the Ombud, who issued his Ruling on 5 February 2019.  The Ombud restated the complaint as follows:

“The crux of Acsa’s complaint is that Business Day (BD) has relied on an unauthenticated document regarding an alleged contract between itself (Acsa) and a company called Aurecon, and that the newspaper did not ‘independently’ verify its information but merely relied on a single, anonymous source – which led to inaccurate and unfair reportage.

Following this, Acsa complains the article falsely stated:

·               the contract that was apparently entered into between itself and a company called Aurecon was worth R400-million;

·               Aurecon had been ‘allocated’ a tender to develop a cargo facility at OR Tambo International Aiport – and that it transpired without a public tender advertised for this contract; and

·               Ms Lulu Gwagwa, CEO of Lereko Investments and a board member of FirstRand, Massmart and Sun International, was also the chair of Aurecon, and that an image of her accompanying the story inferred that she was either involved in corrupt activities, or implicated in a conflict of interest.

The company adds that the:

·               headline was misleading; and

·               journalist did not seek comment from itself, or from Gwagwa”.

4.        The Ombud duly analysed and dealt with the  case of each party; I need not repeat what he said.  But I was highly impressed, amongst others, by the following:

“What also counts in (respondent’s) favour is that (the journalist) in fact reported that the document could not independently be authenticated and that Acsa had questioned its veracity. The statements, I believe, have adequately balanced out the rest of the reportage”.  That alone kills the applicant’s prospects of success before the Appeals Panel. I do not agree with the lengthy submissions contained in the application for leave to appeal.

4.1 As it appears from my observation above, and having gone through the original letter of complaint, I do not agree that the Ombud failed to appreciate the true nature of the complaint.

4.2 I don’t think he was biased either

4.2 The facts relating to the contents of the letter and the circumstances around the granting of work to Aurecon, were peculiarly within the knowledge of the applicant; it was therefore incumbent on it to place all the information before the Ombud; one cannot therefore blame the Ombud for criticising the applicant as the applicant seeks to do in its application for leave to appeal.

4.3 The tenor of the article must bear some relationship to the way an ordinary reader would understand the article in its entirety, including the denials by the applicant contained in the article. In this respect, it is noted that the applicant seeks to make heavy weather of the distinction between an awarded “tender” and the awarding of some scoping work. However, the real issue of interest to the reader was possible favouritism to Aurecon (irrespective of whatever work was given to it); and granting it work with others would not necessarily miraculously cause the perceived favouritism, if any, to disappear. That was why it was important to report, as the respondent did, that the applicant questioned the authenticity of the source document. Latching onto peripheral issues would not change the true thrust of the story (possible perceived favouritism to Aurecon). I do not agree that the Ombud did not properly grasp the nature of the dispute.

5.        Just because applicant denies the authenticity of the information of the document, it does not mean that it cannot be seen as being reasonably true; or as not being appropriate to be published.  In this respect, it must be borne in mind that the document contained quite some pertinent and explicit details such as: its date (25 July 2018); the name of the person to whom it was sent; signed by a named person whose capacity was also given; the mentioning of specific contents naming the project and to whom given. The description of the source document is also given; e.g that it was a letter, giving names of specific persons. The respondent says save to deny that such a contract exists, the applicant does not say that the details alleged to be contained in the source document are false. All these considerations are crucial in determining whether or not the contents of the source were reasonably true, or whether the information was appropriate for publication; add to that the fact that the information came from highly placed sources within the applicant.

Finally, that the matter was of public interest admits of no doubt.

6.        For the reasons given by the Ombud for his Ruling, and those given above, the applicant has no reasonable prospects of success; the application therefore fails.

Dated this 13^th day of March 2019.

Judge B M Ngoepe, Chair, Appeals Panel