Leonard Chuene and Athletics SA vs Sunday Times

Wed, Feb 29, 2012

Ruling of Ombudsman’s Panel:

            Lizeka Mda, Press Appeals Panel (press representative);
            Ethel Manyaka, Press Appeals Panel (public representative); and
            Joe Thloloe, Ombudsman.
August 13, 2009        
Mr Leonard Chuene, President of Athletics South Africa, complained that on March 9, 2008 and on March 16, 2008, Sunday Times published articles by journalist David Isaacson about him that were not truthful, were not balanced and did not fully give his responses to the allegations.
The first article, headlined So is it luv, actually?, said Chuene, one of the longest-reigning presidents in South African sport, had sparked an outrage over an illicit love affair. It said he had allegedly secured a raise for his personal secretary with whom he was said to be romantically involved.
It said Chuene and his PA, Humile Bogatsu, denied having a sexual relationship but Sunday Times said it had seen transcripts of three SMSs that Chuene was alleged to have sent to her.
A second piece appeared in the newspaper’s satirical column under the headline Jumpin’ the old bones. It called him “our middle-aged Mampara” and said he was “like some addled adolescent, rolling about with a woman 34 years his junior”.
The third article was published a week later under the headline ‘For heaven’s sake, he can’t give his girlfriend a pay rise’. It said Sport Minister Makhenkesi Stofile had entered the fray over the love antics within ASA, saying Chuene was “totally out of order” if he had organised a pay hike for his mistress.
The article also enumerated Chuene’s remuneration from ASA for 2004 and mentioned that he was given a bonus in 2007.
First article
The Sunday Times story hangs on a draft memorandum of agreement between Athletics South Africa and a Ms Thabile Mokgoatjana when she resigned from the employ of the association in 2007.
The document that was presented as evidence by Sunday Times has what appear to be the signature of Mokgoatjana and her initials on all the pages. It does not have the signature of a representative of ASA.
According to this document Mokgoatjana was to receive six months’ pay as a severance package.
The document says: “Mokgoatjana records that she possesses certain evidence in support of the contentions advanced on her behalf by her attorneys of record in correspondence transmitted to ASA’s attorneys of record….Mokgoatjana hereby undertakes to surrender to ASA all such evidence….Mokgoatjana further undertakes to delete such evidence from her records....
“For purposes of defending herself against any claims based on iniuria that may be instituted by ASA, it is necessary that she records the documentary evidence in her possession….”
Three SMSs – the same ones that Sunday Times quoted – are recorded in the memorandum. The newspaper cuts the quote from the third SMS at the point that the memorandum does and picks it up again at an identical point. It is quite clear that the transcript that the newspaper referred to in its story was in fact from this draft memorandum.
The language and structure of this draft suggests that both ASA lawyers and Mokgoatjana’s created it.
In correspondence with the Ombudsman and in the arguments before the panel, Chuene has argued that Sunday Times had failed “either deliberately or for malicious intents, to present to me the alleged transcripts of ‘lurid’ SMSs.”
In correspondence Chuene argued that the SMSs could have been created by anyone who had malicious intent. He said the newspaper had not offered proof that he had personally sent them.
The panel is satisfied that Chuene was asked if he had ever sent SMSs to Bogatsu and he denied it. Even if he was not presented with the alleged transcripts, he was given a chance to give his side.
This panel does not have to decide on whether there was a romantic relationship between Chuene and Bogatsu. We have to decide whether it was reasonable for Sunday Times to infer from the evidence it had that there was an affair. We then have to decide whether it was in the public interest to publish the story of the affair.
Besides quoting the SMSs, the newspaper also said ASA vice-president Dr Simon Dlamini, who was also chairperson of the ASA board’s finance committee, had written a letter to Chuene and copied the Minister of Sport making the same allegations. Sunday Times said the letter was headlined Allegations of financial and other irregularities surrounding an alleged romantic relationship between yourself and your personal assistant.
The newspaper says it became aware of the letter in 2007.
It stated that the letter was withdrawn after Dlamini discussed it with Chuene and he had told the newspaper: “There’s no issue, we’re working very well now.”
In evidence to the panel Isaacson said two sources had told him that Chuene and Bogatsu had danced “provocatively, grinding their pelvises together and Bogatsu even licked her boss’s fingers” at a party in Stellenbosch in 2007. The panel does not believe that it was necessary for the newspaper to interview all 20 people who were said to have been at the party, as suggested by Chuene and ASA.
From this evidence Sunday Times concluded that there was an affair between Chuene and his PA.
At the hearing, Themba Ximba, who appeared for ASA, argued that the panel should ignore the draft memorandum as it was a worthless document – we didn’t know its source and it could have been produced by anybody. The panel assumes that ASA could not show us the signed memorandum as it was confidential.
ASA’s knowledge of the signed memorandum should, however, have helped it discredit the draft presented to us with its questions and it should probably have presented contrary evidence. ASA merely argued that we did not know where our version had come from and who had written it.
The panel believes that whatever the contents of the final agreement between ASA and Mokgoatjana, with the evidence it had gathered Sunday Times was within its rights to ask Chuene and Bogatsu for their side of the story.
Chuene and Bogatsu should have been aware of the rumours and gossip around them and this was their chance to set the record straight. Their denials of an affair between them were carefully recorded by the Sunday Times in its stories.
Dlamini’s letter
That the letter by Dlamini had been withdrawn did not mean it ceased to exist in people’s minds, particularly that it had been copied to the Minister. It is precisely because of this that Sunday Times got to know about it. Chuene and Dlamini ignored it in their responses to the questions from Sunday Times.
It is irony that Dlamini was chairperson of the finance committee that he later said had recommended the pay increase; he is said to have thereafter written to Chuene and copied the Minister with concerns about the relationship between Chuene and Bogatsu; and then he tells the Sunday Times that he and his committee recommended the increase and that he had withdrawn his letter. All this screams for an explanation.
The panel can safely assume that there was talk around the ASA offices about the alleged affair, compounded by the reported leap of Bogatsu from a salary of R5 000 to R15 000. Dr Dlamini’s letter to Chuene suggests that he was aware of this talk. It is therefore not surprising that there were leaks to the newspaper.
Could Chuene not have used the same arguments and facts he used to get Dlamini to withdraw the letter to convince the newspaper - and his staff - that there was no affair and that Bogatsu’s promotion and pay increase were above board?
ASA responses
On the other hand, Sunday Times should have reflected the responses from ASA general manager at the time, Linda Ferns, as well as from Dlamini, on the processes that were followed in promoting Bogatsu and moving her salary to match.
Ferns stated that staff matters at ASA fell directly under her portfolio as general manager. She said she had recommended Bogatsu’s promotion to be Chuene’s PA and her salary increase to the finance subcommittee and ultimately to the board.
Dlamini corroborated this.
Susan Smuts, who represented the Sunday Times said that the newspaper had taken cognisance of the statement from Ferns but said two “well-placed” sources had confirmed that Chuene motivated for the increase. The story would have been balanced if both sides of the story on this had been fully told.
Placing the tag which was in line with her position as his PA at the end of the sentence Her salary was apparently bumped up to R15 000 from R5 000, does not fully reflect the responses from Ferns and Dlamini.
If ASA’s side on the processes that were followed both in promoting Bogatsu and in getting her the increase had been juxtaposed with the two “well-placed” sources and their relation to the matter had been stated, readers would have had a clearer perspective.
The story as it now stands, gives largely the side that said there was impropriety in the process and also carries the denials of an affair by Chuene and Bogatsu.
The sentence on Bogatsu’s travels says: “Bogatsu has accompanied Chuene on overseas trips, notably to the 2007 World Championships in Japan and to the IAAF awards dinner in Monte Carlo late last year, but she said she had travelled ‘as part of my functions’.”
It would have been fairer if the newspaper had also quoted Ferns, who had said: “Miss Bogatsu holds a job description which states that she must be available to travel with the President from time to time, as and when determined by the President.”
In his complaint Chuene objects to the newspaper reporting that his leadership style is autocratic and also labelling the ASA board as composed largely of his lackeys.
In the story he does respond to allegations that he is a Robert Mugabe and says that the people who put him in his position, the constituency, would get a chance at the “elections around the corner” to vote him out if they thought he was indeed a Mugabe.
Second article
The Press Code states: “The Press shall be entitled to comment upon or criticise any actions or events of public importance provided such comments or criticisms are fairly and honestly made.”
The Mampara column is a satirical lampoon of people in the news – it is tongue-in-cheek and has distortions and exaggerations in the style of news cartoons. It has more latitude to poke fun than the normal editorial comment of the newspaper.
In this case, Sunday Times had heard all sides and had come to its conclusions, which could have been right or wrong. It was within its right to react with incredulity in this satirical piece. In line with the Code, it is clear that the column is comment.
Third article
The body of the story quotes the Minister’s statement and the proviso in it “if he had organised a pay hike for his mistress”.
Sunday Times then says the Minister told it he had first learnt of the “illicit love affair” from Dlamini’s letter. It also reports that Dlamini withdrew it soon after issuing it following a discussion with Chuene.
The newspaper quotes passages from it.
The panel does not accept that Sunday Times was in breach of the code by quoting it after it had been withdrawn.
The headline ‘For heaven’s sake, he can’t give his girlfriend a pay rise’ and the subhead Sports minister enters fray over athletic boss Chuene’s mistress omit the proviso that the body of the story carries.
This part of the story concludes with the quote from Dlamini: “There’s no issue, we’re working very well now.”
The word meanwhile is a well-known transition in a story to indicate it is turning to something else – in this case to Chuene’s remuneration.
Chuene also complains that administrative issues that are the competency of the general manager are laid at his door: the newspaper reports about money stolen from ASA in a manner that insinuates that he had something to do with the money stolen by a clerk.
The panel does not find any such insinuation – at best, there is an acknowledgement that the board of an organisation carries responsibility for everything in the organisation. If these things happened during Chuene’s watch, he has to carry responsibility for them.
Contrary to Chuene’s assertion that the newspaper suggested that the chairperson of Parliament’s sports committee, Butana Khompela, had been siding with him despite evidence of malpractice, the panel finds there was no such suggestion in the story. The newspaper said Khompela sided with Chuene on a different matter altogether.
The panel finds that publishing the story was in the public interest: the running of ASA is of interest to South Africans as, to quote the Sunday Times submission, it governs “the flagship Olympic sport in the country”. Its governance, management and staff concerns will always be under public scrutiny.
If staff at ASA are unhappy and there are rumours flying about the President’s PA getting a big salary increase because of a relationship that is alleged to be other than professional, it affects morale, it affects athletes, it affects the South African public.
Chuene and senior management were aware of these rumours and the unhappiness. When it reached the media, Chuene’s responsibility was to clarify and explain unambiguously to staff and the public. He did not take the opportunity but rather hoped Sunday Times would refrain from publishing.
The panel finds the bulk of the story does not breach the code.
Sunday Times was however in breach of the code:
  • Paragraph 1.2.2 in that it failed to present the story in context and in a balanced manner by material omissions in that it had not adequately reported on the responses of Ferns and Dlamini on the processes they said had been followed when Bogatsu was promoted and when her pay was increased and the reasons for both. It also omitted to quote Ferns on Bogatsu’s job description.
  • Paragraph 5.1 in that the headline and subhead of the third story did not give a reasonable reflection of the contents of the report. An important proviso in the story was left out.
Sunday Times is cautioned and is ordered to publish an apology, to be provided by the Ombudsman, for the omissions.
Please note that our Complaints Procedures lays 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.
Themba Ximba of Igagu Media represented Chuene and ASA and Susan Smuts represented the Sunday Times.