Cash Paymaster services vs. The Sunday Independent

This ruling is based on written submissions by Mr David Barritt, on behalf of Cash Paymaster Services (Pty) Ltd, and The Sunday Independent newspaper.

Complaint

Cash Paymaster Services (CPS) complains about a story headlined Staffer fears for his life over R10bn tender saga, published in The Sunday Independent on 14 July 2013.

The company complains that:

• the story unfairly and inaccurately said that there were irregularities involving the granting of a contract;
• it was not asked for comment; and
• the journalist omitted material information.

Introductory comment

Barrit has asked in his original complaint for a right of reply – a request that the newspaper has promptly granted. However, at a later stage CPS indicated that a mere right of reply would not suffice and subsequently insisted on adjudication by this office, this time asking for an apology. I was uncomfortable that Barrit has changed his request for a sanction, but the editor assured me (as a gesture of good faith) that it was in order for me to take on the case.

I need to thank the editor for this open-minded approach, and assure everybody that this issue will not influence my finding in any way (though needless to say).

Analysis

The story said that a CPS official involved in the awarding of a R10-billion social grant tender feared for his life and that he had been given bodyguards by his employer. This came after CPS had been awarded a contract to administer social welfare grants to more than 16 million South Africans in 2012. Mr John Tsalamandris, the secretary of the South African Security Agency (Sassa), had reportedly blown the whistle “on irregularities in the process of awarding the five-year contract to Cash Paymaster Services…” This matter is contested in the Constitutional Court by the losing bidder (AllPay, a subsidiary of Absa).

Irregularities

The sentence in dispute said that Tsalamandris (who took the minutes at a meeting) “blew the whistle on irregularities in the process of awarding the five-year contract to Cash Paymaster Services”. Elsewhere, the story also reported that Sassa officials had been involved in irregularly awarding the contract to CPS.

CPS said that a full bench of the Supreme Court has found that there were no irregularities involved “and while the losing party is now asking the Constitutional Court to reopen this matter, it is untruthful to print a statement saying categorically that there were irregularities”.

The newspaper denies that the Supreme Court said that the process was free of irregularities – it says that the court described the irregularities as “inconsequential” (according to CPS, the Court said that even if there were no irregularities, AllPay could not have been awarded the tender).

CPS replies that The Sunday Independent ignored the substance of the Supreme Court judgment “that was extremely critical of AllPay” and accuses the newspaper of defending its story by now referring to “inconsequential” irregularities. Barrit calls this a “complete distortion” of the Supreme Court judgment.

I note that the court’s alleged use of the words “inconsequential irregularities” is not in dispute by any party; I therefore take it to be true that the court did use those words (as a working hypothesis) – which means that, on the face of it, the use of “irregularities” without the qualification of “inconsequential” may have been an over-statement.

But let me look a bit further:

• Even though the Supreme Court may have used the word “inconsequential”, the matter was now up for review by the Constitutional Court – a phrase which may therefore yet be overturned;
• More importantly, the story itself was not about what the Supreme Court had decided, but rather referred to papers that were in front of the Concourt – which means that the newspaper was not obliged to reflect the first court’s decision (as the story was not about that court’s decision);
• In addition, the story qualified the use of the word “irregularities” in its third sentence, which said that this was “claimed” in papers by AllPay (a statement that CPS does not dispute, and which I therefore take as being true); and
• When read in context, every other reference in the story to “irregularities” can be ascribed to AllPay – the reporter did not state this allegation as fact (he could not, as the matter was still before the Concourt).

Not asked for comment

CPS complains that the newspaper did not ask it (a “vitally affected party”) for comment, although the reporter did include statements by both AllPay and Sassa. While Barrit adds that the journalist had the right to quote from a public document, he maintains that it was unfair of the journalist not to have asked CPS about the truthfulness of the allegations. Had he done so, the company says it could have put the matter in context and that it would have “comprehensively responded” to the comment about its alleged “ulterior motives”.

(The story reported that AllPay had said that “irregularities came about due to an ulterior motive and not by innocent error”.)

The newspaper says that it did try to contact CPS, but adds that it may not have rigorously pursued the company’s response. Yet, “…we believe it’s a court case involving substantial public funds and arguments for the truthfulness or otherwise of AllPay’s statements are for the court to deliberate on”. It reiterates that the story was based on court papers “and we attributed accordingly”.

The publication adds that:

• it was not for CPS to determine the truthfulness of the statements, as the matter was before the country’s highest court;
• AllPay were directed to file its written arguments by July 5, which it did – “hence we were able to access its documents”; and
• CPS was to respond by July 22, but the file that it obtained from the Concourt registrar did not reflect a response by that company (at the time).

CPS replies that the newspaper’s statement that it did not rigorously pursued its response was another chimera “because if the newspaper had tried to contact us at all, the reporter concerned would have been able to say whom he tried to contact and when, which he has not done”.

While I have not seen AllPay’s documents that are before the Concourt, I accept that where the story quoted this subsidiary it did so from these documents, and not because it contacted that company for comment – nowhere does CPS deny that the quotes came from AllPay’s documentation; instead, it (correctly) admits that the newspaper had the right to quote from public documents.

In any case, it would have been irregular for the publication to have spoken to any of the parties concerned, as this may have prejudiced the pending court case.

I therefore do not blame the newspaper for not having spoken to CPS in order to get its comment.

Omitting material information

CPS says that while it accepts that the story was substantially based on AllPay’s submission to the Constitutional Court, the journalist made no mention of other pertinent court documents – such as a sworn affidavit by Tsalamandris distancing himself from statements he allegedly made in a secretly taped meeting, and saying that he was wrong to imply that there were irregularities in the awarding of the Sassa tender to CPS. Barrit adds that the Supreme Court refused to even consider the tape recorded allegations, saying that “smear and innuendo” had no place in the courts.

The newspaper does not reply to this specific part of the complaint.

It need not have to – the aim of the story was not to portray an encompassing report of the whole issue. When the Concourt deliberates on this matter, then will be the time to put all the strings together.

Finding

The complaint is dismissed in its entirety.

General comment

If the newspaper is willing to publish CPS’s side of the story, I suggest that it does so from court papers. However, I am not willing to direct it to do so as I do not believe that it has done anything wrong with regards to the story in dispute.

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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman