Asante Sana Consulting vs City Press
SUMMARY
The headline to the story in dispute read, SABC fights to recoup R20m from business couple (published on 8 August 2022).
This ruling by Deputy Press Tyrone August was based on the Press Code that was in effect before 30 September 2022.
According to the article, the SABC recently intensified its legal bid to compel the company Asante Sana Consulting (ASC) to repay nearly R20 million for contracts that were allegedly “solicited outside proper tender processes” between 2013 and 2016. It also stated that there was a “link” between the company and the Guptas.
ASC complained it was untrue that it had been linked to the Guptas, and that it had solicited contracts from the SABC. As the contract was not initiated by ASC, but rather by the SABC, this part of the complaint was upheld.
Ditto for the alleged link to the Guptas. The newspaper admitted it could not prove this “link”. August said the newspaper did not independently verify this information – which should have been stated. Instead, it reported an allegation as a fact. This part of the complaint was also upheld.
City Press was required to publish an apology for these breaches of the Press Code.
ASC also submitted that the publication had failed to give it an opportunity to respond to the allegations. The Deputy Ombud dismissed this part of the complaint, as the newspaper did indeed attempt to contact the company. “While it is of some concern that the journalist did not make more substantive efforts to reach the company or its directors, there is no indication that this was the result of any malicious intent,” he contended.
Finally, August said there was insufficient evidence to support the claim that the article departed from the facts through distortion, exaggeration or misrepresentation, material omissions, or summarisation. He therefore dismissed this part of the complaint.
THE RULING ITSELF
27 October 2022
Date of publication: 8 August 2022
Headline: SABC fights to recoup R20m from business couple
Author: Mduduzi Nonyane
Particulars
This finding is based on a written complaint by Mr Mandla Musundwa on behalf of Asante Sana Consulting; a written response on behalf of City Press by Deputy Editor Mr Rapule Tabane; a further written response by Mr Musundwa, accompanied by five annexures; a further written response by Mr Tabane; and another written response by Mr Musundwa, accompanied by an annexure. At my request, Mr Tabane also provided the SABC court application filed in the Johannesburg High Court on 25 July 2022.
Complaint
The complainant submits that the article transgresses Clauses 1.1, 1.2, 1.3 and 1.8 of the Press Code:
“1. The media shall:
“1.1. take care to report news truthfully, accurately and fairly;
“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;” 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. Summary of article
1.1. According to the City Press article, the SABC recently intensified its legal bid to compel the company Asante Sana Consulting to repay nearly R20 million for contracts that were allegedly “solicited outside proper tender processes” between 2013 and 2016.
1.1.1. This was reportedly a continuation of a battle between the company – to which it referred as “Gupta-linked” – and the public broadcaster since 2018, and which resulted in the SABC obtaining a court order from the Johannesburg High Court in 2019.
1.1.2. This court order by Judge Cassim Moosa reportedly nullified the contracts that were awarded to Asante Sana to provide various accounting and consulting services to the public broadcaster.
1.2. In a subsequent application filed in the Johannesburg High Court in July 2022, the SABC sought a contempt of court order against Asante Sana’s directors, Mandla and Faith Musundwa, after the company reportedly failed to repay the public broadcaster in terms of Judge Moosa’s court order.
1.2.1. The SABC’s head of legal governance, Ntuthuzelo Vanara, stated in an affidavit that Asante Sana had received five major contracts at the SABC which were later established to be illegal. The company was reportedly supposed to repay all the money it had received from the SABC within 60 days of the order being granted, but had failed to do so.
1.2.2. According to Vanara’s affidavit, the two directors “cannot hide behind the separate legal existence of Asante Sana as a company to avoid liability for the consequences of their actions as its directors”.
1.3. The SABC confirmed that it had filed a court application in July 2022 in the Johannesburg High Court, but said it was not able to provide any comment as the matter was yet to be heard.
1.3.1. Mandla and Faith Musundwa could reportedly not be reached for comment.
2. Arguments
Asante Sana Consulting
2.1. The complainant submits that the article is defamatory, inaccurate and unfair.
2.1.1. It denies that Mandla Musundwa, Faith Musundwa or Asante Sana Consulting are linked to the Guptas, and contends that there is therefore no basis for such a statement in the article.
2.1.2. It further denies that Asante Sana solicited contracts from the SABC and submits that it was, in fact, the SABC that initiated Asante Sana’s appointments.
2.2. The complainant also submits that the publication failed to give it an opportunity to respond to the allegations.
2.2.1. If it had been given a right of reply, Asante Sana states, it would have pointed out that the SABC had obtained the court order on 27 July 2019 without notifying the company that the matter was going to be heard in court.
2.2.2. It therefore contends that the SABC obtained the court order without the company’s knowledge and in its absence, even though it had filed opposing papers and intended to argue the matter.
2.3. The complainant notes that the SABC subsequently issued a second application with a view to requesting the court to hold Asante Sana’s directors liable for payment in terms of the first court order.
2.3.1. It states that Asante Sana only became aware of the court order in the first application on 26 July 2022, when the second application was served on the company.
2.3.2. It adds that this application was opposed by Mandla Musundwa, Faith Musundwa and Asante Sana, and that they were in the process of taking steps to rescind the court order of 27 July 2019.
2.4. The complainant states that it contacted City Press and requested a retraction of its article by 14 August 2022. However, it notes that the article is still on the publication’s website.
City Press
2.5. The respondent argues that the complaint is without merit and states that its article is based on court papers filed by the SABC.
2.5.1. It submits that it is not always possible to observe the audi alteram partem rule with court papers when the other party has not filed a response.
2.5.2. City Press notes that it nevertheless did make an effort to locate the company and its directors, but points out that it does not have their personal contact numbers. Instead, the publication sent an enquiry to the email address used by the sheriff’s office to serve the court papers on them, namely [email protected]
2.5.3. It further adds that, since Asante Sana has now indicated that it will be opposing the matter in court, the publication encourages the company to share its papers with City Press so that it can report on these “as a measure of good faith on our part and indication that we are not motivated by a desire to harm their reputation”.
2.6. The respondent also claims that the company’s link with the Guptas “stems from an SIU [Special Investigating Unit] investigation which mentioned their name pertaining [to] the Gupta licensing deal which led [to] the SABC airing the Breakfast Briefings”.
2.6.1. It submits that Asante Sana was among those companies being investigated for that deal in 2017, and notes that it had previously reported on this matter. (See https://www.news24.com/citypress/news/mon-10am-inside-the-sabc-crash-20181224)
Further arguments: Asante Sana Consulting
2.7. The complainant maintains that the article is not an accurate and fair report on the court papers filed by the SABC.
2.7.1. As an example, it states that the court papers make no reference to the Gupta family.
2.8. The complainant further submits that there is no SIU report or investigation that links Asante Sana to either the SABC Breakfast Briefings or the Gupta family.
2.8.1. It points out that the SIU proclamations which refer to Asante Sana are SIU Proclamation No R29 of 2017 (attached as an annexure) and SIU Proclamation No 19 of 2018 (attached as an annexure).
2.8.2. It argues that these proclamations refer to SABC contracts with multiple service providers which are unrelated to each other and which provided different services to the public broadcaster.
2.8.3. It contends that the City Press article published on 24 December 2018 sheds light on this, and argues that the author “actually sought to unpack the various contracts and solicited and obtained our response”.
2.8.4. It states that Asante Sana has never provided any services at the SABC which were related to the Business Breakfasts or to the Gupta family.
2.8.5. It further submits that the Zondo Commission of Inquiry investigated the SABC, including the Business Breakfasts, and did not mention Asante Sana anywhere in relation to those contracts or refer to any link to the Gupta family.
2.8.6. It claims that neither Asante Sana nor its directors have ever had any business or personal contact with any members of the Gupta family.
2.8.7. It states that the company provided accounting and advisory services to the SABC, including drafting the public broadcaster’s annual financial statements and assisting it to successfully resolve long-standing accounting and audit matters.
2.8.8. It asserts that linking Asante Sana and its directors to the Gupta family is completely untrue and without foundation, and that this has caused severe harm to their reputation.
2.9. The complainant also maintains that Asante Sana did not solicit work from the SABC, but that it responded to a request from the public broadcaster to provide written quotations and proposals.
2.9.1. It acknowledges that the SABC “sought to set aside contracts due to alleged irregularities from its own officials in the procurement process” and that this is “the subject of the ongoing litigation”.
2.9.2. However, it states that the services provided by Asante Sana were “within our skill set and concluded successfully”, and that the SABC has not raised any dispute with the company in this regard.
2.9.3. It further notes that the company provided a detailed response to City Press on this aspect in 2018 (this is attached as an annexure).
2.10. The complainant points out that the email address provided by City Press in its response is incorrect (it should be [email protected]). As a result, Asante Sana did not receive any email from the journalist.
2.10.1. It also states that City Press has “at least three of our contact details as per the previous story published in 2018 including a telephone number”, and that Mandla Musundwa was contacted on both his cellphone number and email addresses at the time.
2.10.2. Accordingly, the company argues, there is no reason why the publication could not contact Mandla Musundwa again this time as his contact details were still the same.
2.10.3. And, given that the article reported beyond what is stated in the court papers by linking the company to the Guptas, the company says it would have responded “appropriately” had it been contacted.
2.11. The complainant points out that Asante Sana is in the process of filing opposing papers in court in relation to the SABC matter. However, it does not believe this alleviates “the current grievance” against the City Press article.
2.11.1. In conclusion, it repeats its contention that the article is in breach of Clauses 1.1 to 1.3 and 1.8 of the Press Code.
Further arguments: City Press
2.12. The respondent reiterates that it stands by its story and submits that it made efforts in good faith to obtain a response from Asante Sana.
2.12.1. It notes that it used an email address which was provided to the publication in the genuine belief that it was correct in view of the fact that it was used by the sheriff’s office.
2.12.2. It submits that, if there was an error in the address, it was a genuine mistake by “whoever wrote the address from the sheriff’s office” and does not indicate an unwillingness or lack of effort on the part of the newspaper to obtain comment from the company.
2.12.3. It adds that the journalist who wrote the article explored “every other possible avenue” to obtain the complainant’s contact details, including contacting his (the journalist’s) colleagues.
2.12.4. It further points out that the journalist who wrote the article only joined the publication during the past two years and never met Dewald van Rensburg, who previously dealt with Asante Sana and has since left the newspaper.
2.12.5. It argues that there was therefore no point of reference for the author of the 8 August 2022 article to exchange notes with Van Rensburg.
2.13. Regarding the reference in the article to Asante Sana’s “Gupta links”, the respondent said this emanated from a source at the SABC who allegedly saw the complainant and another company executive (whom the source was unable to identify) at a Gupta Breakfast event.
2.13.1. However, the publication concedes that it cannot prove a link as its report was based on information provided by sources who are not prepared to be publicly identified and back the allegation. It is therefore willing to withdraw this allegation and publish an apology.
2.13.2. It further submits that, even though the SIU did not reach a finding directly linking Asante Sana to illicit contracts at the SABC, the company was indeed part of the probe according to a source at the public broadcaster.
2.14. The respondent also contends that Asante Sana did solicit business from the public broadcaster.
2.14.1. It says that, according to documents from the SABC’s court application, Asante Sana’s contracts came about through engagements between the SABC and the company, which resulted in the company giving a presentation to the public broadcaster.
2.14.2. It argues that, if Asante Sana did not conduct the presentation which showcased why it deserved to be granted the right to conduct the work, the SABC would not have entered into an agreement with it. It contends that it is therefore untrue that the SABC simply gave contracts to the company without any prior interaction.
Further arguments: Asante Sana Consulting
2.15. The complainant replies that it is amenable to the newspaper’s offer to withdraw the allegation that the company had links to the Gupta family and to publish an apology (see point 2.13.1 above). However, the company adds that this is subject to a number of provisos.
2.15.1. Firstly, it wants the retraction and apology to be done “with equal prominence with which the original story was published”.
2.15.2. Secondly, it wants to be given a right of reply unless the article is retracted in full.
2.15.3. Thirdly, with regard to the reported solicitation of work from the SABC, it states that the company is on the SABC’s supplier database and that it was the public broadcaster that requested quotations and proposals from the company – “as they do with all other entities which they would like to do business with”. It provides an annexure of a request for a quotation as an example.
2.16. The complainant again states that it has never attended a “Gupta Breakfast event” nor been invited to one. It believes that the newspaper’s source was trying to impugn the integrity of the company and its directors.
2.16.1. It repeats its contention that the newspaper’s source from the SABC is incorrect in linking Asante Sana to an SIU probe relating to the Guptas.
2.17. In conclusion, it states that the article has done immense damage to the integrity and reputation of the company’s two directors, and notes that their incomes depend on their reputation.
3. Analysis
3.1. The complainant repeatedly denies that it solicited business from the SABC, and maintains that Asante Sana responded to a request from the public broadcaster to provide written quotations and proposals.
3.1.1. On the other hand, the respondent insists in its response to the complaint that there were prior engagements between the SABC and Asante Sana, which resulted in the company making a presentation to the public broadcaster.
3.1.2. However, this argument does not address the complainant’s contention that the contact between the SABC and Asante Sana was initiated by the public broadcaster – and not by the company.
3.1.3. This distinction may seem of minor importance but is, in fact, crucial: it contradicts the newspaper’s insinuation that the company acted improperly by initiating engagement with the SABC and, in this way, circumventing and/or disregarding the standard procedures followed when bidding for tenders.
3.1.4. In the absence of any proof that this was indeed the case, such an insinuation is unfair and, as such, is in breach of Clause 1.1 of the Press Code.
3.2. The complainant also emphatically denies any links to the Gupta family, whether in a personal or business capacity, and denies that it had ever attended an SABC Breakfast Briefing or had ever been invited to such an event.
3.2.1. In its response, the newspaper concedes that it cannot prove a link between the company and the Gupta family as its report was based on information provided by sources who are not prepared to be identified and back this allegation in public.
3.2.2. As the newspaper did not independently verify that Asante Sana was linked to the Gupta family, it neglected to take sufficient care to report news accurately and fairly, which is contrary to the requirements of Clause 1.1 of the Press Code.
3.3. Furthermore, in view of the fact that the newspaper did not independently confirm that the company was linked to the Gupta family, it should have referred to this purported link as an allegation instead of presenting it as a statement of fact.
3.3.1. The newspaper’s failure to do so is therefore in breach of Clause 1.3 of the Press Code.
3.4. The complainant also claims that the company was not contacted for comment.
3.4.1. The newspaper did attempt to make contact with the company by email. However, it was unable to do so successfully as it was inadvertently provided with an incorrect email address by the sheriff’s office.
3.4.2. The journalist also consulted some of his colleagues in an effort to obtain contact details for the company.
3.4.3. While it is of some concern that the journalist did not make more substantive efforts to reach the company or its directors, there is no indication that this was the result of any malicious intent.
3.4.4. Moreover, as required by Clause 1.8 of the Press Code, the article does specifically note that the company’s directors could not be reached for comment.
3.5. Finally, there is insufficient evidence to support the claim that the article departs from the facts through “distortion, exaggeration or misrepresentation, material omissions, or summarization” in breach of Clause 1.2 of the Press Code.
4. Finding
The complaint that the article is in breach of Clause 1.1 is upheld on two counts (see points 3.1.2 to 3.1.4 and 3.2.1 & 3.2.2 of my Analysis).
The complaint that the article is in breach of Clause 1.2 is dismissed (see point 3.5 of my Analysis).
The complaint that the article is in breach of Clause 1.3 is upheld (see points 3.3 & 3.3.1 of my Analysis).
The complaint that the article is in breach of Clause 1.8 is dismissed (see the reasons outlined under points 3.4.1 to 3.4.4 of my Analysis).
City Press is required to publish an apology to the complainant at the top of the online article for breaching Clauses 1.1 and 1.3 of the Press Code. 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.
Secondly, in relation to the breaches of clauses 1.1 and 1.3, City Press should correct the errors in an updated version of the online article. The wording of the rectifications should be approved by the Deputy Press Ombudsman before publication.
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
DeputAsante Sana Consulting vs City Press
27 October 2022
Finding: Complaint 9592
Date of publication: 8 August 2022
Headline: SABC fights to recoup R20m from business couple
Author: Mduduzi Nonyane
Particulars
This finding is based on a written complaint by Mr Mandla Musundwa on behalf of Asante Sana Consulting; a written response on behalf of City Press by Deputy Editor Mr Rapule Tabane; a further written response by Mr Musundwa, accompanied by five annexures; a further written response by Mr Tabane; and another written response by Mr Musundwa, accompanied by an annexure. At my request, Mr Tabane also provided the SABC court application filed in the Johannesburg High Court on 25 July 2022.
Complaint
The complainant submits that the article transgresses Clauses 1.1, 1.2, 1.3 and 1.8 of the Press Code:
“1. The media shall:
“1.1. take care to report news truthfully, accurately and fairly;
“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;” 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. Summary of article
1.1. According to the City Press article, the SABC recently intensified its legal bid to compel the company Asante Sana Consulting to repay nearly R20 million for contracts that were allegedly “solicited outside proper tender processes” between 2013 and 2016.
1.1.1. This was reportedly a continuation of a battle between the company – to which it referred as “Gupta-linked” – and the public broadcaster since 2018, and which resulted in the SABC obtaining a court order from the Johannesburg High Court in 2019.
1.1.2. This court order by Judge Cassim Moosa reportedly nullified the contracts that were awarded to Asante Sana to provide various accounting and consulting services to the public broadcaster.
1.2. In a subsequent application filed in the Johannesburg High Court in July 2022, the SABC sought a contempt of court order against Asante Sana’s directors, Mandla and Faith Musundwa, after the company reportedly failed to repay the public broadcaster in terms of Judge Moosa’s court order.
1.2.1. The SABC’s head of legal governance, Ntuthuzelo Vanara, stated in an affidavit that Asante Sana had received five major contracts at the SABC which were later established to be illegal. The company was reportedly supposed to repay all the money it had received from the SABC within 60 days of the order being granted, but had failed to do so.
1.2.2. According to Vanara’s affidavit, the two directors “cannot hide behind the separate legal existence of Asante Sana as a company to avoid liability for the consequences of their actions as its directors”.
1.3. The SABC confirmed that it had filed a court application in July 2022 in the Johannesburg High Court, but said it was not able to provide any comment as the matter was yet to be heard.
1.3.1. Mandla and Faith Musundwa could reportedly not be reached for comment.
2. Arguments
Asante Sana Consulting
2.1. The complainant submits that the article is defamatory, inaccurate and unfair.
2.1.1. It denies that Mandla Musundwa, Faith Musundwa or Asante Sana Consulting are linked to the Guptas, and contends that there is therefore no basis for such a statement in the article.
2.1.2. It further denies that Asante Sana solicited contracts from the SABC and submits that it was, in fact, the SABC that initiated Asante Sana’s appointments.
2.2. The complainant also submits that the publication failed to give it an opportunity to respond to the allegations.
2.2.1. If it had been given a right of reply, Asante Sana states, it would have pointed out that the SABC had obtained the court order on 27 July 2019 without notifying the company that the matter was going to be heard in court.
2.2.2. It therefore contends that the SABC obtained the court order without the company’s knowledge and in its absence, even though it had filed opposing papers and intended to argue the matter.
2.3. The complainant notes that the SABC subsequently issued a second application with a view to requesting the court to hold Asante Sana’s directors liable for payment in terms of the first court order.
2.3.1. It states that Asante Sana only became aware of the court order in the first application on 26 July 2022, when the second application was served on the company.
2.3.2. It adds that this application was opposed by Mandla Musundwa, Faith Musundwa and Asante Sana, and that they were in the process of taking steps to rescind the court order of 27 July 2019.
2.4. The complainant states that it contacted City Press and requested a retraction of its article by 14 August 2022. However, it notes that the article is still on the publication’s website.
City Press
2.5. The respondent argues that the complaint is without merit and states that its article is based on court papers filed by the SABC.
2.5.1. It submits that it is not always possible to observe the audi alteram partem rule with court papers when the other party has not filed a response.
2.5.2. City Press notes that it nevertheless did make an effort to locate the company and its directors, but points out that it does not have their personal contact numbers. Instead, the publication sent an enquiry to the email address used by the sheriff’s office to serve the court papers on them, namely [email protected]
2.5.3. It further adds that, since Asante Sana has now indicated that it will be opposing the matter in court, the publication encourages the company to share its papers with City Press so that it can report on these “as a measure of good faith on our part and indication that we are not motivated by a desire to harm their reputation”.
2.6. The respondent also claims that the company’s link with the Guptas “stems from an SIU [Special Investigating Unit] investigation which mentioned their name pertaining [to] the Gupta licensing deal which led [to] the SABC airing the Breakfast Briefings”.
2.6.1. It submits that Asante Sana was among those companies being investigated for that deal in 2017, and notes that it had previously reported on this matter. (See https://www.news24.com/citypress/news/mon-10am-inside-the-sabc-crash-20181224)
Further arguments: Asante Sana Consulting
2.7. The complainant maintains that the article is not an accurate and fair report on the court papers filed by the SABC.
2.7.1. As an example, it states that the court papers make no reference to the Gupta family.
2.8. The complainant further submits that there is no SIU report or investigation that links Asante Sana to either the SABC Breakfast Briefings or the Gupta family.
2.8.1. It points out that the SIU proclamations which refer to Asante Sana are SIU Proclamation No R29 of 2017 (attached as an annexure) and SIU Proclamation No 19 of 2018 (attached as an annexure).
2.8.2. It argues that these proclamations refer to SABC contracts with multiple service providers which are unrelated to each other and which provided different services to the public broadcaster.
2.8.3. It contends that the City Press article published on 24 December 2018 sheds light on this, and argues that the author “actually sought to unpack the various contracts and solicited and obtained our response”.
2.8.4. It states that Asante Sana has never provided any services at the SABC which were related to the Business Breakfasts or to the Gupta family.
2.8.5. It further submits that the Zondo Commission of Inquiry investigated the SABC, including the Business Breakfasts, and did not mention Asante Sana anywhere in relation to those contracts or refer to any link to the Gupta family.
2.8.6. It claims that neither Asante Sana nor its directors have ever had any business or personal contact with any members of the Gupta family.
2.8.7. It states that the company provided accounting and advisory services to the SABC, including drafting the public broadcaster’s annual financial statements and assisting it to successfully resolve long-standing accounting and audit matters.
2.8.8. It asserts that linking Asante Sana and its directors to the Gupta family is completely untrue and without foundation, and that this has caused severe harm to their reputation.
2.9. The complainant also maintains that Asante Sana did not solicit work from the SABC, but that it responded to a request from the public broadcaster to provide written quotations and proposals.
2.9.1. It acknowledges that the SABC “sought to set aside contracts due to alleged irregularities from its own officials in the procurement process” and that this is “the subject of the ongoing litigation”.
2.9.2. However, it states that the services provided by Asante Sana were “within our skill set and concluded successfully”, and that the SABC has not raised any dispute with the company in this regard.
2.9.3. It further notes that the company provided a detailed response to City Press on this aspect in 2018 (this is attached as an annexure).
2.10. The complainant points out that the email address provided by City Press in its response is incorrect (it should be [email protected]). As a result, Asante Sana did not receive any email from the journalist.
2.10.1. It also states that City Press has “at least three of our contact details as per the previous story published in 2018 including a telephone number”, and that Mandla Musundwa was contacted on both his cellphone number and email addresses at the time.
2.10.2. Accordingly, the company argues, there is no reason why the publication could not contact Mandla Musundwa again this time as his contact details were still the same.
2.10.3. And, given that the article reported beyond what is stated in the court papers by linking the company to the Guptas, the company says it would have responded “appropriately” had it been contacted.
2.11. The complainant points out that Asante Sana is in the process of filing opposing papers in court in relation to the SABC matter. However, it does not believe this alleviates “the current grievance” against the City Press article.
2.11.1. In conclusion, it repeats its contention that the article is in breach of Clauses 1.1 to 1.3 and 1.8 of the Press Code.
Further arguments: City Press
2.12. The respondent reiterates that it stands by its story and submits that it made efforts in good faith to obtain a response from Asante Sana.
2.12.1. It notes that it used an email address which was provided to the publication in the genuine belief that it was correct in view of the fact that it was used by the sheriff’s office.
2.12.2. It submits that, if there was an error in the address, it was a genuine mistake by “whoever wrote the address from the sheriff’s office” and does not indicate an unwillingness or lack of effort on the part of the newspaper to obtain comment from the company.
2.12.3. It adds that the journalist who wrote the article explored “every other possible avenue” to obtain the complainant’s contact details, including contacting his (the journalist’s) colleagues.
2.12.4. It further points out that the journalist who wrote the article only joined the publication during the past two years and never met Dewald van Rensburg, who previously dealt with Asante Sana and has since left the newspaper.
2.12.5. It argues that there was therefore no point of reference for the author of the 8 August 2022 article to exchange notes with Van Rensburg.
2.13. Regarding the reference in the article to Asante Sana’s “Gupta links”, the respondent said this emanated from a source at the SABC who allegedly saw the complainant and another company executive (whom the source was unable to identify) at a Gupta Breakfast event.
2.13.1. However, the publication concedes that it cannot prove a link as its report was based on information provided by sources who are not prepared to be publicly identified and back the allegation. It is therefore willing to withdraw this allegation and publish an apology.
2.13.2. It further submits that, even though the SIU did not reach a finding directly linking Asante Sana to illicit contracts at the SABC, the company was indeed part of the probe according to a source at the public broadcaster.
2.14. The respondent also contends that Asante Sana did solicit business from the public broadcaster.
2.14.1. It says that, according to documents from the SABC’s court application, Asante Sana’s contracts came about through engagements between the SABC and the company, which resulted in the company giving a presentation to the public broadcaster.
2.14.2. It argues that, if Asante Sana did not conduct the presentation which showcased why it deserved to be granted the right to conduct the work, the SABC would not have entered into an agreement with it. It contends that it is therefore untrue that the SABC simply gave contracts to the company without any prior interaction.
Further arguments: Asante Sana Consulting
2.15. The complainant replies that it is amenable to the newspaper’s offer to withdraw the allegation that the company had links to the Gupta family and to publish an apology (see point 2.13.1 above). However, the company adds that this is subject to a number of provisos.
2.15.1. Firstly, it wants the retraction and apology to be done “with equal prominence with which the original story was published”.
2.15.2. Secondly, it wants to be given a right of reply unless the article is retracted in full.
2.15.3. Thirdly, with regard to the reported solicitation of work from the SABC, it states that the company is on the SABC’s supplier database and that it was the public broadcaster that requested quotations and proposals from the company – “as they do with all other entities which they would like to do business with”. It provides an annexure of a request for a quotation as an example.
2.16. The complainant again states that it has never attended a “Gupta Breakfast event” nor been invited to one. It believes that the newspaper’s source was trying to impugn the integrity of the company and its directors.
2.16.1. It repeats its contention that the newspaper’s source from the SABC is incorrect in linking Asante Sana to an SIU probe relating to the Guptas.
2.17. In conclusion, it states that the article has done immense damage to the integrity and reputation of the company’s two directors, and notes that their incomes depend on their reputation.
3. Analysis
3.1. The complainant repeatedly denies that it solicited business from the SABC, and maintains that Asante Sana responded to a request from the public broadcaster to provide written quotations and proposals.
3.1.1. On the other hand, the respondent insists in its response to the complaint that there were prior engagements between the SABC and Asante Sana, which resulted in the company making a presentation to the public broadcaster.
3.1.2. However, this argument does not address the complainant’s contention that the contact between the SABC and Asante Sana was initiated by the public broadcaster – and not by the company.
3.1.3. This distinction may seem of minor importance but is, in fact, crucial: it contradicts the newspaper’s insinuation that the company acted improperly by initiating engagement with the SABC and, in this way, circumventing and/or disregarding the standard procedures followed when bidding for tenders.
3.1.4. In the absence of any proof that this was indeed the case, such an insinuation is unfair and, as such, is in breach of Clause 1.1 of the Press Code.
3.2. The complainant also emphatically denies any links to the Gupta family, whether in a personal or business capacity, and denies that it had ever attended an SABC Breakfast Briefing or had ever been invited to such an event.
3.2.1. In its response, the newspaper concedes that it cannot prove a link between the company and the Gupta family as its report was based on information provided by sources who are not prepared to be identified and back this allegation in public.
3.2.2. As the newspaper did not independently verify that Asante Sana was linked to the Gupta family, it neglected to take sufficient care to report news accurately and fairly, which is contrary to the requirements of Clause 1.1 of the Press Code.
3.3. Furthermore, in view of the fact that the newspaper did not independently confirm that the company was linked to the Gupta family, it should have referred to this purported link as an allegation instead of presenting it as a statement of fact.
3.3.1. The newspaper’s failure to do so is therefore in breach of Clause 1.3 of the Press Code.
3.4. The complainant also claims that the company was not contacted for comment.
3.4.1. The newspaper did attempt to make contact with the company by email. However, it was unable to do so successfully as it was inadvertently provided with an incorrect email address by the sheriff’s office.
3.4.2. The journalist also consulted some of his colleagues in an effort to obtain contact details for the company.
3.4.3. While it is of some concern that the journalist did not make more substantive efforts to reach the company or its directors, there is no indication that this was the result of any malicious intent.
3.4.4. Moreover, as required by Clause 1.8 of the Press Code, the article does specifically note that the company’s directors could not be reached for comment.
3.5. Finally, there is insufficient evidence to support the claim that the article departs from the facts through “distortion, exaggeration or misrepresentation, material omissions, or summarization” in breach of Clause 1.2 of the Press Code.
4. Finding
The complaint that the article is in breach of Clause 1.1 is upheld on two counts (see points 3.1.2 to 3.1.4 and 3.2.1 & 3.2.2 of my Analysis).
The complaint that the article is in breach of Clause 1.2 is dismissed (see point 3.5 of my Analysis).
The complaint that the article is in breach of Clause 1.3 is upheld (see points 3.3 & 3.3.1 of my Analysis).
The complaint that the article is in breach of Clause 1.8 is dismissed (see the reasons outlined under points 3.4.1 to 3.4.4 of my Analysis).
City Press is required to publish an apology to the complainant at the top of the online article for breaching Clauses 1.1 and 1.3 of the Press Code. 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.
Secondly, in relation to the breaches of clauses 1.1 and 1.3, City Press should correct the errors in an updated version of the online article. The wording of the rectifications should be approved by the Deputy Press Ombudsman before publication.
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
27 October 2022
y Press Ombudsman
27 October 2022