Appeal Decision: Gupta Family vs The Sunday Times

GUPTA FAMILY, OAKBAY INVESTMENTS (PTY)

LTD AND TEGETA EXPLORATION RESOURCES (PTY) LTD       APPLICANTS

VERSUS

[1]     In both their letter of complaint as well as the Notice of Appeal, attorneys Van der Merwe & Associates Incorporated say that they are acting “on behalf of the Gupta family, Oakbay Investments (Pty) LTD and Tegeta Exploration & Resources (Pty) LTD”.  It is not indicated who are the “Gupta family”.  I will refer to the family and the companies collectively as the “applicants”.  They brought a complaint to the Ombudsman against the Sunday Times (“respondent”) in connection with an article published on 31 January 2016 entitled “Zuma allies in revolt against the Guptas”.  The story was predominantly about so-called allies of President Zuma allegedly breaking ranks with him over his ties with the Guptas; Minister Zwane’s visit to Zurich to allegedly facilitate the sale of the Optimum mine by Glencore to the applicants; certain statements alleged to have made by the president of Cosatu, Mr Dhlamini; allegations by a source from both Eskom and the department of mineral resources that Eskom, through its CEO Mr Molefe, forced Glencore into selling its mine to the applicants by refusing to negotiate the price of coal with Glencore and by issuing health and safety notices and sending in inspectors to the latter’s mine.

[2]     The complaints, as correctly summarized by the Ombudsman in his Ruling of 21 January 2016:

“They complain that the newspaper:

·         unfairly prejudiced them in that it wrongly implied or suggested that they have used their alleged connections with government officials to strong-arm Glencore into selling a mine to a company (Tegeta) in which they have a minority shareholding …;

·         reported unfairly, despite the fact that the journalist was properly informed about this matter;

·         did not properly verify the allegations; and

·         did not afford Tegeta sufficient time to respond to its questions.”

[3]     In response, the respondent pointed to the context sketched above; it also referred to the interview with Mr Dhlamini and to what an executive (as a source) of Glencore had said.  Respondent also argued that the applicant’s spokesperson avoided answering specific material questions and instead referred to a press release which did not provide any answer to the questions. Respondent also submitted that the applicants could not pontificate to respondent on its duties and that they did not say that the statements were untrue.  Respondent further said that there were in fact other sources not mentioned in the article.  Regarding the complaint that the time given for response was not enough, respondent says the spokesperson did not raise this or ask for more time.

[4]     The Ombudsman dismissed the complaints, hence this application.

[5]     For the application to succeed, the applicants must show reasonable prospects of success before the Appeals Panel.

[6]     As the Ombudsman correctly states, the “gist of the complaint is that the article unfairly prejudiced the Gupta family by wrongly stating or implying that they had used their alleged political connections to strong-arm Glencore into selling its mine to Tegeta”.  But this was, at least partially, based on the opinions of sources, such as Mr Dhlamini and an executive of Glencore as well as an official of the department.  The rest was based on what the Ombudsman says were facts; eg that the Minister did in fact go to Zurich and dealt with the issue of the sale of the mine in question to Tegeta; that Eskom refused to negotiate the coal of price with Glencore and apparently also that health and safety notices were issued. Accordingly, what was reported could not be faulted.

[7]     The Ombudsman took a thorough look at

7.1    the questions which were sent by the journalist to the applicants on 29 January 2016;

7.2    the answers by the applicant’s spokesperson and finally,

7.3    the press release to which the spokesperson had referred and said contained answers.

I have done the same.  Like the Ombudsman, I find that the spokesperson did not address the issues which were pertinently raised by the journalist, nor does the press release.  The questions raised were so pertinent that they called for a specific answers, one way or the other.  Regarding the time limit, it is indeed so that the spokesperson did not ask for more time.

[8]     I want to state very clearly that I am not, and have not, made any finding that the contents of the article that the applicants did influence the sale of the mine to Tegeta through political connections, is true. I am entirely neutral to that question and have only limited myself, strictly, to the criticism and complaints raised above, solely for the purpose of determining whether or not, as against that particular article, and only that article, the applicants have a reasonably prospects of success before the Appeals Panel.  For the reasons given above, as also for those given by the Ombudsman, I do not agree with the applicants’ contentions raised in their Notice of Appeal; accordingly the application for leave to appeal is refused.

Dated this 29^th day of March 2016

Judge B M Ngoepe, Chair, Appeals Panel