Ruling by the Press Ombudsman
June 22, 2013
This ruling is based on the written submissions of Ms Pearl Thabiseng (from the Department of Communications) for Minister Dina Pule, and the Sunday Times newspaper.
Complaint
Pule complains about a story in Sunday Times on 21 April 2013, headlined Pule paper trail reveals how her lover’s cronies got jobs. The same story, with a few additions, was published on Times Live on April 22.
Pule complains that the story falsely stated/implied that she had:
· blown R2.6-million on a recruitment deal that led to the appointment of cronies of her boyfriend, Mr Phosane Mngqibisa;
· bypassed Treasury rules;
· ensured that Mindworx (a recruitment firm) had been awarded a R2.6-million deal by her department without a bidding process; and
· appointed her cronies on the boards of Communication without a bidding process.
She adds that the:
· “new documents” that the story referred to did not support the serious averments made by the Sunday Times in the article; and
· newspaper failed to verify the accuracy of the above-mentioned allegations with her.
Analysis
The story, written by Mzilikazi wa Afrika and Stephan Hofstatter, said that Pule blew R2.6-million on a recruitment deal that led to the appointment of cronies of Mngqibisa to the boards of key parastatals. It was also reported that the minister faced a probe by the Public Protector and Parliament’s ethics committee.
The online version materially carried the same content.
Incorrect statements
The veracity of the following sentences/allegations is in dispute:
· The story said that Pule “blew R2.6-million on a recruitment deal that led to the appointment of cronies of her boyfriend, Phosane Mngqibisa, to the boards of key parastatals”;
· The newspaper “…has seen a paper trail of memos detailing how Pule bypassed Treasury rules”;
· “The new documents show that Pule ensured that a recruitment firm, Mindworx, which has links to Mngqibisa…was awarded the R2.6-million without a bidding process”; and
· “The Sunday Times has established that the company (Mindworx) recruited at least five cronies of Pule… – Sentech chairman Thabo Mongake, Post Office chairman George Mothema and board member Buhle Mthethwa, and Universal Access Agency board members Phumla Radebe and Angie Maseka” – the story also made it clear that some of these appointments were “wholly inappropriate” (for several reasons).
Pule complains that these statements:
· were intended to convey the message that she had contravened or circumvented the law in order to enrich her alleged boyfriend;
· did not indicate which rules she had been supposedly bypassing – she says that documents that the story mentioned, referred to was those of the Director-General and her officials who were responsible for the administrative process. “This shows the desperation of the Sunday Times to link the Minister to administrative processes”;
· conveyed to readers that she had been an associate of all the above-mentioned individuals (read: nepotism) “without providing any shred of evidence” to this effect. She states: “On the one hand, the article claims the award was made ‘without a bidding process’ while on the other hand, the same article claims internal memos were issued to the Director-General’s office authorizing a deviation, which is provided for by law”;
· did not offer any shred of evidence to support the allegations of nepotism. She accuses the newspaper of a “misguided reading” of the “new documents” (see below) and of having been reckless and negligent, and states that the publication meant to mislead the public into believing that she had been corrupt; and
· did not support the serious averments made by the Sunday Times in the article that had been “based” on some “new documents”.
Sunday Times responds: “Pule set in motion the events that led Mindworx being awarded a headhunting contract without going out to tender, and that this in turn led to the appointment of board members of parastatals in her portfolio linked either to her or her romantic partner, Phosane Mngqibisa” – she wrote a memorandum on 6 December 2011, requesting the Director-General in the Department of Communications (Ms Rosey Sekese) to assist with fast-tracking the appointment of a recruitment agency for headhunting key personnel.
It explains that, at the time, there were about 14 vacancies for key personnel. The memorandum stated that Pule intended to fill these positions by January (in less than a month – an “unrealistic” target). “This would clearly be impossible to accomplish if normal procurement rules were followed.”
The newspaper says that these rules are contained in:
· Section 217 of the Constitution (an organ of state contracting goods and services must do it in a fair, competitive, transparent and cost-effective way);
· the Public Finance Management Act (all government expenditure must be managed efficiently and effectively);
· Section 76 (4) (c) of the same act (enabling the creation of Treasury regulators in compliance with Section 217 of the Constitution);
· Treasury regulation 16A (applicable to all departments);
· Regulation 11 (a) of the Preferential Procurement Policy Framework Act;
· Treasury’s SCM guide of 2004; and
· Treasury Practice Notice 8 of 2007/8.
The publication argues: “These regulations state that the default position is that a competitive bid process must be followed for all goods and services over R500 000 unless there is a clear emergency, and that a lack of proper planning can never be used as an excuse not to follow a competitive bid process.”
It adds that Pule had already appointed two recruitment companies months prior to the writing of her memorandum, “following a normal competitive bid process, to do the job”.
Sunday Times concludes that Pule’s memorandum “clearly led to the deviation from normal procurement processes, and the subsequent appointment of Mindworx”.
The publication also argues that Pule’s motivations for deviating (namely, that it was critical to fill these posts so that the department can meet national objectives, and that this was urgent due to the 2013 deadline for digital migration) were unconvincing. It says that the deadline was known for several years, and that poor planning could not be used as an excuse for not following normal tender procedures. “It is abundantly clear that the only reason the department felt compelled in this instance to deviate from normal tender rules was because of the minister’s memo.”
The newspaper argues that the reasons given for terminating the services of the two recruitment agencies (using the wrong font in an advertisement, and being supposedly involved in some unspecified misconduct charge against an unnamed employee) appeared to be unconvincing.
With regard to the R2.6-million: The newspaper says that another memorandum by Pule, dated 3 February 2013, stated that Mindworx had been appointed and permission was sought to expand this role to headhunting directors of parastatal boards.
Sunday Times says that, once again, this:
· approval was being sought explicitly based on Pule’s instruction; and
· contract was not put out to public tender (even though it exceeded the maximum amount of R500 000).
Regarding Pule’s “cronies”, Sunday Times says that, amongst other examples:
· SABC CEO Lulama Makhobo has admitted that she was related to Mngqibisa (Pule’s “romantic partner”);
· The latter was the main benefactor from the ICT Indaba;
· A string of Mngqibisa’s and Pule’s friends were appointed on a number of boards falling under her department; and
· An official government press release stated that Pule “chaired the shortlisting and the selection panel”.
The newspaper adds that it spoke to three independent sources who confirmed Mngqibisa’s relationship with six people who were involved in some of the appointments.
Please note: It is not my duty, and indeed not my function, to determine the veracity of the allegations against Pule in the story in question – that is to be determined by another body, such as Parliament’s ethics committee. My one and only interest in this complaint is the question if the newspaper was justified in its reportage at the time of publication.
For this, I turn to Judge J.A. Hefer’s verdict in the matter between National Media Ltd. and Others vs. Bogoshi (ruling made on 29 September 1998).
Hefer said: “…the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time. In considering the reasonableness of the publication account must obviously be taken of the nature, extent and tone of the allegations. We know, for instance, that greater latitude is usually allowed in respect of political discussion…and that the tone in which a newspaper article is written, or the way in which it is presented, sometimes provides additional, and perhaps unnecessary, sting. What will also figure prominently, is the nature of the information on which the allegations were based and the reliability of their source, as well as the steps taken to verify the information.”
Given Hefer’s judgment and the newspaper’s defence to Pule’s complaint, I accept that:
· its reportage was reasonable at the time of publication as I cannot find any loopholes or shortcomings in its arguments as stated above;
· I can allow greater latitude in this case (read Hefer’s, “in respect of political discussion”); and
· the newspaper’s sources were credible and sufficiently independent (as I have no reason to disbelieve it, and Pule did not deny this in her response to the newspaper’s reply).
I also note that, while Pule complains that the story was not “based” on some “new documents”, she has in fact failed to mention exactly which statements in the story she referred to.
Regarding the so-called “new documents”: In a memorandum to the Tender Committee (headlined Deviation from Internal Procurement Procedures, dated 9 December 2011), Pule asked for approval “to deviate from normal tender procedures and issue a closed tender for the appointment of a recruitment agency(s) to assist with head-hunting and the facilitation of the selection process”. This request was granted.
On 3 December 2012, the Ministry of Communication asked for permission from the Director-General “to expand the scope of Mindworx to undertake this work”. This was also approved (on 29 February 2012).
Also: On 6 December 2011 Pule wrote to the Director-General, saying: “…I request the Department to assist me in filling these urgent job position (sic) and fast-track the appointment of a recruitment agency which will assist the Minister with this task of head-hunting of personnel.”
From all of the above, it is clear that Pule asked for a deviation of the rules. Now: The story did not say that Pule illegally bypassed Treasury rules – just that she had bypassed them. To my mind, there is no material difference between “deviating” from rules (Pule’s word) and “bypassing” them (the newspaper’s word).
Based on all of the above, I can only conclude that the newspaper’s reportage on this point was fair and reasonable.
No verification
Pule complains that the newspaper failed to verify the accuracy of the above-mentioned allegations with her.
This part of the complaint is inexplicable. Pule herself provided this office with a list of several probing questions from the reporters – to which she did respond.
Finding
The complaint is dismissed in its entirety.
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 Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman