Thamsanqa Jiyane vs City Press

SUMMARY

The headline to the story in dispute read, Transnet: Brian helped to loot – A tender to buy locomotives for Transnet was inflated by R16 billion, and split between four suppliers, one a Gupta-linked company (published on 13 May 2018).

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

 

The article was about a report by the law-firm Werksmans into alleged irregularities pertaining to the purchase of locomotives by Transnet. It mentioned former Transnet Freight Rail chief procurement officer Thamsanqa Jiyane’s name twice – that the report had recommended that he be investigated, and that he was implicated in the ballooning of a contract to the amount of R54.5bn.

Jiyane complained that the references to him in the article were defamatory, including labelling him as a “Gupta lieutenant”; that he was not afforded an opportunity to comment prior to publication; that the newspaper did not supplement the article insofar as it related to him; and that the reportage had tarnished his dignity and reputation.

Retief said it was a main problem that the article did not clarify that the report by Werksmans was not official.

City Press was directed to:

• unreservedly apologise to Jiyane for the statement that the Werksmans report has found that he was a Gupta lieutenant, and for not asking him for comment on this issue;
• unconditionally retract that statement; and
• unreservedly apologise to him for the possible unnecessary damage that this unsubstantiated statement could have caused to his dignity and reputation.

The newspaper was also directed to apologise to Jiyane for stating that the Werksmans report had recommended that his conduct with regards to the locomotives contract be investigated, and that, with his assistance, the contract had ballooned from R38.6-billion to R54.5-billion – without adequately clarifying that that report was inconclusive and was not accepted by Transnet’s board.

Some parts of the complaint were dismissed.

 

THE RULING ITSELF

Lodged by: Nicqui Galaktiou Inc.

Date of article: 13 May 2018

Headline: Transnet: Brian helped to loot – A tender to buy locomotives for Transnet was inflated by R16 billion, and split between four suppliers, one a Gupta-linked company

Page: Front-page lead

Online: Yes

Authors of article: Abram Mashego, Sipho Masondo

Respondents: Mashego; Masondo; Nicki Gules, assistant editor

Meeting: I have met with Galaktiou, her assistant Lihle Shabalala, as well as with Mashego and Gules to obtain clarity on several matters. This meeting took place in Johannesburg on September 18.

Complaint                                            

Jiyane, the former Chief Procurement Officer (CPO) at Transnet Freight Rail, complains that:

• the references to him in the article were defamatory, including labelling him as a “Gupta lieutenant”;
• he was not afforded an opportunity to comment prior to publication;
• the newspaper did not supplement the article insofar as it related to him; and
• the reportage has caused serious, and unnecessary, harm to his dignity and reputation.

The text

The article was about a report by the law-firm Werksmans into alleged irregularities pertaining to the purchase of locomotives by Transnet.

It mentioned Jiyane’s name twice:

• “Because of the size of the contract and the resultant financial exposure it posed to the company, the report’s authors recommend that the conduct of Molefe, current Transnet chief executive Siyabonga Gama and former Transnet Freight Rail chief procurement officer Thamsanqa Jiyane be investigated”; and
• “In April 2013, Transnet’s board approved a proposal to buy 1 064 electric and diesel locomotives for its general freight business, which would cost them R38.6bn over seven years. However, the report found that with the assistance of Gupta lieutenants Molefe, former chief financial officer Anoj Singh, board tender committee chairperson Iqbal Sharma, and Jiyane, the contract ballooned to R54.5bn.”

The arguments

‘Gupta lieutenant’, etc.

Regarding Jiyane, the story said:

• the Werksmans report had:
  • recommended that his conduct with regards to the locomotives contract be investigated;
  • found that, with his assistance, the contract had ballooned from R38.6-billion to R54.5-billion; and
• that he was a “Gupta lieutenant”.

JIYANE complains that these statements were false, and have caused huge unnecessary damage to his dignity and reputation.

GALAKTIOU says the word “lieutenant” means a deputy or a substitute acting for a superior (read: the Guptas) – a statement that has seriously affected Jiyane’s high standing and reputation. She adds that a journalist should be very certain of allegations before maliciously attempting to destroy someone’s life, and submits that a proper investigation into the matter would have revealed that the allegations regarding Jiyane were false.

She argues that the Transnet Board has rejected the report, called it “inconclusive”, and subsequently commissioned another investigation by an independent law firm – therefore, which obliged the reporters to corroborate the information.

She also says the use of the word “ballooned” inferred that Jiyane was involved in the direct, intentional and wrongful inflation of a tender to the tune of R16-billion (this amount was highlighted in red in the subheading to accentuate the extent of the alleged corruption), seemingly at the state’s expense, for his personal profit.

However, she submits Jiyane did not have any decision-making authority that could have influenced the alleged corruption and manipulation – he was not involved in the process beyond the assessment and negotiations stage of the tender being valued at R38-billion.

She adds that, in Transnet’s own statement to the journalists, Gama, Singh and Molefe approved the business case – while no mention was made of Jiyane’s involvement.

GULES replies the references in the article were a true reflection of the report’s findings and recommendations, including Jiyane.

She says the report found that officials, again including Jiyane, acted in the interests of the Guptas – which rendered the “Gupta lieutenant” comment fair.

The assistant editor argues that the word “ballooned” was a true reflection of what had transpired in the process that Jiyane had been part of. She says the article did not state that Jiyane had profited from the alleged corruption, and denies that the reportage could have defamed his character.

The fact of the matter, she submits, is that Jiyane was part of the acquisition of the locomotives, and it was recommended that he be disciplined. “It is fair to conclude that such a recommendation to have action taken against him implies that he was not exonerated from the alleged corruption,” she says.

Analysis

At the meeting, I emphasised that City Press was to be commended for obtaining the Werksmans report (it was not made public at the time, and not afterwards either), and also for reporting on it – the matter clearly was in the public interest.

Kudos, indeed.

The issue, however, was not if the newspaper should have reported on this matter, but how it should have been done.

This brought into focus the question if the reportage properly reflected the status of the Werksmans report.

It is not in dispute that Transnet’s Board has not accepted the report – not at the time of publication, and not afterwards either. In fact, it has asked for a further investigation. Whether the report was “rejected” is irrelevant, as there is no dispute over the fact that it was considered to be “not accepted”, and was “incomplete” (hence the quest for a follow-up report).

The question, therefore, becomes if reasonable readers would have thought that the findings and recommendations in that report were official (as they were not).

Unfortunately, the answer to this question is “no”. In fact, the article did not touch on this issue at all (until the very end – a quotation to which I shall come shortly). For example, the story simply started off by stating that Mr Brian Molefe “was found to have lied” to the Transnet board. And so it continued…

In itself, that statement was true, as the Werksmans report did come to that finding – but what was also true, was that that report did not enjoy official status. That was the context, and that should have been reported.

The story consisted of 1 283 words – and only at the very end of it did it quote Transnet spokesman Molatwane Likhethe saying that the report had been found to be inconclusive (in 12 words).

Sure, this statement was according to the letter of the Press Code (read: accuracy) – but it certainly did not serve its spirit (read: fairness, balance, and context).

That being the case, I do not believe that reasonable readers would have understood that all the information already communicated prior to Likhethe’s statement was provisional.

Having made these general comments, I now turn to the specifics of the complaint, namely that the Werksmans reportedly falsely has:

• recommended that Jiyane’s conduct with regards to the locomotives contract be investigated;
• found that, with his assistance, the contract has ballooned from R38.6-billion to R54.5-billion; and
• said that he was a “Gupta lieutenant”.

Jiyane’s conduct to be investigated

Under sub-heading 24.16 of the Werksmans report it stated that the conduct of some executives, including Jiyane, had to be investigated. That is in black on white. The newspaper was therefore justified in reporting that fact – but then again, the context (which is always as important as the text) should have been mentioned as well. It was also a fact that Transnet’s board had not accepted the recommendation to investigate Jiyane’s conduct (although, of course, this may still happen in future).

In short: The statement was accurate, but the necessary context lacked. That was not fair.

The contract ballooning (from R38.6-billion to R54.5-billion) with Jiyane’s assistance

At the meeting, I was told that:

• Jiyane’s role in the contract was limited to a recommendation, as he had no decision-making authority and people other than himself had made the ultimate decision (he was not involved in the process beyond the assessment and negotiations stage of the tender being valued at R38-billion – a statement that Gules disputed); and
• he was under instruction to make this recommendation.

Whether this is true is not for me to say, neither is it in my mandate to determine whether he has “complied” with the “instruction”, either willingly or reluctantly.

Having studied the Werksmans report, I believe the article correctly reported it said that the contract had ballooned, inter alia, under Jiyane.

But then again, the context was lacking, even though the statement itself was correct.

‘Gupta lieutenant’

At the meeting, Gules argued that the statement in question was fair comment. This, of course, boiled down to an admission that the report did not use the words “Gupta lieutenant”. She motivated this, saying that the Guptas had scored R5-billion in kickbacks as a result of the locomotive deal, and argued that it was Jiyane’s responsibility to procure it. The fact that the deal was overwhelmingly in favour of the Guptas, rendered the comment in question fair, she argued.

However, Galaktiou emphatically denied that Jiyane had any ties with the Guptas and stated that the newspaper’s comment / conclusion were factually incorrect.

Let me start by saying the following: It is not advisable to include comment in a hard news story. What is needed, and expected by the reading public, is not the journalist’s opinion, but rather the reporting of facts or, if the veracity of information cannot be established, an indication of such. Comment by journalists should be saved for editorials or opinion pieces.

In line with the Constitution of our country, Sections 6 and 7 of the Press Code protect comment to a large extent. This protection, however, does not extend to the reporting of hard news.

As a general side-remark: Both the media and complainants, including their attorneys (no reference to Galaktiou), often misunderstand this distinction.

Let me now take a closer look at the statement in question. It read, “However, the report found that with the assistance of Gupta lieutenants [Molefe and others] and Jiyane, the contract ballooned to R54.5bn.”

Note the statement, of fact, that “the report” called Jiyane a “Gupta lieutenant” – even though the newspaper later argued that this reference was (fair) comment. But it was not true that the report had made such a statement. And again: This was a hard news article, and not an editorial.

No right of reply

GALAKTIOU says Mashego did not mention Jiyane’s name in his query to Transnet as he should have – because he was going to become the subject of critical reportage.

Because of this, she continues, there was no reason for Transnet to have provided Jiyane with a copy of the report, and to ask for his comment. “This means that he was never afforded an opportunity not only to answer questions but neither afforded an opportunity to have sight of the reports nor the allegations made therein, which reports the journalists rely on for these damaging and offensive allegations,” she says.

“The failure/omission by the journalists can only be seen as a ruse to avoid bringing attention to Mr Jiyane but enabling them to surreptitiously defame him under the pretext that Transnet had been afforded a right of reply,” she concludes. She adds that this has rendered the article unfair and unbalanced, as it did not provide the reader with both sides of the story.

Galaktiou says there can be no worse criticism in this current political environment than being referred to as a “Gupta lieutenant”, which made him the subject of critical reportage – and necessitated a right of reply.

She adds that the journalists have to date refused and / or failed to provide Jiyane with a copy of the report, and also have failed to respond to her request for copies of the report.

GULES says that, in accordance with Transnet’ media policy which requires the media to seek comment on stories from its spokesperson, the journalist sent questions to Molatwane, which was followed up by a telephonic conversation.

She says Mashego contacted him at least three times on the reporter’s landline, and adds that he was fully aware and appraised of the purpose of the enquiry.

She admits that Jiyane’s name was not included in the questions – however, she submits, the latter’s name was part of the discussion with Molatwane and the comment sought also involved him, as he had been mentioned in the report.

The assistant editor says the journalist’s questions were inclusive, seeking to know why there had been no disciplinary action taken against the officials implicated in the report, and why no criminal case had been reported. She adds Molatwane also indicated that the response he gave to City Press was all-inclusive.

Gules also argues that Molatwane ought to have sought Jiyane’s side of the story if he felt that that was necessary. “However, Mr Molatwane deemed that the response he gave was adequate and relevant to everyone. There was nowhere else City Press would have obtained comment from Mr Jiyane except through Mr Molatwane,” she submits.

The newspaper says it could not provide Jiyane with the Werksmans report without compromising its sources.

The assistant editor adds that Jiyane never sought the report from his employer, even though the division he worked under was part of the investigation.

GALAKTIOU replies that, whether Jiyane did or did not see the report, did not entitle the journalists to defame him. On the contrary, she says, the onus was on the reporters to provide him with a copy of the report or, at the very least, extracts from the document relating to him.

She says the argument that the newspaper could not provide Jiyane with a copy of the report, as requested, was not communicated to her, notwithstanding the various emails addressed to the journalists.

She adds (inter alia):

• Molatwane’s response as quoted by the newspaper only refered to Gama, Singh and Molefe – and not to Jiyane as well. “This again demonstrates that Mr Jiyane was not included in the written questions to Mr Molatwane as he would have made reference to him in the response”;
• The journalists knew that Jiyane had been referred to in the report and that they intended to rely on the report to publish the offending article – therefore, she argues, it was inconceivable that they did not make reference to him;
• Molatwane denied that he had responded on behalf of Jiyane – and the onus is on City Press to prove otherwise;
• The journalists failed to demonstrate or provide reasons as to why they were unable to approach Jiyane directly for a response – as they were obliged to do (given the seriousness of the allegations); and
• It is usually standard practice for journalists, particularly in these high-profile matters, to have recordings of information and interviews with witnesses and sources. She has repeatedly requested copies of the recording and transcript of the conversation with Molatwane. “It must therefore be inferred that the consistent refusal and/or failure by the journalists to produce such recording and transcript does not support their version.”

Galaktiou concludes: “There can be no doubt that the City Press knew that Mr Jiyane was going to be included in the offending article but conveniently failed to make reference to him in its questions. Jiyane has been severely prejudiced by the publication of the offending article without any justification for the journalists failing to afford him an opportunity to comment or respond.”

Analysis

I agree with Gules in that:

• the journalist followed the correct protocol by sending his questions to Transnet’s spokesperson (Molatwane), with whom he communicated a number of times:
• even though the reporter did not specifically mention Jiyane, the latter’s name was part of the discussion with Molatwane, and that the comment sought also involved him as he had been mentioned in the report; and
• the spokesperson should have sought Jiyane’s side if he felt that that was necessary.

That being the case, it was not the newspaper’s fault that Jiyane never got sight of the report. I also do not blame City Press for not providing him with the document, for the reason given by the newspaper.

However, this decision goes for the reportage on what the Werksmans report in fact said about Jiyane. This cannot also be applied to the statement of fact that he was a Gupta lieutenant, as that was not in the report and, in any case, the journalist did not put it to him in the first place.

Given the seriousness of the statement, which was more than an allegation, Jiyane – and nobody else – should have been asked for comment on this specific matter.

Article not supplemented

JIYANE complains that the journalists failed to obtain his version, even after publication, to supplement their article as it relates to him. Galaktiou says such new information was readily available to the journalists by simply contacting him.

GULES says that, should new information emerge clearing Jiyane, City Press undertakes to publish such. As far as the City Press is aware there has no new information disputing the Werkmans’ report and Jiyane is welcome to bring such to its attention for consideration.

GALKTIOU replies that, at the time that the offending article was published, MNS Attorneys had already been mandated (in February 2018) to investigate the matter and prepare another report as a result of inconclusive findings in the Werksmans’ Report of 7 December 2017.

Analysis

An internet search proved that City Press did report on the matter further, specifically on MNS Attorneys’ investigation into the matter – albeit not specifically on Jiyane (none of which I could find).

I have not been provided with any specifics about new information about Jiyane that the newspaper has neglected to publish in a follow-up article.

I trust that City Press would do so when such transpires.

Dignity, reputation

The article accurately stated the Werksmans had:

• recommended that Jiyane’s conduct with regards to the locomotives contract be investigated; and
• found that, with his assistance, the contract has ballooned from R38.6-billion to R54.5-billion.

However, the newspaper neglected to properly put these statements into perspective (namely, that the report was inconclusive and was not accepted by Transnet’s board).

This neglect contained the possibility of causing unnecessary harm to Jiyane’s dignity and reputation.

The statement, of fact, that the report found that he was a Gupta lieutenant (which the report did not state), is much more serious. I agree with Galaktiou on this issue: In the current South African climate, there could hardly be any more serious and potentially harmful allegation such as this one. The damage that this could have done to Jiyane, which also might have been unnecessary, cannot be measured.

Finding

‘Gupta lieutenant’, etc.

The article accurately stated the Werksmans had:

• recommended that Jiyane’s conduct with regards to the locomotives contract be investigated; and
• found that, with his assistance, the contract has ballooned from R38.6-billion to R54.5-billion.

However, the context was missing, as this document was “inconclusive” and has not been accepted by Transnet’s board – which the journalists neglected to report.

This was in breach of the following sections of the Press Code:

• 1.1: “The media shall take care to report news … fairly”; and
• 1.2: “News shall be presented in context and in a balanced manner…”

The story falsely stated, as fact, the Werksmans report found that Jiyane was a “Gupta lieutenant”. This was in breach of Section 1.1 of the Code that reads: “The media shall take care to report news truthfully, accurately and fairly.”

No right of reply

This part of the complaint is dismissed, save for the statement of fact that Jiyane was a Gupta lieutenant.

Given the seriousness of this statement, City Press should have asked Jiyane – and not anybody else – for comment (as it made him the subject of critical reportage). This was in breach of Section 1.8 of the Press Code that states: “The media shall seek the views of the subject of critical reportage in advance of publication.”

Article not supplemented

This part of the complaint is dismissed.

Dignity, reputation

The reportage was in breach of Section 3.3 of the Press Code: “The media shall exercise care and consideration in matters involving dignity and reputation…”

Seriousness of breaches

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).

Given the extreme seriousness of the matter, the breaches of the Press Code regarding the “Gupta lieutenant” statement are Tier 3 offences, both with regards to the false statement that the Werksmans report had found such, and the fact that the journalist had neglected to ask Jiyane about this matter.

The other breaches of the Press Code are all Tier 2 offences.

Sanction

City Press is directed to:

• unreservedly apologise to Jiyane for the false statement that the Werksmans report has found that he was a Gupta lieutenant, and for not asking him for comment on this issue;
• unconditionally retract that statement; and
• unreservedly apologise to him for the possible unnecessary damage that this unsubstantiated statement could caused to his dignity and reputation.

The newspaper is also directed to apologise to Jiyane for stating that the Werksmans report had recommended that his conduct with regards to the locomotives contract be investigated, and that, with his assistance, the contract has ballooned from R38.6-billion to R54.5-billion – without adequately clarifying that that report was inconclusive and was not accepted by Transnet’s board.

The newspaper is directed to:

• announce the apology on the very top of its front page, next to the masthead, with a headline containing the words “apology” or “apologises”, and “Jiyane”; and

online (at the top of that page), and to link the two articles

• publish the full apology on top of page 3, again with a headline containing the words “apology” or “apologises” and “Jiyane”.

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

Press Ombud