Siyaya TV vs amaBhungane

SUMMARY

The headline to the story in dispute read, How Siyaya TV took advantage of Bakgatla BA Kgafela’s fortune (published on 19 November 2022).

This ruling by Press Ombud Herman Scholtz was based on the Press Code that became effective on 30 September 2022.

 

The article was about what payments Siyaya TV had made to Bakgatla Ba Kgafela Strategic Investment Company (BBKSIC) and what it still owed.

Siyaya TV complained that the headline did not accurately reflect the contents of the article. The Ombud disagreed. He pointed out that various findings of the Baloyi commission and the iFirm forensic report highlighted in the article justified the statement in question.

Siyaya also complained about three sentences that it said were untruthful, inaccurate, unfair, unbalanced, out of context and defamatory.

The first sentence: “But instead it turned the traditional council, which is supposed to safeguard the community’s financial interest, into what amounted to the TV station’s personal ATM.” Scholtz concluded that this sentence was merely an introductory statement that BBKSIC had bankrolled the operations of Siyaya TV as a partner in the joint venture. “The sentence may have been slightly provocative, (but) this is not an inaccurate or unfair statement,” he added.

The second sentence: “[BBKSIC] advanced R99 054271.01 to Siyaya without any clear repayment dates and without any mandate from the community.” Scholtz inter alia remarked, “If an agreement does not even contain a starting date for repayments, the amount of the repayments, and clarity on the interest aspect, it is fair to state as fact that the repayment terms were unclear”.

Siyaya said it had never been asked by amaBungane for documentation or evidence in respect of its statement that 80% of the loan had been repaid. The publication replied that it could not have been aware of the existence and nature of any possible supporting documents. Scholtz agreed and opined that there was a responsibility on a person afforded an opportunity to comment to clarify bona fide misunderstandings – nothing prevented the complainant from providing supporting documents.

The third sentence: “According to a reconciliation provided by the lawyers, Siyaya by that date still owed R92 million of the R99 million loan from BBKSIC and had last made a payment in 2017. The reconciliation made no mention of any interest calculation.” Siyaya said the initial loan was repayable to the BBKSIC in 60 monthly equal installments, excluding interest and other charges. amaBhungane disputed this and attached a copy of the loan agreement. It pointed out that some terms of the agreement were even left blank.

Scholtz remarked that, if an agreement did not even contain a starting date for repayments, the amount of the repayments, and clarity on the interest aspect, it was fair to state as fact that the repayment terms were unclear.

The complaint was dismissed.

 

THE RULING ITSELF

 

Ruling by the Press Ombud

Date of articles:                  19 November 2022

Headline of publication:   “How Siyaya TV took advantage of Bakgatla BA Kgafela’s fortune”

Authors:                               Njabulo Ngidi and Sam Sole

Particulars

1. The article in question appeared on the website of News24. However, the latter indicated that amaBhungane would answer the complaint and that News24 would abide by the outcome. Both entities are subscriber members of the Press Council.

2. Siyaya Free to Air (Pty) Ltd (“Siyaya TV”) is the complainant, herein represented by Megan Ross from law firm Nicqui Galaktiou Inc. Charl du Plessis from Willem de Klerk Attorneys made representations on behalf of amaBhungane.

3. Both parties filed extensive written submissions and supporting documents.

Background

4. The Bakgatla Ba Kgafela (“BBK”) community hailing from the North West Province has been in the spotlight on various occasions about alleged mismanagement of the community’s funds. The community has considerable funds due to income it receives from mining operations, amongst other income streams.

5. In 2016 the Premier of the North West Province established a commission of inquiry to investigate the alleged abuse and mismanagement of community funds. Advocate Sesi Baloyi, chairperson of the commission of inquiry, delivered a report in 2019. One of the recommendations was the appointment of an administrator and forensic investigators.

6. An administrator, Phineas Tjie, was appointed in December 2019 by the then Premier. An acting Kgosi was also named, but Kgosi John Pilane (“Pilane”) is still challenging the commission’s report and the appointment of an acting Kgosi in pending court proceedings.

7. However, the department of cooperative governance and traditional affairs went on to appoint iFirm as forensic investigators in April 2021. amaBhungane partly relies on a report of iFirm as basis for the article in question.

8. iFirm looked into an agreement between the Bakgatla Ba Kgafela’s community and Siyaya TV to start a television station. The thrust of amaBhungane’s article is that the deal was touted as a fantastic opportunity that would “change the face of broadcasting” while it, in fact, drained the resources of the Bakgatla Ba Kgafela community without apparent commensurate benefit for the community.

9. At this point, it must be noted that both parties submitted very extensive supporting documents. Some of these are helpful to flesh out the issues at hand. Others are potentially more suitable to be considered in another forum where the underlying disputes between all the role-players will be ventilated. My role is confined to considering whether amaBhungane acted within the prescripts and guidelines of the Press Code. In doing so, I remain acutely aware that the readers of the amaBhungane article had only what was presented to them and not every piece of information and document submitted to this office.

Complaint

10. Siyaya TV explicitly, and very helpfully, identifies the phrases it finds offensive in the article.

Headline

11. The first is the headline of the article, “How Siyaya TV took advantage of Bakgatla Ba Kgafela’s fortune”

12. The complainant invokes clause 10.1. of the Press Code, alleging the headline does not accurately reflect the contents of the article. “It portrays a picture of the complainant exploiting BBKSIC, whereas in actual fact BBKSIC is significantly benefiting from its relationship with the Complainant.” BBKSIC is a reference to the Bakgatla Ba Kgafela Strategic Investment Company (Pty) Ltd.

“ATM”

13. The second complaint is addressed at the passage, “But instead it turned the traditional council, which is supposed to safeguard the community’s financial interest, into what amounted to the TV station’s personal ATM.”

14. Says Siyaya: “There is no basis to refer to the arm’s length loan agreement concluded with BBKSIC as the complainant using the council as its personal ATM. This is not only factually incorrect, but is defamatory of the Complainant. It alludes to the fact that the Complainant has taken money without the intention of paying it back, which is false.”

15. Siyaya invokes clauses 1.1., 1.2, and 1.3 of the Press Code for this complaint. Those sections require the media to report truthfully, accurately, fairly, in a balanced and contextual manner, and only report what may reasonably be true as fact.

The loan terms

16. The article states: “Bakgatla Ba Kgafela Strategic Investment Company (BBKSIC), advanced R99 054271.01 to Siyaya without any clear repayment dates and without any mandate from the community.”

17. Siyaya says this is factually incorrect, as there was significant engagement with the community through the council and the council and community provided the required authority and mandate to proceed with the loan.

18. Again, clauses 1.1., 1.2., and 1.3. of the Press Code are cited.

The payments

19. Finally, Siyaya takes issue with the statements about the repayment of the loan. The identified passages read:

“According to a reconciliation provided by the lawyers, Siyaya by that date still owed R92 million of the R99 million loan from BBKSIC and had last made a payment in 2017. The reconciliation made no mention of any interest calculation”; and

“He did not provide any evidence to back up this assertion.”

20. The complainant does not identify any particular clause of the Press Code for this complaint. Instead, it explains that the “loan was advanced as a shareholder’s loan upon the agreement between the parties that the loan would be repayable free from interest until the complainant was self-sufficient”. Furthermore, Siyaya says amaBhungane “did not request evidence and/or supporting documentation from the complainant in respect of the 80% of the loan that had been repaid”. Siyaya says it would gladly have provided a payment schedule.

21. I understand this part of the complaint to involve Clause 1.8. of the Press Code, dealing with the imperative to seek pre-publication comment from subjects of critical reportage. Although it is not framed in those words, the other leg of this part of the complaint appears to be the alleged inaccuracy of the passage about the repayments, which would relate to Clause 1.1.

Analysis

Loan terms

22. I will first deal with the complaint about the loan terms and the reported absence of agreed repayment dates and a mandate from the community. The passage under consideration should naturally be read within the context it appears in the article.

23. Quite early in the article, under the sub-heading “Commission of inquiry”, the publication quotes from the findings of the Baloyi commission. The article states that Baloyi reported in the commission’s report that the Bakgatla Ba Kgafela “acquired a 40% share in Siyaya Free to Air TV, seemingly at an eventual cost of R35-million, noting, ‘We did not find evidence of consultation with or approval of the transaction by the community’.”

24. Siyaya did not challenge this excerpt from the Baloyi report. I therefore accept that it was a finding of a commission of enquiry that there is no evidence of consultation with or approval from the Bakgatla Ba Kgafela community for the transaction. Under these circumstances, amaBhungane was justified to state that there was no clear mandate from the community.

25.  Siyaya states in its complaint that there was indeed authority and and mandate to proceed with the loan. “Albeit that this is an aspect that (amaBhungane) should have…canvassed with BBKSIC and not the complainant.”

26. The complainant further provided the following documents:

26.1 A memorandum from the Bakgatla Ba Kgafela Administration to the Kgosi and traditional council motivating the deal with Siyaya. (I noted that the approval lines for the memorandum were blank and therefore unsigned.)

26.2 A resolution of the BBK traditional council that resolved to invest in a joint project to obtain a broadcasting license and to transfer funds. It was apparently signed by Kgosi John Pilane and (some) council members.

27.  The difficulty is, however, that this does not countenance the finding of the Baloyi commission that there was no evidence of engagement with or a mandate from the community itself. The crux of the Baloyi report is that some of the leaders allegedly went on a frolic of their own without consulting with the community.

28. The statement is not that the official documents such as resolutions were not in place. The statement is that the community was not consulted. I am satisfied that there is no factual inaccuracy in the latter statement.

29. The complaint only refers specifically to the issue of a mandate from the community. However, if the complaint is taken as a whole, the complaint includes the alleged inaccuracy of the statement that there were no clear repayment dates for the loan.

30. Siyaya says in its complaint the initial loan was repayable to the BBKSIC in 60 monthly equal instalments, excluding interest and other charges. amaBhungane disputes this and attaches a copy of the loan agreement. It points out that some terms of the agreement were even left blank. Although the agreement states that the loan is repayable in 60 monthly equal instalments, the amount and the commencement date of the repayments are left blank while the agreement also refers to accrued interest.

31. In Siyaya’s complaint, it refers to an interest-free shareholder loan and further states that the loan “would be repayable free from interest until the complainant was self-sufficient”. It goes without saying that no party to the agreement would know exactly when a venture would become self-sufficient, therefore when interest would accrue, and therefore how and when the loan would finally be settled in full.

32. If an agreement does not even contain a starting date for repayments, the amount of the repayments, and clarity on the interest aspect, it is fair to state as fact that the repayment terms were unclear.

Repayments

33. Turning to the actual repayments made, both parties made extensive submissions about the actual outstanding amounts, including own calculations. I do not find it necessary to unravel the accounting conundrum.

34. The fact of the matter is that amaBhungane reported the following:

34.1 “Repayment was haphazard and nothing at all was paid between July 2017 and February 2021”. This is not one of the statements in dispute.

34.2 “…A lawyer from Fluxmans acting on behalf of Siyaya wrote to Kagiso seeking to repay R15-million to the Bakgatla Ba Kgafela Strategic Investment Company.

“According to a reconciliation provided by the lawyers, Siyaya by that date still owed R92-million of the R99-million loan from BBKSIC and had last made a payment in 2017. The reconciliation made no mention of any interest calculation.”

35. The latter statement is placed in dispute. However, the dispute appears to be what Siyaya currently owes. There is no challenge to the assertion in the article that it was indeed Siyaya’s own attorney who provided the figures quoted. The factual correctness of this statement is not challenged.

36. The article makes it clear that this was the situation at the time, i.e.  March 2021. The article also makes it clear that the figures came to light when Siyaya in fact attempted to make considerable payments to BBKSIC. Readers of the article were not misled to believe that it is a fact that Siyaya still owed R92-million by the time the article appeared at the end of 2022.

37. In fact, amaBhungane reported that the R15-million payment was made after that reconciliation and requested Siyaya to clarify how much it currently owed (i.e. at the end of 2022). Siyaya TV chief executive Aubrey Tau is quoted as saying, “We can confirm that approximately 80% of Siyaya’s loan obligations have to date been repaid.”

38. Siyaya’s gripe appears to be that its comment that 80% of its loan obligations have been repaid by the end of 2022 is casting aspersions on the claim by inclusion of the sentence, “He did not provide any evidence to back up this assertion.” This is a separate issue (dealt with below) and not linked to the factual reporting of Siyaya’s attorney’s letter in 2019 summarising the position as it was then.

39. Based on the plethora of documents provided by the parties, it is clear that this is where the actual dispute lies. What does Siyaya currently owe? amaBhungane is sceptical about the figure quoted by Tau and Siyaya is adamant that it is correct. However, this is beyond the scope of this complaint. Readers of the amaBhungane article were not provided with a definitive claim in this regard. They were informed that payments were irregular between 2017 and 2019, that Siyaya then wanted to pay an additional R15-million, and it is alluded that the current (i.e. 2022 status) is unclear.

40. A publication is obliged to reflect the comment of a subject of critical reportage even if it believes the answer to be incorrect. In an application for leave to appeal in the matter of Mthembu Sibongiseni Jerome vs News24 (Matter 8971/06/2021) Judge Ngoepe reiterated the principle that the “reader be the judge” about the veracity of claims. A publication cannot abrogate itself the right to turn “into a jury and an executioner” by deciding a version is so false that it need not be published.

41. AmaBhungane did not fall into this trap. It was obliged to reflect Tau’s version that 80% of Siyaya’s loan obligations had been met by time of publication, even though it is clear that amaBhungane has reservations about the claim. I do not express a view on whether the reservations are or were well-founded or not.

42. A publication’s duty can, however, never be to merely be a copying machine for comments. Nothing prevents a publication from stating further facts contrary to an expressed claim to guide the “reader (to) be the judge”. In principle, it cannot be in transgression of the Press Code to alert a reader to claims made which could not be verified. It is, in fact, a requirement in clause 1.7. to verify the accuracy of doubtful information, if practicable, and to state that it has not been verified if it was not practicable to verify such information.

43. Siyaya says they were never asked by amaBungane for documentation or evidence in respect of the statement that 80% of the loan had been repaid and would have gladly provided a schedule of repayments, which it indeed provided to the Press Ombud.

44. The publication says: “AmaBhungane further denies that it has an obligation to divine the existence of records and then tease them out of subjects of critical reportage, as Siyaya TV appears to contend. All the issues were squarely put to Siyaya TV. To the extent that Siyaya TV refused to be frank, it is the author of its own misery.”

45. This Office has already held that there is also a responsibility on a person afforded an opportunity to comment.  In Ramatlakane v Sunday Times and TimesLive (complaint 9443, 17 May 2022), it was held:

“A subject of critical reportage who is afforded an opportunity to respond to allegations also has a measure of responsibility to clarify bona fide misunderstandings. This is particularly applicable when a subject believes the allegations being posed to him or her is factually incorrect. If a subject – despite his or her belief that the journalist has the wrong end of the stick – chooses not to respond, to be sketchy in his or her response, or even to lead a journalist down the garden path where there was a real misapprehension, he or she does so at their own peril.”

46. If Siyaya TV was of the view that the current status of the loan advanced their case, nothing prevented it from providing supporting documents. As AmaBhungane states, it could not have been aware of the existence of and nature of any possible supporting documents.

47. In reply, Siyaya also complained that AmaBhungane did not inform it that the report from iFirm and the Baloyi commission report would be referenced and used in the article.  I find this argument to be unconvincing. I do not understand Siyaya’s case to be that it would have provided different answers to the same questions if the questions were premised with a statement that amaBhungane had regard to findings of a forensic investigation and the Baloyi report. That would have been an untenable argument.

48. A publication must place all material allegations to a subject of critical reportage to enable the individual or entity to respond to those allegations. This is the real requirement, and not a requirement to state the source document or source of such an allegation. The complaint does not identify any specific allegation that ought to have been put to Siyaya TV prior to publication but was not. Therefore, there was no breach of clause 1.8 of the Press Code.

The “ATM”

49. Where amaBhungane, in my view, sailed closest to the wind, is with the statement that the partnership with Siyaya TV “turned the traditional council…into what amounted to the TV station’s personal ATM”.

50. AmaBhungane responds that the statement was “comment based on all the facts and circumstances related in the story”.

51. The publication says: “The Press Code contains no requirement that a news article may not contain comment, which is what this statement clearly is.” It then goes into the common law principles of protected comment as a defence to an action for defamation.

52. While it is true that there is no blanket prohibition of inserting commentary or “interpretative” phrasing in the Press Code, the Code does draw a hard line between protected comment and news reporting. Clause 7 of the Press Code deals with comment and largely reflects the common law position about protected commentary as defence to a defamation. However, the rider of utmost importance in that clause is that the comment must be “presented in a manner that it appears clearly to be comment”. This requirement has consistently been emphasised by the Press Ombud and Appeals panel.

53. The sentence in question forms part of a news report. There is nothing that clearly presents it as comment separate to news reporting.

54. This office is observing a growing trend in journalism to blur the lines between commentary and news reporting. There is also a trend to use more informal styles of reporting. I note this trend without expressing a firm opinion on the desirability or otherwise of these trends. It has always been a hallmark of journalism that different publications have different tones, register, and “voices” that appeal to a very diverse media consumer base.

55. It is, perhaps, slightly naïve to expect publications to report in clinical terms about news events and to adhere to an almost dogmatic separation between comment and factual reporting. The debate is in a way an extension of the centuries-old debate on whether absolute objectivity in attainable or even desirable.

56. The role of journalists to interpret the world and events for their readers instead of merely parroting what others have to say, has been acknowledged by this office. (See, for example, National Lotteries Commission vs Groundup, complaint 8942)
57. In my view, the question is not whether the sentence in question was protected commentary or not, but whether it is justified as a statement of fact. Where there is some ambiguity in the statement, it must first be ascertained how a reasonable reader would interpret the statement.

58. Siyaya contends for a reading of the statement that “the complainant has taken money without the intention of paying it back, which is false”.

59. AmaBhungane contends for a “metaphor that is intended to convey that Siyaya TV seemingly had convenient access to substantial source of funds”.

60. Says Siyaya in reply: “The complainant fails to understand how referring to a personal ATM is a metaphor for having access to a substantial source of funds when, in accordance with the Oxford Dictionary, the definition of an ATM is ‘an automated tele machine in or outside a bank from which you get money from your bank account using a special plastic card’. It is therefore incomprehensible how the respondent can use the term ‘personal ATM’ in this context.”

61. Siyaya further argues that the funds that were exchanged between the parties were in respect of a loan agreement with the intention of the funds being paid back, which the complainant has demonstrated has already taken place significantly. “A person’s intention when they approach an ATM is to obtain funds without repayment.”

62. The question is naturally not how Siyaya and amaBhungane interpret the phrase “personal ATM”, but how a reasonable reader would understand the term.

63. I do not think the reasonable reader would have a technical interpretation or a dictionary definition reading of this phrase. In any event, any person with a credit card knows that cash withdrawals from your credit card does not mean you do not have to pay the money back at some stage. A withdrawal from an ATM is either of one’s own funds already available, or essentially a loan from the bank in the form of an overdraft facility or credit card. It does not, in technical terms, have a connotation with stealing any money in the same way robbing the bank does.

64. In my view, the reasonable reader simply connotates ATM as a place or device where you can get cash. If a parent says to a teenager he/or she is “not an ATM”, it simply means that the parent will not or cannot part with cash.

65. The sentence in question would therefore be construed by a reasonable reader to mean that the relationship between the TV station and the Bakgatla Ba Kgafela was one that amounted to a relationship where BKK had to provide cash.

66. The following factual statements in the article are of relevance:

66.1 It is uncontroversial that BKKCIS provided large sums of cash as an investment in the TV station.

66.2 The Baloyi report found that Siyaya TV used cash of investors (as any startup would) and incurred losses of just over R24-million between the period of 2011 to 2016 (as, arguably, many startups would initially incur losses). It was, simply put, using the cash advanced by the community.

66.3 The Baloyi commission report said “there is no evidence that any of the other shareholders [in Siyaya] provided any funding in the relevant period”.

67. In light of these uncontested facts, the sentence in question is no more than an introductory statement that BBKSIC bankrolled the operations of Siyaya TV as a partner in the joint venture, followed by the factual statements set out above. The sentence may have been slightly provocative, this is not an inaccurate or unfair statement.

The headline

68. The headline complaint is dealt with lastly. This is because Clause 10 requires headlines to “not mislead the public” and to “give a reasonable reflection of the contents of the report in question”.

69. The headline must not mislead readers as to the contents of the article. Furthermore, it must be a fair reflection of the contents of the article.

70. Siyaya says the headline does not accurately reflect the contents of the article. “It portrays a picture of the complainant exploiting BBKSIC, whereas in actual fact BBKSIC is significantly benefiting from its relationship with the complainant.”

71. AmaBhungane points out the various findings of the Baloyi commission and the iFirm forensic report highlighted in the article to conclude that “Siyaya TV, with the help of its director Kgosi John Pilane, did take advantage of the Bakgatla ba Kgafela’s fortune”.

72. The facts and allegations reported in the article include:

72.1 Kgosi John Pilane was appointed a director of Siyaya TV on 10 November 2011, before any investment had been made by either the Bakgatla ba Kgafela community or BBKSIC. He was therefore allegedly conflicted as the council under his leadership then decided to invest alongside a company of which he was a director.

72.2 The commission reportedly found the transaction to have been prejudicial to the Bakgatla ba Kgafela.

72.3 The statement that the community was not consulted.

72.4 The very favourable terms of the agreement, such as the interest-free nature of the loan (even if only initially), that Siyaya TV was granted an extension for repayments, the uncertainty about the repayment terms, etc.

73. In reply, Siyaya says the real issue is that “the statement is being made that the complainant took advantage of a fortune”. Siyaya emphasises that the loan was in the process of being paid off and the BBKSIC received shareholding. “The respondent notably places significant reference on Kgosi John Pilane and his commercial activities throughout the response. Therefore, it begs the question why the headline did not read “how Mr Kgosi John Pilane took advantage of Bakgatla Ba Kgafela’s fortune.”

74. Siyaya continues: “(AmaBhungane) surely appreciates the difference between the activities conducted by an individual (who may be a director of an entity) and attributing these activities to that of the entity to which he is a director. Attributing the activities of Mr Pilane to the Complainant is therefore misleading.”

75. It is unfortunately not possible to divorce Siyaya TV from the activities of Pilane – not least because he is or was reportedly a director of the venture. He formed part of the board directing the ventures of Siyaya.

76. The contents of the article relate to how the BBK community’s fortune was applied or used in this controversial venture. The beneficiaries of the deal are alleged to be Siyaya TV and perhaps certain individuals in the leadership of the BBK community.

77. In light of the above, the headline did not mislead readers as to the contents of the article.

Conclusion

The complaint is dismissed.

Appeal

The Complaints Procedure lays 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].

Herman Scholtz

Press Ombud

7 February 2023