Appeal Decision: EML Energy vs Sunday Times

SUMMARY

The headline to the story in dispute read, State airline’s R2,4bn fuel con – Music promoter got SA Express ‘dodgy deal’ worth R67m a month (published on 27 May 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 article said that “a little-known music promoter”, EML Energy (EML) founder Eldrich Mothlake, had been awarded a R2.4-billion, three-year deal to supply SA Express (SAX) with fuel (calculated at R67-million per month), despite the troubled airline already having had a contract to receive jet fuel from SAA.

Mothlake complained that the article:

• was demeaning as it portrayed his company as a fly-by-night business, owned by a questionable individual;
• falsely and misleadingly stated that EML had a R2.4-billion fuel supply contract with SAX and an inflated R67-million per month contract, and that SAX had paid it an amount of R2.4-billion; and
• had tarnished his reputation.

He added that the journalist did not verify his information with him.

The Ombud dismissed the complaint, upon which Mothlake applied for leave to appeal.

Judge Ngoepe agreed with the Ombud. “The question is not … what the respondent published was true or not, but whether what was published was reasonably justified given the information at hand and the sources,” he remarked.

He added that:

• while Mothlake’s documents might disprove the allegation that not a drop of fuel had been delivered, the reportage was justified as information given by the spokesperson of SAX and SAA was that there had not been any delivery;
• Mothlake apparently did not respond to questions put to him;
• While the value of the contract could have been inaccurate, the basis for the calculation was not unreasonable; and
• It was justified to report the allegation that the deal was dodgy, as this information came from SAA and SAX – certain employees of the SAX who were involved in facilitating the deal were suspended.

The application for leave to appeal was denied.

THE RULING ITSELF

In the matter between:

EML ENERGY                                                                                                     APPLICANT

AND

1. EML Energy (“applicant”) lodged a complaint against the Sunday Times (“respondent”) in connection with an article which appeared in the respondent’s edition of 27 May 2018, with the headline “State Airline’s R2.4b fuel con”.  The crux of the story was that the founder of the applicant, Mr Mothlake, was a little-known music promoter, yet his company had landed a multimillion rand contract to supply fuel to South African Express.  The story said the contract was dodgy; further, that whereas money had been paid, not a drop of fuel was delivered.
2. The applicant’s complaint as restated by the Ombud of the Press Council, was that the article:

“l     was demeaning of (the applicant) and its founder, Mr Eldrige Mothlake, as it portrayed the company as a fly-by-night business owned by a questionable individual

l       falsely and misleadingly stated that (the applicant) had a R2.4-billion fuel supply contract with SA Express and an inflated R67-million per month contract; and that SAX has paid it an amount of R2.4-billion.  The complainants add that the journalist did not verify his information with them, and concluded that the reportage has caused them reputational damage.”

The article had also stated that the newspaper had seen a copy of the contract, which had since become the subject of an investigation.

3. The respondent’s response was that it had seen the contract; that on the basis of the documents, the contract was to the value of R2.4-billion over three years.  It also stated that the contract was irregular and that a meeting had taken place between the applicant and SAX at which it was pointed out that the contract was irregularly entered into; no open tender for example; therefore, the respondent was justified to described the contract as “dodgy”.  The story had many angles and details.  It is clear that the respondent was given a lot of information from within.  In the end though, the Ombud, in his Ruling dated 27 June 2018, dismissed the complaint in its entirety.  He found that the respondent was justified to describe the contract as dodgy; found that Mr Mothlake was given the chance to respond but did not. The applicant now seeks leave to appeal the Ombud’s Ruling.
4. The question to be asked is whether, having considered the relevant facts and the reasons given by the Ombud, the applicant has reasonable prospects of success before the Appeals Panel.  My view is that there are no such prospects.  I agree with the Ombud’s reasons.  The question is not whether or not what the respondent published was true or not, but whether what was published was reasonably justified given the information at hand and the sources. I need only add the following:
   1. While the applicant’s documents may disprove the allegation that not a drop of fuel was delivered, the problem is that the information given by the spokesperson of SAX and South African Airways was that there had not been any delivery. This information would have justified the respondent to report as it did.
   2. It appears Mr Mothlake did not respond to questions put to him.  His response could have possibly cleared the air; in particular with regard to the question whether any supply of fuel was made.
   3. While the value of the contract could have been inaccurate, the basis for the calculation was not unreasonable.  Moreover, the respondent contends that the Minister spoke of the value of the contract in the same figure suggested by the applicant.
   4. As far as the allegation that the deal was dodgy is concerned, that again is justified by the information from SAA and SAX; moreover, the issue was said to have been discussed between the applicant and SAX; secondly, certain employees of the SAX who were involved in facilitating the deal were suspended.
5. The application is accordingly turned down for lack of prospects of success before the Appeals Board.

Dated this 16^th day of September 2018

Judge B M Ngoepe, Chair, Appeals Panel