9 February 2021

Dr Blade Nzimande vs. City Press

2021 (Rulings), All Rulings, Ombud Rulings

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.

Dr Blade Nzimande inter alia complained that:

the statement that he had “chosen” his adviser, Nqaba Nqandela, to head a task team – suggesting that he had to do unscrupulous work for him – was inaccurate and misleading;
the reportage lacked context (read: unbalanced), as the journalist did not ask relevant questions that would have made a material difference to the story;
he was not afforded reasonable time to properly respond;
the publication of a picture of him suggested malfeasance on his part; and
the reportage had harmed his reputation and integrity.

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. It inter alia reported that Nqandela’s “shadow looms large” over this tender, and that Nzimande had “chosen” the former to facilitate the procurement of the devices.

Dismissing this part of the complaint, Retief said, “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.”

He upheld the complaint that the use of the word “chose” implied that Nzimande was solely responsible for Nqandela’s appointment – and therefore indirectly responsible for the cancelling of the contract.

City Press was directed to apologise to Nzimande for this, as well as for:

unnecessarily having opened all kinds of possible negative speculations about Nzimande’s motives regarding that appointment; and
not reporting the Minister’s spokesperson’ response that the extension of a contract had nothing to do with the cancellation thereof.

The rest of the complaint was dismissed, inter alia because:

the questions posed to Nzimande were relevant;
Nzimande’s spokesperson did ask for an extension – which City Press granted; and
the use of his picture was justified as he was a subject of the story.

THE RULING ITSELF

Complaint number: 8331

Complainant: Dr Blade Nzimande, in his capacity as 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

Dr Blade Nzimande complains that:
1. the statement that he had “chosen” his adviser, Mr Nqaba Nqandela, to head a task team was inaccurate and misleading;
2. the reportage lacked context (read: unbalanced), as the journalist did not ask relevant questions that would have made a material difference to the story (details below);
3. he was not afforded reasonable time to properly respond;
4. the journalist did not afford other interested parties an opportunity to respond;
5. the reporter did not verify some statements (details below);
6. the publication of a picture of him in the middle of the story suggested malfeasance on his part; and
7. the reportage has harmed his reputation and integrity, without any shred of evidence to support it.

1.2 He asks for a retraction and a public apology.

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

10.2 Pictures … shall not misrepresent or mislead…

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 Nzimande had “chosen” the former to facilitate the procurement of the devices.

The arguments

4.1 Nzimande ‘chose’ Nqandela to lead task team

4.1.1 The article said that Nzimande “chose” his adviser, Mr Nqaba 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.

4.1.2 Nzimande objects to the use of the word “chose” without laying out the context, the structure and reporting mechanism. He complains this was unfair as it:

suggested that he had handpicked Nqandela to undertake unscrupulous work in the tender process;
created the impression that Nqandela was handpicked arbitrarily, without due process;
blind-spotted the reader to the fact that two senior officials in the Department were part of this team and that Nqandela did not enjoy any special powers to trump them; and
omitted the “architecture” of the task team and the checks and balances which reduced it to nothing more than a recommending body with no decision-making powers at all – not even the power to procure.

4.1.3 Nzimande submits that the appointment of the task team arose from a Ministerial Management Meeting (MMM), which is a standing arrangement for meetings between the minister and his team and the DG and his team.

4.1.4 He says that, in fact, Nqandela was appointed onto the task team together with two senior departmental officials, being the Chief Finance Officer and the Head of Corporate Services. “What is more … the task team had particular terms of reference and tabled particular reports. The final report of the task team was in fact processed up to the Director General before being escalated to me,” he adds.

4.1.5 Marshall submits that the word “chose” (used in the article) did not imply “handpicked” (used in Nzimande’s complaint). She calls this conjecture “mischievous”. She argues that, at the most basic level the word “choose” suggested that a process was carried in which one or more other options were available for consideration, while the word “handpicked” suggested that no other alternative options were even entertained.

4.1.6 In any case, 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. So Minister Nzimande basically fabricated and attacked his own self-created argument.”

4.1.7 In his reply to the newspaper’s response to his complaint, Nzimande, labels it as “irredeemably mischievous”. He continues, “Journalism, specifically by way of the use of words, is as much an art as it is a profession. To suggest that a journalist is unfamiliar with the significant and material distinction between words such as that of ‘chose’ and ‘appoint’ is a fallacy.”

4.1.8 He adds it is irresponsible and misleading to state that there is no dispute of facts.

4.1.9 “This is no doubt a crude attempt at twisting the arm of the Ombud to view the City Press in an innocent light, whereas the manipulative and strategic construction of the facts in the article to fit a narrative rather than to pursue the truth gives the impression that the author began with a headline and built the story to suit it,” he concludes.

Analysis

4.1.10 City Press states several times that Nzimande did not complain about inaccuracies. That is not true. The heart of the part of the complaint that deals with him having “chosen” Nqandela is that it was inaccurate (and misleading) to state that as fact.

4.1.11 According to Nzimande, Nqandela was appointed at an MMM – a meeting between himself and his team, together with the DG and his team. In other words, the appointment resulted from a team effort, and not from an individual.

4.1.12 I note that the newspaper does not dispute this statement.

4.1.13 On the other hand, I also take it that Nzimande, as the most senior person present, probably chaired the meeting – and even if he did not chair the meeting, he still could reasonably have had some influence pertaining to that appointment. This leaves me with the following conclusion: it was reasonable to accept that, at the very least, Nzimande was partly responsible for Nqandela’s appointment; at most, he was mainly responsible for it – but certainly, he was not solely responsible. It was a team effort, in which the Minister most probably played an integral role.

4.1.15 This brings me to a rather interesting observation: If the reportage was innocuous, the statement that Nzimande had chosen Nqandela would not have been an issue (either partly, or mainly, or even solely) – it only becomes an issue if something sinister could be inferred. In other words, the context (read: the tone of the story) will decide whether the newspaper has transgressed the Press Code on this issue, or not.

4.1.16 To make this case rather more interesting: Unlike both parties, I do not think much turns on the use of the word “chose” (in contrast with the word “handpicked”). Those are semantics. The real issue is that the story conveyed that Nzimande was responsible for appointing Nqandela (and, with the whole reportage in mind, also somehow responsible for the delay).

4.1.17 So then, back to the story. The introductory sentence stated, as fact, that Nqandela’s shadow “loomed large” over the tender; the next sentence reported that Nzimande had chosen him to head a task team.

4.1.18 The use of the word “shadow” is at the centre here. In its most general interpretation, this suggested that Nqandela had a huge influence over the task team’s work. Clinically speaking, an influence is not per definition bad – it can also be good. The context of the rest of the story held the key: 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.

4.1.19 So then, back to Nzimande: What does this say about him? Could it have been reasonable to understand that Nzimande used his influence to appoint Nqandela for that (“shadowy”) purpose? In other words, that the Minister was directly responsible for the disaster? As he opines in his complaint?

4.1.20 I note that the story mentioned Nzimande only twice – once with regard to Nqandela’s appointment, and once regarding his initial announcement of the procurement of laptops. The story really was not about Nzimande – it was about the failure of the process to bring his project to fruition.

4.1.21 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.

4.1.22 That is not reasonable; there is nothing to suggest such purpose.

4.1.23 Therefore, I cannot agree with Nzimande when he complains that the article suggested that he had handpicked Nqandela “to undertake unscrupulous work” in the tender process. I do not read that intention in the story.

4.1.24 At the same time, I have already pointed out that Nzimande was at least partly responsible for Nqandela’s appointment – and therefore indirectly responsible for the cancelling of the contract. If you appoint the wrong person for a job, you have to take responsibility for your decision. Not so?

4.1.25 That is why the seemingly innocuous word “chosen” now becomes important, as it suggested that Nzimande had been solely responsible for Nqandela’s appointment. And similarly, the fact that Stone did not report the process followed to appoint Nqandela becomes problematic.

4.1.26 This is the point: 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.

4.1.27 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 – even more so, as the publication of Nzimande’s picture exacerbated the impression that he was indirectly responsible for the situation.

4.1.28 This omission was material.

4.1.29 In the end, then, the suggestion in the article that Nzimande was solely responsible for Nqandela’s appointment, was not accurate and, given the negative context, also not fair.

4.1.30 I need to go a step further: This suggestion unnecessarily opened up all kinds of speculation about Nzimande’s motives – all of which could have been avoided if the reportage on this issue was accurate and fair.

4.2 Relevant questions not asked

4.2.1 Nzimande complains the reportage lacked context, as the journalist did not ask relevant questions that would have made a material difference to the story.

4.2.2 He says a journalist who had a genuine quest to publish truthfully, fairly and accurately about the task team ought to have asked what the background to the appointment of the task team was, what its terms of reference were, how it was composed, and how it reported.

4.2.3 Instead, he continues, the journalist presented the Department with numerous questions which, inter alia, contained serious allegations about irregular tender procedures, undue influence in tender procedures, illegality of tender processes by Treasury, and appointment of certain officials/employees in the National Student Financial Aid Scheme (NSFAS) for his appeasement.

4.2.4 He says the purpose of the task team was to ensure coordination and alignment in order to ensure that the administration and the political arms harmonise interventions and that what was announced from time to time accurately reflected outcomes of meaningful engagement between himself, as a member of the National Coronavirus Command Council (NCCC), and the administrative arm of the department.

4.2.5 He submits that Nqandela’s appointment would also have been put in proper context (see his argument above), had the right questions being asked.

4.2.6 City Press says there are people who hold a view that:

the Minister’s advisor was not a public servant and therefore should not be participating in procurement processes (like the Minister himself) – a matter that was put to Nzimande’s spokesperson, Mr Ishmael Mnisi;
it raised red flags that the Minister and/or department wanted to procure laptops instead of essential products such as buying face masks and sanitisers – even Treasury rejected the proposal as nonsensical; and
the NSFAS’s reasons for cancelling the tender and restarting it again was odd (basically suggesting that all 150 bidders somehow got something wrong) – understandably, this also raised eyebrows.

4.2.7 “Therefore the basis of the story was a pattern in which the tender process stops and starts; it is neither smooth nor straightforward as prescribed by law,” the newspaper contends – and adds, “The cumulative effect of all these observations is what informs the allegations of possible ‘interference’.”

4.2.8 “It is therefore not surprising that the active participation of a ministerial advisor (a political appointee) in a process that relates to the procurement business of government would reasonably raise red flags. If the above-mentioned submission is accepted, then the tone of the article should not come as a surprise,” Marshall argues.

4.2.9 She says Nzimande does not attack the facts recorded in the story. Rather, what is attacked (a) a lack of context and the impact it has on the interpretation of the text; (b) the alleged failure to test certain allegations, and (c) the tone of the article.

4.2.10 The managing editor also notes that Nzimande was given an opportunity to respond – which was declined. “If Minister Nzimande demands that certain context should have been recorded in the news report, he must then introspect on the reasons why a prior request for engagement was swiftly dismissed,” she concludes.

4.2.11 Nzimande says, “Had questions been asked in line with those laid out in my complaint (questions seeking the objective truth, not sensationalist gossip, notwithstanding the editor’s comments on such) the author’s tone may not ring of prejudice.”

4.2.12 He says the context missing from the article relates directly to:

the seemingly deliberate wording and use of his picture inferring that Nqandela was his pawn, acting at his behest (being his trusted advisor);
deliberate wording that he chose Nqandela to head the task team, inferring that he was appointed without a due process being followed; and
the inference that Nqandela enjoyed powers, sufficient of being able to exercise “influence” over the awarding and/or cancellation of the tender.

4.2.13 He concludes, “When the article in question is read with these ‘themes’ having been laid out as such, it stands to reason that the inferences would lead even a particularly unbright reader of the City Press to conclude that both myself and my advisor had behaved in an untoward, irregular and downright corrupt manner, a conclusion which is mischievous… These unfair impressions remain inevitable, notwithstanding any attempt at rationalisation.”

4.2.14 Nzimande says the seemingly wilful disregard or critical misunderstanding of the role of a member of a Ministerial task team that has been invited to participate as an observer of a process of supply chain management ordained by Section 217 of the Constitution and through a process approved by National Treasury “speak volumes of the tone of the article”.

4.2.15 He asks, “Can the City Press positively deny that, had the pertinent questions been asked and answers given thereto, it nonetheless would have published the article in the manner that it did? The answer can not (sic) be a yes. Because the City Press is not aware of what my response would have been. What does this mean? It is possible at the very least, and I assert as a fact that it should have been the case, that a complete answer would have been given and that answer would completely have destroyed the eyebrows now being relied upon by the City Press… It clearly demonstrates that the intention was never to investigate and report fairly and accurately.”

Analysis

4.2.16 The crux of this part of the complaint is if Stone should have asked what (a) the background to the appointment of the task team was, what (b) its terms of reference were, (c) how it was composed, and (d) how it reported, and if that would have made a material difference to the story – in other words, if the story carried enough context regarding this matter.

4.2.17 Regarding (a) the background and (b) the task teams terms of reference, the story did say that the task team had to “facilitate the urgent procurement of 750 000 devices to help students during the national state of disaster…” As Nzimande does not indicate exactly what he means by “background” and “terms of reference”, other than what Stone reported (as cited here), I am not in a position to decide whether any more information on these matters would have made a material difference to the reportage.

4.2.18 I agree that the article did not elaborate on how the task team had been composed. I put this matter on ice for the moment; I shall return to it under Section 5 below.

4.2.19 I now also need to take a close look at the statements or allegations that Stone posed, as well as the ministerial spokesperson’s responses, in order to determine if the journalist fairly and accurately reported the responses received by Nzimande’s spokesperson.

4.2.20 These were:

QUESTIONS	RESPONSES
Nqandela participated in the bid adjudication Committee of NSFAS with the sole intention of unduly influencing the process.	This allegation is unfounded and irrational – Nqandela attended the meeting as an observer and did not participate in the bid adjudication.
When Nqandela realised that the process did not favour the company he preferred, he then ensured that the tender was cancelled.	This allegation is also unfounded and irrational (for the reasons stated above) – the newspaper itself says that the tender process was declared illegal by National Treasury (and therefore not by Nqandela).
Nqandela did this by manipulating the Administrator, Randal Carolissen, whose contract was coming to an end and he desperately wanted his contract extended, by hook or by crook.	This allegation is irrational and nonsensical. Nqandela is not responsible for the extension of the contract of the NSFAS administrator.
The quid pro quo realised: Carolissen agreed to cancel the tender, in return for extension of the contract.	This statement is false, misleading and contradicts Stone’s statement that Nqandela “… agreed to cancel the tender in return for the extension of the contract…”

4.2.21 Stone added, “Kindly assist us with comment and/or clarity on the above in detail, including responses from all the mentioned officials/politicians in their personal capacity, where possible.”

4.2.22 He then also asked the spokesperson to “get all parties mentioned above to assist with specific answers” to the following:

QUESTIONS	RESPONSES
Who invited Nqandela to be part of the tender process at NSFAS and how?	NSFAS invited him through Mr Prakash Mangrey, the Advisor to the Administrator, after approval by the National Treasury.
What was the reason because Nqandela is not employed by NSFAS and neither is he a public servant?	Nqandela was the chair of the Ministerial Task Team that did some preliminary work on the initiative for the implementation of the directive to provide devices to students.
What was Nqandela’s exact role in the process and what did his responsibilities entail?	Nqandela was an observer who had no voting rights on the matter. We have explained his relevance in our previous response.
Is it correct that him, the Chief Corporate Officer of NSFAS and Carolissen had dinner the night before the meeting of the bid adjudication committee to plot how to collapse the tender in order to facilitate the extension of the latter’s contract?	This is incorrect.
Is NSFAS aware that Nqandela was the chairperson of the task team appointed by the Minister to procure the laptops at the Department of Higher Education and Training and that that process was declared illegal by National Treasury?	NSFAS should be aware that Nqandela was the chairperson of the task team. The task team was never formed for purposes of running the tender process. To suggest that the tender process was declared illegal by National Treasury is not only a manifestation of ignorance, but also misleads the public – Nzimande has, in at least one of his previous press conferences, articulated the correct position on this matter, namely that the Department sought, as it is entitled to, a deviation from National Treasury in respect of the tender for the provision of the devices, but National Treasury did not grant its approval for the deviation. National Treasury never declared any process in this regard illegal.
Is it correct that Carolissen’s term was extended until the end of this year shortly before he cancelled the laptops’ tender?	The extension of the administrator’s term has nothing to do with the tender.
When was the contract extended and when was the tender cancelled?	The contract was extended on 21 August 2020. The administrator said in a letter received on 25 August 2020 that he had approved the cancellation of the tender. Again, the extension of the administrator’s term has nothing to do with the tender.
Was Sibongile Mncwabe Chief of Staff of the office Nzimande before being appointed at NSFAS?	This information is in the public domain.
The allegation is that the reason she was appointed at NSFAS and given a senior position without the requisite qualifications was to appease the Minister so that he can favourably consider extending Carolissen’s contract and possibly appoint him as the Chairperson of the Board of NSFAS.	The allegation is nonsensical.

4.2.23 I am satisfied that the questions Stone posed to Nzimande were relevant.

4.2.24 The question is if the journalist did reflect Mnisi’s responses – specifically to those issues that he addressed in his article. Again, I have ticked all the boxes and am satisfied that Stone adequately reflected the gist of Mnisi’s responses, but with one notable exception – the quid pro quo sentence.

4.2.25 Regarding Carolissen, the story stated: “As a quid pro quo for the cancellation, Nsfas administrator Randall Carolissen had his contract extended.” This came immediately after the sentence which read, “Whistle blowers claimed that the cancellation of the tender process was because of Nqandela’s influence”.

4.2.26 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; but also the other way around (as argued by Nzimande), especially as the second sentence is also a new paragraph, and did not contain any reference to an allegation.

4.2.27 As there is merit in both interpretations, I am not going to decide which one was wrong and which was right. Neither do I have to – allegation or statement of fact, the journalist twice asked Mnisi about this matter, and he received responses to his questions.

4.2.28 Mnisi responded, saying that the:

contract was not cancelled by Nqandela, but by National Treasury; and
extension of Carolissen’s term has nothing to do with the tender.

4.2.29 The first denial was reflected in the story, although it was not attributed to Mnisi. (It attributed the cancellation of the bidding process to NSFAS – and therefore not to Nqandela.) The benefit of the doubt therefore goes to the newspaper.

4.2.30 However, the spokesperson’s statement that the extension of Carolissen’s term had nothing to do with the cancellation of the tender featured nowhere in the article, as it should have.

4.3 Unreasonable deadline

4.3.1 Nzimande complains he was provided with an unreasonable deadline to provide answers to matters of profound importance. He says he received a list of questions on 11 September 2020 to provide a response on the same day by 17:00.

4.3.2 He says he attaches the list of questions and answers “to give a sense of the oppression I was caused to suffer in an honest quest to assist the media to meet its deadline”.

4.3.3 The Minister argues, “Taking into consideration the political landscape of South Africa and specifically issues such as emergency procurement, tender corruption and the public outcry of our society with regard to such issues, these questions had to be dealt with meticulously and proper answers to such had to be formulated.”

4.3.4 Nzimande points out that the article was only published on September 20, more than a week later. He says he was set up for a non-response or a pressured response. “The collateral damage being caused by this conduct is that deadlines are not to be taken as deadlines and a dangerous precedent may be set with undesirable consequences beyond just giving journalism a bad name,” he argues.

4.3.5 He concludes, “Taking into consideration the above it can be reasonably concluded that those in the Department were never afforded a reasonable amount of time to make representations and as the subject of critical reportage, cannot be ambushed to give comprehensive comment at the spur of the moment. Ultimately, the publication can also not be ‘truthful, accurate and fair’ in terms of Section 1.1 and section 1.8 of the Code of Conduct respectively.”

4.3.6 City Press says that, on 10 September 2020 at 9:18, it sent a WhatsApp message to the Minister’s spokesperson, asking for an opportunity to talk about Mr Bantu Holomisa’s allegations and inter alia explain why there were delays with the laptop programme for NSFAS.

4.3.7 Six minutes later, the spokesperson directed the journalist to the President’s spokesperson, explaining: “Laptops processes are handled by NSFAS and we reported two weeks ago and the process. If you need more information on this, I suggest you speak to Phatisa their Spokesperson who can assist to get a comment from the Administrator”.

4.3.8 The newspaper says this means that the Minister had an opportunity to pitch his version, exchange notes and provide the necessary context. This opportunity was declined.

4.3.9 Then, at 10:10 the following day, the newspaper sent questions to the Minister’s spokesperson with a deadline of 17:00 to respond.

4.3.10 To this, the spokesperson responded that this was an old matter and that they were “familiar” with it and have already responded to it. “The deadline requested was therefore not unreasonable,” the newspaper argues.

4.3.11 At 16:13 the Minister’s spokesperson asked if he could revert back to the journalist by Monday, as he needed to consult thoroughly before he could comment. Stone replied that he would consult with his editor.

4.3.12 City Press argues this means that, by 17:00, the Minister was aware that a request for more time to comment was under consideration. – which means that “unless the request was explicitly declined, there was suspensive condition on the deadline”.

4.3.13 On September 14 at 12:47 City Press followed up with the Minister, asking when the journalist could expect a response. At 15:37 the spokesperson promised to revert back the same day.

4.3.14 This means, City Press argues, the statement that Nzimande was unreasonably pressurised to a deadline of 11 September 2020, is unsubstantiated.

4.3.15 By 17:43 on 14 September the responses were received.

4.3.16 Therefore, the:

newspaper did reach out to Nzimande for his comments;
deadline was not unreasonable (as Nzimande stated he was more than familiar with the issues and had previously responded to the allegations); and
Minister was not held to an unreasonable deadline – in fact, he was given three more days to respond.

4.3.17 In addition, Marshall submits the Minister’s spokesperson “is an experienced communicator who knows that he has a right to request more time to reply, which he did and it was not refused.”

4.3.18 City Press took great care in reporting on this story and sought a right of reply timeously from the Minister’s office. The article was held over for the September 13 publication and only published the following Sunday, September 20. There were further engagements on September 14 which dispel the Minister’s assertion he was put under pressure to meet City Press’s deadline of September 11.

4.3.19 Additional information or context, which the Minister claims should have been sought by City Press, could have been provided – if the Minister so wished to – when he was contacted on September 14.

4.3.20 Nzimande replies that the deadline was unreasonable. He labels the extension as a “quasi-extension”, which merely testified to the fact that the deadline was unreasonable in the first place, adding that the pressure of responding by that following Monday did not mitigate this fact.

4.3.21 “Therefore, not only was the initial deadline admitted to be unreasonable by the very conduct of City Press, holding me to a deadline of Monday the 14^th of September 2020 when the author would have had full knowledge of the Editor’s decision to hold publishing over by a week unfairly held me to an already unreasonable deadline.”

4.3.22 “In other words,” he continues, “I am given 7 hours, and 7 hours includes the request not being sent directly to me and I must now be accountable and be deemed to have had the benefit of time when, factually, logically then academically it cannot be”. He argues that the journalist therefore deviated “from clearly published protocols”.

4.3.23 He adds that the newspaper neglected to inform his spokesperson that he had more time available to properly respond.

Analysis

4.3.24 Stone ended his initial correspondence with these words, “Our deadline is today (11 September 2020) at 5pm and we request that you assist with responses in time for the deadline.”

4.3.25 I notice, with interest, that the spokesperson did not respond to this sentence. Marshall’s argument in this regard, therefore, has merit. The spokesperson had the opportunity to object to the deadline, but he neglected to do so – initially, that is.

4.3.26 At a later stage, the spokesperson did ask for an extension – which City Press granted.

4.3.27 Marshall’s arguments in this instance are convincing and they don’t need any more argument.

4.4 No right of reply for other interested parties

4.4.1 Nzimande says the journalist’s questions also pertained to officials and politicians within the Department which would require the Department to allow them an opportunity to make personal representations for questions in which they were mentioned. “In all of this the journalist chose not to approach or give voice not only to Nqandela, but also to Dr Carolissen who was the Accounting Officer and the custodian of the tender process. However due to the deadline presented by City Press many officials and politicians were not able to make representations in their personal capacity,” he adds.

4.4.2 He says failure for their version to be heard constitutes a flagrant violation of some of the key principles of fair reporting and hearing the other side, including the duty placed upon media to seek to report truthfully and accurately.

4.4.3 The Minister adds that the journalist effectively converted him into a sub journalist, instructed to seek “responses from all the mentioned officials/politicians in their personal capacity…” and get “all parties mentioned above to assist with specific answers with reference to the following”. This, he says, is tantamount to him being instructed by the journalist to do his investigative work for him.

4.4.4 Marshall argues it is neither unprecedented nor unprocedural to ask a spokesperson to also solicit personal comments from affected parties.

4.4.5 Notwithstanding that, she says both Nqandela and Carolissen were given a right of reply. She says the newspaper sent on September 11 at 10:11 the same queries sent to Nzimande also to Nqandela’s personal mobile number that the publication has previously used. However, “it appeared the number was not in operation”.

4.4.6 A few minutes later an SMS message was sent to the same number, again with the same questions.

4.4.7 The managing editor says Carolissen was also given a right of reply – the responses from the NSFAS were issued by him.

4.4.8 Marshall describes Nzimande’s claim that many officials and politicians were not able to make representations in their personal capacity as “curious”. She says the newspaper asked both Nzimande and Nqandela for comment – therefore the claim of “many officials and politicians” is difficult to make sense of, as the latter was the only other department official mentioned in the query.

4.4.9 She concludes, “In short, the newspaper’s request comments was neither unprocedural nor unprecedented, as Nzimande would like the press ombud to believe. Everyone mentioned was afforded an opportunity to give their side prior to publication and this was extended by a week.”

4.4.10 Nzimande disagrees. He argues that Stone had sufficient opportunity to engage meaningfully with officials and politicians without having his spokesperson having to pursue external parties.

4.4.11 He says it appears as though there may be a material misunderstanding of the nature of consultations (both internal and external) and enquiries that would flow from allegations of interference levelled against senior officials. “This further demonstrates the oppressive attitude of the author pressurising for a response, despite being expressly informed of the need to consult and, as a political reporter, undoubtedly intimately familiar with the demands and time constraints of the Ministerial office.”

4.4.12 The Minister also submits Marshall’s statement that “everyone mentioned was afforded an opportunity to give their side prior to publication and this was extended by a week” was made to deliberately mislead the Press Council and Ombud, “as neither myself nor any member of my team were engaged after the 14^th of September 2020 and the only party afforded further time was the author, who seems to have squandered it rather than seek fair comment”.

4.4.13 “The author, as a political reporter, will be intimately familiar with the political landscape surrounding allegations of corruption. It would therefore be expected of a journalist of such credentials, intending to publish an article, levelling allegations of undue influence and corruption, to afford the officials concerned a fair and reasonable opportunity to meaningfully engage and have a proper right of reply. This was not done,” he concludes.

Analysis

4.4.14 I accept that the reporter did ask Carolissen for comment.

4.4.15 I am reserving my judgment regarding Nqandela, as he has complained about the same matter – which is when and where I shall deal with this particular issue.

4.4.16 Nzimande’s statement that the journalist in fact asked him to do his investigative work for him is neither here nor there. I do not believe that the reporter can be rightly accused of doing so. Besides, even if he did, there still is nothing in the Press Code that prohibits a journalist from asking a spokesperson to obtain responses from other relevant parties under that spokesperson’s “jurisdiction”.

4.5 Statements not verified

4.5.1 Nzimande complains that Stone published some serious statements, without verifying him. He specifically refers to the following two sentences:

“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, Randall Carolissen had his contract extended.”

4.5.2 Nzimande says the media are duty-bound to ensure that information obtained from whistle blowers must have some modicum of evidence (without endangering their own sources). Failure by the media to do so may lead to publication of wild allegations that have no basis in facts, thus destroying the credibility and hard-earned reputations of affected persons, he argues.

4.5.3 He calls the statement about Carolissen’s contract a “blatant lie”. He says this also constituted a serious slander on his integrity, with not a shred of evidence provided by the City Press. He says in the spokesperson’s original response to the newspaper’s questions he had refuted and dismissed this claim as nonsensical, with no basis in fact that constituted dangerous conjecture. “The journalist in question made absolutely no effort to try and test this allegation by at least seeking to find out as to why and how Dr Carolissen’s contract appointment was renewed,” he submits.

4.5.4 Marshall replies 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 whistleblower before members of a Parliamentary committee, which is a formal structure.

4.5.5 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.”

4.5.6 Notwithstanding that, she continues, the allegation has been put to the parties affected for a response and, where available, the response has been captured.

4.5.7 Regarding the sentence quoted by Nzimande (that reads, “As a quid pro quo for the cancellation, Randall Carolissen had his contract extended”) he 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.

4.5.8 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.

4.5.9 It is clear that, despite Nzimande’s complaints, he is unable to point to any factual inaccuracies in the story, she concludes.

4.5.10 Nzimande replies the reason he chose to isolate the statement regarding the “quid pro quo cancellation” is that the author “also elected to isolate the sentence from its context in order to present it as a statement of fact”.

4.5.11 These two sentences appear in different paragraphs and the intention is clear. Even if you were to discount the second sentence altogether, the damage is already done. The photograph, headline, first leading paragraph in the article and everything up to this sentence about the “quid pro quo” already paint a picture of maleficence by collusion.

4.5.12 “And who are the colluders?” Nzimande asks. “Myself and my henchmen involved in a tender of an entity supervised by Carolissen. That is the point from which the author cannot hide. This article is designed to elevate eyebrows into facts and weave a version of maleficence by a corrupt Minister using a corrupt henchman to interfere with tender processes to a point of a ‘quid pro quo’ with an official who had the power of decision regarding the tender. To now try pull wool over the eyes of the Council, Ombud and experiencers of the article is beyond embarrassing.”

Analysis

4.5.13 Firstly, the statement that whistle blowers claimed that the cancellation of the tender process was “because of Nqandela’s influence”: The complaint is that the reporter has not verified this information.

4.5.14 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 Nzimande does not deny this – he merely complains that the newspaper did not verify the allegation.

4.5.15 Marshall is correct in saying that this matter will be ventilated on a formal platform.

4.5.16 This office cannot preclude the media from publishing allegations (which are, per definition, not verified) – on condition that such allegations may be reasonably true.

4.6 Picture

4.6.1 Nzimande complains that the use of his picture in the middle of the story, seen within the context of the article, suggested malfeasance on his part and was “designed to mislead, misinform and unduly besmirch” his name. “If this was not the intention of the journalist, the article has very little to do with me, such that this misleading picture was only used to draw attention to the article in a crude attempt to sell newspapers,” he submits.

4.6.2 The newspaper replies that the publication of the Minister’s picture was “justified, truthful and within context”.

4.6.3 Nzimande draws my attention to a previous ruling of mine in which I have stated that a substantial majority of readers focus on a headline and do not necessarily go into the detail of the article. He argues that the same goes for the publication of his picture.

4.6.4 “Anyone who suggests that any reasonable reader who saw the picture and the headline would not as a matter of fact or likelihood take a view that I am a corrupt minister who is interfering with tender processes through my henchman. What else can a person that sees my picture, reads the headline and the first paragraph conclude. Otherwise, why is my picture there, instead of Mr Nqandela if there is no intention to draw a causal link between me and whatever Mr Nqandela is alleged to have done?”

Analysis

4.6.5 The fact that Nzimande’s picture accompanied the story cannot be in breach of the Press Code – he was one of the subjects of the story, and the most known at that. If the story suggested that Nzimande purposefully appointed Nqandela to do some dirty work, that would have made a difference.

Harmful of integrity, reputation

4.7.1 Nzimande complains the reportage has harmed his reputation and integrity, without any shred of evidence to support it.

4.7.2 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 Nzimande’s integrity and reputation.

Analysis

4.7.3 It should be noted that “indirectly responsible” does not suggest any malfeasance on Nzimande’s part. Because the story did not convey a message that Nzimande purposefully appointed Nqandela in order to have the contract cancelled, the reportage can also not amount to the unnecessary tarnishing of his dignity and reputation.

General comment

Both parties accuse each other of being “mischievous”, and of attempting to mislead this office. I am not going down that road.

Finding

6.1 Nzimande ‘chose’ Nqandela

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.

6.2 Context lacking

The newspaper neglected to report the response by Nzimande’s spokesperson that Carolissen’s term had nothing to do with the cancellation of the tender. This was in breach of Section 1.2 of the Press Code.

6.3 Not afforded reasonable time to properly respond