Appeal Decision: Minister Lindiwe Sisulu vs Sunday Times

SUMMARY

The headline to the story in dispute read, Trim your bloated offices – Dlodlo – Public service chief warns cabinet to cut bloat in their offices and shed adviser fat (published on 19 August 2018).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

The essence of the story was that Ayanda Dlodlo, Minister of Public Service and Administration, had said that there were certain Ministers and Deputy Ministers who had more advisers than was catered for in the Ministerial Handbook.  The article specifically mentioned Lindiwe Sisulu (Minister of International Relations and Cooperation) in this regard.

Sisulu and the Department of International Relations and Cooperation (Dirco) complained that the journalists inaccurately / misleadingly / unfairly:

• inferred that Sisulu had a bloated office, an allegation that was presented as fact – while the journalists valued the information garnered from their sources as more credible than that obtained from her spokesperson;
• singled them out as the only culprits; and
• stated that there was a “collision course” between Dlodlo and her colleagues over their bloated offices, and that the former had clashed with her in this regard.

They concluded that the “tone” of the story was unnecessarily negative and damaging to their reputation.

The Ombud dismissed the entire complaint, upon which an application for leave to appeal was lodged.

Judge Ngoepe said the crux of the matter was whether Sisulu had indeed more advisors that the Ministerial Handbook allowed.

He inter alia noted that internal staff named six advisors (while the Handbook prescribed two), and that Sisulu’s spokesperson had said they were not advisors but part of an advisory panel. He also considered that the story presented the reference to a “bloated” office as an allegation and not as a fact.

For these, and other, considerations the application for leave to appeal was dismissed.

THE RULING ITSELF

In the matter between

MINISTER LINDIWE SISULU                                                   APPLICANT

AND

1.        On 19 August 2018 Sunday Times (“respondent”) published an article with the headline “Trim your bloated offices – Dlodlo”. Sub-head: “Public service chief warns cabinet to cut bloat in their offices and shed adviser fat”. The essence of the story was that Minister Dlodlo, Minsiter of Public Service and Administraton said that there were certain Ministers and Deputy Ministers who had more advisers than was directed in the Ministerial Handbook.  The article specifically mentioned Minister Lindiwe Sisulu (“applicant”), Minister of International Relations and Co-operation.  It said, inter alia, that she had six advisers; their names were given with one given an incorrect surname (“Molefe” instead of “Mafolo”).  The context of the story was that the government wanted to reduce the wage bill by some R30bn.

2.        The applicant lodged a complaint against the article. This was done through an unnecessarily prolific letter by her attorneys, the contents of which were later to be gratuitously repeated in the response to the respondent’s answer. In his Ruling dated 23 October 2018, the Ombud of the Press Council accurately summarised the applicant’s complaints:

“Ms Lindiwe Sisulu and Dirco complain that the journalists inaccurately/misleadingly/unfairly:

·               inferred that Sisulu had a bloated office, an allegation that was presented as fact – while the journalists valued the information garnered from their sources as more credible than that obtained from her spokesperson;

·               singled them out as the only culprits; and

·               stated that there was a ‘collision course’ between Public Service and Administration Minister Ayanda Dlodlo and her colleagues over their bloated offices, and that the former had clashed with her in this regard.

She concludes that the ‘tone’ of the story was unnecessarily negative and damaging to her”.

3.        In its response, the respondent conceded that Mafolo’s name had been misspelt, and offered a correction.  As far as the substance of the story was concerned (that the applicant had employed six advisors), the respondent referred to a number of internal senior officers within the department, who, independently of each other, confirmed the allegations.  Respondent also pointed out that it did not single out the applicant or her department.

4.        In his Ruling, the Ombud dismissed the complaint in its entirety.  The applicant seeks leave to appeal the Ruling.  The respondent opposes the application.  Both have filed papers to this effect, with the applicant being once more unnecessarily prolific and repetitive.  For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel; to show that the Ombud was wrong.  This is what I must now assess.

5.        After accurately summarizing the complaint as well as the response, the Ombud went into details analysing both cases.  I need not repeat his analysis and reasons; the parties have a copy of the Ruling.  I need, however, to make the following points:

5.1    The crux of the matter is whether or not the applicant has more advisors (5 or 6) than as directed in the Ministerial Handbook which limits the number to two. The applicant’s spokesperson, in answering a specific question, failed to seize the opportunity to give an answer to lay the fundamental issue to rest by saying exactly how many advisors the applicant had and what role the other four people played. Instead, the spokesperson, as the Ombud says, “merely said (the applicant”) had two … advisors and indicated that the composition of the ministry was in line with the guidance  of the Ministerial Handbook”.  Contrast this with the specific information by internal staff that there were six “advisors” (names given), and you would hardly blame the respondent for reporting as it did.  Problematic also is a statement by the spokesperson that four of the alleged “advisors” were not “advisors” but part of a 12-member advisory panel.  It begs the question why the other eight members of the panel are not implicated by the informants; the impression created about the implicated four is that they too were full time employees working as advisors over and above the acknowledged two (Simelane and Dangor).

5.2    What was levelled against the applicant was cast as allegations; hence reference to sources.  As the Ombud says, not once were the allegations that the applicant had a bloated office presented as fact.

5.3    The question is not even whether the allegations were true or not.  The real question is whether, given the nature of the spokesperson’s version (see e,g above), and the quality of the sources which were internal and knowledgeable and also that they independently corroborated each other, the respondent was justified to report as it did.  The answer would be in the affirmative.

5.4    Regarding the complaint that a reasonable reader would see the article as singling out the applicant: It is hard to see on what reasonable grounds would the Appeals Panel find fault with the following reasoning by the Ombud:

“(Respondent’s internal Ombud) denies that the reasonable reader would conclude that Minister Sisulu is the only one allegedly contravening the Handbook.  No-where in the story do we say or imply this to be the case.  The headline and introduction to the story clearly refers to multiple offenders, employing terms such as ‘offices’; ‘colleagues’; ‘errant ministers’; and ‘their ministries’.  Following this, Minister Sisulu is introduced as being ‘one of the offenders’, clearly implying that there are others.

We used Minister Sisulu as an example to broaden the story away from Minister Dlodlo’s interview and to contextualise it for the readers”. Paragraphs 8 and 9 of the respondent’s response dated 1 October 2018 to the complaint, should have put this complaint to bed.

5.5    The word “clash” in the context means no more than that, at worst, the ministers would disagree.

5.6    Nothing turns on whether or not the Ministerial Handbook is a legal document, as the applicants seek to argue.  The reasonable reader will understand that what is meant is that it was not adhered to, without necessarily attaching criminal conduct or violation of a legal duty.  The application for leave does not raise any issue not considered by the Ombud; it is substantially a regurgitation of the issues raised in the letter of complaint; compare, for example paragraphs 5 and 24 thereof with the letter of complaint, etc.

6.        The question is whether there are grounds for finding that the Ombud was wrong.  In the light of the Ombud’s reasons, as well as my comments above, I am of the view that the applicant has no reasonable prospects of success before the Appeals Panel.  The application therefore fails.

Dated this 1^st day of March 2019.

Judge B M Ngoepe, Chair, Appeals Panel