Construction Education and Training Authority vs Daily Maverick

SUMMARY

The headline to the story in question read, Construction Seta wasted R79.8m in irregular expenditure, criminal prosecutions could follow – Auditor-General. A blurb to the headline stated that the Ceta wasted millions of rands in irregular expenditure. It was published on 23 October 2023. 

This ruling by Deputy Press Ombud Tyrone August was based on the Press Code that became effective on 30 September 2022.

 

Construction Education and Training Authority (Ceta) complained that the article:

• was not truthful, accurate, or fair;
• did not present news in context and in a balanced manner;
• did not distinguish between fact and opinion;
• was based on news that was illegally, dishonestly and unfairly obtained; and
• did not verify the accuracy of its information, and that it did not state this fact.

August added the headline to the complaint, as he argued it might have been misleading.

The story was about Ceta that had incurred more than R79.8m in irregular expenditure during its last financial year, according to a report by the office of the Auditor-General (A-G). This amount was reportedly in addition to R5 million in fruitless and wasteful expenditure incurred by the Ceta due to the cancellation of the Enterprise and Resource Planning project.

August said it was important to distinguish between irregular and wasteful expenditure – there was no evidence that the A-G had determined that R79.8 million in irregular expenditure was wasted expenditure, as the article suggested.

He dismissed the largest part of the complaint. However, he upheld the complaint that the article erred in that it claimed two irregularities appeared “back-to-back”. He also found both the headline and the blurb were misleading, as irregular expenditure was not necessarily wasteful expenditure – and the A-G had made no determination that the R79.8 million in irregular expenditure was wasted expenditure.

He ruled that the website had to publish an apology and to make appropriate corrections. The headline also had to be amended in accordance with his finding.

 

THE RULING ITSELF

Date of publication: 23 October 2023

Headline:

Construction Seta wasted R79.8m in irregular expenditure, criminal prosecutions could follow – Auditor-General

Author of article: Msindisi Fengu

Particulars

This finding is based on a written complaint by CEO Mr Malusi Shezi on behalf of the Construction Education and Training Authority (Ceta) and includes four annexures; a written response on behalf of Daily Maverick by its Deputy Editor, Ms Jillian Green, along with a copy of the Auditor-General’s report; and a written response submitted on behalf of the Ceta by Mr Shezi.

Complaint

The complainant submits that the article transgresses Clauses 1.1, 1.2, 1.3, 1.4 and 1.7 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 summarisation;

“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 …”

In view of the complainant’s objection to the word “wasted” in connection with “irregular expenditure” in the blurb, I have added Clause 10.1 of the Press Code to the complaint as the headline also describes the “irregular expenditure” as “wasted”:

“10.1. Headlines … shall not mislead the public and shall give a reasonable reflection of the contents of the report … in question …”

1. Summary of article

1.1. The Construction Education and Training Authority (Ceta) reportedly incurred more than R79.8 million in irregular expenditure during the last financial year, according to a report by the office of Auditor-General Tsakani Maluleke.

1.1.1. It also reportedly emerged during a presentation to the parliamentary portfolio committee on higher education on 11 October 2023 that this amount was in addition to R5 million in “fruitless and wasteful expenditure” incurred by the Ceta due to the cancellation of the Enterprise and Resource Planning (ERP) project.

1.1.2. According to the Auditor-General’s report, the Ceta was the only sector education and training authority (Seta) with two back-to-back material irregularity findings. Such an irregularity is defined in the amended Public Audit Act as a breach of fiduciary duty or non-compliance with or contravention of the law that could result in a material loss, the misuse or loss of a material public resource or substantial harm to a public sector institution or to the public.

1.2. However, Ceta spokesperson Mabo [Malebogeng] Thobela said that the correct irregular expenditure amount was R68.7 million and that the major drivers were project management fees, which included project monitoring and oversight visits.

1.2.1. She added that system and process improvements as well as compliance with the requirements of the Quality Council for Trades and Occupations contributed to the Ceta exceeding the director-general’s support cost limit of 7.5%.

1.2.2. Thobela further said that the correct amount spent on the ERP system was R3.48 million. She noted that the Ceta has taken steps to review, set aside and recover this amount and that the matter was in the High Court.

1.3. According to the article, the Auditor-General further reported that a material irregularity was recorded against the Ceta in the current financial year for appointing an implementing agent in a project that failed to meet its objectives and was later discontinued. This was reportedly a failure to comply with the Public Finance Management Act (PFMA).

1.3.1. The Ceta board – its accounting authority – was notified about the material irregularity on 17 July 2023 and a response was subsequently received. The Auditor-General was evaluating whether appropriate action was taken after the finding.

1.4. In the latest material irregularity, the Auditor-General’s report states that the Ceta entered into an agreement with a consulting firm to assist in analysing data to facilitate decision-making and to undertake conflict of interest verifications.

1.4.1. However, the Ceta was billed by the service provider at a rate of R1 200 per hour, as opposed to the agreed R1 100 in the service level agreement, in four invoices for the period 15 June 2020 to 31 July 2020.

1.4.2. VAT was also billed twice on the invoices and resulted in an overpayment as VAT was already included in the agreed rates in the service level agreement.

1.4.3. The Auditor-General report therefore found that the Ceta did not comply with section 57(b) of the PFMA and that it did not implement the Auditor-General’s recommendations to the Ceta by 10 September 2023 as expected.

1.4.4. In view of the fact that the Ceta reportedly did not respond, the Auditor-General would communicate “the next steps”.

1.5. With regard to the current material irregularity, Thobela said that there was an ongoing investigation in line with National Treasury prescripts and that it was nearing conclusion.

1.5.1. She said that “[t]he leadership of the implementing agent has confirmed that they have taken consequence management [disciplinary action] against those involved” and added that a case number would be shared once the matter was enrolled in court.

1.5.2. Thobela further said that the Ceta complied with the PFMA disclosure requirements as of the end of the financial year on 31 March 2022.

1.5.3. An internal investigation was concluded on the incorrect billing material irregularity, which recommended that the money should be recovered from the service provider.

1.6. Thobela denied that the Auditor-General found that the Ceta did not provide any responses. She said the Ceta provided responses to the Auditor-General on the following dates: 23 January, 21 June, 24 June, 25 June, 26 July, 28 July, 10 August, 18 August, 21 August and, most recently, on 14 September 2023.

1.6.1. She said the Auditor-General recommended that the matter be investigated in line with the National Treasury Framework on irregular, fruitless and wasteful expenditure, and added that the Ceta has implemented the steps in the framework and that financial recovery was pending in court.

1.7. Auditor-General spokesperson Africa Boso said it would comment after a consolidated general report for national and provincial departments and entities was released on 29 November 2023.

2. Arguments

Construction Education and Training Authority

2.1. An affidavit by Shezi on behalf of the complainant states that Thobela, its executive manager for strategic support, received an email from Daily Maverick on 17 October 2023 enquiring about the outcomes in the Auditor-General’s report.

2.1.1. Firstly, it notes that the email alleges that the Ceta incurred irregular expenditure amounting to R79.8 million during the 2022/2023 financial year.

2.1.2. Secondly, this amount allegedly exceeded the director-general support cost limit of 7.5% and there was allegedly also non-compliance with supply chain management prescripts.

2.1.3. Thirdly, the Ceta allegedly incurred R5 million in fruitless and wasteful expenditure due to the cancellation of the ERP project.

2.1.4. Fourthly, there were allegations of material irregularity in that the Ceta made payments for the ERP project that did not achieve the intended benefit.

2.1.5. In total, there were seven questions that required a response from the Ceta (the email is attached as annexure 1).

2.2. The complainant states that Thobela requested an extension and responded to the allegations on 19 October 2023 (the email and responses are attached as annexures 2 and 3).

2.2.1. It was therefore surprised when the publication published the article in question on 23 October 2023 with the following “heading”: “The Auditor-General has found that the Construction Education and Training Authority wasted millions of rands in irregular expenditure this year, but the entity is disputing the amounts involved.”[1]

2.2.2. It goes on to submit that this “heading” is incorrect and is therefore in breach of Clause 1.2 of the Press Code.

2.2.3. It further argues that the “heading” suggests that the Ceta wasted government resources “without due cause” and also insinuates that the expenditure was incurred in vain.

2.2.4. It describes irregular or wasteful expenditure as defined in the PFMA and submits that the publication does not understand what it means. It contends, for example, that not all irregular expenditure is wasteful and declares that, in fact, the Ceta derived value from it.

2.3. The complainant further submits that it is incorrect and misleading to state that the Ceta incurred more than R79.8 million in irregular expenditure and another R5 million in wasteful expenditure, and therefore contravenes Clause 1.1 of the Press Code.

2.3.1. It declares that Thobela provided the reporter with “the correct information”, but that the publication did not bother to verify its information with the Ceta’s annual report. Instead, it reported lies.

2.3.2. It also objects to the fact that the article singled out the Ceta for “irregular expenditure” when such spending by two other Setas was even higher. It regards this as unfair and in breach of Clause 1.1 of the Press Code.

2.3.3. It takes issue as well with the allegation in the article that there was R5 million in fruitless expenditure due to the cancellation of the ERP project. It dismisses this as untrue and in violation of Clause 1.1 of the Press Code.

2.4. The complainant further points out that the article states that the Ceta was the only Seta with “two back-to-back material irregularity findings”. It rejects this as vague and misleading, and contends that this is in breach of Clause 1.3 of the Press Code.

2.4.1. It takes issue, too, with the reference that the latest material irregularity involved an agreement with a consulting firm to assist in analysing data to facilitate decision-making and to undertake conflict of interest verifications.

2.4.2. It also complains about the reference to the amounts in four invoices from the service provider, and points out that these details were not contained in the Auditor-General’s report or in the presentation to the parliamentary portfolio committee.

2.4.3. It argues that this contractual information is confidential and that this information may have been obtained illegally, in breach of Clause 1.4 of the Press Code.

2.5. The complainant further contends that these allegations were published even though Thobela provided the publication with “factual answers” to its questions. It notes that its answers were only published at the end of the article – “which can be conceived negatively by the reader”.

2.5.1. It goes on to complain that these allegations impacted negatively on the members of the Ceta’s accounting authority and its management team.

2.6. In conclusion, the complainant states that it subsequently contacted the publication and requested it to retract the article and publish “the factual statements” it had provided. To date, however, there has been no response or even acknowledgement of its letter (annexure 4).

2.6.1. Accordingly, it again requests the publication to publish “the correct information” and, in addition, to apologise to the Ceta and to retract the “false, inaccurate, and/or misleading reporting”.

2.6.2. The contents of the above complaint are confirmed by Thobela in another affidavit.

Daily Maverick

2.7. The respondent states that the article is based on a briefing given by the Auditor-General before a parliamentary portfolio committee and that it approached the Ceta for comment before publication.

2.7.1. In response to the complaint that the “heading” is misleading and that the publication does not understand the meaning of irregular or wasteful expenditure. the respondent points out that the Auditor-General’s report uses the word wasted under the section “Fruitless and wasteful expenditure” and that the report refers to expenditure of R5 million under a column labelled “Nature of fruitless and wasteful [expenditure]” (page 31).

2.7.1.1. It then refers to the part of the report on “Current year irregular expenditure incurred 2022-23” (page 29), which states that the Ceta incurred irregular expenditure to the amount of R79.8 million.

2.7.1.2. The publication goes on to point out that, under “Nature of the irregular”, the report states that the “Expenditure [is] in excess of the DG support cost limit of 7,5%” and that there is “Non-compliance with SCM [supply chain management] prescripts”.

2.7.1.3. The publication goes on to argue that its use of “wasted” in the “heading” summarises both findings of the report – “that of irregular expenditure and fruitless and wasteful expenditures”.

2.7.2. In response to the complaint that the article incorrectly states that the Ceta

incurred more than R79.8 million in irregular expenditure and R5 million in fruitless and wasteful expenditure, the respondent states that these findings were made by the Auditor-General and included in its report under “Irregular expenditure” (page 29) and “Fruitless and wasteful expenditure” (page 31).

2.7.3. In reply to the complaint that the article unfairly singled out the Ceta as being among the top contributors to irregular expenditure, the respondent submits that the article focused on the Ceta because of details in the report on material irregularities, “which are linked to irregular expenditure”. It adds that it did not rank the Ceta or describe it as the worst performer of all the Setas.

2.7.4. With regard to the Ceta’s denial that the R5 million incurred in fruitless expenditure was due to the cancellation of the ERP project, the respondent replies that the report states under “Fruitless and wasteful expenditure” that the Ceta incurred an amount of R5 million “due to cancellation of the ERP project” and that “all prior expenditure [was] thus fruitless as no benefit [was] received” (page 31).

2.7.5. In reply to the complainant’s claim that the reference to the Ceta as the only Seta with two back-to-back material irregularity findings was vague and misleading, the respondent refers to the sections in the Auditor-General report on “Material irregularities identified during current year audit” and “CETA – Payments made for project that did not yield intended benefit” (page 21), which give details on these irregularities.

2.7.5.1. These state that the Ceta “appointed an implementing agent, the project failed to meet objectives …, this is non-compliance with section 57(b) of the PFMA” and point out that the accounting authority was notified of this on 17 July 2023.

2.7.5.2. The Auditor-General subsequently received a response from the Ceta and it was currently evaluating whether “appropriate action” was taken.

2.7.5.3. The publication further notes under “Status of previously reported material irregularities” (page 21) in the report that the Ceta made an “overpayment”, and refers to four invoices billed at a higher hourly rate than agreed and to the Ceta being billed twice for VAT.

2.7.5.4. It goes on to point out that the report states that the Ceta has not taken adequate action in response to the notification and that the recommendations included in the auditor’s report were expected to be implemented on 10 September 2023. As no response was received from the Ceta, the Auditor-General said it would inform Ceta of the next steps in the process.

2.7.6. In response to the complaint that publishing contractual information was confidential, and that this information may have been obtained illegally, the respondent points out that this information is in the public domain as it is contained in the Auditor-General’s report.

2.7.6.1. Under “CETA – Overpayment” in the section headed “Status of previously reported material irregularities” (page 21), the report provides details of the Ceta’s agreement with a consulting firm as well as information on the invoices and the VAT billings.

2.7.6.2. The report further states that the auditor’s recommendations in the report were expected to be implemented on 10 September 2023. However, no response was received from the Ceta and the Auditor-General undertook to inform it of the next steps in the process.

2.7.7. In reply to the complaint that the publication published these allegations even though the Ceta provided a response, the respondent states that the Auditor-General briefed the parliamentary portfolio committee on its findings.

2.7.7.1. It points out that not only did the publication report on these findings, but it also approached the Ceta for comment and “took care to share the Ceta’s detailed response”.

2.7.7.2. It further argues that it indicated the Ceta’s position in the “sub-headline” before outlining the Auditor-General’s findings in detail.

2.7.8. With regard to the complainant’s request for an apology and for false and misleading information to be corrected, the respondent says it offered an explanation for its delayed response and informed the Ceta that its responses were included in the article published on 23 October 2023.

Construction Education and Training Authority

2.8. In an affidavit in response to the respondent’s reply, the complainant acknowledges that the Auditor-General’s report states that the Ceta incurred R79.8 million in irregular expenditure.

2.8.1. However, it argues, this does not mean that the expenditure was wasteful and suggests that there is no justification for the use of the words “wasted millions”. It states that this is not what the Auditor-General reported to the parliamentary portfolio committee.

2.8.1.1. The complainant also points out that the report referred to the amount of R5 million as fruitless and wasteful.

2.8.1.2. It was therefore wrong for the publication to “summarise” both the R79.8 million and the R5 million as wasteful expenditure. It stresses that irregular expenditure and wasteful and fruitless expenditure are classified and defined separately in the Auditor-General’s report.

2.8.1.3. It again objects to the Ceta being singled out in the article when the Auditor-General’s report included all Setas.

2.8.1.4. With regard to the “heading”, the complainant denies that the Ceta wasted R79.8 million. It reiterates that irregular expenditure is not wasteful expenditure and, furthermore, that the Auditor-General does not state that the Ceta wasted R79.8 million in irregular expenditure.

2.8.1.5. In view of the above, it argues that the Ceta did not incur wasteful expenditure to the value of R79.8 million, and emphasises that there is a difference in law between irregular expenditure and wasteful and fruitless expenditure.

2.8.2. In response to the reason that the respondent advances for focusing on the Ceta in its article, the complainant submits that it was not the only Seta that incurred either irregular expenditure or fruitless and wasteful expenditure.

2.8.2.1. For example, one Seta spent R47.5 million on fruitless and wasteful expenditure compared to the R5 million of the Ceta, while another Seta incurred more than R1 billion in irregular expenditure.

2.8.2.2. The complainant maintains that the respondent did not address this aspect of its complaint and, “even if it did”, it confuses what constitutes wasteful and fruitless expenditure compared to irregular expenditure.

2.8.3. On the respondent’s submission that it approached the Ceta for comment, the complainant argues that the publication did not publish its replies in detail.

2.8.3.1. It repeats its objection to the “heading” on the grounds that it can be interpreted by readers as saying that the Ceta wasted government resources without due cause and because it insinuates that the expenditure was incurred in vain.

2.8.4. The complainant rejects the respondent’s reply that it published its responses in the article.

2.8.4.1. It argues that the respondent did not publish the correct amount of the irregular expenditure or the correct amount of the fruitless and wasteful expenditure as provided by the Ceta in its response to the publication’s questions and in the Auditor-General’s report. Instead, it “clubb[ed] the amounts together to mislead the readers”.

2.8.4.2. Furthermore, it rejects the respondent’s submission that the word “wasted” in the “heading” was used in relation to both findings of the Auditor-General – “which cannot be correct”.

2.8.4.3. It reiterates that not all irregular expenditure is wasteful or wasted expenditure and maintains that in this instance – contrary to what the article states – the irregular expenditure was not wasted.

2.8.5. In conclusion, the complainant repeats its request to the publication to publish the correct information as contained in the Auditor-General’s report and to apologise to the Ceta and to the public for publishing false and misleading information.

3. Analysis

3.1. Firstly, the complainant objects to the blurb (“heading”) that accompanies the article on the grounds that it is in breach of Clause 1.2 of the Press Code.

3.1.1. There does indeed appear to be merit in this complaint. The fact that expenditure was irregular does not necessarily mean that money was wasted.

3.1.2. In fact, an annexure on “Irregular expenditure framework” issued by National Treasury makes provision for instances where “no loss was incurred during the contravention of legislation and … value for money was achieved” (my emphases).[2]

3.1.3. Furthermore, according to this annexure a request can be made for condonation of irregular expenditure “[i]f losses were not incurred and value for money was achieved and the transgression was free of fraudulent, corrupt or other criminal conduct” (my emphases).[3]

3.1.4. It is therefore important to distinguish between irregular expenditure and wasteful expenditure – for purposes of both accuracy and to disassociate irregular expenditure from the pejorative connotations associated with wasteful expenditure.

3.1.5. In light of the above, it is a breach of the Press Code to state in the blurb that the Ceta ‘wasted millions of rands in irregular expenditure”. The Auditor-General made no determination that the R79.8 million in irregular expenditure was wasteful or that it was wasted expenditure.

3.2. Secondly, there is no basis for the complaint that the references in the article to R79.8 million in irregular expenditure and to R5 million in wasteful and fruitless expenditure are in violation of Clause 1.1 of the Press Code. These references are neither inaccurate nor misleading.

3.2.1. The “Briefing document on the audit outcomes for the Higher Education and Training portfolio: 2022-23”, dated 11 October 2023, refers to both amounts. As the respondent correctly notes, the document records R79.8 million under “Irregular expenditure” (page 29) and R5 million under “Fruitless and wasteful expenditure” (page 31).

3.2.2. Moreover, the article does record – in the interests of fairness and balance – that Thobela states that the correct amount spent on irregular expenditure by the Ceta was R68.7 million and it quotes her explanation at reasonable length.

3.3. Thirdly, there is little merit in the complaint that the respondent unfairly ignored other Setas who spent more than the Ceta on irregular spending in breach of Clause 1.1 of the Press Code. The publication explains that it focused on the Ceta in view of its material irregularities.

3.3.1. According to the Public Audit Amendment Act, a material irregularity “means any non-compliance with, or contravention of, legislation, fraud, theft or a breach of a fiduciary duty identified during an audit performed under this Act that resulted in or is likely to result in a material financial loss, the misuse or loss of a material public resource or substantial harm to a public sector institution or the general public”.[4] In view of the serious nature of material irregularities, there was thus ample justification for the decision of the publication to focus on the Ceta.

3.3.2. Furthermore, as stated in my finding in Matshope More vs Daily Maverick,[5] a news report is – by its nature – a synopsis of certain information. It is up to each publication to determine which aspects of the information it deems to be most newsworthy or in the public interest.

3.3.3. The Press Ombuds cannot prescribe to a publication what considerations or factors it should base those decisions on. Their role is to intervene only in instances where there are breaches of the ethical requirements of the Press Code.

3.3.4. There is also no basis for the claim that the article singled out the complainant as the Seta that incurred the most irregular expenditure – “the highest waster” – during the period in question. The article makes no such pronouncement nor does it compare the Ceta’s irregular expenditure to that of any other Seta.

3.4. Fourthly, there is no basis for the complaint that the publication incorrectly attributes the R5 million incurred on fruitless and wasteful expenditure to the cancellation of the ERP project and, therefore, that it is in breach of Clause 1.1 of the Press Code.

3.4.1. The “Briefing document on the audit outcomes for the Higher Education and Training portfolio: 2022-23” states categorically under the column “Nature of fruitless and wasteful” that this expenditure was “[i]ncurred due to cancellation of ERP project, all prior expenditure thus fruitless as no benefit received” (page 31).

3.4.2. Furthermore, in the interests of fairness and balance, the publication once again quotes Thobela and records her claim that the correct amount spent on this particular project was R3.48 million as well as her statement that the Ceta has taken steps to recover this amount.

3.5. There are some grounds for the Ceta’s fifth complaint. Although the “Briefing document on the audit outcomes for the Higher Education and Training portfolio” refers to material irregularities in the current year audit for 2022-23, the “previously reported material irregularities” refer to an overpayment for invoices for the period 15 June 2020 to 31 July 2020.

3.5.1. These two instances cannot be deemed to be “back-to-back” material irregularities as such a characterisation implies that they either occurred in consecutive years – which they clearly did not – or that they followed each other in an interrupted order. There is no evidence to support the latter claim.

3.5.2. To refer to the material irregularities in question as “back-to-back” is therefore imprecise and without any factual basis. As such, the article is in breach of Clause 1.3 of the Press Code.

3.6. However, these is no basis for the sixth complaint that the publication may have obtained information about the invoices illegally in breach of Clause 1.4 of the Press Code.

3.6.1. Details of these invoices are published in the Auditor-General’s briefing document (see page 21); the information is thus in the public domain. There was nothing underhand at all about the way the information was obtained.

3.7. The complainant’s seventh complaint is that the publication published various “allegations” in breach of Clauses 1.1, 1.2, 1.3, 1.4 and 1.7 of the Press Code even though it provided what it describes as “factual answers” to the questions posed by the respondent.

3.7.1. However, the article was clearly based on a briefing by the Auditor-General at a parliamentary portfolio committee. As such, the publication was entitled to report on the Auditor-General’s findings.

3.7.2. Over and above that, the publication afforded the Ceta an opportunity to respond to these findings.

3.7.3. The Ceta duly accepted this offer. However, it is dissatisfied that its responses were published “at the end of the article”.

3.7.4. This again ignores the obvious fact that the primary focus of the article was to report on a presentation before a parliamentary portfolio committee, which is appointed by Parliament to oversee the work of the government department for which it is responsible.[6] Any responses to the findings presented to this committee were, quite understandably, of secondary concern.

3.7.5. Also, the fact that the Ceta’s responses were placed at the end of the article does not affect the contents of the article in any material way: the point remains that the complainant was given an opportunity to respond to the findings.

3.8. There is little merit in complaint eight – that the publication did not publish the “factual statements” provided by the Ceta.

3.8.1. As noted under 3.7 above, the article was based on a briefing by the Auditor-General at a parliamentary portfolio committee, and the amounts published in the article on expenditure incurred was based on information provided during the briefing and in the Auditor-General’s report.

3.8.2. Furthermore, the publication did grant the Ceta an opportunity to respond to the Auditor-General’s findings, and quotes Thobela’s statement that the correct irregular expenditure amount was R68.7 million (and not R79.8 million).

3.9. The headline is in breach of Clause 10.1 for the same reasons outlined in points 3.1.1 to 3.1.5 above.

3.9.1. In brief, irregular expenditure is not necessarily wasteful expenditure and the Auditor-General made no determination that the R79.8 million in irregular expenditure was wasteful or that it was wasted expenditure.

3.9.2. It is therefore misleading to state in the headline that the “Construction Seta wasted R79.8m in irregular expenditure …” (my emphases).

4. Finding

The complaint that the article is in breach of Clause 1.1 is dismissed on four counts (see the reasons set out in my Analysis under point 3.2, namely 3.2.1 and 3.2.2; under point 3.3, namely 3.3.1 to 3.3.4; under point 3.4, namely 3.4.1 and 3.4.2; and under points 3.7.1 to 3.7.5).

The complaint that the article is in breach of Clause 1.2 is upheld in one respect (for the reasons outlined in points 3.1.1 to 3.1.5 of my Analysis).

The complaint that the article is in breach of Clause 1.3 is upheld in one respect (see the reasons outlined in points 3.5 to 3.5.2 of my Analysis).

The complaint that the article is in breach of Clause 1.4 is dismissed on two counts (for the reasons outlined in points 3.6 to 3.6.1 and points 3.7.1 to 3.7.5 of my Analysis).

The complaint that the article is in breach of Clause 1.7 is dismissed (see the reasons outlined in points 3.7.1 to 3.7.5 of my Analysis).

The complaint that the article is in breach of Clause 10.1 is upheld in one respect (for the reasons outlined in points 3.1.1 to 3.1.5 of my Analysis).

Firstly, Daily Maverick is required to publish an apology to the Ceta for breaching Clauses 1.2 and 1.3. The headline of the apology should contain the words “apology” as well as “Ceta”, and the text of the apology 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;
• be published online as well as on all platforms where the article was published;
• be published at the top of the online article;
• 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 named below.

Secondly, with regard to the breaches of Clause 1.2 and 1.3, Daily Maverick must publish the appropriate corrections in the text of the online article or at the bottom of the article, with an indication that it was amended following a ruling by the Deputy Press Ombud. These amendments should be approved by him.

Thirdly, with regard to the breach of Clause 10.1, the headline of the article must be amended in accordance with my finding.

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 Ombud

27 March 2024