Nqaba Nqandela vs. City Press
SUMMARY
The headline to the story in dispute read, ‘Interference’ delays laptops for students (published on 20 September 2020).
This ruling by Acting Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.
The article was about a R3.75-billion laptop tender sponsored by the Department of Higher Education, Science and Technology to mitigate, under the government’s financial aid scheme, the impact of the national lockdown (due to the Covid-19 pandemic) on poor students’ academic progress. The story inter alia reported that ministerial adviser Nqaba Nqandela’s “shadow looms large” over this tender, and that its Minister, Blade Nzimande, had “chosen” the former to facilitate the procurement of the devices.
Nqandela complained that the reportage presumed his nefarious involvement in the cancellation of a tender, which unfairly besmirched his character and dignity. He also complained that the journalist did not give him a right of reply.
City Press was directed to apologise to Nqandela inter alia for:
- unfairly stating an opinion as fact that his shadow “looms large” over the tender, presuming his nefarious involvement in this matter;
- not doing enough to obtain comment from him, and for not reporting that it had been unable to solicit such; and
- not exercising care and consideration involving his dignity and reputation.
THE RULING ITSELF
Complaint number: 8374
Complainant: Mr Nqaba Nqandela, Ministerial Program Manager for Partnerships with Industry to the Minister of Higher Education, Science and Innovation
Date of article: 20 September 2020
Headline: ‘Interference’ delays laptops for students
Print (page 6) and online: Yes
Author of article: Setumo Stone, political reporter
Respondent: Rhodé Marshall, managing editor
- Complaint
1.1 The gist of Mr Nqaba Nqandela’s complaint is that the reportage presumed his nefarious involvement in the cancellation of a tender, in which process his character and dignity was unfairly and incorrectly besmirched.
1.2 He refers to the following sentences in this regard:
- “[His] shadow looms large over the R3.75-billion laptop tender…”
- “…Higher Education, Science and Technology Minister Blade Nzimande chose Nqandela to head a task team that would facilitate the procurement of 750 000 devices to help students during the national state of disaster…”;
- “Whistle blowers claimed that the cancellation of the tender process was because of Nqandela’s influence”; and
- “As a quid pro quo for the cancellation, [National Student Financial Aid Scheme] NSFAS administrator Randal Carolissen had his contract extended”.
1.3 He also complains that the journalist did not give him a right of reply.
- Relevant Sections of the Press Code
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;
- 1.8: seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated; and
- 3.3: exercise care and consideration in matters involving dignity and reputation…
- The text
3.1 The article was about a R3.75-billion laptop tender sponsored by the Department of Higher Education, Science and Technology to mitigate, under government’s financial aid scheme, the impact of the national lockdown (due to the Covid-19 pandemic) on poor students’ academic progress.
3.2 Stone inter alia reported that ministerial adviser Nqaba Nqandela’s “shadow looms large” over this tender, and that Higher Education, Science and Technology Minister Blade Nzimande had “chosen” the former to facilitate the procurement of the devices.
- The arguments
- Shadow looming large
4.1.1 The introductory sentence to the story says Nqandela’s “ … shadow looms large over the R3.75-billion laptop tender…”
4.1.2 Nqandela says the words “looms large” meant “something that appears imminent in a threatening magnified form”. He adds that the use of the word “shadow” had the (negative) connotation of secrecy, untowardness, shadiness, and that it was ominous and oppressive – while he had done nothing untoward.
4.1.3 This was exacerbated by the headline, he continues, which linked his “looming shadow” with “interference”.
4.1.4 “Effectively I am reported to be a shady character imposing a dark cloud on the tender process,” he submits.
| 4.1.5 The newspaper does not respond to this part of the complaint. |
Analysis
4.1.6 In its most general interpretation, the word “shadow” merely suggested that Nqandela had an influence over the task team’s work. Clinically speaking, an influence is not per definition bad – it can also be good.
4.1.7 The context of the rest of the story held the key, though: Nqandela’s influence was suggested to be undue, negative, destructive – even up to a point that whistle blowers reportedly blamed him for the cancellation of the contract.
4.1.8 I am not sure where Nqandela gets his interpretation of the words “looms large” from (“something that appears imminent in a threatening magnified form”) – but again, the negative context within which these words were used could only mean that his influence was also negative, and huge.
4.1.9 Let me be more specific: According to the tone of the story, his influence was so huge that he was alleged to have been responsible for the cancellation of the tender process.
4.1.10 The question is whether this portrayal was fair, and if it had any reasonable ground to stand on.
4.1.11 The crux of this matter is that neither the word “shadow” nor the words “looms large” was presented as an allegation – it was stated as fact.
4.1.12 Given the testimony of sources (whistle blowers as well as Mr Bantu Holomisa’s letter to the President – see below under Sub-section 4.3.6), I would not have blamed City Press if it stated, as an allegation, that Nqandela’s “shadow” has “loomed large” over the tender. That, indeed, was an allegation. Stating it as fact, though, required solid evidence – that shines in its absence.
4.1.13 Whether these statements were accurate or not, I would not know. And neither would the newspaper. What I do know, though, is that they were unfair, given that the allegation was presented as fact, without any proof to this effect.
4.2 Nqandela ‘chosen’ by Nzimande to lead task team
4.2.1 The article said that Nzimande “chose” his adviser, Nqandela, to head a task team that would facilitate the procurement of 750 000 laptops to help students during the national state of disaster due to the Covid pandemic.
4.2.2 He complains the idea that he was the “chosen” one underscored the true design of the article, i.e. to paint him as the Minister’s chosen hand to interfere and cast his shadow on otherwise due processes. “I am effectively being branded as the Minister’s dirty hand.”
| 4.2.3 Marshall says at the most basic level the word “choose” suggests, in the first place, that a process was carried in which one or more other options were available for consideration.
4.2.4 She says the article did not even pretend to make any finding of wrongdoing in the process followed by the Ministerial management team to appoint Nqandela. “No such argument is raised anywhere in the story.” |
Analysis
4.2.5 I have read and re-read the article umpteen times, and I have listened intently to both sides – and eventually, I am convinced that the story did not suggest that Nzimande purposefully appointed Nqandela to throw a spanner in the works.
4.2.6 That is not reasonable; there is nothing to suggest such purpose.
4.2.7 Therefore, I cannot agree with Nqandela where he says that he was painted as the Minister’s hand “to interfere and cast his shadow” over the process. I do not read that intention into the story.
4.2.8 In any case, even if Nzimande did choose him (which he did not, as the appointment was in fact done by a committee), he did not “choose” himself.
4.2.9 If the article also reported on how Nqandela had been appointed (the result of a team effort, and not of the action of an individual), the statement that Nzimande “chose” him to head the task team would have been defendable. If the story said Nqandela was appointed by a panel (or whatever other word fits the bill) of which Nzimande was the chairperson, it would have been in order. Sadly, this did not happen.
4.2.10 In other words: It is a fact that the story, rightly or wrongly, painted Nqandela as having been responsible for the cancellation of the contract. Given that context, the reporter should have been more careful in explaining the process that led up to his appointment as the head of the task team.
4.2.11 This omission was material.
- Whistle blowers’ claim
4.3.1 The sentence in dispute read, “Whistle blowers claimed that the cancellation of the tender process was because of Nqandela’s influence”.
4.3.2 Nqandela says that, at first, he was a “shadow” that “loomed large”; then he was “chosen” to loom large; and then he was alleged “to be actually interfering”. “The link,” he continues, “is hard to ignore even by particularly unbright standards”.
4.3.3 He says it is “thoughtless” to portray the message that he had a hand in the disqualification of 150 individually submitted defective bids (the factual scenario leading to the cancellation of the tender). He says this reportage “demonstrates a material misunderstanding of government procurement procedures and supply chain management”. He submits that even an elementary understanding of these matters should have clearly demonstrated that his hands were clean.
4.3.4 “What makes matter worse,” Nqandala continues, “is that the journalist says nothing about the Bid Adjudication Committee, which is the independent body that would have a report regarding processes it undertook in arriving at its decision and whether I (or anyone [else] for that matter) interfered with these processes.”
4.3.5 He adds that the story did not even suggest that the NSFAS had been approached and declined to comment.
| 4.3.6 City Press points out that Holomisa sent a written message to the President (dated August 2020), saying he had been informed that, due to “political interference” (referring to Nqandela), the committee has recommended that the tender be scrapped.
4.3.7 The newspaper submits, “What is key here is that that the request from City Press to engage with the Minister’s corner was entered around the issues captured by Holomisa, and it was rejected. Secondly, it shows that the allegations City Press dealt with were already in the public domain.” 4.3.8 Marshall adds that, without compromising the confidentiality the newspaper enjoys with its sources, it is safe to say that the published allegation has actually been made by a whistle blower before members of a Parliamentary committee, which is a formal structure. 4.3.9 She argues, “It is therefore a matter which will be ventilated at a time to come on a formal platform, save to say that the formalisation of the allegation on its own puts it above random street gossip and therefore City Press had reasonable grounds to publish the allegation.” 4.3.10 Notwithstanding that, she continues, the allegation has been put to the parties affected for a response and, where available, the response has been captured. |
4.3.11 Nqandela says his conduct was at all times above board and did not amount to anything near to “interference”, as alleged.
4.3.12 “There is a library of documentary information explaining why and how the Ministerial Task Team was set up, how it was composed at senior levels of administration and ministerial team, its terms of reference, engagements and reports to the Ministerial Management team and how its report was finally tabled with the Director General and how it was accepted and processed from then. Equally, clear documentation on why NSFAS required my participation, how it went about properly obtaining it and why National Treasury ultimately granted permission,” he says.
4.3.13 He submits that, if Stone had accessed this information, his reportage would not have resulted in the “irresponsible article”.
4.3.14 Regarding Holomisa’s letter, Nqandela denies “in the strongest of terms” that any allegations of wrongdoing or untowardness in his conduct were true.
Analysis
4.3.15 I have already decided it is not reasonable to say that Nqandela was chosen to loom a large shadow over the tender.
4.3.16 I accept Marshall’s word that sources informed the newspaper that this allegation has actually been made by a whistleblower before members of a Parliamentary committee. I also notice that Nqandela does not deny this.
4.3.17 Marshall is correct in saying that this matter will be ventilated on a formal platform.
4.3.18 This office cannot preclude the media from publishing allegations (which are, per definition, not verified) – on condition that such allegations may be reasonably true.
- Quid pro quo
4.4.1 The disputed sentence stated, “As a quid pro quo for the cancellation, NSFAS administrator Randal Carolissen had his contract extended”.
4.4.2 Nqandela complains that this made “matters worse” – he says this sentence was presented as fact, while the previous ones were portrayed as allegations.
4.4.3 He calls this statement “reckless”, with no evidence showing either:
- the veracity of the quid pro quo claim; or
- his alleged involvement in the extension of Carolissen’s contract.
4.4.4 He concludes that the result of such reportage is that the public would reach conclusions based on information which was false, misleading and unfair.
| 4.4.5 Marshall says Nqandela chooses to isolate a sentence in the story from its context in order to present it as a statement of fact on the part of City Press.
4.4.6 The managing editor notes that the preceding sentence read, “Whistle blowers claimed that the cancellation of the tender process was because of Nqandela’s influence”. She argues that the statement in dispute cannot be read and comprehended without the other – and the second was clear that the news report as dealing with a “claim” made by a whistle blower. 4.4.7 It is clear that, despite Nqandela’s complaints, he is unable to point to any factual inaccuracies in the story, she concludes. |
Analysis
4.4.8 There are two ways to interpret the quid pro quo sentence – that it was preceded by a reference to whistle blowers, and that it should therefore also be read in that context (as argued by City Press) – rendering it an allegation; as well as that it could also be interpreted the other way around (as argued by Nqandela), especially as the second sentence is also a new paragraph and did not contain any reference to an allegation.
4.4.9 As there is merit in both interpretations, it is hard to decide which one was wrong and which was right – looking at the two sentences in isolation, that is.
4.4.10 I need to state, though, that a newspaper should not report in such a way that there can be doubt whether a statement is an allegation or not – which is a case in point.
4.4.11 What sways my decision in favour of Nqandela, is that there is also a wider context to consider than only the two sentences – the first two sentences of the article reported as fact that his shadow loomed large over the contract. Within the context of the whole story, I do believe a reader can be forgiven for interpreting the quid pro quo sentence as a statement of fact – and therefore, that the newspaper should have been more cautious in this regard, even if it was not its intention to report an allegation as fact.
4.5 No right of reply
4.5.1 Nqandela complains that, notwithstanding all the negative reporting regarding him, the journalist did not see it fit to approach him for his side of the story.
4.5.2 He adds that this was a matter of national urgency, which should have prompted the reporter even more to give him a right of reply – with “devastating consequences” after not having done so.
4.5.3 He says that, had the newspaper asked him for comment, “factual and objectively determinable information ought to have disabused the journalist’s mind from causing to be published what was ultimately published”.
| 4.5.4 Marshall says the newspaper did attempt to give Nqandela a right of reply. She says the newspaper sent on September 11 at 10:11 queries to his personal mobile number that the publication has previously used. However, “it appeared the number was not in operation”.
4.5.5 A few minutes later, she says, an SMS message was sent to the same number, again with the same questions. 4.5.6 The managing editor says an electronic request for comment from Nqandela sufficed – it did not require a meeting. |
4.5.7 Nqandela replies that Stone sent a message to a number that was out of service, and then followed it up to the same number – “knowing that it was out of service”.
4.5.8 He says the journalist should have used his email address, office line or even reached out via his Twitter handle (information that was freely available by a simple search of his name and surname).
4.5.9 Moreover, he continues, the reporter could have asked the Minister’s spokesperson, with whom he was corresponding, for his correct, functional number. “This can only be conduct by someone who does not have a genuine interest to reach you but wants to create some semblance of an audit trail that attempts were made,” he concludes.
4.5.10 He also points out that the newspaper has delayed the publishing of the story by a full week – and yet, the journalist did not contact him “beyond a feeble attempt at two SMS’s to a number known to be inactive”.
Analysis
4.5.11 This is simply not good enough, to understate this matter. According to the managing editor’s own admission, the journalist sent a message to a number that “appeared to be not in operation”. That being the case, there certainly were other avenues that Stone could, and should, have explored, as explained by Nqandela. There has been no such attempt.
4.5.12 The fact that the newspaper delayed the publication of the story with a week, aggravates this flagrant neglect in that no further attempt was made to contact this central subject of critical reportage.
4.5.13 City Press had no excuse for not finding a way of contacting Nqandela. To me, this sends one message and one message only – it was not important enough for the journalist to pursue this matter with Nqandela. Notwithstanding the serious statements, and allegations, levelled at him.
4.5.14 I also note, with concern, that Stone did not even report that he was unable to obtain comment from Nqandela – as required by the Press Code.
4.5.15 I view this disregard for the audi alteram partem rule in an extremely serious light, as will be seen under Section 6 (Seriousness of breaches) below.
4.6 Dignity, reputation
4.6.1 Nqandela complains the reportage has harmed his reputation and integrity, without any shred of evidence to support it.
| 4.6.2 City Press does not specifically address this part of the complaint, but from its response it can be assumed that the newspaper disputes that its reportage has unnecessarily harmed his integrity and reputation. |
Analysis
4.6.3 The statement of fact that Nqndela’s shadow loomed large over the tender, together with the real possibility that readers would have understood the quod pro quo sentence to be a statement of fact as well, convince me that the newspaper did not exercise care and consideration involving his dignity and reputation, as required by the Press Code.
- Finding
5.1 Shadow looming large
The statement of fact that Nqandela’s shadow loomed large over the tender was in breach of the following sections of the Press Code:
- 1.1: “The media shall take care to report news … fairly”: and
- 1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such.”
5.2 Nqandela ‘chosen’ by Nzimande to lead task team
The newspaper is in breach of:
- Section 1.1 of the Press Code that states, “The media shall take care to report news truthfully, accurately and fairly”, for suggesting that Nzimande was solely responsible for Nqandela’s appointment; and
- Section 1.2 of the Press Code that reads, “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions…”, for neglecting to report the process by which Nqandela was appointed.
- Whistle blowers’ claim
This part of the complaint is dismissed.
- Quid pro quo
Although an argument can be made that the sentence in dispute was presented as an allegation, the wider context suggested otherwise. This was in breach of Section 1.3 of the Code.
5.5 No right of reply
The newspaper is in breach of Section 1.8 of the Code that states, “The media shall seek, if practicable, the views of the subject of critical reportage in advance of publication …; if unable to obtain comment, this shall be stated.”
5.6 Dignity, reputation
The newspaper is in breach of Section 3.3 of the Code that reads, “The media shall exercise care and consideration in matters involving dignity and reputation exercise care and consideration in matters involving dignity and reputation…”
- Seriousness of breaches
6.1 Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
6.2 The breach of the Press Code regarding Section 1.8 is a Tier 3 offence. Not only did the newspaper initially did not do enough to contact him, it even neglected to do so in the week while the publication of the story was delayed.
6.3 The other breaches of the Code are Tier 2 offences.
- Sanction
7.1 City Press is directed to apologise to Nqandela for:
- unfairly stating an opinion as fact that his shadow loomed large over the tender, presuming his nefarious involvement in this matter;
- not doing enough to obtain comment from him, and for not reporting that it was unable to solicit such;
- inaccurately and unfairly stating creating the impression that Nzimande was solely responsible for his appointment;
- not exercising care and consideration involving his dignity.
7.2 The newspaper is cautioned for leaving doubt as to whether the quid pro quo sentence was presented as fact or as opinion.
7.3 The newspaper is directed to publish the apology and the caution, as outlined directly above:
- at the top of page 6, with a headline containing the words “apology” or “apologises”, and “Nqandela”; and
- online (at the top of that page), and to link the two articles – with the same specifications regarding the headline as outlined above.
7.4 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 (attached); and
- be prepared by the publication and be approved by me.
- Appeal
The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].
Johan Retief
Acting Press Ombud