Appeal Hearing Decision: Koko Matshela Jeremiah vs News24

Mon, Apr 4, 2022

BEFORE THE APPEALS COMMITTEE OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between:

Koko Matshela Jeremiah Appellant

and

News24 Respondent

Matter No: 9322/10/2021

DECISION

This is an appeal by Mr Koko Matshela Jeremiah (appellant) against the Ruling of the Deputy Press Ombud of the Press Council of South Africa, given on 10 December 2021. In his Ruling, the Deputy Press Ombud dismissed the appellant’s complaint against News24 (respondent) in its entirety. The appellant had lodged a complaint against the respondent in respect of an article published by the latter on 25 October 2021 with the headline “Matshela Koko’s alleged cooking of Eskom’s books: 5 things you need to know.”
The appellant worked for Eskom for many years, until he left in February 2018. News24 says – which does not appear to be disputed – that Mr Koko was appointed Eskom’s Group Executive for Technology in 2014, and as Group Chief Executive Generation and Technology in early 2016 before being appointed Acting Group Chief Executive in December 2016 . It is therefore common cause that he held a very senior position.
Prior to the publication of the story the respondent sent a number of questions to the appellant, which he answered. One of the questions caused the appellant to refer the respondent to a document which later turned out to be one of the pillars of the appellant’s case; it is a document described by the appellant as a page 130 of Eskom’s audited Integrated Report of 31 March 2021. Respondent’s above article about appellant’s services at Eskom was not its first. The appellant’s complaint, on which the appeal turns, is on the following statement contained in the article:

“News24 found that an increase in planned maintenance in 2015 was not sustained during Koko’s tenure, which, in addition to damaging practices of running power generations units hard led to a sharper than expected increase in unplanned breakdowns after his departure”.

The complaint comprises three parts, all of which are denied by the appellant; he argues that respondent stated the three accusations against him as a fact, whereas they are not true. For the sake of convenience, it would be better to deal separately with the three legs of the complaint.

“News24 found that an increase in the planned maintenance in 2015 was not sustained during Koko’s tenure …”

The appellant’s gripe is that the statement states as a fact that an increase in the 2015 planned maintenance was not sustained during the appellant’s tenure, whereas, according to him, that was not true. He submitted a copy of page 130 of Eskom audited Integrated Report of 31 March 2021 to show that the increase was sustained. The appellant couched his complaint as follows:

“3. The measure of planned maintenance at Eskom is the planned capability loss factor and it is abbreviated as PCLF. It is published annually in the Eskom financial statements.

I attached page 130 of the Eskom Integrated Report of 31 March 2021 with this complaint.
News24 says it found that an increase in planned maintenance in 2015 was not sustained during Koko’s tenure. This publication is not supported by the audited facts in the Eskom Integrated Report of 31 March 2021.
The planned maintenance factor (PCLF) in 2015 was 9.91%. In 2016, 2017 and 2019 (presumable 2018) the planned maintenance factors were 12.99%, 12.14% and 10.35% respectively. All these during my tenure.
On a factual basis and during my tenure the planned maintenance was sustained above what was achieved in 2015. The publication by News24 is not factual. It is not truthful, it is not accurate, and definitely not fair”. (Please note the portion we emphasize, the significance of which we return to later).

In response, the respondent does not differ much with the above figures relating to the planned maintenance, although the figures it gives are slightly different; the differences are immaterial to the dispute and, in any event, one would be inclined to go along with the figures in the audited financial statements. What then is the real dispute between the parties?
Appellant agrees that there was an increase in planned maintenance in 2015 (9.99%) as stated by the respondent; however, he argues that, in relation to 2015, there were also increases gained under him in 2016 (12.99%), 2017 (12.14%) and 2018 (10.35%) even though they were not consistent; in fact, they gradually went down from 2016 to 2018. On the basis of his understanding of the dispute, the Deputy Press Ombud rejected appellant’s argument and dismissed his complaint.
We differ with the way the Deputy Ombud perceived, and thus dealt with, the dispute. He says the following in his Ruling:

“3.2.2 Koko points out that the PCLF (Planned Capability Loss Factor) was ‘sustained above what was achieved in 2015’. This is indeed the case, based on both figures provided by Koko and News24….

3.2.3 However, that is not the issue that is in dispute (yet with all due respect that is the issue in dispute). What is in dispute is the veracity of News24’s statement in the article that ‘an increase in planned maintenance in 2015 was not sustained during Koko’s tenure.” (Deputy Ombud’s own emphasis). With respect, it is the same issue but formulated (positively) from Koko’s perspective, and negatively formulated (with emphasis) from News24’s perspective. In other words, Mr Koko says the increase was sustained, but News24 says it was not sustained. Thereafter the Deputy Ombud came to this conclusion:

“3.2.4 This claim (News24’s) is supported by the PCLF data provided by both parties: there is a continued decline after 2015 (even though, as Koko correctly submits, the PCLF was higher than what was achieved in the 2014/2015 financial year). (Own emphasis). On that basis, he ruled that the reportage was accurate and fair.

The Deputy Ombud’s Ruling is thus based on the fact that “there is a continued decline after 2015”. Apparently News24’s case was also based on the fact that there was a decline after 2015, which is why it argues that on Mr Koko’s own version the 2015 increase was not sustained. With respect the Deputy Ombud missed the point. What the article says is that the 2015 increase (which was an improvement on 2014) was not sustained during 2016, 2017 and 2018. The real question is therefore whether the 2015 increase (9.99%) was lost, that is, as News24 says, was not sustained during those three years. If it was not lost, it would be irrelevant whether there was a decline or not (say from 2016 t0 2017) as long as any decline, if any, did not fall below the 2015 increase of 9.99%. News24 chose the 2015 statistics as the point of reference, and it is on 2015 that we must focus. That the statistics of those three years are inconsistent amongst themselves is irrelevant because consistency is not the issue here. Right at the beginning Mr Koko made the point that during his tenure “the planned maintenance was sustained above what was achieved in 2015.” (Own emphasis).

His case is therefore that, even if there was a decline from 2016 to 2018, he sustained the 2015 increase inasmuch as at no time did the levels in 2016 (12.99%), 2017 (12.14%) and 2018 (10.35%) ever fall below the 2015 increase of merely 9.99%. He argues, in effect, that in all those three subsequent years he actually surpassed the 9.99% of 2015, albeit inconsistently (which is not the issue here). The real question is therefore whether, with the dispute properly understood, Mr Koko’s statement is correct.

To answer that question, one must compare the statistics of each one of the three years with those of 2015, a year chosen by News24 as the year of reference; that is, look at 2016 (12.99%) and compare it with 2015 (9.99%); then 2017 (12.14%) and likewise compare it with 2015 (9.99%) and finally 2018 (10.35%) compared with 2015 (9.99%). Looking at these figures, it is clear that the article was not correct in saying that Mr Koko failed to sustain the 2015 increase during 2016, 2017 and 2018. Notably, the Deputy Ombud says that “as Koko correctly submits, the PCLF was higher than what was achieved in the 2014/2015 financial year”. With respect, that should have ended the debate in favour of Mr Koko. It is therefore factually incorrect to say, as the article does, that the 2015 increase was not sustained over those years! In none of those years did the figures fall below the 2015 increase; that increase was never lost and it was therefore sustained.

News24’ argument that it was referring to a calendar year and not a financial year

The above conclusion is reached on the basis that the parties were referring to Eskom’s 2014/2015 financial year. In fact, the Deputy Ombud also decided the matter on the basis that the article was referring to the financial year (2014/2015). His Ruling was based on the statistics of financial years; see paragraph 7 above. In fact, the Deputy Ombud said his Ruling was based on Mr Koko’s written complaint “and a one-page extract from the Eskom Integrated Report of 31 March 2021…”. The page referred to the statistics of financial years. News24 has, however, come up with another argument. It says that it was not referring to the financial year (2014/2015), but to the 2015 calendar year; that is, from January to December 2015. This argument could turn the case on its head: if the disputed statement was referring to the 2014/2015 financial year, the article was, as shown above, factually incorrect and the respondent must lose the argument. On the other hand, if it is accepted that the statement was referring to the 2015 calendar year, and one accepts the information furnished by the respondent regarding the calendar year, the appellant must lose the appeal. In response to the clarification sought by the panel after the argument, the respondent says that in making the contested statement in the article, it was relying on raw data that had been obtained from Eskom, from which it drew up a table that it submitted to the panel; in other words, that it was not referring to the 2014/2015 financial year but calendar year. We beg to differ. The papers and context show that News24 was in fact referring to the 2014/2015 financial year and not the calendar year (although relying on figures which it nonetheless conceded were not significantly different to those contained in Eskom’s audited financial statements on which appellant was relying). We say the respondent was referring to the financial year 2014/2015, and not the calendar year, for the following reasons:

8. 1 From the formulation and articulation of his complaint, it was clear from the outset that the appellant was referring to the financial years; this is borne out by his reliance on the audited financial year statistics (the page 130 of audited financial statements). Yet in its response to the complaint, the respondent did not clarify that it was not referring to the financial year, but to the calendar year. Given the clear indication by the appellant that his complaint was based on financial year statistics, it was incumbent on the respondent to clarify, in its response, that it was referring to a calendar year and not to a financial year; it did not do so.

8.2 In its response to the complaint, the respondent did not only fail to clarify that it was referring to the calendar year statistics and not to the financial year ones, but actually used a table based on financial year statistics. The table, set out in the form of financial year statistics, is preceded by the following statement: “News24’s own analysis of Eskom performance data which accords largely with the official, audited figures, resulted in planned maintenance figures for each financial year as follows …”. (then followed the table). Own emphasis. It is therefore clear that News24 spoke the language of “financial year” and not that of “calendar year”. The parties, and indeed the Deputy Ombud, were therefore on the same wavelength: they were both talking about financial years; nobody was talking about a calendar year. News24 must fall on its sword.

8.3 Immediately below the financial year statistics ( NB: not calendar year), the following statement follows: “It is apparent that the statement that levels of planned maintenance were not sustained during Koko’s tenure, is accurate. The levels of planned maintenance obviously declined during Mr Koko’s tenure after an initial increase”. This adamant statement is based not on calendar year statistics – if there be any – but on statistics of the financial years. It is the financial years that are set out in the very table on which News24 relies, from 2009/2010 up to 2020/2021.

8.4 It is noteworthy that in support of News24’s argument about damaging practices and the running of units hard, News24 once more relies on financial year statistics, again from 2009/2010 to 2020/2021. Here again there was no whisper of a “calendar year”.

8.5 As indicated above, the Deputy Ombud decided the matter on the basis of financial year statistics himself. This was because the issue of reliance on a “calendar year “ as opposed to a “financial year” was not raised in the papers; nor was it raised and argued before him that way (see 8.1 to 8.4 above). He would have made reference to that aspect in his Ruling.

8.6 News24 argued that the ordinary reader would have in mind a calendar year and not a financial year. That cannot be so. It is well known that State entities such as Eskom account for their operations on the basis of a financial year cycle; any reader informed enough to be interested in, and to follow, the operations of Eskom in the newspaper articles would know that. That is how accountability is enforced. Statistical audited information would not be on a calendar year basis. One cannot simply randomly select months, for example April to September, or January to December. There is a predetermined period for assessment of performance and accountability, which is through the regime of a financial year, to be adhered to every year. The reader would therefore take it that News24 was referring to Eskom’s financial year, unless otherwise indicated. There is no such contrary indication.

News24’s argument that it was referring to the 2015 calendar year in the article therefore had to be rejected; the matter had to be decided, as we have done (and the Deputy Ombud as well) on the basis that the article was referring to the 2014/2015 financial year when it said the increase in planned maintenance of that period was not sustained during the appellant’s tenure.

That the above failure to sustain the 2015 increase in planned maintenance resulted in “damaging practices of running power generation units hard …”

The appellant denied that there were any damaging practices in terms of which power generations units were run hard. He submitted highly technical data to support his case, which we need not get into. The respondent did likewise. The respondent does not say that this accusation is based solely on the statistical information obtained from the audited reports, but from a source within Eskom. The statement therefore stands on an entirely different footing. As the Deputy Ombud said, it was not for him to decide whether or not the respondent’s sources were correct; the question, he correctly pointed out, was whether or not the respondent made efforts to establish the accuracy of its information. He found that that was the case; on top of that, he found that the appellant’s rejection of the allegations was duly recorded. There is no basis for overturning the Deputy Ombud’s Ruling on this aspect. The appeal cannot therefore succeed as far as this point is concerned.

(That the above failure to sustain the 2015 increase in planned maintenance) “in addition to damaging practices led to a sharper than expected increase in unplanned breakdowns after his (Koko’s) departure”.

The plain meaning of the above is that the failure in sustaining the increase in planned maintenance in 2015 not only resulted in damaging practices of running power generations units hard, but also in a sharper than expected increase in unplanned breakdowns after appellant’s departure. That is, both the failure to sustain the increase and the damaging practices led to sharper breakdowns after Mr Koko’s departure.
Before us, the respondent argued that the appellant was raising a new complaint; which he was not entitled to, namely, that it is incorrectly said that his conduct caused the breakdowns that occurred after his departure. But in truth this is not a new complaint. It is necessary to restate appellant’s complaint yet again, right at the beginning, dated 25 October 2021: “News24 has published the following statement ‘News24 found that an increase in planned maintenance in 2015 was not sustained during Koko’s tenure, which, in addition to damaging practices of running power generation units hard, led to a sharper than expected increase in unplanned breakdowns after his departure’.” (Own emphasis) The underlined statement is presented, right from the beginning, as being part of the complaint. It is therefore not correct to say that it was not part of the complaint, and that it is therefore new. What happened though is that the Deputy Press Ombud did not deal with this leg of the complaint. Apparently, he did not do so because he had already agreed with the respondent that the appellant failed to sustain the 2015 planned maintenance increase. We must now deal with it as we cannot refer this single part of the complaint back to the Deputy Ombud for a ruling; moreover, it is intertwined with the above two. In any case we have the discretion to deal with it, and for those reasons, we have decided to do so in order to bring the matter to finality; that is what expeditious resolution of disputes – the fundamental objective of the Code – dictates.
Respondent further sought to deny that it ever alleged a causal link between the two; that is, the link between appellant’s alleged failure to sustain the 2015 increase in planned maintenance on the one hand, and Eskom’s breakdowns on the other. The denial is not well founded. The statement has always carried this causal link, which is why it has always been one of the appellant’s complaints. You can’t remove the causal link because it is said that the failure to sustain the increase “led” to the breakdowns. (Own emphasis). Furthermore, it clearly attributes, infinitely, Eskom’s unplanned breakdowns occurring after Mr Koko’s departure to his tenure in the capacities in which he served.

There are two problems with this linkage. Firstly, as indicated above, it is formulated in such a way that it places no limit on the period for which we should blame the appellant for the country’s breakdowns. As the appellant dramatically makes the point in his written closing argument, the respondent’s above statement, as presently reads, even the load shedding that twice occurred during the hearing of this very appeal on 8 March 2022 – some four years after his departure from Eskom in February 2018 – is still attributable to him! Until when is the appellant going to be held responsible for the country’s load shedding? Secondly and very importantly, continuing to attribute the breakdowns to the appellant long after his departure overlooks the fact that there might have been, and may continue to be, new materially contributing or even causative factors, such as negligence or lack of diligent care of the plants on the part of those who took over after his departure. Yet as formulated, the statement absolves those who came after him or does not leave room for their possible role which was why he argued that the respondent was shielding them at his expense in relation to the ongoing breakdowns. To illustrate the point, the Minister of Finance was reported in the Sunday Times editorial of 13 March 2022 as saying the following: “Eskom’s performance is not different today from what it was in 2008” (long before appellant’s tenure as Group Chief of Technology!). The editorial added its own voice: “In fact, the minister could have added that the situation had got (sic) worse.” Surely this would be after Mr Koko’s departure? It is therefore unfair to blame the appellant, ad infinitum, for Eskom’s unending breakdowns. The respondent has not given facts in support of such a drastic statement. Imperfections at Eskom could not have started with Mr Koko’s tenure and ended with his departure. Faced with this difficulty, the respondent seeks to argue, incorrectly, that it does not allege the causal link, and secondly, that the appellant is raising a new complaint. It is clear that the message that an average reader will get is that the appellant remains responsible for the breakdowns that keep on occurring even long after his departure. As already indicated, the argument that the appellant is raising a new complaint is not correct. Therefore, by stating as a fact that the breakdowns that keep on occurring in this country years after the appellant’s departure are the result of his failure to sustain the increase in maintenance planned in 2015 is unfair and thus in breach of clause 1.1 of the Code.

There is another point which is fatal to the respondent’s statement that the breakdowns are attributable to the appellant. The statement rested on two legs. Firstly, that he failed to sustain the increase in planned maintenance. Secondly, that he ran the plants hard. Because the statement rested on both legs, and there being no claim that anyone of the two legs was enough to sustain the statement, if any one of the two legs falls, the statement falls too. Well, we have held that the first leg is wrong; that being the case, the statement falls.

Conclusion

In light of the above the following Order is made:

15.1 The appeal succeeds, and the Ruling of the Deputy Ombud dated 10 December 2021 is hereby set aside and substituted, but only to the extent indicated in paragraphs 15.2 and 15.3 below;

15. 2 The statement that an increase in the planned maintenance in 2015 was not sustained during Mr Koko’s tenure is not accurate and is therefore in breach of article 1.1 of the Code;

15.3 The statement that an increase in planned maintenance in 2015 was not sustained during Mr Koko’s tenure and that that led to sharper than expected increase in unplanned breakdowns after his departure is unfair and thus in breach of article 1.1 of the Code;

15.4 The respondent is ordered to issue a corrective statement which must:

15.4.1 firstly, contain clarification that the statement in its article of 25 October 2021 that an increase in planned maintenance in 2015 was not sustained during Mr Mantsha Koko’s tenure at Eskom was not based on the audited financial statements of Eskom, and that the increase was, according to Eskom’s audited financial statements, sustained;

15.4.2 secondly, state that to the extent that the above article gave the impression that the continuing Eskom’s breakdowns are attributable to Mr Matshela Koko, such statement is not justified and is unfair and is retracted;

15.4.3 the corrective statement must be submitted to both Mr Koko and the Executive Director of the Press Council, for pre- publication approval by the latter, within 5 days after the date of this Order, and to which Mr Koko must, if so advised, respond within 3 days of its receipt;

15.4.4 in the event of a disagreement between the parties on the content of the proposed corrective statement, the version approved by the Executive Director shall be the one to be published;

15.4.5 the date for the publication of the corrective statement shall be determined by the Executive Director.

15.4.6 the corrective statement must enjoy the same prominence as the article of 25 October 2021.

Dated this 4^th day of April 2022

Judge B M Ngoepe, Chair, Appeals Panel

Mr J Thloloe. Media Representative

Mr R Mnisi, Public Representative