City of Tshwane (Office of the Executive Mayor) vs. The Citizen

This ruling is based on the written submissions of the Executive Mayor of the City of Tshwane, Kgosientso Ramokgopa, and those of Antoinette Slabbert, a journalist working at Moneyweb (whose reports are often used by The Citizen).

Complaint

The City of Tshwane (Tshwane) is complaining about a story in The Citizen of 22 January 2016, headlined PEU deal stands despite promise – ‘on-going’: AG identifies the contract as ‘irregular’ and Hawks investigate deal. A pull-out read, Despite mayoral assurances and a host of probes, PEU’s disastrous ‘smart meter’ contract just won’t go away as billions drain from Tshwane’s budget.

Tshwane complains that the newspaper did not ask it for comment – in fact, it intentionally withheld information, which led to false statements (all with reference to a final report from the Auditor General, the AG):

The City complains the story therefore falsely:

·         mentioned that the AG report exposed “a massive R2.3-billion in irregular expenditure during 2014/15”;

·         reported that the AG’s Management Report identified the agreement between PEU Capital Partners and Tshwane as “irregular”, including the cancellation agreement;

·         said that the AG report described Ramokgopa as “not receptive” and unwilling to engage on key projects during a meeting with the AG in October last year;

·         said that the audit report had “not been signed off; and

·         reported that it would not respond to questions.

The City adds that the only truth in the story was that the AG report was not finalised at the time of publication.

Tshwane adds that, given all of the above, the journalist and her publication were malicious and / or negligent.

The text

The introductory sentence to the story, written by Antoinette Slabbert, said Tshwane’s controversial prepaid metering contract with PEU Capital Partners featured prominently in a Management Report by the AG, which exposed R2.38-billion in irregular expenditure during 2014/15.

PEU reportedly confirmed that it was providing an on-going transition service – despite the mayor’s announcement last year that the agreement would be terminated with immediate effect and that PEU would be “out of the picture” by the end of December.

She stated, “By that time the city had already paid PEU R830-million from October 2013, but less than 13 000 had been installed.”

The Citizen responds

Not asked for comment; withholding information

Tshwane complains that The Citizen did not ask it for comment – in fact, it says it intentionally withheld information from the City (which led to incorrect statements).

It also says the questions asked of Tshwane were not directed or designed to probe the issues addressed in the article, neither was the City provided with a copy of the “report” that the journalist purported to have had in her possession – and therefore Tshwane was unable to respond properly. “The City was of the view that the journalist dad not have a story, given the questions that were posed to it to be answered, and was seeking to build a story from nothing.”

This means that the reporter acted in bad faith by intentionally withholding information pertinent to the article she intended to publish, depriving the City of an opportunity to respond to key allegations prior to publication.

Slabbert says she sent Tshwane’s spokesman, Selby Bokaba, an e-mail on January 20, enquiring about the delay in the finalization of the AG’s report and the finding in the Management Report of a conflict of interest in a contract. Later that day, she also sent him a screenshot of the specific page in the Management Report. She says he replied that Tshwane would revert back to her, but by the end of that day she had not received any response.

She then phoned Bokaba, who advised her to contact the AG, and confirmed that the final report was not yet available.

Slabbert says she did not approach Tshwane for comment on the AG’s final report, as Bokaba expressly said two days earlier that the City would not respond to enquiries regarding the final report (before it was officially released). She adds that he also refused to comment on the Management Report.

She does not respond to the part of the complaint concerning intentional withholding of information, but to a similar complaint against a different (but similar) story she said the detail of the allegations were well-known to Tshwane – the claims were made at a media conference and the allegations were widely reported. Moreover, Tshwane has responded to numerous queries about this matter, even if only stating that it would not comment at that stage.

“The complainant cannot say they weren’t aware of the allegations, as the report in question merely repeated the DA’s allegations which have been in the public domain… The Citizen report didn’t raise any new allegations,” she submitted.

Inaccurate statements

Tshwane says the AG’s report was finalised and tabled at the Council meeting of 29 January 2016. Taking that into account, it is apparent that:

·         the figure of R2.38-million in irregular expenditure is fictitious;

·         this amount was never associated with PEU in the report and;

·         the report did not describe the mayor as “not receptive”.

The City adds that the only truth in the story was that the AG report was not finalised at the time of publication.

Slabbert replies that the AG’s final report (to which Tshwane refers in its complaint) was only made public a day after the story was published. The article was not based on the final report, but rather on a Management Report penned by the AG, dated 30 November 2015 and discussed by the Democratic Alliance (DA). This document was in Tshwane’s possession at the time.

She argues, “My report…discloses that the final report has not been finalised and clearly explains the nature and status of the Management Report. The fact that the allegations made in the Management Report were excluded in the final report is critical and of profound public interest. [I] submit that it was in the public interest to publish the content of the Management Report.”

Slabbert states that Bokaba told her privately that the final audit report had not been finalised by the AG. This was at variance with the Municipal Finance Management Act (MFMA), which required for it to be submitted to the accounting officer by the end of December.

She concludes,

“The publication of the statements in the article is justified … in terms of … the Press Code. The information is in the public interest, the facts reported are substantially true … it is a fair and accurate report of an official finding/document of a Chapter 9 Institution… Like any court, quasi-judicial tribunal/forum, or impartial legal body such as the AGSA, bona fide reporting of those findings are allowed. As Tshwane was part of the process, and gave its input throughout, it would not serve a purpose of the City to deny the findings of the Management Report.”

Slabbert adds that, when the final audit report was tabled in Council on January 28, the City held a media briefing, saying that the unqualified report vindicated it. She reported on this matter.

Malicious, negligent

Tshwane concludes that, given all of the above, the journalist and her publication were malicious and / or negligent – which Slabbert vehemently denies.

Analysis

Not asked for comment; intentionally withholding information

The Citizen did ask Tshwane for comment. The only question is whether Slabbert withheld information from the City.

On January 20, Slabbert sent Bokaba some questions – but in her e-mail she addressed the Management Report (and only mentioned the AG’s final report once, asking for a reason for the delay, if there was one).

I can understand why officials at Tshwane think that the journalist withheld information from the City as they are talking about the AG’s final report – while the story was not about that report but rather about the Management Report (about which Slabbert says Bokaba did not want to comment – a statement that Tshwane did not deny).

Given this situation there can be no breach of the Code of Ethics and Conduct.

Inaccurate statements

I am satisfied it was clear that the article was about the Management Report (as mentioned in the first sentence of the story) and that the report was essentially accurate. Moneyweb was merely a messenger. Nothing more, and nothing less.

Slabbert’s explanations, as cited above, are also credible.

I do not make any finding regarding the delay of the AG’s report, as Tshwane has no standing to complain on the AG’s behalf.

Malicious, negligent

Given all of the above, it follows that I have no grounds to find that either Slabbert or the publication has been malicious or negligent in this matter.

Finding

The complaint is dismissed.

Appeal

Our 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 Ombudsman