Mncedisi Ndlovu, MNS vs City Press

SUMMARY

The headlines to the stories in dispute read, Transnet lawyers’ ‘bribery scandal’ – A leaked audio recording has implicated a law firm in alleged acts of corruption and bribery as state capture prosecutions are set to begin; State capture: Top law firm linked to Transnet ‘bribery’ scandal (online). They were (published on 5 January 2020). The previous day, City Press tweeted: Transnet lawyers ‘bribery scandal’ | A top law firm, which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording obtained by City Press.

This ruling by Acting Assistant Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

 

The story said Mncedisi Ndlovu and Sedumedi Attorneys (MNS), which was investigating state capture at Transnet, was linked to alleged kickbacks involving a former board member of the parastatal “in an audio recording obtained by City Press this week”.

The salient issues in the complaint boiled down to the statements that:

• MNS was linked to “alleged” kickbacks (read: corruption and bribery);
• MNS paid out an amount of R2.2-million to Seth Radebe; and
• a recording obtained by the newspaper cast doubt on the lawfulness of appointing MNS (in which Redebe was allegedly implicated) to assist Transnet with the investigation and prosecution of those linked to state capture.

The central issue was the allegation, or inference, that Radebe had procured the appointment of MNS by Transnet in exchange for a bribe of R5-million.

The complaint was also that one sub-headline and a tweet were misleading, and that the reportage had tarnished their reputation.

City Press was directed to apologise to MNS and to Ndlovu for:

• unjustifiably reflecting in its reportage, both in the headlines and in the text of the article, that MNS had been implicated in kickbacks, alleged acts of corruption and bribery; and
• unnecessarily tarnishing their reputation.

Retief dismissed the complaint about the statement that:

• there had been a “suspicious conversation”;
• Radebe “allegedly initiated the appointment of MNS at the parastatal”;
• MNS allegedly paid certain amounts to Radebe; and
• Radebe had preferred the appointment of some sub-contractors preferred by him while he was a board member.

 

THE RULING ITSELF

Complaint number: 7720

Lodged by: Mr Mncedisi Ndlovu, chairperson of Mncedisi Ndlovu and Sedumedi Attorneys (MNS)

Complainant: Ndlovu, in his personal capacity, as well as on behalf of MNS

Date of article: 5 January 2020

Headlines:

• Transnet lawyers’ ‘bribery scandal’ – A leaked audio recording has implicated a law firm in alleged acts of corruption and bribery as state capture prosecutions are set to begin (lead story, front page);
• State capture: Top law firm linked to Transnet ‘bribery’ scandal (website); and
• In City Press tomorrow | Transnet lawyers ‘bribery scandal’ | A top law firm, which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording obtained by City Press (the newspaper’s Twitter account, 4 January 2020)

Author of article: Setumo Stone

Respondent: Dumisane Lubisi, editor

1. Complaint                                            

1.1 Ndlovu and MNS complain that the:

• following sentences were in breach of various sections of the Press Code (for various reasons; details below):
  • “Top law firm Mncedisi Ndlovu & Sedumedi (MNS), which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording obtained by City Press this week”;
  • “The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS to assist Transnet with the investigation and prosecution of those linked to state capture”;
  • “The discussion also deals with an unexplained payment of R2.2 million by MNS to (Mr Seth) Radebe, who allegedly initiated the appointment of MNS at the parastatal”; and
  • “From the recording, it is evident that the speakers had met on a number of occasions and also had an ‘original discussion’ about MNS allegedly paying certain amounts to Radebe and about appointing sub-contractors preferred by him, while he was a board member”;
• headlines, as well as one sub-headline and a tweet were misleading; and
• reportage has tarnished their reputation.

1.2 The salient issues in the complaint boil down to the statements that:

• MNS was linked to “alleged” kickbacks (read: corruption and bribery);
• MNS paid out an amount of R2.2-million to Radebe; and
• the recording cast doubt on the lawfulness of appointing MNS (in which Redebe was allegedly implicated) to assist Transnet with the investigation and prosecution of those linked to state capture.

1.3 To be even more succinct: The central issue is the allegation, or inference, that Radebe procured the appointment of MNS by Transnet in exchange for a bribe of R5-million.

1.4 They ask that City Press publish, with equal prominence, in its print and electronic edition, and on its Twitter account, a retraction and an apology.

1.5 Sections of the Press Code complained about are:

1.1: “The media shall take care to report news truthfully, accurately and fairly”;

1.2: “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization”;

1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such”;

1.7: “The media shall verify the accuracy of doubtful information, if practicable; if not, this shall be stated”;

1.10: “The media shall make amends for presenting inaccurate information or comment by publishing promptly and with appropriate prominence a retraction, correction, explanation or an apology on every platform where the original content was published, such as the member’s website, social media accounts or any other online platform; and ensure that every journalist or freelancer employed by them who shared content on their personal social media accounts also shares any retraction, correction, explanation or apology relating to that content on their personal social media accounts;

3.3: “The media shall exercise care and consideration in matters involving … reputation…”; and

10.1: “Headlines, captions to pictures and posters shall not mislead the public…”

2. The story

2.1 The story said MNS, which was investigating state capture at Transnet, had been linked to alleged kickbacks involving a former board member of the parastatal “in an audio recording obtained by City Press this week”.

2.2 Stone reported that the 2018 recording was of a conversation between fired Transnet board member Mr Seth Radebe and MNS chairperson (Ndlovu).

2.3 “The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS to assist Transnet with the investigation and prosecution of those linked to state capture. The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe, who allegedly initiated the appointment of MNS at the parastatal,” the journalist continued.

3. Preliminary issues

3.1 Intent of complaint        

3.1.1 Lubisi says the complaint is “frivolous” and “vexatious” and does not pass the muster to be accepted by the Public Advocate as per the complaints procedure.

3.1.2 He reckons it is intended to:

• create a climate of uncertainty to block any follow up articles to the initial story that is the subject of the complaint (he says City Press had already sent follow up questions with regard to the same issues);
• buy time for MNS to avoid difficult questions from Transnet. (He says a response from Transnet received on 29 January 2020 suggested that the latter had written to MNS to request clarity concerning the allegations against the firm. “Our further information is that MNS had informed Transnet that it is taking ‘legal action’ against the publication,” the editor adds; and/or
• persuade Transnet of a non-existent high court process.

3.1.3 Ndlovu says he fails to see how he could “block” any follow-up story and how the newspaper would be influenced by this complaint in its future reportage. He denies that either MNS or he has received any follow-up questions by City Press. 3.1.4 He calls the newspaper’s statement about “buying time” gratuitously offensive. He says MNS had already provided Transnet with a full response regarding the allegations in the reportage. 3.1.5 He labels the “further information”, mentioned by the editor, either false, or at least misleading and incomplete. He contends, “MNS had advised Transnet that it intended to lodge a complaint with the Press Council and that it was taking advice from senior counsel as to further remedies available to it. We have not informed Transnet that we are ‘taking the matter to court for litigation’.” 3.1.6 Ndlovu adds that MNS did not share this complaint with Transnet. “Even if we had, it would be quite bizarre to suggest that … we would have sought to mislead Transnet … that there was some or other court action pending.”

Analysis

3.1.7 I have documented the above only for the record. The acting Public Advocate has accepted the complaint, and so have I. No court case is pending, at least not at this stage, and I have no reason to agree that the complaint is “frivolous” and “vexatious”.

3.2 Disputed nature of recording

3.2.1 The story was based on an audio recording, the nature of which was in dispute. The question is if the newspaper was justified to use such a recording as a basis for a story.

Analysis

3.2.2 In his complaint, Ndlovu disputes the authenticity of the recording only with regards to those parts that are inaudible. (At least, that is how I interpret this aspect of his complaint.) That means, does it not, that he accepts the authenticity of the parts that are audible. And so shall I.

3.2.3 I need to keep in mind, though, that the inaudible parts could have changed the context. This is therefore a dangerous exercise, but also a necessary one.

3.2.4 Secondly, I note with appreciation Stone did report that the authenticity of the recording was in dispute “as (according to Radebe) it appears to be doctored and tampered with to fit a certain narrative.

4. The complaint in more detail

4.1 Linked to kickbacks

The first sentence read, “Top law firm Mncedisi Ndlovu & Sedumedi (MNS), which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording obtained by City Press this week.”

Save for mentioning the name of MNS, the text of the tweet was essentially the same.

Ndlovu complains the text and tweet presented as fact that MNS had been linked to “alleged” kickbacks. However, the recording (on which the story was based) did not reflect any kickbacks and the article advances no evidence of such kickbacks either.

“This statement presented, as fact, that Ndlovu and MNS were guilty of corruption and bribery – while the newspaper did not contend that their allegations of corruption and bribery had been based on anything other than the recording. The recordings do not prove these facts,” he concludes.

4.2 Suspicious conversation

The story said, “The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS to assist Transnet with the investigation and prosecution of those linked to state capture.”

Ndlovu denies there was anything in the recording which “casts doubt” on the lawfulness of MNS’ appointment. “All there is, is a reference to ‘Pravin’ saying that the appointment was irregular… Why he may have thought so does not appear from the recording and is not explored in the article.”

He points out that MNS refuted this allegation prior to publication.

He says Stone must have known that MNS continued with their mandate during 2019 and that he presented evidence on behalf of Transnet at the Zondo Commission of enquiry as to the findings of their investigation.

“Before stating, as a fact, that there are doubts as to MNS’ appointment it would have been incumbent on him to at least enquire from Mr Gordhan and Transnet as to what their current view is as to MNS’ appointment and what the basis of such view is,” he argues.

Ndlovu says the statement that the conversation was “suspicious” was not supported by any objective fact. “This statement presented, as fact, that Ndlovu and MNS were guilty of corruption and bribery – while the newspaper did contend that their allegations of corruption and bribery had been based on anything other than the recording. The recordings do not prove these facts,” he concludes.

4.3 Unexplained payment

Stone reported, “The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe, who allegedly initiated the appointment of MNS at the parastatal.”

Ndlovu complains that this statement was false – “it presented, as fact, that Ndlovu and MNS were guilty of corruption and bribery, while the newspaper did contend that their allegations of corruption and bribery had been based on anything other than the recording. The recordings do not prove these facts.”

4.4 Original discussion

The journalist reported, “From the recording, it is evident that the speakers had met on a number of occasions and also had an ‘original discussion’ about MNS allegedly paying certain amounts to Radebe and about appointing sub-contractors preferred by him, while he was a board member.”

Ndlovu says the truth of this statement is not evident from the recording. “To the contrary, Ndlovu is heard to expressly challenge Radebe’s reference to an original discussion,” he remarks.

He adds the statement created the impression that this original discussion took place while Radebe was still a board member. “This is pure supposition on the part of Mr Stone. That Mr Radebe was talking about MNS paying him (as opposed to Mr Ndlovu) is similarly Mr Stone’s supposition and does not appear from the recording,” he says.

He concludes: “This statement presented, as fact, that [he] and MNS were guilty of corruption and bribery – while the newspaper did contend that their allegations of corruption and bribery had been based on [nothing] other than the recording. The recordings do not prove these facts.”

5. The arguments

5.1 The article

5.1.1 R2.2-million

5.1.1.1 Lubisi quotes the following excerpt from the recording:

NDLOVU: Just stop it, just stop it. So let’s just finalise the discussion, because I have got another appointment.

RADEBE: No, it is fine but I think, I hear your views you know and have they paid your invoices?

NDLOVU: No, not yet.

RADEBE: And are they going to do it?

NDLOVU: That’s what they are saying. That’s what they are saying and what are you expecting?

RADEBE: Well, the original discussion.

NDLOVU: What is the original discussion?

RADEBE: (Inaudible)

NDLOVU: What?

RADEBE: 2 something, about (inaudible)

NDLOVU: what 2 something?

RADEBE: 2 point something, remember we gave (inaudible) and then the balance about 2.2 or whatever.

NDLOVU: the balance to you is 2.2?

RADEBE: Ja.

NDLOVU: How do you come to that?

RADEBE: Whatever I’ve been paid vis-a-vis from 5 that we’ve agreed upfront and then minus whatever I’ve been paid, it is about 2.2 and then you said we will discuss it when we come to that (inaudible).

NDLOVU: Ja, no, I don’t know, I don’t promise that. I really don’t promise to pay you 2.2. I don’t know why must I pay you 2.2 you know, but I do not want, but let’s keep discussing, but I want you to come back to me about your case

RADEBE: So are you putting it as a condition?

5.1.1.2 From this extract, Lubisi argues the reasonable reader would inter alia understand that:

• Ndlovu was eager to finalise the discussion because he had another appointment;
• Radebe, who had no known relations with MNS, enquired about the payment by Transnet of MNS’s invoices;
• a link was created between the Transnet payment of invoices to MNS and what Radebe expected;
• Radebe mentioned a figure, to which Ndlovu required further explanation – at which point Ndlovu did not object to any link between the outstanding invoices and what Radebe expected; and
• Radebe elaborated that five (5) had been agreed upfront. Some amounts had been paid; the balance was 2.2. (Notably, Ndlovu did not oppose the principle that payments linked to MNS were linked in the same discussion with payments to Radebe. In contrast, Ndlovu only objected to the figure).

5.1.1.3 Ndlovu replies that City Press’ interpretation of this excerpt from the recording is an entirely strained one in that: the recording did not show that “in assisting Mr Ndlovu to finalise”, Radebe enquired about the payment by Transnet of MNS’s invoices; the recording also did not show that there was a link between the payment of the invoices and Radebe’s “expectations”. In context, Ndlovu’s question more likely related to whether Radebe expected that Transnet would pay the invoices (see Ndlovu’s view in the recording that “your people inside” were sabotaging the extension of MNS’ mandate). If indeed there was an agreement as alleged by Radebe, he argues, it would make no sense for him (who was speaking frankly and did not know he was being recorded) to ask Radebe what he was expecting, in terms of the latter being paid;  it is not a fair reading of the transcript as a whole to suggest that he only objected to the figure of R2.2-million, but not to the principle as well. He said he made it clear throughout the recorded conversation that MNS owed Radebe nothing. He refers to where the transcript read: “You know we didn’t know you; you didn’t know us. You didn’t appoint us because there is a friendship or there is love or whatever. You appointed us because you were told that we are a credible law firm, so what.” He says it is quite inconceivable that he, not knowing that he was being recorded, would make such a statement if the facts were that MNS had agreed to pay Radebe a R5-million bribe. 5.1.1.4 He adds that, on a plain and simple reading of paragraph 5 of the print version of the article, it was stated as a matter of fact that there has been a payment of R2.2-million, and that this had not been a request or a demand. While a person who reads to the end will find some of his words quoted, the casual reader would remain under the impression that MNS had in fact paid R2.2-million to Radebe. “This is simply not true,” he contends. 5.1.1.5 Besides, he says, crucial parts of the recording were inaudible. For example, in response to his question, “What is the original discussion?” Radebe’s answer was inaudible. He then responded, “What?” Radebe then stated: “2 something about (inaudible)”, to which he replied: “what 2 something”. “What the objective reasonable listener or reader can glean from this is that there is no certainty as to what Mr Radebe is speaking about and that, whatever he is speaking about, [he] is certainly not agreeing to or acknowledging any type of bribe,” he concludes.

5.1.2 Context

5.1.2.1 The editor points out that the context of this discussion has to be considered as well. The immediate context provided in this discussion was the reference to the “5 that we’ve agreed upfront”.

5.1.2.2 But, he asks, what is the “5” and what does “upfront” mean? He points out that, further during the discussion, Ndlovu said:“Ndiphiwe has got a different view. You know as he had with you that the board can’t appoint what have you. We’ve got – okay, a legal opinion, a brief memorandum to that. When the time is right and the board wants it we’ll give it to them and say, this is how we can circumvent this thing, but ‘baba’ Radebe, I can’t sit here and you ask me to get 2 million and at the same time we’re fighting the minister that is giving us work. I don’t agree with the 2.2 million. It is something that we will discuss, but it is fine.”

5.1.2.3 Lubisi argues it is “therefore immediately clear” that the reference to “2.2” and “5” actually meant “2.2 million and 5 million”.

5.1.2.4 But besides the reference to “paying,” the editor asks if it really was about money. In this regard, he quotes from the discussion:

NDLOVU: What is the benefit of meeting you? Just tell me.

RADEBE: We don’t have agreements?

NDLOVU: What agreements? What do you mean? That I must give you money?

RADEBE: (Inaudible), well, that’s besides the point.

5.1.2.5 Ndlovu says that, on the face of it, the discussion relating to Mr Ndiphiwe Silinga “holding a different view” has nothing to do with the bold allegation of corruption and bribery made by City Press – he says Silinga held a different view in relation to whether his delegated power to appoint a law firm on the panel of Transnet could be revoked by the Board of Transnet. 5.1.2.6 He argues the newspaper’s question if the reference to “paying” really meant money is difficult to understand. He says the transcript makes it clear that, after Radebe had left Transnet, he (Ndlovu) explored other business initiatives with the former. “Nothing in this part of the transcript supports an allegation of bribery and corruption,” he opines.

5.1.3 Compliance with the law

5.1.3.1 Regarding Radebe’s justification for demanding money, Lubisi quotes the following from the transcript:

NDLOVU: No, no, I’m not feeling o?ended but let anyone who wants to take us on review. We are ready for it. We are ready for it. That’s what we need to do, whether there was compliance or not with the law and that’s what we are doing. Do you understand? Our task is to assess whether there was compliance with the law. Our report is on the law, do you understand? We are not saying Mr So and so stole money. Our report is on the law, finish and klaar. If you challenge us, anyone must go to court and say, no, the law does not say this.

RADEBE: That is why you are confident with that…

NDLOVU: Yes, ja, he must go to court and say, no, these people are talking rubbish, the law does not say this.

RADEBE: Are you happy to engage on that level?

NDLOVU: we are happy to engage on that level, we’re happy to engage on it.

RADEBE: (Inaudible), I mean from our earlier discussions about the cost of the report…

NDLOVU: But you see your challenge is putting unnecessary spotlight on MNS, unnecessary spotlight on MNS.

RADEBE: But then you are talking MNS, I’m talking myself.

NDLOVU: Ja, but all I’m saying is that your challenge is putting unnecessary spotlight on MNS, you know, so I don’t mind, you know whether we get appointed or not at Transnet, there are many other clients that we service. You know we didn’t know you; you didn’t know us. You didn’t appoint us because you know there is a friendship or there is love or whatever. You appointed us because you were told that we are a credible law firm, so what?

RADEBE: So that being, I’m putting unnecessary spotlight on MNS meaning I should drop it?

NDLOVU: That’s what, that is a wise thing to do…

5.1.3.2 Lubisi says Radebe also referred to “an earlier discussion about the cost of the report” which linked to the “original discussion” and the “upfront” agreement mentioned above.

5.1.3.3 The editor furthermore quotes the following from the transcript:

• NDLOVU: “Ja, we don’t need any protection from anybody, you understand. We don’t need any protection from anyone you know. I ask myself; we ask ourselves, this man sent me (inaudible) to do this and you are deviating from a (inaudible) I say but what nonsense is this? What nonsense is this that I must deal with? Just because you appointed us, you didn’t know us, you appoint us to the Transnet investigation, so you think you’ve got to control our lives”;
• NDLOVU: No, but you didn’t bring us there by doing us a favour… I know, but…You didn’t, it was not a favour to appoint us, I didn’t know you. You don’t know me. I didn’t know you. You appointed us and so what? Does it mean you’ve got control over our being now as MNS?; and
• RADEBE: No, (inaudible)…

5.1.3.4 From these excerpts, Lubisi argues, it is clear that up until the Transnet business deal Ndlovu (representing MNS) and Radebe did not know each other. “Therefore, the ‘earlier discussion’, ‘upfront’ agreement and the ‘original discussion’ – linked to the Transnet invoices – would have taken part during the initial work on the Transnet business with MNS,” he reasons.

5.1.3.5 Ndlovu says it is pure supposition on the part of the City Press that Radebe’s reference to an original, earlier or upfront discussion or agreement, preceded, or was in any way linked to, MNS’s appointment by Transnet. Not only does he in the recording disavow any such agreement, but the overall content is wholly at odds with any suggestion that MNS was appointed as a result of a bribe. 5.1.3.6 There is no basis on which it can factually be concluded that Radebe’s remark about “earlier discussions about the cost of the report…” was linked to “the original discussion” or the “upfront” agreement, he argues.

5.1.4 Corrupt activity

5.1.4.1 The editor says this office must consider whether there was a corrupt relationship between Radebe and Ndlovu. In this regard, he quotes again from the transcript:

NDLOVU: Look, I think if I were to advise you, if something worse was to appear about you, you will be destroyed, I am just warning you. If something worse was to appear about your shenanigan or whatever, whether corrupt activity or whatever, you’ll be destroyed forever.

RADEBE: Yes, I know that it is a consequence.

NDLOVU: Ja, if something (inaudible) exposed about your corrupt activities or whatever in the papers, then…

RADEBE: No, corrupt activities, where?

NDLOVU: Whether it is in regard to our appointment or the appointment of other subcontractors that you have worked with, then that’s the end of it.

RADEBE: Well, I can answer to that.

NDLOVU: What, by getting money from other subcontractors? You can answer to that?

RADEBE: What do you mean?

NDLOVU: Getting money from “bo” Core and and bo Nurf, you can answer to that?

RADEBE: (Inaudible), I don’t understand you. I have given people to work with on the basis or the fact that they are capable, you know and getting money from you, what about getting money from you?

NDLOVU: No, I mean all that.

RADEBE: So I’m saying, I’m saying why are you taking a personal stance there? Why is it (inaudible)? That’s something that I don’t talk about. That’s something I’m saying I’m…

NDLOVU: But you can’t claim that you are not corrupt

RADEBE: No, what I’m saying (inaudible)…

NDLOVU: No, but then you can’t go to fight and fight corruption and fight whatever when you are, you know, you have done things that make you corrupt.

RADEBE: No, I’m not fighting corruption. I’m fighting irregular appointment.

NDLOVU: Just stop this thing. I need to go, I’ve got another appointment otherwise it will expose you big time, believe me. It will expose you big time. I know that this is probably something that people will even want to take my life on but it will expose you big time.

5.1.4.2 Lubisi concludes the recording proves that both Ndlovu and Radebe confessed to having a corrupt relationship, and that MNS and its contract with Transnet was an intrinsic part of that relationship. “It is similarly confirmed that the appointment of MNS at Transnet involved corruption between the two,” he adds.

5.1.4.3 He says that:

• a part of the “original discussion” involved Radebe securing the contract at Transnet for MNS;
• according to both Radebe and Ndlovu, payments were due to the former, subcontractors he preferred had to be appointed, subcontractors were overcharged and in return gave more money to Radebe; and
• certain outcomes should have emerged from the MNS report which did not prevail as Radebe was not happy.

5.1.4.4 Ndlovu says there is nothing stated by City Press to gainsay the fact that MNS was appointed (amongst the law firms on the panel) pursuant to a decision by the Transnet Board to investigate alleged malfeasance within Transnet. 5.1.4.5 And yet, he argues, City Press boldly alleges that Radebe secured the contract at Transnet for MNS. Firstly, this demonstrates a lack of understanding as to how work was allocated to law firms on the panel of State-owned entities, he opines. What is of even greater concern, he continues, is that City Press persists with its far-fetched idea of a contract being “secured” – even after perusing his complaint where the necessary background to the appointment was succinctly set out. 5.1.4.6 Ndlovu says it is absurd to suggest that the selective quotation constitutes a confession of a corrupt relationship between MNS and Radebe. On the contrary, he says, when read objectively the quotation indicated that he had warned Radebe that his litigation would open up his conduct to detailed scrutiny. Moreover, Radebe denies any suggestion of improper conduct. 5.1.4.7 He says that Radebe did refer to “getting money from you (Ndlovu)”, but this referred to monies paid by him, in his personal capacity, to Radebe after he had left Transnet. There was nothing in the entire balance of the recording which could suggest that this was some sort of a bribe, he contests. Any such an inference would be entirely at odds with the statements made by him and Radebe, adding that MNS was appointed purely on merit

5.1.5 ‘Bribery’

5.1.4.1 Lubisi says the story clearly indicated that the reference to “bribery” was the publication’s own interpretation – and not a quotation attributed to anyone. A reasonably competent legal expert with years of experience ought to have picked that up, unless the intention is a frivolous and vexatious complaint, he argues.

5.1.5.2 Also, the reference to “payment” in the story did not suggest that the “balance” had already being paid, but rather that there were negotiations between Radebe and Ndlovu on the amount, depending on whether the former dropped his case against Minister Gordhan or not. “A reasonable reader would not have understood the reference to mean that the specific R2.2 million had already exchanged hands,” he concludes.

5.1.5.3 Ndlovu says City Press considers portions of the transcript of the recording in isolation, and then seeks to join those parts (through inferences) to form a particular narrative that suits the newspaper. In this process, what is essentially a “conspiracy theory”, he says City Press ignores the facts that do not suit this narrative, as well as the responses given by MNS prior to publication. 5.1.5.4 He says from the newspaper’s response it now asserts that the allegation of MNS being involved in a bribery scandal was in fact true – it has dropped the pretence of the word “bribery” being placed between inverted commas. 5.1.5.5 He adds that, on the basis of its “selective reading of the recording”, City Press concludes that in terms of an “original discussion” Radebe had procured the appointment of MNS by Transnet in exchange for a bribe of R5-million. It completely ignores the fact that, in numerous instances during the conversation, he (Ndlovu, who was unaware that he was being recorded and therefore had no reason to misstate the facts): denied the existence of such an original discussion; denied that he, or MNS, owed Radebe anything; and asserted that MNS had been appointed on merit.

5.2 Headlines

5.2.1 Main headlines

5.2.1.1 Ndlovu says the headline in the print edition was in large print and dominated its front page. Both versions of the article contain a photograph of him; and both headlines communicated as fact that MNS had been linked to a bribery scandal.

5.2.1.2 He says the fact that the word bribery was put in quotation marks would convey to the reasonable reader that a credible source had made an allegation of bribery – while the content of the article, and the recording, did not reflect that anyone has alleged any bribery to which MNS was linked, nor indeed that there was any “scandal”.

5.2.1.3 Ndlovu says bribery, in both its legal sense and in layman’s terms, entails some or other gratification offered by one person to another so as to induce the latter to act unlawfully or improperly. “There is nothing in the content of the article which could support a conclusion that Ndlovu or MNS had tried to induce Radebe to act unlawfully or improperly. There is also nothing in the article to indicate that [he] or MNS had offered or paid any gratification to Mr Radebe (save, possibly, for the statement that MNS has paid R2.2 million to Mr Radebe – which we demonstrate below to be false),” he says.

5.2.1.4 He argues that, even if an astute reader could conclude that there was in fact no alleged bribery scandal, this in fact did not avail Stone and the City Press as it cannot be assumed that all readers would have read the entire article. “For the many readers who read only the headline, and saw [his] photograph, the first and final impression would be that MNS is involved in bribery. The heading also sets the tone of the article. The reasonable reader is unlikely to independently weigh up whether the content of the articles in fact justify the heading,” he argues.

5.2.2 Sub-headline

5.2.2.1 The sub-headline to the printed version read, “A leaked audio recording has implicated a law firm in alleged acts of corruption and bribery as state capture prosecutions are set to begin”.

5.2.2.2 Ndlovu complains this stated as fact that the recording implicated MNS in corruption. As with bribery, corruption requires a gratification to induce unlawful or improper conduct – a conclusion that Stone could not reasonably have come to, he argues.

5.2.2.3 Ndlovu asks what the alleged acts of corruption were – and says that the article did not state what they were. Instead, he remarks, there was an insinuation that it might have had something to do with MNS’ appointment by Transnet.

5.2.2.4 He argues that a fair hearing of the recording offered no evidence to support such an insinuation – he repeatedly stated that MNS owed Radebe no favours. For example, “You know we didn’t know you; you didn’t know us. You didn’t appoint us because you know there is a friendship or there is love or whatever. You appointed us because you were told that we are a credible law firm, so what?”

5.2.2.5 Ndlovu says the allegation that “the discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe who allegedly initiated the appointment of MNS at the parastatal”, planted the seed that this payment had been a gratification for an improper appointment.

5.2.2.6 The recording shows that he expressly and adamantly refuted that there was any agreement (whether by him or MNS) to pay Radebe anything. For example, he said, “I don’t promise that. I really don’t promise to pay you. I don’t know why I must pay you, you know…”

5.2.2.7 He argues that the reportage would have created the impression with the “casual reader” that MNS had in fact paid out R2.2 million to Radebe, even though a reader who reads to the end would find some of his words quoted.

5.2.2.8 He says: “The recording as a whole reflects no bribery or corruption, whether past or ongoing. There is no gratification paid or offered to induce an unlawful act. All there is, is Mr Ndlovu stating to Mr Radebe that he will not continue with a business relationship with Mr Radebe unless Mr Radebe withdraws the litigation (which Mr Ndlovu advised was without merit and a futile exercise). This does not constitute an inducement to commit an unlawful or improper act.”

5.2.2.9 Ndlovu concludes that the sub-headline presented, as fact, that he and MNS were guilty of corruption and bribery – while the newspaper did contend that their allegations of corruption and bribery had been based on anything other than the recording (which did not prove anything).

5.2.2.10 Lubisi says both headlines reasonably reflected the contents of the articles, in accordance with Section 10.1 of the Code. 5.2.2.11 He cites a ruling by the Supreme Court of Appeal, in the case of Independent Newspapers Holdings Ltd and Others v Suliman [2004], that writers cannot be held liable for defamatory statements read in isolation when a reading of the whole article would justify such defamatory assertions. The reasonable reader can and must be assumed to have read the entire article for context.

5.2.2.12 Ndlovu replies a reasonable reader would conclude on reading the heading and subheading that MNS has in fact been linked to, or implicated in, a bribery scandal – no reasonable reader would conclude that that was merely the opinion or interpretation of the newspaper.

5.2.2.13 He argues the reference to the decision in the Suliman case is inappropriate – the present one is not a defamation case. He points out that Section 10.1 of the Press Code binds City Press to ensure that the heading gives a reasonable reflection of the contents of the article. “On City Press and Mr Stone’s own version it does not do so, since, on their own version, the heading and sub-heading constitutes their interpretation of the recording,” he says.

5.2.2.14 He adds the article stated as a matter of fact in the header that MNS had been linked to a bribery scandal at Transnet. A reasonable reader who reads the header and identifies the picture of the chairperson of MNS would immediately conclude that MNS was involved in bribery, he opines – while the article did not indicate that the bribery was alleged, or that it was an interpretation of City Press, for that matter.

5.3 Reputations tarnished

5.3.1 Ndlovu complains that his reputation, as well as that of MNS, has been irreparably harmed by the “reckless and speculative allegations”, mentioned above, in the article.

5.3.2 Lubisi denies this, arguing that the reportage was accurate, fair and justified.

5.4 Conclusions

5.4.1 Lubisi says the newspaper’s interpretation of the recording was reasonable, accurate and fair. “The allegations that Mr Ndlovu, for the benefit of MNS, agreed to an inducement that would be derived to Mr Radebe, thus the reference to bribery, are borne out by the recording (as evidenced by the transcript thereof). The reportage by City Press was therefore justified,” he concludes.

5.4.2 Ndlovu replies: The secretly recorded conversation, which was apparently provided to them by a third party, was incomplete (in the sense that important parts were inaudible); MNS and he were given limited time to respond to broad and generalised questions, and they responded as best they could in the limited time afforded; While the article did reflect MNS’s responses, the effect of the heading and sub-heading (and the Twitter alerts) was to essentially disregard these responses so as to state as a fact that they had been implicated in bribery and corruption; City Press and Stone now argue that the heading and sub-heading reflect their “interpretation” of the recording. “We say that their interpretation is wrong and unreasonable,” he contends; and More importantly, in blaring out the “news” that MNS has been implicated in bribery, the newspaper failed to advise its readers that this was merely their interpretation of, or comment on, the contents of the recording.

6. Analysis

6.1 General comments

6.1.1 I am cognisant of the fact that it is not my task to decide the merits of the matter – whether there indeed was a corrupt relationship between Radebe and Ndlovu/MNS – or about the legality of MNS’s appointment to assist Transnet with its investigation into state capture. That would be the task of a court. My one and only purpose, and mandate, is to decide if the reportage on this matter was reasonable, accurate, fair and justified. By this, I do not mean “beyond reasonable doubt”, which would apply in a criminal court.

6.1.2 My first prize would have been to hold a hearing on this matter. Given the Covid-19 pandemic, though, this was always going to be problematic. During a Zoom conference between the Executive Director, the Press Ombud, the acting Public Advocate and myself, we unanimously decided that I should come to a preliminary finding, based on papers – after which the parties would get an opportunity to respond to my draft. This was quite unusual, but to our minds that was the best way forward.

6.1.3 Neither party has objected to this decision, and both parties have responded.

6.1.4 My modus operandi from here onwards is as follows: I am putting my provisional analysis in shaded boxes, after which I document the gist of the various parties, before coming to a final ruling.

6.1.5 I have not made provisional findings regarding the complaint about the headlines and the tarnishing of Ndlovu’s and MNS’s reputation, as those matters would be determined only after I have (finally) dealt with the preceding issues.

6.2 Statements in dispute

6.2.1: First statement in dispute – “Top law firm Mncedisi Ndlovu & Sedumedi (MNS), which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording…”

6.2.1.1 Provisional analysis 6.2.1.1.1 The question is if it was justified for City Press to have reported that “MNS” had been “linked” (stated as fact) to “alleged kickbacks” involving Radebe. 6.2.1.1.2 note that the word “kickback” was not used in the recording – which, of course, means that it was the newspaper’s interpretation of the discussion. So then, the question becomes how justified this interpretation was – and if the use of the word “alleged” (kickbacks) could have made a difference. 6.2.1.1.3 If it is true that something underhand went on between Ndlovu and Radebe, my overwhelming impression is that that was on a personal level and that it did not involve MNS. Perhaps that is how Ndlovu’s words (within the context of some disagreement with Minister Pravin Gordhan) should be interpreted when he said, “It is draining me financially…” 6.2.1.1.4 From this, and other quotations, I believe that, if Radebe was trying to involve MNS, Ndlovu was adamant that that would not happen. 6.2.1.1.5 For example, Ndlovu said: “It was not a favour to appoint us. I didn’t know you; you don’t know me… You appointed us and so what? Does it mean you’ve got control over our being now as MNS?” 6.2.1.1.6 Also consider all of the quotations under Section 6.2.3 below. All four of those support my interpretation that, if Ndlovu was involved in something, he wanted to keep MNS out of it. 6.2.1.1.7 Based on the above, I believe it was not justified for City Press to have stated, as fact. that MNS had been linked to alleged kickbacks. That was the newspaper’s interpretation – and at best it should have been stated as such. Stating this as fact, then, cannot be seen as accurate, truthful, fair and in context. If it was true that MNS was linked to such corruption, City Press should have based that statement on information other than the conversation between Ndlovu and Radebe. 6.2.1.1.8 It follows I do not believe that the word “kickback” was justified, even with the use “alleged” used in conjunction with it. The “alleged kickback” referred to MNS, according to the article, and to nobody or nothing else. 6.2.1.1.9 I’ll return to this when I discuss “bribery” and “corruption” below.

6.2.1.2 The newspaper’s response to the provisional analysis/finding

6.2.1.2.1 City Press says Ndlovu “explicitly” confirmed (in the recording) that MNS had been appointed in a corrupt manner, and objects to the fact that I have come to a different (preliminary) conclusion. The newspaper calls the draft finding in this regard “flawed”, as it says it was based on a “critical omission of a key fact”.

6.2.1.2.2 Lubisi says: “In the recording, Ndlovu challenges Radebe about his ‘corrupt activities,’ and Radebe asks: ‘where’ and Ndlovu says: ‘Whether it is in regard to our appointment or the appointment of other subcontractors that you have worked with’…”

6.2.1.2.3 He submits it was Ndlovu himself who made the statement that MNS was appointed in a corrupt manner. This was not an invention of City Press, but rather Ndlovu’s own words, he argues.

6.2.1.2.4 The editor says it is not in dispute that Radebe facilitated the appointment of MNS, or that the former received some payments. What is disputed, post the recording, is whether payments were made by MNS and whether they were illicit.

6.2.1.2.5 Lubisi says if it is true that something underhand went on between Ndlovu and Radebe, the overwhelming impression from the former’s comments of corruption in the recording is that it did involve MNS. “It is important to note that it is not disputed that the word ‘our,’ in this case, refers to MNS, and that the subcontractors referred to were also appointed by MNS,” he submits.

6.2.1.2.6 From this, he concludes my observation that it was Radebe who was bringing MNS to the picture was misplaced. He reiterates Ndlovu himself “confirmed” that MNS had been part of the picture through a corrupt appointment. Therefore, it is fair to say that MNS was an intrinsic part of the conversation, he argues.

6.2.1.2.7 On this basis, he disagrees with my assertion that “if Radebe was trying to involve MNS, Ndlovu was adamant that that would not happen” – arguing Ndlovu appeared to confirm that MNS had been appointed in a corrupt manner through Radebe’s help and that he was frustrated that the latter wanted to use the appointment to demand money and even to interfere in the work of MNS.

6.2.1.2.8 Lubisi says this raises the following questions – which, he says, I should have asked Ndlovu:

• If it was Ndlovu’s “personal” money that he was paying to Radebe, why would he not know how much he had already paid and how much was the balance?;
• Why would Radebe appoint MNS in a corrupt manner, as confirmed in Ndlovu’s own words, and benefit nothing from being part of that corrupt act?;
• Why would Radebe ask about Transnet paying the invoices of MNS, effectively  interfering in the affairs of MNS and Transnet, at a time when he no longer had links to Transnet?; and
• Why did Ndlovu not question that?

6.2.1.2.9 He submits it is clear that:

• Ndlovu probably did not know of the balance owed to Radebe because the money was not paid by him personally, but by MNS;
• in terms of Radebe’s benefit in the corrupt appointment, the only known reward to him so far is the payments he was demanding; and
• Radebe was asking about the Transnet invoices (without Ndlovu objecting to it) because both of them knew, understood and appreciated why the outstanding Transnet payments were relevant to the outstanding payment that Radebe was demanding.

6.2.1.2.10 Lubisi says it is clear in the recording that what was being discussed was not a straightforward transaction that had been based on paper trail. “Radebe does not refer to invoices or anything similar to support the demand for payment. His contention is that he is entitled to the payment on the basis of the ‘original discussion’,” he contends.

6.2.1.2.11 He argues it was reasonable to infer (a) that the “original discussion” upon which Radebe was demanding money was intrinsically linked to the corrupt appointment of MNS by Radebe at Transnet, and (b) that the payments to Radebe were linked to the corrupt appointment of MNS, because:

• Radebe was also interested in whether Transnet had been paying or not so that he could also get his share;
• Ndlovu said he never knew Radebe until the appointment of MNS at Transnet; and
• MNS was thereafter “corruptly appointed” with Radebe’s facilitation.

6.2.1.2.12 The editor says because City Press appreciated that these matters have not yet been decided on beyond reasonable doubt, it used the word “alleged” in the report to demonstrate precisely that fact to the reader. Besides, he adds, the newspaper did put the bribery allegations to Ndlovu for comment.

6.2.1.2.13 Lubisi concludes that the use of the word “kickback” was justified.

6.2.1.3 Ndlovu’s response

6.2.1.3.1 Ndlovu denies that MNS has ever made any payment to Radebe. He says that he, in his personal capacity, made certain payments to Radebe – which were made after the latter had already left the board of Transnet. These payments, he says, were made to assist Radebe at a time when the latter was in some financial strife. As at September 2018 (being the approximate date of the recorded conversation) the payments totalled approximately R200 000, he declares.

6.2.1.3.2 He says that the recording cannot reasonably be interpreted as suggesting that MNS had concluded “a bribery agreement” with Radebe in terms of which an amount of R2.2-million remained outstanding. He argues, “In view of [his] repeated statements that MNS had been appointed on merit and that it (and [he]) owed Mr Radebe nothing, it would be impossible to fairly interpret the recording in the way suggested by City Press.”

6.2.1.3.3 He submits that, even if it were possible to interpret the recording as confirming the existence of a “bribery agreement”, the article should then have made it clear that this was its interpretation of the recording. “It did not constitute reasonable, accurate and fair reporting to present bribery, corruption or kickbacks as a fact,” he says.

6.2.1.3.4 Ndlovu emphatically denies he said that MNS had been appointed in a corrupt fashion. “City Press cherry-picks one line in the transcript and ignores what precedes this line. It also ignores the balance of the transcript,” he argues.

6.2.1.3.5 He concludes, “If this one line constituted a confession that MNS had been corruptly appointed it would make no sense that [he] would repeatedly, throughout the conversation (and bearing in mind that he was unaware that he was being recorded), say that MNS owed Mr Radebe nothing and that they were appointed on merit and that Mr Radebe never challenged these statements. Once the ‘building block’ of [his] so-called confession is removed, the entire edifice of City Press’ allegation of bribery and corruption falls apart. It is based on nothing more than wild speculation and supposition.”

6.2.1.4 Final analysis

6.2.1.4.1 The matter in dispute is whether the newspaper was justified to report that MNS had been linked to alleged kickbacks from Radebe.

6.2.1.4.2 The newspaper’s main argument hones in on a certain excerpt from the transcription of the conversation. I shall deal with this first, before coming to the rest of the newspaper’s response.

6.2.1.4.3 This is the extract:

Ndlovu: “Ja, if something (inaudible) exposed about your corrupt activities or whatever in the papers, then…”

Radebe: “No, corrupt activities, where?”

Ndlovu: “Whether it is in regard to our appointment or the appointment of other subcontractors that you have worked with, then that’s the end of it.”

6.2.1.4.4 From this, City Press concludes that Ndlovu has admitted to corruption regarding its appointment at Transnet. Those were his own words, the newspaper says – so how on earth could I have come to a different conclusion?

6.2.1.4.5 I have reconsidered my provisional analysis on this issue, but I came to the same conclusion: I still believe that that the newspaper’s interpretation of the words in question are out of context.

6.2.1.4.6 As this touches the heart of the matter, let me rather over-elaborate than under-elaborate. This reminds me of a movie I have seen (I forgot the title), where a youngster was falsely arrested for shooting a sheriff.

6.2.1.4.7 The policeman said: “You shot the sheriff.” The youngster replied: “I shot the sheriff.” Those words were used as “evidence” against the youngster in court, as he indeed uttered the words as quoted. But that was out of context. He did not shoot the sheriff – his words did not amount to a statement; he asked a rhetorical question.

6.2.1.4.8 Although this is not a perfect example, it does demonstrate what was happening at the newspaper. Yes, Ndlovu used the words, within the context of the mentioning of corruption, “Whether it is in regard to our appointment…”

6.2.1.4.9 However:

• Ndlovu was trying to understand Radebe; he was looking for answers; and
• Even more importantly, and this is crucial: When reading the whole transcript, in its full context, everything else Ndlovu said rebelled against an interpretation that he had admitted to corruption. For example, consider these words by Ndlovu:
  • “…it was not a favour to appoint us…”;
  • “…you appointed us because you were told that we are a credible law firm…”;

6.2.1.4.10 There is no sniff of corruption in those words; on the contrary, it testified to quite the opposite.

6.2.1.4.11 The question is: Why did City Press choose this sentence from the transcript, attach an interpretation to it, and then build a whole argument on that? Why not another sentence that testifies to the opposite? Such as Ndlovu’s statement when he said, “…you appointed us because you were told that we are a credible firm…”?

6.2.1.4.12 I am not willing, as City Press clearly is, to deduce from those words that Ndlovu admitted to corruption and “explicitly confirmed” that MNS had been appointed in a corrupt manner. For me, that is one – or even two – bridges too far. When reading the full transcript, I believe quite the opposite.

6.2.1.4.13 I now respond to the questions Lubisi says I should have asked Ndlovu:

• If it was Ndlovu’s “personal” money that he was paying to Radebe, why would he not know how much he had already paid and how much was the balance? – Any conclusion based on an answer to this question, is and will remain pure speculation and will prove nothing;
• Why would Radebe appoint MNS in a corrupt manner, as confirmed in Ndlovu’s own words, and benefit nothing from being part of that corrupt act? – As I have said above, I do not believe that Ndlovu has “confirmed” corruption, which renders the reference to a “benefit” in the question redundant;
• Why would Radebe ask about Transnet paying the invoices of MNS, effectively  interfering in the affairs of MNS and Transnet, at a time when he no longer had links to Transnet? – This is hardly a question that should be directed at Ndlovu. I certainly do not expect the latter to speak for Radebe; and
• Why did Ndlovu not question that? – The fact that Ndlovu did not question this, may raise the newspaper’s eyebrows – but coming to damning conclusions or allegations based on this fact, is taking it too far.

6.2.1.4.14 Let me be very clear on my conclusion. The story said the law firm, MNS (not Ndlovu), has been linked to alleged kickbacks. I do not believe there is enough evidence, if at all, in the conversation that can back this up. Not even close.

6.2.1.4.15 I am re-quoting Ndlovu’s argument above, in full agreement: “If this one line constituted a confession that MNS had been corruptly appointed it would make no sense that [he] would repeatedly, throughout the conversation (and bearing in mind that he was unaware that he was being recorded), say that MNS owed Mr Radebe nothing and that they were appointed on merit and that Mr Radebe never challenged these statements. Once the ‘building block’ of [his] so-called confession is removed, the entire edifice of City Press’ allegation of bribery and corruption falls apart. It is based on nothing more than wild speculation and supposition.”

6.2.1.4.16 My provisional analysis on this matter therefore becomes my final analysis.

6.2.2: Second statement in dispute – “The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS to assist Transnet with the investigation and prosecution of those linked to state capture.”

6.2.2.1 Provisional analysis 6.2.2.1.1 Regarding the words “suspicious conversation”, I am quoting Ndlovu from the transcript as follows: “… I can’t be seen associating with you when you are fighting the Minister that I am working for. How can I? That’s why I’m reluctant to attend meetings with you. How can I be seen with you and jeopardise the profile, the reputation of MNS? That’s why I’m reluctant to meet with you, you know, why must I meet this man and put MNS at risk, why?”; “Yes, we can have a relationship, but even that relationship – I don’t need it because it is a risk to MNS”; “I don’t want to be meeting with you in some dark corner and (be) scared, that who is watching us, who is taking us videos and the next thing the videos are out there and then that’s it, that’s it – Mncedisi Ndlovu is MNS…”; and “…I can’t be meeting you in the dark corners of (inaudible), the moment I’m seen with you, what will people say? I can’t go to your office. You can’t come to MNS, what will people say? What kind of a relationship is this if I can’t be seen with someone…?” 6.2.2.1.2 Based on these statements, I agree that the use of the word “suspicious” (conversation) was justified. This is the point: If a (public) meeting between Ndlovu and Radebe could or would cause suspicion, it follows that a conversation between the two may indeed be depicted as “suspicious”. 6.2.2.1.3 The same does not apply to the statement that the conversation cast doubt on the lawfulness of MNS’s appointment. 6.2.2.1.4 Consider the following statements by Ndlovu: “…it was not a favour to appoint us…” and, “you appointed us because you were told that we are a credible law firm…” 6.2.2.1.5 Besides, throughout the discussion Ndlovu made it clear that he was on the side of the law, and that he meant to stay there. In fact, he accused Radebe of corruption – and the latter did not deny it. (See below.) 6.2.2.1.6 For now, and as an example, I am quoting Ndlovu from the transcript as follows: “We are talking about the law in our report. We are not talking about Seth Radebe (who) has stolen money… We are talking about the law. This is what the law says and people, if they want to challenge us, they must challenge us on the basis of the law. We are talking about the law.” 6.2.2.1.7 The statement, therefore that the “suspicious conversation” in fact “cast doubt on the lawfulness of appointing MNS to assist Transnet” cannot be justified. Again, this is the newspaper’s interpretation, its supposition – and yet, once again “doubt” that was reportedly cast on MNS’s appointment was stated as fact. That cannot be truthful, fair or balanced.

6.2.2.2 The newspaper’s response to the provisional analysis/finding

6.2.2.2.1 Lubisi says Ndlovu confirmed the facts in this regard in his response to City Press – this time not only in the recording. He refers to where Ndlovu wrote, “It is however common knowledge that there were certain persons within Transnet who incorrectly held the view that the MNS appointment was irregular.”

6.2.2.2.2 He submits it is unclear how I could come to a different conclusion. He says my provisional finding on this matter was “equally flawed” and similarly based on a “critical omission of a key fact”.

6.2.2.2.3 The editor maintains that, based on a proper examination and interpretation of the contents of the recording, it was truthful, fair and balanced to report that the recording did “cast doubt” on the appointment of MNS at Transnet.

6.2.2.2.4 He refers in this regard to the following statement in the conversation where Ndlovu challenged Radebe about his “corrupt activities” and the latter asked: “where?”, and Ndlovu replied: “Whether it is in regard to our appointment or the appointment of other subcontractors that you have worked with…”

6.2.2.2.5 He again points to the use of the word “our” (appointment) and argues this could only have referred to MNS (who also appointed the subcontractors). From this, he concludes that MNS was an “intrinsic part” of the conversation – and that it had been appointed in a corrupt manner.

6.2.2.2.6 He concludes: “Given that Ndlovu himself confirms that it is ‘common knowledge’ that the lawfulness of the appointment of MNS was doubted by others, it is unclear why both Ndlovu and the Press Ombudsman would come to a different conclusion that the ‘doubt’ was the invention of City Press.”

6.2.2.3 Ndlovu’s response

Ndlovu reiterates that he never “confirmed a corrupt appointment”. He argues the fact that the transcript mentions Minister Gordhan and others within Transnet questioning MNS’ appointment, did not mean that the conversation cast doubt on the lawfulness of MNS’ appointment. In fact, he adds, both he and Ndlovu indicated during the conversation that they, themselves, considered MNS’ appointment to have been proper.

6.2.2.4 Final analysis

6.2.2.4.1 Ndlovu’s “common knowledge” statement (that there were people in Transnet who “held the view that the MNS appointment was irregular”) does in itself not justify the newspaper’s reportage that this could have been deduced from the conversation between Ndlovu and Radebe. Persons within Transnet cannot simply be equated with Ndlovu’s so-called confirmation during the conversation. It might have been common knowledge – but the impression of MNS’s alleged irregular appointment was not evident from the conversation.

6.2.2.4.2 I therefore stand by my provisional analysis, which is that the:

• conversation between Ndlovu and Radebe could justifiably have been described as “suspicious”; and
• “suspicion” did not point to the law firm’s alleged illicit appointment to assist Transnet with its investigations.

6.2.3: Third statement in dispute – “The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe, who allegedly initiated the appointment of MNS at the parastatal.”

6.2.3.1 Provisional analysis 6.2.3.1.1 Payment of R2.2-million by MNS 6.2.3.1.1.2 The complaint about the “unexplained payment” of R2.2-million by MNS to Radebe (read: corruption, bribery) is at the heart of the matter. The question is: Did the conversation justify the reportage on this issue? 6.2.3.1.1.3 It is important to quote the whole conversation on the R2.2-million. The conversation went like this: Ndlovu: “What is the original [discussion]…?” Radebe: (Inaudible) Ndlovu: “What?” Radebe: “Two something, about (inaudible)…” Ndlovu: “What ‘two something’?” Radebe: “Two point something, remember we gave (inaudible) and then the balance about 2.2 or whatever.” Ndlovu: “The balance to you is 2.2?” Radebe: “Ja.” Ndlovu: “How do you come to that?” Radebe: “Whatever I’ve been paid vis-á-vis from five that we’ve agreed upfront and then minus whatever I’ve been paid, it is about 2.2 and then you said we will discuss it when we come to that (inaudible).” Ndlovu: “Ja, no. I don’t know. I don’t promise that. I really don’t promise to pay you 2.2. I don’t know why must I pay you 2.2, you know…” And later on in the conversation, Ndlovu said: “I can’t sit here and you ask me to get 2 million and at the same time we’re fighting the Minister that is giving us work. I don’t agree with the 2.2 million.” 6.2.3.1.1.4 From this, I deduce the following: There was some kind of original “discussion”, whether it was a deal or some sort of an understanding between Ndlovu and Radebe – why else would the former have asked what the original (discussion) had been?; According to Radebe: there was an agreement that he would be paid an amount of R5-million; the outstanding amount to be paid to him added up to R2.2-million; and Ndlovu did not: agree with the latter amount; and dispute Radebe’s implied statement that he had already been paid a certain amount (according to the latter, it must have amounted to R2.8-million); he did not query Radebe’s use of the word “balance” either; and The amount of R2.2-million was not paid out at the time of publication (both Radebe and Ndlovu agreed on this point), which has to render the use of the word “payment” inaccurate and unfair. 6.2.3.1.1.5 It follows that the statement payment to the amount of R2.2-million was made “by MNS” can also not be accurate or fair. 6.2.3.1.1.6 This is substantiated, inter alia, by the following quotation from Ndlovu: “You want money from us, you make our appointment difficult. I don’t know what you want…” and, “What agreements? What do you mean? That I must give you money?” 6.2.3.1.2 Initiating appointment of MNS at Transnet 6.2.3.1.2.1 The story said that Radebe had allegedly initiated the appointment of MNS at Transnet. 6.2.3.1.2.2 It is clear from the conversation that Radebe was indeed instrumental in MNS’s appointment. I quote Ndlovu from the transcript: “Just because you appointed us…”; “…it was not a favour to appoint us. I didn’t know you; you don’t know me…”; “You appointed us and so what?”; “You didn’t appoint us because you know there is a friendship or there is love or whatever. You appointed us because you were told that we are a credible law firm…”; “Just because you appointed us … to the Transnet investigation, so you think you’ve got to control our lives”; and “We are not buying your face…” This exonerates the reportage on this specific matter.

6.2.3.2 The newspaper’s response to the provisional analysis/finding

6.2.3.2.1 Lubisi says my draft finding on this issue was based on a misreading of the text. He says it is common cause that the discussion in the recording was about an amount that was yet to be paid, which Radebe referred to as a “balance” of R2.2-million. “It is a complete misreading of the text to suggest that City Press put it as fact that the amount was ‘paid’ because nowhere in the recording do any of the speakers say that the amount has been ‘paid’,” he argues.

6.2.3.2.2 He adds that the use of the word “bribery” in the article was neither linked, nor limited to the “payable” amount of R2.2-million (that was part of the “original discussion”), he remarks. On the contrary, the story is clear that no bribe had been “paid”, he concludes.

6.2.3.3 Ndlovu’s response

Ndlovu says an ordinary reader would read the sentence in dispute as indicating that a payment had been made and that this payment was unexplained. “If City Press had wanted to convey that the payment had not been made, it would have referred to a ‘demand for payment’ or ‘R2.2 million due’,” he says. Meanwhile, he adds, it is common cause the transcript reflected that no payment of R2.2-million had been made.

6.2.3.4 Final analysis

6.2.3.4.1 Lubisi’s argument on this issue does not make sense. He says I have misread the text to suggest that R2.2-million had already been paid (saying it was “common cause” that Radebe had referred to a yet-to-be-paid balance of R2.2-million) – while the story said, “The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe…”

6.2.3.4.2 I rest my case. I shall be the first to admit that I have misread the text – but only if I believe I did. I don’t think I have.

6.2.4: Fourth statement in dispute – “From the recording, it is evident that the speakers had met on a number of occasions and also had an ‘original discussion’ about MNS allegedly paying certain amounts to Radebe and about appointing sub-contractors preferred by him, while he was a board member.”

6.2.4.1 Provisional analysis 6.2.4.1.1 The question is if it was justified to have reported that Ndlovu and Radebe had met on several occasions before and that they had an “original discussion”. 6.2.4.1.2 Ndlovu said to Radebe, “…I told you. It was a Sunday. I met with you. I told you this is the thinking and this is what is happening.” 6.2.4.1.3 From this, I believe it was justified to say that Ndlovu and Radebe had met before, and therefore that there had been an “original discussion”. The latter also referred to a former discussion. 6.2.4.1.4 I do not think, though, the statement that they had met “on a number of occasions” can be based on the recording. 6.2.4.1.5 I have already dealt with the words, “MNS allegedly paying certain amounts to Radebe” in the sentence in dispute.

6.2.4.2 The newspaper’s response to the provisional analysis/finding

6.2.4.2.1 Lubisi says my provisional finding on this matter was based on a misreading of the text.

6.2.4.2.2 He says I drew a line from the point of the recording going back, and deduced that the two met on a number of occasions, including the meeting of the recording. He says it is unclear why I used the word “before” – “therefore effectively excluding the recorded meeting among the number of occasions where the two met. If that is the case, it is a misreading of the text.”

6.2.4.2.3 He argues it was justified to report that the two had met “on a number of occasions”. From the discussion in the recording, it could be deduced that the two met at least three times – during the:

• “original discussion”;
• “Sunday” meeting where Ndlovu tried to persuade Radebe against the Gordhan litigation; and
• meeting that was recorded.

6.2.4.2.4 This, he argues, justified the statement that the two had met “on several occasions”.

6.2.4.3 Ndlovu’s response

6.2.4.3.1 Ndlovu argues that, on any ordinary grammatical interpretation, a statement that it was evident from the recording that the speakers “had met on a number of occasions”, referred to occasions prior to the recording.

6.2.4.3.2 In any event, he adds, the nub of the complaint is not the number of meetings, but the false allegation that these meetings related to MNS paying amounts to Radebe.

6.2.4.4 Final analysis

It is unclear if the “original discussion” took place during the “Sunday” meeting, or if the latter was held on a different occasion (as Lubisi suggests). Be that as it may, the editor is correct in stating that I have overlooked the meeting that was recorded. I therefore change my analysis, and finding, on this particular issue – as the words they had “met on a number of occasions” were indeed justified.

6.3 The headlines

6.3.1 The headlines and the text on Twitter read as follows:

• Transnet lawyers’ ‘bribery scandal’ – A leaked audio recording has implicated a law firm in alleged acts of corruption and bribery as state capture prosecutions are set to begin (lead story, front page);
• State capture: Top law firm linked to Transnet ‘bribery’ scandal (website); and
• In City Press tomorrow | Transnet lawyers ‘bribery scandal’ | A top law firm, which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording obtained by City Press (the newspaper’s Twitter account, 4 January 2020)

6.3.2 I have already found against City Press for:

• stating that MNS had been linked to alleged kickbacks;
• stating that the conversation between Ndlovu and Radebe “cast doubt on the lawfulness of appointing MNS to assist Transnet”; and
• mentioning MNS’s name together with the use of the word “payment”.

6.3.3 Both headlines and the Twitter text reflected the above. It follows that the headlines and the Twitter text were also not justified.

6.3.4 In his response to my provisional finding, Lubisi notes I have stated that I would return to the issues of “bribery” and “corruption. “However, such a discussion … does not appear to be recorded,” he remarked.

6.3.5 Quite correct – and with good reason. The article itself used the word “bribery” only once (where it stated that Ndlovu denied allegations of bribery in a letter to City Press). The allegation of bribery, therefore, mostly appears in the headlines (on which I have not made a preliminary finding, as that would have depended on my decisions regarding the article itself).

6.3.6 While I am on this topic, I note that the word “corruption” also appeared only once in the article – but not even in connection with either Ndlovu or MNS.

6.3.7 I do note that the words “bribery” and “corruption” in the headlines were either put in inverted commas, or they were specified as allegations – which could not be justified on the basis of the transcript of the conversation between Ndlovu and Radebe.

6.4 Reputations tarnished

Given my argumentation above, I believe that the reportage did not exercise proper care and consideration involving the reputation of MNS and, by implication, of Ndlovu.

7. Finding

7.1 Statements in dispute

7.1.1 “Top law firm Mncedisi Ndlovu & Sedumedi (MNS), which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording…”

The statement that MNS had been linked to alleged kickbacks was in breach of the following sections of the Press Code:

• 1.1: “The media shall take care to report news truthfully, accurately and fairly”; and
• 1.2: “The media shall present news in context and in a balanced manner…”; and
• 1.3: The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such.”

7.1.2 “The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS to assist Transnet with the investigation and prosecution of those linked to state capture.”

The complaint regarding the use of the words “suspicious conversation” is dismissed.

The statement that the conversation between Ndlovu and Radebe “cast doubt on the lawfulness of appointing MNS to assist Transnet” was in breach of Sections 1.1, 1.2 and 1.3 of the Press Code.

7.1.3 “The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe, who allegedly initiated the appointment of MNS at the parastatal.”

The use of the word “payment” and the mentioning of MNS’s name in this regard was in breach of Sections 1.1, 1.2 and 1.3 of the Press Code.

This complaint about the statement that Radebe “allegedly initiated the appointment of MNS at the parastatal” is dismissed.

7.1.4 “From the recording, it is evident that the speakers had met on a number of occasions and also had an ‘original discussion’ about MNS allegedly paying certain amounts to Radebe and about appointing sub-contractors preferred by him, while he was a board member”

This part of the complaint is dismissed.

7.2 Headlines

Both headlines and the Twitter text reflected that MNS had been implicated in alleged acts of corruption and bribery. This was in breach of Sect. 1.1, 1.2 and 1.3 of the Press Code.

7.3 Reputation

The reportage on the issues mentioned under sub-sections 7.1.1, 7.1.2 and 7.1.3 of my adjudication was in breach of Section 3.3 of the Press Code that says, ““The media shall exercise care and consideration in matters involving … reputation…”

8. Seriousness of breaches

8.1 Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

8.2 The breaches of the Press Code as indicated above are all Tier 2 offences.

9. Sanction

9.1 City Press is directed to apologise to MNS and to Ndlovu for:

• unjustifiably reflecting in its reportage, both in the headlines and in the text of the article, that MNS had been implicated in kickbacks, alleged acts of corruption and bribery; and
• unnecessarily tarnishing their reputation.

9.2 The newspaper is directed to publish the apology:

• at the top of the front page (where the article in dispute appeared), with a headline containing the words “apology” or “apologises”, and “MNS, Ndlovu”; and
• online (at the top of that page), and to link the two articles; and
• on its Twitter account.

1. The text should:

• be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
• refer to the complaint that was lodged with this office;
• properly give context to the apology;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
• be published with the logo of the Press Council (attached); and
• be prepared by the publication and be approved by me.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Acting Assistant Press Ombud