Kholofelo Maponya vs. Financial Mail
SUMMARY
The headline to the opinion piece in dispute read, ALLAN GREENBLO: PIC’s conduct in SA Home Loans deal needs scrutiny – Former CEO Dan Matjila’s name crops up in case that raises questions of how the PIC selects BEE partners (published on 28 January 2019).
This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.
Allan Greenblo wrote in his column it seemed that the Public Investment Corporation (PIC) attempted to play fast and loose with monies of the Government Employees Pension Fund (GEPF), its major client. He added: “The intended beneficiary of … R45m was one Kholofelo Maponya.”
The gist of Maponya’s complaint was that, while the text was presented as an opinion piece, it was in fact hard news – and that he therefore should have been given a right of reply.
He specifically complained that:
- three statements in the text were false, unfair and malicious;
- the reference to him as “one Kholofelo Maponya” smacked of racism; and
- the text was meant to defame him and cause irreparable damage to his reputation and commercial interests.
Retief said there was no way in which the text could have been seen as hard news. Yes, Greenblo did state some facts but then, he was supposed to do so in an opinion piece. The text was also published in the opinion section of the website and morover, it was clearly marked as such. Dismissing this part of the complaint, he added that Greenblo had not been under any obligation to ask Maponya for his opinion.
He also dismissed the complaint about the first sentence, mainly because Maponya had not indicated what exactly were false, unfair and malicious about it. Ditto for the second sentence, as the information had clearly been garnered from a source.
Regarding the third sentence, the Ombud established that Greenblo had based his reference to R45-million on documentary correspondence between the parties. This part of the complaint was also dismissed.
Retief remarked it was standard journalistic practice to use the word “one” if you have not yet met that person. He also dismissed the complaint that the opinion piece unnecessarily damaged Maponya’s reputation and commercial interests.
THE RULING ITSELF
Date of article: 28 January 2019
Headline: ALLAN GREENBLO: PIC’s conduct in SA Home Loans deal needs scrutiny – Former CEO Dan Matjila’s name crops up in case that raises questions of how the PIC selects BEE partners
Online: Yes – published under the headline, Opinion
Author of article: Allan Greenblo, editorial director of Today’s Trustee
Respondent: Rob Rose, editor-in-chief
Complaint
The gist of Maponya’s complaint is that while the text was presented as an opinion piece, it was in fact hard news – a mere smokescreen for publishing defamatory, prejudicial news articles under the guise of opinion – and that he was not contacted for comment.
In more detail, he complains that the following statements were false, unfair and malicious:
· “Prior to closure of the sale, the PIC introduced a consortium assembled and controlled by Maponya for half of the PIC’s stake to be acquired; in other words, for 25% of SAHL”;
· “Maponya, it’s understood, had told the bank that he and his consortium were selected as the BEE partner because of his personal relationship with then PIC CEO Dan Matjila”; and
· “But before the ink had dried on this contract, Maponya demanded R45m payment from SAHL, ostensibly because it was his relationship with the PIC that had brought about the loan agreement.”
Maponya also complains that the:
· reference to him as “one Kholofelo Maponya” ignored that his tenure and accomplishments in business predated the BEE era, and smacked of racism; and
· text was meant to defame him and cause irreparable damage to his reputation and commercial interests.
I cannot adjudicate his complaint that the text has defamed Standard Bank as he does not have the locus standi to complain on the bank’s behalf. In later correspondence he denies that he has complained on that bank’s behalf – but in fact, he did so initially.
The text
The text says it seemed that the Public Investment Corporation (PIC) attempted to play fast and loose with monies of the Government Employees Pension Fund (GEPF), its major client.
Greenblo then mentioned SA Home Loans (SAHL) in this regard, that “[invited] examination into whether there were similarly curious elements in transactions that might have been avoided had the PIC been required to seek approval from the GEPF trustees”.
He also raised broader questions of how the PIC selected BEE partners to co-invest with the GEPF; and, in this instance, the real motive for a PIC instruction to an investee company that had paid R45-million to a third party “that had added zero value to a BEE transaction”.
He added: “The intended beneficiary of the R45m was one Kholofelo Maponya.”
The arguments
Maponya
Motivating his complaint, Maponya says any monies due to his business had nothing to do with the sale and purchase agreement in question.
He adds that, in WhatsApp correspondence with Rose, the editor first told him he assumed that the article had been based on correspondence with SAHL, and later he claimed to have seen a letter. “If the correspondence really does exist as Rob Rose alleges, it should be presented to the office of the press ombudsman for him to test its veracity and also establish if it exists,” he submits.
Financial Mail
Hard news, not opinion; no right of reply
Rose says the text was Greenblo’s honestly held opinion, stated without malice and based on facts he reasonably believed to be true.
The editor argues that the article as a whole, and indeed the majority of the statements singled out by Maponya, substantially complied with the requirements for protected comment set out in the Press Code for the following reasons:
· The subject matter was in the public interest;
· The allegations came at a time when serious concerns and allegations of maladministration about the management of the PIC have been raised, including allegations of state capture;
· To this end, a commission of inquiry was announced by President Cyril Rampahosa, headed by former Supreme Court of Appeal Justice Lex Mpati, to investigate “allegations of poor governance, kickbacks and perplexing investment decisions”. The former CEO of the PIC, Matjila, was the subject of an internal investigation into allegations that “business and kickbacks were inappropriately ringfenced around associates of Matjila”;
· Greenblo, who is a specialist in the field of retirement funding, held a strong opinion about the manner in which the PIC concluded a deal with SAHL, which he believed should be subject to scrutiny by the commission of inquiry;
· Greenblo set out the factual basis which informed his opinion, which was to the best of his belief both true and accurate. That the facts which inform that opinion were detailed and complex, and therefore extensively relayed, did not mean that the article was a piece of news reporting;
· Greenblo also held no malice in respect of Maponya – he had never met him and bore no personal grudge against him; his sole concern was the investigation of allegations of impropriety by the PIC Commission; and
· The article itself was clearly presented as comment, it was marked “Opinion” at the top, appeared in the opinion section of the website and the headline was prefaced with Greenblo’s name, to clearly indicate that the subject matter was his opinion.
Three ‘false’ sentences
“Prior to closure of the sale, the PIC introduced a consortium assembled and controlled by Maponya for half of the PIC’s stake to be acquired; in other words, for 25% of SAHL.”
Rose says Maponya has provided no contrary version of the facts or indicated in what way the facts were incorrect or misleading.
He argues the full statement was important within the context of the article because Greenblo had been stating facts (as required by Section 7 of the Press Code, which formed the basis of the opinion advanced by him) namely, that the PIC commission should look into the SAHL business deal because it raised questions about how BEE partners were selected by the PIC.
He adds the statement was a “neutral narration of the facts reasonably believed to be true by Greenblo and [was] in no way critical of Maponya”.
“Maponya, it’s understood, had told the bank that he and his consortium were selected as the BEE partner because of his personal relationship with then PIC CEO Dan Matjila.”
The editor says Maponya does not deny that he has a personal relationship with Matjila or indicate what the correct facts are, making it difficult to respond meaningfully to his complaint in this regard.
He says the use of the words “it’s understood” merely indicated that this was Greenblo’s understanding of the matter, based on his knowledge of the industry.
“But before the ink had dried on this contract, Maponya demanded R45m payment from SAHL, ostensibly because it was his relationship with the PIC that had brought about the loan agreement.”
Rose says Maponya appears to confirm that he believed there were some monies due to him in respect of this matter. (He states in his complaint: “The truth is that any monies due to my business have nothing to do with the sale and purchase agreement.”)
He submits it is unclear what “sale and purchase agreement” Maponya refers to – he says the quote in question dealt with a demand for payment in relation to a R9-billion loan that was advanced to SAHA, and not with a sale and purchase agreement.
The editor adds the statement was not critical of Maponya – it was speculation on the part of the author, which would be clear to the ordinary reader, because Greenblo used the word “ostensibly”. He argues, “Such a speculation would no doubt be instantly recognisable to the reasonable reader reading a piece of opinion writing.”
‘One Kholofelo Maponya’
Rose denies there is any basis for complaining that Greenblo’s text was racist, or critical of Maponya.
He adds the author’s use of the word “one” in this context was intended and understood by ordinary readers to mean that Maponya, as far as the author was concerned, was a little-known businessman and someone he had never met. The online version of the Collins English Dictionary, he says, explains the use of the word in this context as such: “One – You can use one in front of someone’s name to indicate that you have not met them or heard of them before.”
Damaging to reputation, commercial interests
Rose offers Maponya an opportunity to state his side of the story in settlement of this complaint, which will be linked to the original online article.
Maponya again
Maponya replies that Rose did not go into the merits of his complaint and that he did not explain why he was not given a right of reply.
He says “all the allegations in the article” were fabricated and distorted around a “sensitive matter” that is currently before a board, Cabinet and the legal system.
He adds that Greenblo used his name and personal attributes like his race (through references to BEE) to damage him commercially and to demean his person by casting aspersions regarding his ability to add value to the business transaction. “He does not explain how I did not add any value to the contract but makes the statement and hides this tissue of lies by claiming it’s an ‘opinion’ as though an opinion is not subjected to be based on facts,” he submits.
Furthermore, Maponya says, it is difficult to see how Greenblo could have arrived at the conclusion when he had not given him a right of reply.
He also denies having had a personal relationship with Matjila, and asserts that the obligation to prove this allegation lies with the one making it (Greenblo). This also means, he continues, that any claim that he benefitted from a personal relationship was patently false.
He concludes the onus remains on Greenblo to prove that he took fair account of all material facts that were either true or reasonably true. “In this case, nothing in the article shows an attempt to demonstrate the reasonableness or truth of the allegations made,” he says.
Analysis
Hard news, not opinion; no right of reply
There is no way in which the text can be seen as hard news. Yes, Greenblo did state some facts but then, he was supposed to do so in an opinion piece. Rose also correctly points out that the text was published in the opinion section of the website and that it was clearly marked as “opinion”.
That being the case, Greenblo was under no obligation to ask Maponya for his opinion.
Three ‘false’ sentences
Maponya has not indicated what exactly was false, unfair and malicious about the first sentence. I cannot find in favour of a complainant if I am left in the dark.
The second sentence did not contain a statement of fact, but was clearly based on information garnered from a source (note the words “it’s understood”). Greenblo was as justified to state this allegation, as Maponya is to contest it. This also goes for the reference to BEE.
It is also not clear exactly which part of the third sentence Maponya complains about, and why.
Erring on the side of caution, though, I asked Rose on what Greenblo based his reference to R45-million. The latter replied he had used documentary correspondence between the parties (SA Home Loans, Standard Bank and the PIC), which were conveyed to him in various ways by a source.
I have no reason to disbelieve this.
‘One Kholofelo Maponya’
Rose’s argument on this issue holds water. It is indeed standard journalistic practice to use the “one” if you have not yet met the person, or if you want to convey that he is relatively unknown.
Damaging to reputation, commercial interests
Given the arguments above, it follows that I do not believe that the opinion piece has unnecessarily damaged Maponya’s reputation and commercial interests.
Finding
The complaint is dismissed.
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
Press Ombud
