Helen Zille vs. Cape Times

This ruling is based on the written submissions of Mr Michael Mpofu, spokesman for Western Cape Premier Helen Zille, and those of Abigail Oliver, on behalf of the Cape Times newspaper.

Complaint

Ms Helen Zille is complaining about a front-page lead in the Cape Times of 20 November 2015, headlined Zille’s spook ‘had grabber’ – spokesperson reticent on issue.

Zille complains that both the headline and the introductory sentence falsely and misleadingly stated as fact that she had employed a spook (a spy).

The text

The story was written by Quinton Mtyala. The introductory sentence read, “The police’s hawks unit have confirmed that they are investigating Premier Helen Zille’s ‘spook’, Paul Scheepers, over how he came to possess a ‘grabber’ – used to intercept cellphone calls, text messages, e-mails and popular applications like WhatsApp.”

Mtyala reported that Scheepers, a crime intelligence officer, had sought to recover his electronic equipment, allegedly seized illegally by the SAPS. The article also mentioned that his company, Eagle Eye Solution Technologies, had provided a once-off service for the Western Cape (WC) Government in 2010.

In addition, the reporter cited an anonymous source who said that Scheepers had used the grabber to intercept the cellphone calls of Zille’s Western Cape cabinet and of DA councilors in the City of Cape Town “who were seen as a threat” (to the DA).

The arguments

Zille complains that both the headline and the introductory sentence stated as fact that Scheepers had been working as her spook.

“This is entirely false and a patently incorrect distorted interpretation of the contract which was concluded between Eagle Eye and the Western Cape Government in 2010 for the debugging of cabinet member cell phones,” Mpofu writes.

The spokesman explains that the WC Government had procured the services of Scheepers’s company in 2010 after “repeated failures” by the National Intelligence Agency to provide the provincial cabinet with written confirmation that their cellphones were not being intercepted.

He also denies that Zille was involved in the procurement process or that she knew Scheepers. “The contract in question arose from a cabinet decision. It was managed independently by the relevant supply chain officials and processes. And the debugging in question was a once off service provided to … cabinet as a whole.”

Mpofu says that the ANC cast aspersions on Zille, claiming that Scheepers and/or his company had been employed by her personally to spy for her. “These defamatory allegations are entirely without foundation and have been denied by the Premier… To date [she] has not been charged with any offence by the State, notwithstanding the complaint that has been laid by the ANC in this regard, and which is currently being investigated by the HAWKS.”

He argues that, had Mtyala wanted to refer to the ANC’s allegations against Zille, he then should have written that Scheepers had been “alleged” to have been hired by her to spy on the opposition. “It would then have been made clear that this was and is only [an] allegation … and where it derives from, and in so doing enable readers to evaluate its probability themselves…”

Oliver replies that:

·         Mpofu has not provided the newspaper with a written consent from Zille regarding the request for an apology;

·         the ANC in the WC has lodged a criminal complaint about the “Zille spook matter”;

·         the SAPS had considered this complaint so seriously that it was elevated to the highest level for investigation (the Hawks); and

·         Mpofu should withdraw his complaint, pending the completion of the Hawks’ investigation.

In later correspondence (to which, according to my records, Mpofu did not have the opportunity to respond), she adds that the newspaper did provide Mpofu with an opportunity to answer questions on this matter, which he refused to do at the time. Oliver also argues that Zille was the head of the provincial government, and that it was therefore disingenuous for Mpofu to say that this government, and not Zille, concluded the contract with Scheepers’s company. She points out that Mpofu himself said that the contract had been discussed in the provincial cabinet.

Oliver also notes that Zille was the first “to come to the defense of and highlight … Scheepers’s civil claim against the SAPS” – therefore, she argues, it cannot be reasonably true to aver that Zille did not know Scheepers. She adds that Zille had access to Scheepers’s affidavits (according to a statement dated 23 October 2015, issued by Mpofu himself).

She concludes that the matter was “being investigated by the Hawks in order to ascertain the merits of this complaint”.

Mpofu counters that, when he complained on behalf of Zille, he acted with her full authority and consent. “I have never encountered a situation where I have [had] to submit any letter of consent.”

He also rejects the rest of the Cape Times’s argument – he says the fact that the matter had been reported to the SAPS and was investigated by the Hawks did not allow the newspaper to report wrongly and irresponsibly on this matter.

Analysis

I am dismissing the newspaper’s request (aimed at Mpofu, but also intended for me) to wait for the outcome of the Hawks’ investigation before taking a further decision on this matter, as this finding is not likely to interfere with that investigation – the issue is not the statement that the Hawks were investigating Scheepers over the alleged possession of a ‘grabber’, but rather whether the newspaper was justified in stating it as fact that Zille had a spook in her employ.

The headline (Zille’s spook ‘had grabber’) indeed stated this as fact. The introductory sentence did the same, even though the word “spook” was used in inverted commas – if these were meant to cast doubt on the issue of whether Zille had a spook, Mtyala would (or should) have used them to cover both “Zille” and “spook”.

My first observation is not what the publication said in its response to the complaint, but rather what it did not say. Oliver namely did not argue that the Cape Times presented “Zille’s spook” as an allegation, and did not mention the use of the inverted commas at all. I therefore accept that the newspaper intended to portray it as fact.

The following arguments offered by the newspaper are weak:

·         The argument that Mpofu needed written consent from Zille. The spokesman introduced himself as follows before proceeding to lodge the complaint: “I, Michael Mpofu, in my capacity as spokesperson for the Western Cape Premier, Helen Zille, submit this complaint…” – I have never come across any “written consent” from a person represented by a spokesman regarding prior approval to the latter’s actions, neither have I yet encountered any newspaper asking for such condonation;

·         The facts that the ANC in the WC lodged a criminal complaint into the “Zille spook matter” and that the SAPS considered this complaint to be so serious that it was elevated to the highest level for investigation (the Hawks) are irrelevant to this finding – the Hawks’s is not about the possibility that Zille had a spook in her employ, but rather about whether this person possessed a grabber; and

·         The argument that Mpofu did not respond to its questions prior to the publication of the story in question (he did not have the opportunity to respond to this claim as far as this complaint is concerned) is also irrelevant. It is the statement in the story that is in dispute, and not Mpofu’s actions, or lack thereof.

The question whether or not Zille knew about the contract with Scheepers, or knew him personally, is open for debate. I accept that the WC Government used many contractors – and if Zille knew any of them, it would probably be pure coincidence; I also accept that Zille did not identify, interview or appoint contractors. If she was the chairman of the meeting where it was decided to appoint a private contractor, she was just that – a chairman. It was not her decision, and the decision to appoint Scheepers would probably have been made at a later stage by an official or officials.

On the other hand, Scheepers was appointed by and worked for the WC Government, of which Zille was the premier, and the contract itself was signed by a representative of her office. I also take into account that Scheepers was not just another contractor – his job was controversial and sensitive, and I would be rather surprised if Zille did not know about Scheepers.

So again, was the newspaper justified in describing Scheepers as “Zille’s spook”?

I am privy to the contract in question. While it is strictly confidential, I am allowed to use its contents, wherever applicable, to come to a responsible finding in this regard (which is why Mpofu provided me with this document in the first place, for which I thank him).

The following issues are of decisive importance:

·         It is common cause that the WC Government procured Scheepers’s services for the debugging of MECs’ cell phones;

·         In this process Scheepers (or his company) may have obtained access to sensitive information, which he had agreed to treat as strictly confidential;

·         Some people may call this “spying”, while others may not;

·         If the contract between Scheepers and the WC Government has been terminated, it may have influenced my judgment. However, the relevant agreement was to endure indefinitely, unless otherwise decided – and I have no indication that the contract has been terminated as of yet. I therefore accept that he is still in the WC Government’s employ;

·         I accept that, when Mtyala dubbed Scheepers “Premier Zille’s spook”, he did not refer to her in her private capacity – it is clear, also from other media reports, that this never was a personal matter, but rather one between Scheepers and the WC Government (of which Zille is the premier); and

·         As the premier of the Province, Zille is ultimately responsible – also as far as this matter is concerned.

Taking all of the above into consideration, I do not have enough ground to hold the newspaper accountable for calling Scheepers “Zille’s spook”.

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