Jabulile P Hlatshwayo and Others vs City Press

SUMMARY

The headlines to the stories in dispute read, T Forensic report recommends criminal charges be laid against ANC bigwig; ANC councillor bulldozed officials to approve tenderpreneur’s invoice); Investigators propose a review of the recruitment of trainee traffic officers in Emalahleni municipality; Emalahleni municipality CFO interviewed to retain her job despite forensic report implicating her in irregularities; Mpumalanga MEC taken to court over damning forensic report; and, DA asks police to probe former top Emalahleni municipal officials for pocketing R11.6m in travel allowances. The articles were published between 15 March and 26 April 2022.

This ruling by Deputy Press Ombud Tyrone August was based on the Press Code that was in effect before 30 September 2022.

 

The articles were all about forensic auditors Analytical Forensic Investigation Services (AFIS) that had recommended that criminal charges be laid against Mpumalanga Social Development MEC Lindiwe Ntshalintshali for allegedly increasing managers’ salaries unlawfully when she was executive mayor of the Emalahleni Local Municipality from July 2015 to February 2018.

August dismissed the complaint that the first five articles were out of context and unbalanced and upheld the complaint regarding the article published on 26 April 2022. He said it did not consider new information that had become available.

The Deputy Ombud also dismissed the complaint that the:

• newspaper deliberately misled its readers by publishing information from the leaked AFIS report – he said the reporter had no reason to doubt the status of the report;
• articles breached the Press Code by publishing information from a report that had been leaked to it – the newspaper respondent rightly noted that information deemed to be sensitive was routinely leaked to the media for various reasons, including fear of reprisal; and
• stories were not verified – giving some examples, he argued that the newspaper did make efforts to verify the accuracy of their information.

He upheld the complaint that the complainants were not given a right of reply in relation to the articles published on 11 and 26 April 2022.

City Press was required to apologise for those breaches of the Press Code.

 

THE RULING ITSELF

29 September 2022

Dates of publication: 15, 20, 23 & 30 March 2022; 11 & 26 April 2022

Headlines:

1. Forensic report recommends criminal charges be laid against ANC bigwig
2. ANC councillor bulldozed officials to approve tenderpreneur’s invoices
3. Investigators propose a review of the recruitment of trainee traffic officers in Emalahleni municipality
4. Emalahleni municipality CFO interviewed to retain her job despite forensic report implicating her in irregularities
5. Mpumalanga MEC taken to court over damning forensic report
6. DA asks police to probe former top Emalahleni municipal officials for pocketing R11.6m in travel allowances

Author: Sizwe sama Yendi

Particulars

This finding is based on a written complaint by Mr A Cooper and Ms L Monamodi of Ka-Mbonane Cooper on behalf of Ms Jabulile P Hlatshwayo and two others, namely Mr Sizwe Mayisela and Mr Edwin Sedupane, along with various annexures; an addition by Mr Cooper, together with a number of annexures, in response to queries from the Public Advocate; a written response by City Press Deputy Editor Mr Rapule Tabane and an annexure; and a further written response by Mr Cooper and Ms Monamodi.

Complaint

The complainants submit that the articles transgress Clauses 1.2, 1.3, 1.4, 1.7 and 1.8 of the Press Code:

“1. The media shall: …

“1.2 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 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such;

“1.4 obtain news legally, honestly and fairly, unless public interest dictates otherwise; …”

“1.7 verify the accuracy of doubtful information, if practicable; if not, this shall be stated; …”; and

 “1.8 seek, if practicable, the view of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated…”

1. Overview of articles

1.1. Article 1 reports that forensic auditors Analytical Forensic Investigation Services (AFIS) recommended that criminal charges be laid against Mpumalanga Social Development MEC Lindiwe Ntshalintshali for allegedly increasing managers’ salaries unlawfully when she was executive mayor of the Emalahleni Local Municipality from July 2015 to February 2018.

1.2. According to Article 2, Emalahleni Local Municipality councillor Thabang Mathebula allegedly pressurised officials to speed up payments to Krieck Business Enterprise (KBE), owned by Strike Chili, who is reported to be a politically connected businessperson

1.3. Article 3 reports that AFIS recommended an in-depth investigation into the Emalahleni Local Municipality’s recruitment of 20 trainee traffic officers. According to the article, some of those recruited in 2020 at a cost of R2m were related to politicians.

1.4. Article 4 claims that the Emalahleni Local Municipality’s human resources department shortlisted Jabulile Hlatshwayo for the position of chief financial officer (CFO) even though AFIS reportedly found her negligent after a service provider was allegedly paid for “shoddy work”.

1.5. Article 5 is a report on Mpumalanga Cooperative Governance and Traditional Affairs (Cogta) MEC Busisiwe Shiba’s defence of an application by employees in the Emalahleni Local Municipality to review and set aside the AFIS report which allegedly implicates them in corruption.

1.6. Article 6 reports that the DA asked the police to investigate senior Emalahleni Local Municipality officials who allegedly received millions of rands in fixed travel allowances. Aaron Khumalo, the DA’s caucus leader in the Emalahleni council, presented an affidavit to the police after the AFIS report was leaked.

2. Arguments

Jabulile P Hlatshwayo and Others

2.1. The complainants submit that the respondent was aware of their grievances, but continued to publish false allegations about them.

2.2. They state that in March 2022 they found out that “an unofficial, unsigned, copy of an AFIS styled report”, dated 12 November 2021, was leaked to the respondent and note that City Press published a report on its contents on 15 March 2022.

2.2.1. They argue that the unofficial AFIS report contains false and harmful allegations about them.

2.2.2. They further submit that City Press did not authenticate this report (“it cannot because it is not an official or final report”) and did not inform readers that the allegations in the report were not final. In addition, it states that the publication did not confirm any of the allegations with AFIS or with Shiba.

2.2.3. They also contend that City Press consistently failed to approach them for comment even though it was requested to communicate with their legal representatives.

2.3. The complainants further argue that the publication continued to report on certain allegations “despite knowing that the allegations are defamatory”.

2.3.1. As an example, they cite the allegation in the 15 March 2022 article that Ntshalintshali had increased the salaries of certain municipal officials – including Hlatshwayo, the former Emalahleni Local Municipality CFO, and Sizwe Mayisela, the Emalahleni Local Municipality municipal manager – without the approval of the Council.

2.3.2. This allegation was repeated in the 20 March 2022 article even though, according to the complainants, its main focus was on “issues which are unrelated” to Hlatshwayo and Mayisela.

2.3.3. The complainants say the same applies to the 23 March 2022 article: the “unlawful salary” allegation was repeated even though the article was about issues unrelated to Hlatshwayo and Mayisela, namely the recruitment of trainee traffic officers.

2.3.4. The complainants also object to the “unlawful salary” allegation in an article on 30 March 2022 about Hlatshwayo’s bid to retain her position as CFO.

2.3.5. They point out that the 11 and 26 April 2022 articles contain the same allegation.

2.4. The complainants contend that the AFIS report was not an official or final report, and that the respondent ought to have known this as it was unsigned and not released by any official source.

2.4.1. Furthermore, they dismiss as false the allegation about the “whopping” salary increases of Hlatshwayo and Mayisela.

2.4.2. They point out that City Press subsequently reported on a case in the Witbank Civil Court, which ruled that former DA councillor Naritha Naidoo’s allegations about Ntshalintshali being corrupt, and that she had increased salaries unlawfully, was defamatory and awarded her R200 000 in damages.

2.4.3. They state that, despite reporting on this case on 25 April 2022 (“Mpumalanga MEC wins defamation suit against DA”), City Press again published “the defamatory salary increase allegations” (emphasis in the original) the very next day.

2.4.4. Moreover, they submit that the newspaper did not seek comment from them on the allegations contained in its 26 April 2022 article.

2.5. In conclusion, the complainants state that it was improper to report the allegations contained in the unofficial AFIS report as it was not authentic and not final, and add that the respondent did not test the authenticity or admissibility of this report either.

2.5.1. They further submit that, in correspondence to City Press dated 26 April 2022, they set out reasons why all the allegations in the six articles published in the newspaper were false.

2.5.2. They claim that these articles were mainly directed at Hlatshwayo and Mayisela, and maintain that the articles were faulty in “[n]early every aspect”, and therefore showed a disregard for professionalism and ethics.

2.6. In an addition to their complaint in response to an enquiry from the Public Advocate, the complainants repeated their contention that the AFIS report was unofficial and not final.

2.6.1. They further argue that this report cannot be regarded as a draft or preliminary because its authenticity had not been confirmed by any “competent party” (such as Shiba or AFIS).

2.6.2. They note that a letter dated 23 March 2022 by S Ngubane, Head of Cogta, states that “neither the Department nor the … MEC has released any Report regarding [the] Section 106 investigation in Emalahleni Local Municipality”. (A copy of this letter is included in an annexure provided by the complainants.)

2.6.3. They also deny the claim by a source that suggests that the matter was due to be discussed by the Emalahleni council and state that “no council sitting of the sort has taken place”.

City Press

2.7. The respondent notes that it contacted both AFIS and Shiba for comment, and state that AFIS did not respond to its written questions, while Shiba’s spokesperson, Lindiwe Msibi, confirmed the existence of the report. However, City Press adds, she did not indicate that it was incomplete or a draft. (A copy of Msibi’s letter is provided as an annexure.)

2.7.1. Msibi further confirmed that implicated officials were taking Shiba to court and that the MEC was defending the case. In the view of the respondent, this “clearly means that she stands by her report”.

2.7.2. City Press denies that it did not contact the implicated officials for comment, and said it submitted questions to Lebohang Mofokeng, the Emalahleni Local Municipality’s official spokesperson. He “always” informed the publication that he was consulting Mayisela and did not provide a detailed response to its questions.

2.8. The respondent further states that the articles presented the allegations as such and that the articles mentioned that these allegations were contained in the AFIS report.

2.8.1. The respondent notes that the articles published on 15 and 20 March 2022 quoted “the allegations as reported by AFIS”. City Press adds that, while the 20 March 2022 article was about KBE’s invoices, the article was nevertheless still about the AFIS report and argues that there was nothing wrong in referring to other allegations contained in this report.

2.8.2. The respondent submits that the 23 March 2022 article was “another angle on the same AFIS report”, and confirms that the article referred to other allegations in the AFIS report as well.

2.8.3. With regard to the 30 March 2022 article, the respondent states that it merely gave background information and that it was a fact that Hlatshwayo was implicated in the AFIS report.

2.8.4. City Press makes the same argument in point 2.8.2 above in relation to the 11 and 26 April 2022 articles as well.

2.9. The respondent submits that Shiba’s office did not state that the report was unofficial, and adds that Msibi simply informed the publication that it would be handed over to the Emalahleni council once internal processes were completed. City Press argues that this does not in any way mean that the report was unofficial.

2.9.1. The respondent further states that all the allegations that it published were contained in the AFIS report, and declares that it was not its responsibility to review the report.

2.10. The respondent goes on to argue that the Witbank Civil Court case predates the AFIS report, and that on 25 April 2022 it reported on the court judgement “as it was”, in the same way that it reported on the AFIS report.

2.10.1. City Press denies that its articles were an attempt to “character assassinate” Ntshalintshali, and submits that it would not have reported on the court ruling – which was in her favour – if this had been the case.

2.10.2. City Press further submits that the court did not review the AFIS report, and that there was therefore nothing to preclude City Press from reporting on the contents of this report.

2.11. With regard to the 26 April 2022 article on the DA laying charges against Ntshalintshali, the respondent states that she was given the right to reply and that she used this opportunity.

2.12. In conclusion, the respondent submits that the “balance” of its articles cannot be questioned.

2.12.1. City Press reiterates that it approached Mofokeng for a response.

2.12.2. It further states that Msibi did not suggest that the report was “unofficial” and “unfinalised” and that, as the spokesperson of Mpumalanga’s Cogta, there was no reason to doubt her.

2.12.3. City Press adds that sensitive information was leaked to the media all the time for various reasons, including fear of reprisal, and that Ngubane has not raised any issues with the publication about the manner in which it had obtained the AFIS report nor is it aware of any criminal charges against the reporter for having obtained this report.

2.12.4. The respondent submits that it tested the authenticity of the AFIS report by contacting Msibi, who did not raise any issues regarding the authenticity or incompleteness of the report.

2.12.5. City Press states that it was informed by Msibi that the implicated officials had approached the court.

Further arguments

2.13. The complainants state that, for the most part, the respondent failed to address the crux of their complaint and the harm they suffered.

2.13.1. They dismiss the response of the respondent that it reported on the AFIS report from different angles, and quoted from the allegations in it, as false and misleading, Instead, they submit that the articles were intended to “consistently sensationalise” certain allegations against specific individuals, in particular Hlatshwayo and Mayisela.

2.14. The complainants further state that at least four articles (published on 15, 20, 23 and 30 March 2022) did not include any comment from the complainants, AFIS or Shiba, even though the respondent claims that it contacted AFIS and the MEC for comment.

2.14.1. Based on this observation, they dismiss as false the claim that the respondent tested the authenticity of the AFIS report, and argue that it only made this claim in an attempt to conceal “the intent behind the attacks” on the complainants.

2.15. The complainants also note that City Press failed to respond to the fact that it had been notified to seek comment from their legal representatives and said it had also failed to respond to the “detailed comment” sent to the newspaper on 26 April 2022 by Ka-Mbonane Cooper.

2.15.1. They therefore contend that City Press was not genuinely interested in obtaining comment from the complainants and argued that, even when it was given the opportunity to engage with their representatives, the newspaper chose not to do so and now tries to hide behind a “disingenuous attempt” to contact Mofokeng.

2.15.2. Regarding the respondent’s claim that it did not receive any detailed response to its questions from Mofokeng, the complainants state that the newspaper disregarded the 138-page response offered to it by their legal representatives on 26 April 2022.

2.15.3. They suggest that the reason behind this was that this response “failed to conform with the position adopted by City Press on the matter and did not offer the desired opportunity to sensationalise the contents of the AFIS report”.

2.16. With regard to the 20 March 2022 article, the complainants dismiss the respondent’s argument that there was nothing wrong in including allegations in the AFIS report which were unrelated to KBE’s invoices.

2.16.1. They contend that this illustrates that the newspaper was intent on defaming them and thereby failed to report on the matter in a balanced way. Moreover, they submit that the newspaper failed to verify the accuracy of doubtful information even when it was offered evidence to the contrary in the correspondence sent to it on 26 April 2022.

2.17. With regard to the article published on 26 April 2022, the complainants submit that the respondent failed to contextualise the allegations on the salary increases by not pointing out that these were “the same allegations which were found to be unsubstantiated and defamatory in Ntshalintshali’s suit”.

2.17.1. In so doing, the complainants assert, City Press continued to report on allegations which were false and defamatory.

2.17.2. They submit that this was an indication of the biased approach of the newspaper to reporting on the AFIS report and the unsubstantiated allegations contained in it.

3. Analysis

3.1. There is insufficient merit in the claim that all six articles lacked balance, in contravention of Clause 1.2 of the Press Code.

3.1.1. The respondent was entitled to repeat the allegations against Hlatshwayo and Mayisela in subsequent articles which dealt with information emanating from the same AFIS report. This does not in itself indicate any bias against Hlatshwayo and Mayisela; they were bound to come in for particular attention in view of the senior positions they held in the Emalahleni Local Municipality.

3.1.2. However, there does appear to be justifiable grounds for concern about a lack of balance with regard to the article published on 26 April 2022 (“DA asks police to probe former top Emalahleni municipal officials for pocketing R11.6m in travel allowances”).

3.1.2.1. This article was published just one day after the respondent published an article on a civil court case which found that Naidoo’s allegations about Ntshalintshali being corrupt, and that she had increased salaries unlawfully, was defamatory (see 2.4.2 above).

3.1.2.2. Yet the 26 April 2022 article makes no reference to the findings of this court case, and instead merely repeats the allegation that Ntshalintshali increased certain managers’ salaries unlawfully. This omission is grossly unfair to both Ntshalintshali and the complainants, and can indeed be construed as showing a lack of balance.

3.2. There is no evidence, though, that the respondent deliberately misled its readers by publishing information from the leaked AFIS report, in breach of Clause 1.3 of the Press Code.

3.2.1. When City Press contacted Msibi, the Cogta MEC’s spokesperson did not raise any questions about the status of the AFIS report nor did she raise any objections regarding the authenticity or incompleteness of the report. There was therefore no reason for the respondent to doubt the status of the report.

3.3. There is also no merit in the complainants’ claim that the articles breached Clause 1.4 of the Press Code by publishing information from a report that was leaked to it. The respondent rightly notes that information deemed to be sensitive is routinely leaked to the media for various reasons, including fear of reprisal (see point 2.12.3).[1]

3.3.1. City Press also points out that Ngubane of Cogta has not raised any issues with the publication about the manner in which it obtained the AFIS report nor is it aware of any criminal charges against the reporter for having obtained this report.

3.4. There is no substance either in the complainants’ claim that the articles breached Clause 1.7 of the Press Code. The respondent made reasonable efforts to verify the accuracy of the information in their articles.

3.4.1. Most importantly, the respondent contacted Msibi in the office of the Cogta MEC, who is a member of the Mpumalanga Cabinet that appointed AFIS to investigate the Emalahleni Local Municipality. Msibi did not dispute the status of the report and duly responded to the questions put to her by the reporter.

3.4.2. In addition, the respondent submitted detailed questions to AFIS, who did not respond.

3.4.3. It also submitted questions to Mofokeng, the Emalahleni Local Municipality’s official spokesperson, who did not provide a detailed response to its questions.

3.4.4. Moreover, the respondent consistently presented the contents of its articles as allegations, and clearly stated in the articles that these allegations were contained in the AFIS report.

3.5. Lastly, the complainants submit that the first four articles do not include any comment from the complainants in breach of Clause 1.8 of the Press Code (see 2.14).[2]

3.5.1. However, before the first two articles were published on 15 and 20 March 2022, the respondent did approach Mofokeng for comment in his capacity as the Emalahleni Local Municipality’s official spokesperson. It is not the fault of the respondent that Mofokeng only contacted the complainants after these two articles were published.

3.5.2. The complainants’ legal representatives subsequently requested the respondent on 31 March 2022 and 4 April 2022 to contact the complainants for comment (see 2.2.3 and 2.15 above). It appears from the contents of the two articles subsequently published, on 11 and 26 April 2022, that this request was disregarded.

3.5.2.1. However, individuals who are the subject of critical reportage are entitled to give their own side of the story in the interests of both reasonableness and fairness. Failure to do so is an inexcusable breach of the letter and the spirit of Clause 1.8.

3.5.3. It should also be noted that, while Ntshalintshali was quoted in two of the articles, published on 15 and 20 March 2022, her views were not included in the sixth and final article published on 26 April 2022.

3.5.3.1. It is unfair to repeat an allegation against someone in a subsequent article but not to carry a response from that person as well in the same article, even more so because the six articles were not published simultaneously as a package nor were they published on consecutive days.

3.5.3.2. And while Ntshalintshali is not a complainant in this matter, the omission of her denial that she unlawfully increased the salaries of the complainants reflects negatively on them in that it lends credence to a perception that there is some truth in the allegation.

3.5.4. There is also no explanation why the respondent did not follow up the information provided by the complainants’ legal representatives in correspondence dated 26 April 2022, especially in view of the lack of a comprehensive response from Mofokeng to their enquiries.

3.5.4.1. In fact, the reporter who wrote the six articles in question was not even informed of this correspondence. Presumably the reason is that the respondent stood by its articles and, instead, elected to offer the complainants a 400-word right of reply.

3.5.4.2. However, in the circumstances this may not have been the most appropriate course of action. Rightly or wrongly, this gives the impression that the respondent opted for this course of action as a way of providing redress without admitting any culpability.

4. Finding

The complaint that the articles are in breach of Clause 1.2 is dismissed in relation to the first five articles, but upheld with regard to the article published on 26 April 2022 (see points 3.1.2 to 3.1.2.2 of my Analysis).

The complaint that the articles are in breach of Clause 1.3 is dismissed (for the reasons outlined in points 3.2 and 3.2.1 of my Analysis).

The complaint that the articles are in breach of Clause 1.4 is dismissed (see points 3.3 and 3.3.1 of my Analysis).

The complaint that the articles are in breach of Clause 1.7 is dismissed (for the reasons outlined in points 3.4 to 3.4.4 of my Analysis).

The complaint that the articles are in breach of Clause 1.8 is upheld in relation to the articles published on 11 and 26 April 2022 (see the reasons outlined under point 3.5 of my Analysis, in particular 3.5.2 & 3.5.2.1 and 3.5.4 to 3.5.4.2).

City Press is required to apologise to the complainants for breaching Clauses 1.2 and 1.8 of the Press Code, which are both Tier 2 (serious) offences. The headline should contain the word “apology” and 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;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
• be published with the logo of the Press Council; and
• be approved by the Deputy Press Ombud.

In addition to the apology, City Press should allow the complainants a right of reply. This reply should be confined to specific issues raised in the relevant articles of 11 and 26 April and not exceed 400 words. If the publication objects to any content in the right of reply, it should refer the objection to the Deputy Press Ombud for a decision.

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]

Tyrone August

Deputy Press Ombudsman

29 September 2022