Quraysh Patel vs. City Press

This ruling is based on the written submissions of Mr Quraysh Patel, former chairperson of the board of Sentech Ltd., and the City Press newspaper, as well as on a hearing that took place on November 29 in Johannesburg. The two members of the Press Appeals Panel who assisted me were Susan Smuts (press representative) and Ethel Manyaka (public representative). Patel complained in his personal capacity, while the newspaper’s delegation was led by its lawyer, Mr Willem de Klerk.

Patel complains about a story on the front page of the business section of City Press, written by Andile Ntingi, published on August 1, 2010 and headlined Hijacking of Sentech – Auditors of a company owned by communications minister at centre of corruption allegations.

At the hearing, it emerged that the main complaint boils down to the following:

Patel also says that the following statements in the story are false and/or misleading:

The first two sentences of the story summarise its content: “Ntumba Incorporated, the auditors of a company owned by Communications Minister Siphiwe Nyanda, is at the centre of financial mismanagement and irregular expenditure allegations at Sentech. Sentech, the loss-making state-owned broadcast signal distributor, falls under Nyanda’s watch.”

The story also states that the newspaper is in possession of documents that show that auditors (Ntumba Incorporated) authorized six payments of R1.1 million to themselves and a board member who hired them. This allegedly took place while Cassim was still on Sentech’s payroll. Sentech spokesperson Nthabeleng Mokitimi reportedly said that the newspaper’s information was “select and maliciously meant to discredit the board, and cause confusion and disarray in the public spectrum”.

We shall now consider the merits of the complaint:

The main complaint:

Let us firstly look at the background to this part of the complaint.

When Ntingi had phoned Sentech for information for the story in dispute, he was told to e-mail his questions. Sentech spokesperson Nthabeleng Mokitimi responded almost immediately. She affirmed that Mr Melusi Dhlamini was a non-executive member of the board as well as chairperson of the Turnaround Committee. She also said that the matter regarding Cassim, the finance department “and others” were sub judice and that Sentech could therefore not respond to related questions.

She added the following, which has become the crux of this part of the complaint: Sentech, she wrote, was “unable to respond to any content relating to the document in your possession until such content can be verified and confirmed as authentic and originated within the Company”. She also said that Patel was available to personally respond to Ntingi “once appraised with the (relevant) documents”.

Patel complains that the newspaper failed to make available documents in its possession so that he could verify their authenticity before he would comment. This, he says, is indicative of the bias demonstrated against the parastatal.

City Press says that it did not supply the documents in its possession “for fear of identifying confidential sources of information, which City Press has a duty to protect…” It also accuses Sentech of being evasive in its response.

Patel argues that the protection of sources “does not extend to the protection of documents (provided by sources)” from being disclosed. It says that the newspaper should explain why its sources would be compromised if the documents are made available. It adds: “The mere fact that City Press alleges that the disclosure of the documents would compromise the source is not a sufficient reason not to make the documents available.”

At the hearing, Patel explained that he had to be sure which documents Ntingi had in his possession before he could meaningfully respond to the journalist’s questions. He was also unsure if these documents referred to matters relating to the old board or to issues regarding the new board.

The panel feels that the newspaper was under no obligation to provide Patel with any document (it is not standard journalistic practice to reveal documents). The newspaper’s argument that its journalist was scared that its source may be revealed if it did furnish Patel with the documents should also be taken seriously. Even though it is not clear to the panel exactly how any source may have been compromised by such an action, it still remained the newspaper’s prerogative to make that decision.

At the hearing, Patel said that Ntingi did not make proper inquiries and that he did not do enough to verify his information.

Firstly, he stated that Ntingi’s questions to him were insufficient in that “he did not put everything to the other side”. He also referred to a story in the Sunday Times headlined Sentech head resigns after charges (published on July 11). He stated that Ntingi used this article for his story and wanted to know why the reporter did not ask him questions especially with regards to Cassim. Patel added that the journalist also did not go to the trouble to get documents from Sentech.

Secondly, Patel asked whether or not Ntingi had asked Sentech’s shareholder (the Minister of Communication), the Parliamentary Portfolio Committee, the Public Protector, and the Auditor-General for comment. His contention was that Ntingi had been under an obligation to verify his information, and that he had failed to do so.

City Press explains that Ntingi approached Sentech more than two days before publication – by telephone and via e-mail. Ntingi testified at the hearing that he had tried to get comment from the Minister, from Treasury and from Ntumba Inc – but said that these were all unsuccessful.

The newspaper adds that Ntingi used three, independent, senior sources – two from Sentech and one from the Department of Communication.

On July 29 he stated via e-mail that he had information that indicated that Dhlamini had been paid R150 000 by the parastatal. Ntingi also said that Dhlamini had appointed several consultants, including Mr Ntumba from Ntumba Inc.

The panel: Firstly, we look at Ntingi’s alleged failure to make proper inquiries.

Ntingi’s questions to Sentech were:

We feel that Ntingi cannot be faulted on this issue: He had three sources and he did try to get comment on a number of important issues, as stated above. The fact that the journalist never asked Sentech specific questions about Cassim may be noted as an omission, but it can hardly be described as a breach of the Press Code.

Moreover, when asked at the hearing which questions Patel needed clarification on, he indicated from questions 3 to 6. This leaves the question on why the consultants were appointed, as well as the one about procurement procedures – questions that, according to his own admission, he could have answered without getting the documentation that he had asked for. The story would have read somewhat differently if he at least responded to these two questions.

With regards to the second part of the complaint (namely that Ntingi failed to verify his information), we have decided to withhold any comment on this issue at this stage; we shall come back to it at the end of the analysis (under the heading “Back to verification”).

Meanwhile, we note that the story says that Ntumba had not returned the newspaper’s calls in time for publication. It is unfortunate that Ntingi did not also state that he tried to contact the Minister and Treasury – if indeed he did. (The way in which the story reports on Sentech’s responses to its communications is a separate complaint that we still have to deal with.)

The story says: “In a clear breach of the Public Finance Management Act… Melusi Ntumba and (Vhonani) Mathebula authorized payments to Mesuli Dhlamini, a Sentech board member.”

Patel complains that this statement directly accuses him of breaking the law. This, he says, is untruthful and defamatory.

City Press explained at the hearing that it came to this conclusion based on authorized (but irregular) payments to Dhlamini, as well as Mathebula who had irregularly (and unlawfully) authorized a payment as “Acting CFO”.

Patel countered that he and the board immediately acted when they heard of Mathebula’s actions, disclosing the information to concerned parties.

The panel: It should be kept in mind that the story does not attribute the statement to a source, it also does not use the word “allegedly” – it states it as a (“clear”) fact.

So Ntingi was asked at the hearing which part of the relevant Act he was referring to. It emerged that he has never even read the Act. Suddenly, it was not so “clear” anymore if in fact the Act was violated and, if so, which part of it was relevant.

This is problematic – Ntingi clearly came to a conclusion without measuring action against the Act. Yet he dished up his conclusion as a fact. If he had verified it, he should have mentioned it in the story.

Patel complains that the story reflects that financial mismanagement has been condoned by the board (of which he was the chairperson).

Although the intro to the story says that Ntumba Inc. is at the centre of “financial mismanagement” (and irregular expenditure), there is no sentence to the effect that Sentech’s chairperson or board “condoned” mismanagement. However, this is the underlying message of the whole story.

The story does mention the following, amongst others:

At the hearing, City Press asked what was it to think when Dhlamini, each time indicating his authority to approve invoices by contractors, sign as “Acting CFO”. Amongst these invoices were those of Ntumba Inc. itself, “resulting in a situation where a contractor authorizes payment of its own invoices”.

Whether the newspaper was correct in all its statements or not, is not for the panel to decide. We are not a court of law. We can, however, state that, given its sources and the fact that Patel did not respond to some vital questions, the newspaper was in general justified to create the impression that financial mismanagement had been condoned.

Note that this does not go to say that we are finding that Patel indeed acted unlawfully.

The rest of the complaint:

The sentences in dispute read:

City Press says that there is no indication that proper procurement processes were followed in the appointment of these consultants, which commenced a mere two days after R3 million was approved for the project. It adds that a senior executive source within Sentech as well as a senior source within the Department of Communications confirmed that such processes were not followed.

Patel replies that the newspaper relies on an “indication” to state as fact that no proper processes were followed. It says that it is for the newspaper to prove that no (proper) process was followed. “Unless this fact is proved, the allegation cannot stand.”

At the hearing, Patel said that the board was ultimately responsible for appointments. He testified that he himself advised Dhlamini to appoint the consultants, explaining that he was forced to take extraordinary measures in extraordinary circumstances.

He also said that there was no need to put out a tender.

Regarding the first sentence in dispute, the panel notes that:

With regards to the second sentence, Patel explained at the hearing that there was no need to put out a tender. He testified that he got legal opinion on this matter before he acted.

The story attributes this sentence to a (single) source – without any indication that this statement was verified. The use of one anonymous source without verification is a dangerous journalistic practice, as it puts a question-mark behind the credibility of this source.

The story says: “(Sentech spokesperson Nthabeleng) Mokitimi refused to explain why a company owned by Dhlamini was doing consulting work on the turnaround strategy to which he, as a non-executive board member, provided oversight.” (emphasis added)

Patel complains that it is not true that “a company owned by Dhlamini was doing consulting work”.

At the hearing, he explained that Dhlamini was doing the work in his personal capacity – it was not his company that did the work. The payment, however, went to his company.

Patel said that it boiled down to Dhlamini saying: “I do the work – but don’t pay me, pay my company.”

This, he attested, was common practice.

City Press says that during the period April 30 to May 26, the appointed consultants submitted a number of invoices for services rendered to the Turnaround Committee. The newspaper says that these invoices were promptly approved and paid – and that it is in possession of these invoices.

The newspaper adds that:

It concludes: “It therefore appears that Dhlamini appointed his own company as a contractor in a project overseen by himself; and then had another contractor in the same project, which he appointed, authorize payment.”

The panel notes Patel’s explanation that Dhlamini was doing the work, whilst his company (of which he was the sole director) received the money; we also note Patel’s statement that this is common practice. Granted.

However, we also believe that it was justifiable for Ntingi to report that Dhlamini’s company was doing consulting work for Sentech on the basis that the company was getting paid (the invoices at our disposal are all made out by the company, not by Dhlamini).

The following sentence is in dispute: “But the firm has been paid in the blink of an eye when presenting the invoices, while important creditors have not been paid.”

At the hearing, Patel denied that any creditor ever came to him for payment. He also asked why the story neglected to name these “creditors”.

Ntingi admitted at the hearing that he “did not check” who these creditors were.

The panel notes that the journalist again used a single anonymous source, without verification.

The story mentions a “turnaround strategy” several times. In one instance, it says that consultants were to “provide” Sentech with a turnaround strategy; in other instances it uses the word “assist” (twice) and the phrase “doing consulting work on the turnaround strategy”.

Patel complains about the word “provide” – the consultants were merely to assist Sentech with a business plan.

City Press, at the hearing, admitted that the use of the word “provide” was technically not correct, but also pointed out that it did use the word “assist” twice.

The panel notes that the use of the word “provide” was technically not correct.

The story quotes a source who said: “The business plan hasn’t been accepted by the Treasury because it is flawed.”

At the hearing Patel explained that the sentence is wrong on two accounts:

He added that this approval had come one month prior to the publication of the story in dispute – a fact that Ntingi as a senior business reporter should have known about well in advance.

Ntingi admitted at the hearing that he had never read the business plan.

The panel: This kind of reportage is what happens when a journalist quotes a single, anonymous source without verifying the information.

The sentence in dispute reads: “It is not clear how consultants who were employed to provide a turnaround strategy acquired executive powers to run Patel’s finance department.” (emphasis added)

City Press says that Mathebula approved invoices by contractors appointed by Dhlamini, each time indicating his authority to do so as “Acting CFO”. Amongst these invoices were those of Ntumba Inc. itself, “resulting in a situation where a contractor authorizes payment of its own invoices.”

Patel testified at the hearing that there was no question of consultants acquiring executive powers. He explained that an Expenditure Committee (EC) had been established that consisted of people representing various constituencies. The consultants were part of this EC. The “executive powers” that the sentence refers to were delegated powers. The only “power” that the consultants had, he said, was to “recommend” (and not to “approve”).

Ntingi, at the hearing, admitted that he did not know of the existence of the EC.

The panel notes that Ntingi denied that his sources told him about the EC. We have no reason to doubt this testimony – and therefore we can also not blame him for not knowing. Moreover, if Patel responded to his questions, there was a real possibility that he would have given the journalist this information. We also considered the fact that contractors did sign invoices – only Ntingi did not know that these signatures were recommendations and not instructions.

It was not unreasonable for him to come to the conclusion that consultants had acquired executive powers when nobody told him what the real situation was.

The sentence in dispute says: “…Ntumba Incorporated approved six invoices despite the presence of Cassim who, according to sources, was allegedly sidelined and stripped of his powers in mid-April by the Sentech board for refusing to authorize the payments.”

Patel said at the hearing that this sentence implies that Cassim was sidelined because he acted with integrity; however, there was a case against him that rather indicated the opposite. The story therefore misrepresented the situation. Patel explained that a breach of confidence between the board and Cassim had developed and that he was therefore not allowed to pay out amounts larger that R100 000.

City Press says that it relied on its sources regarding this issue, adding that it is common cause that Cassim was eventually suspended (at the end of June) and that he has launched a legal challenge to his suspension.

The panel feels that Patel’s version of this matter was credible and that Ntingi should have been more skeptical regarding the information his sources gave him. However, this (in itself) cannot be seen as a breach of the Code.

Yet: The story in the Sunday Times that has already been referred to indicates clearly the reasons – as seen from Patel’s side – why Cassim had been “sidelined and stripped of his powers”. These reasons include a breach in their trust relationship, Cassim submitting materially incorrect statements, failing to ensure that Sentech timeously paid VAT of more than R150 million, etc.

Ntingi testified that he had used this story as a background for his own; he also said regarding one other statement that he regarded it to be true “because it was published”. Yet he omitted the above-mentioned “information” regarding Cassim and opted to create the impression that he got the boot for acting with integrity.

This is not to say that he should have taken the board’s reasons as the truth, the whole truth and nothing but the truth – but surely, for the sake of fairness and balance, the story should at least have mentioned it.

The story says: “According to sources, Cassim’s refusal to authorize irregular payments made him a marked man, resulting in his suspension by the parastatal’s board for ‘gross negligence’ at the end of June.” (own emphasis)

The complaint is about Cassim being “a marked man”.

The panel feels that, based on Patel’s evidence at the hearing, it was justified for the newspaper to label him as “a marked man” – he was later suspended by the board for “gross negligence”. Also, this is what Ntingi said that his sources told him.

The sentence in dispute reads: “According to sources, senior Sentech staff employees were dismayed when Dhlamini roped in the auditing firm, which is regarded as a novice in the information and communication technology (ICT) sector, to help draft the company’s three-year business plan.”

Mr Melusi Ntumba, who also attended the hearing as Patel’s witness, said that its company had ten years experience – and that this information was readily available, also on the internet.

The newspaper conceded at the hearing that its reportage on this issue was not correct, and that it had never checked this information.

The newspaper says that the headline and sub-headline (Hijacking of Sentech – Auditors of a company owned by communications minister at centre of corruption allegations) give a reasonable reflection of the contents of the story. It said at the hearing that the description in the report of contractors having acquired “executive powers” is nothing less that “hijacking” – it added that this was borne out by the available facts.

The panel: Based on what the newspaper believed at the time of publication, and on the contents of the story, the newspaper was justified to use this headline as it was a true reflection of the content of the story (as the Press Code dictates). This goes for the sub-headline as well as it states “corruption allegations” – which the story indeed contains.

Patel complains that Sentech’s second e-mail to the newspaper (a day before publication) was not reflected sufficiently in the story.

This e-mail states that:

Patel complains that the newspaper failed to report the full text of its (brief) statement. This, it argues, further demonstrates the newspaper’s bias.

The story incorporates Mokitimi’s first and fourth statement.

The panel agrees that the newspaper was under no obligation to publish the full statement, but also thinks that the reporter should at least have mentioned Sentech’s last statement – its denial concerning irregularities regarding the appointment of consultants.

On the matter of verification: The panel notes that on various occasions the journalist did not check his facts, for example the allegation that the Public Finance Management Act was breached.

Here are some more examples (all by the newspaper’s own admission):

It is important to verify information in order to ensure that news is reported truthfully, accurately, fairly and balanced. An important rule for a journalist is to first doubt whatever s/he hears and then verify it before reporting it.

We have given Ntingi the benefit of the doubt in most instances where he used more than one (unnamed) source.

 The main complaint:

The newspaper was under no obligation to provide Patel with any document. This part of the complaint is dismissed.

The complaint regarding the making of proper inquiries is dismissed.

Regarding verification: The journalist did not properly check his facts regarding the sentence/allegation that:

This is in breach of Art. 1.4 of the Press Code that states: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such a report.”

This sentence was dished up as fact, without verification or attribution. This is in breach of Art. 1.4.

Based on the information at his disposal, the journalist was justified in his reportage (which does not mean that the panel finds Patel to have acted unlawfully). This part of the complaint is dismissed.

The rest of the complaint:

The reporter based the first sentence in dispute on his sources. The panel gives him the benefit of the doubt and dismisses this part of the complaint.

The second sentence is based on a single source, the information of which was not verified. This is in breach ofArt. 1.4 of the Press Code.

It was reasonable for the journalist to believe that Dhlamini’s company was doing consultation work for Sentech as this company was receiving the money (and issued invoices). This part of the complaint is dismissed.

The journalist again used a single anonymous source, without verification. This is in breach of Art. 1.4 of the Press Code.

Although use of the word “provide” was technically not correct, the newspaper did report correctly in other instances where the same matter was dealt with. The newspaper can be forgiven for this slip-up. This part of the complaint is dismissed.

Ntingi again quotes a single, anonymous source without verifying the information. This is in breach of Art. 1.4 of the Press Code.

The journalist can be forgiven for coming to the conclusion that consultants had acquired executive powers. This part of the complaint is dismissed.

The story should have reflected Patel’s version of this matter. This is in breach of Art. 1.2.2 of the Press Code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

The story justifiably labeled Cassim as “a marked man”. This part of the complaint is dismissed.

The newspaper’s reportage on this issue was not correct, and it also was not verified. This is in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news truthfully, accurately and fairly.” It is also in breach of Art. 1.4 of the Press Code.

The newspaper was justified to use this headline and sub-headline as it was a true reflection of the content of the story. This part of the complaint is dismissed.

The story omits information that would have brought more balance to the story. This is in breach of  1.2.2 of the Press Code.

City Press is:

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at [email protected].

Johan Retief

Deputy Press Ombudsman

Susan Smuts

Press Appeals Panel: Press Representative

Ethel Manyaka

Press Appeals Panel: Public Representative