Appeal Decision: Abe Seakamela vs Sowetan

SUMMARY

The headline to the story in dispute read, Education dept hides from Public Protector – Ghost camps used in scam (published on 22 September 2016).

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 the Department of Education was frustrating the Public Protector’s investigation by avoiding to respond to a 2012 report into the R674 000 it had paid to three schools that hosted ghost matric camps. Dr Abe Seakamela, the former acting superintendent-general of the North West Education Department, reportedly “sat on” the report until the unions protested in 2013, adding that the report was only handed over in 2014.

Seakamela complained that the newspaper did not afford him an opportunity to comment on the statement that he had “sat on” a report – falsely implying or suggesting that he had:

• deliberately withheld that document until he was forced to release it; and
• condoned corruption, or even that he benefitted from it.

The ombud dismissed the complaint as the reporter had used the proper channels to try and elicit comment on this issue. The story also reflected that the spokesperson was not able to respond in time – adhering to Section 1.8 of the Code of Ethics and Conduct in this regard.

Judge Ngoepe noted that, at the time of publication, Seakamela had already retired for quite some time, and the newspaper was aware of this fact.  He added that, while it was true that the story related to the period while Seakamela had still been employed, he was uncertain whether this was a case where his personal views should not have been obtained; after all, the story was not about “the superintendent-general” but about “Abe Seakamela”, the retiree.

The judge granted him leave to appeal to argue this point.

THE RULING ITSELF

ABE SEAKAMELA                                                                                      APPLICANT

AND

[1]     On 22 September 2016 Sowetan (“respondent”) published an article entitled “Education dept hides from Public Protector”.  This was with reference to a report by auditors which allegedly found some fraudulent spending of the department’s money.  Three schools were alleged to have gotten money from the department for activities which never took place.   At the time the report was submitted, Dr Abe Seakamela (“applicant”) was the superintendent-general of the department (North West Province).  The story said that he sat on the report, resulting in no action being taken.  The matter was said to have been reported to the Public Protector by some whistle blower teachers, but the department did not co-operate. The office of the Public Protector also indicated that they had difficulties in getting responses from the department, according to the respondent.

[2]     The complaint: The applicant’s complained that that the accusation that he sat on the report was false, and that it defamed him inasmuch as it meant that he condoned corruption, or that he benefitted from it, all of which he denied.    His main complaint was that he was not contacted for comment.

[3]     Respondent’s reply: In its defence, respondent said that it had sent an e-mail to the department’s spokesperson, who promised to look into the matter and then come back, but never did so.  An e-mail had been sent to the spokesperson and a second person in the department; no response came forth.  Respondent says its reporter could not find applicant’s contact details, which “were not given them by Malindi as he was to get the questions answered by department officials”.

[4]     In his Ruling dated 8 October 2016, the Press Ombud dismissed the complaint.  He held that the department had been given the opportunity to respondent, but failed to do so.  In this respect, it has to be noted that the journalist said Malindi indicated that the response would be forthcoming from the department’s officials. The difficulty with government officials is that often they are not allowed to speak for themselves, but through government spokespersons like Mr Malindi.  This case does however, seem to be different because at the time of the story the applicant had already retired for quite some time, and the respondent was aware of this fact.  While it is true that the story related to the period while the applicant was still employed, I am uncertain whether this is a case where his personal views should not have been obtained; after all, the story was not about “the superintendent-general” but about “Abe Seakamela” the retiree. If there was a duty to get his comment (given the fact that he was singularly accused as an individual), but he could not be contacted, it would mean that the story should have at least mentioned that; something which was not done either because respondent was content with seeking comment only from government officials. In his application for leave, applicant says “In dealing with this complaint, the Ombudsman and the Sowetan proceeded as if I am still employed by the department.  Hence questions where sent to the dept with the expectation that the dept was competent to answer on my behalf.  This approach is legally flawed and morally indefensible.  Mr Malindi is the department’s spokesperson – not mine. He is under no obligation to answer questions on my behalf.”  (Own emphasis).  There might have indeed been no such obligation on Mr Malindi, given the fact that applicant was no longer in their employment and had ceased being so for years. The respondent is also aware that applicant and the department did not part under the best of terms.

[5]     For the reasons given above, I am of the view that the applicant has reasonable prospects of success in his complaint that he should have been personally contacted for comment, alternatively, that it should have at least been mentioned that he could not be reached for comment. The applicant is therefore hereby granted leave to argue this point.

Dated this 15^th day of November 2016

Judge B M Ngoepe, Chair, Appeals Panel