Lubabalo Mabuyane vs Sunday Times


Wed, Feb 12, 2020

Finding Complaint 4405

Date of article: 19 May 2019

Headline: “Upgrade Scandal hits Mabuyane” and “The Voice of the People”, item in Hogarth column

Pages: 2, 19

Author: Zingisa Mvumvu and Mphumzi Zuzile

Online: Yes

Particulars

This finding is based on a written complaint from Mr Mvusiwekhaya Sicwetsha representing Mr Lubabalo Oscar Mabuyane, a written response from the Sunday Times legal editor, Susan Smuts, and further arguments from Mr Sicwetsha. It is also based on further documentation provided by both parties and attempts at confirmation of some facts by the Ombudsman.

Complaint

Mr Sicwetsha, who is the spokesperson for Mr Lubabalo Mabuyane, the Eastern Cape premier, complains that an article in the Sunday Times, headlined “Upgrade Scandal Hits Mabuyane”, as well as an item in the satirical Hogarth column under the sub-head “The Voice of the People” is “sensationalized, distorted, exaggerated to achieve reputation-damaging effects against Mr Lubabalo Mabuyane”.

He also complains that one of the reporters who wrote the news story, Mr Mphumzi Zuzile, has an “undeclared conflict of interests” and is exercising a “personal and political vendetta” against Mr Mabuyane.

Specifically, in terms of the Press Code, Mr Sicwetsha complains that the Sunday Times has breached 1.1, 1.2., 1.3, 1.7 and 1.8 of the Press Code, as well as 2.1. in its article and in the item in the Hogarth column.

These clauses stipulate:

  1. The media shall take care to report news truthfully, accurately and fairly.
  2. News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarisation.
  3. Only what may be reasonably true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegations, rumour or supposition, it shall be presented in a manner as to indicate this clearly.

1.7 Where there is reason to doubt the accuracy of a report or a source and it is practicable to verify the accuracy thereof, it shall be verified. Where is it has not been practicable to verify the accuracy of a report, this shall be stated..”

1.8 The media shall seek the views of the subject of critical reportage in advance if publication..”

2.1 The media shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflicts of interest must be avoided, as well as arrangements or practises that could lead audiences to doubt the media’s independence and professionalism.

  1. The texts

1.1 Under the headline, “Upgrade scandal hits Mabuyane,”  with a sub-head, “Municipal funds used to renovate home of Cyril’s man in E Cape,” the introduction to the story states: “More than R1m was siphoned off from a struggling municipality in the Eastern Cape – and part of the money was then used to renovate the home of ANC provincial chair and premier-designate Oscar Mabuyane.”

1.2 The story then references a Mail&Guardian report [1] that R450 000 of the money was transferred to a company that renovated Mabuyane’s home in the suburb of Bunker’s Hill, East London.[2]

It adds: “Today the Sunday Times can report that an invoice for R1.1 m was fraudulently generated under the guise that it was for plant hire for a road construction project benefitting the municipality.”

1.3 It carries in the fourth paragraph a denial from Mr Mabuyane, described as ‘the ANC bigwig” of any wrongdoing. He also questioned “why these allegations were surfacing now, almost a year after the transaction.”

1.4 The article goes on to say that a “probe” by the newspaper shows a “fraudulent invoice was submitted by a company linked to ANC Eastern Cape provincial treasurer Babalo Madikizela.” The invoice was generated in the ANC’s provincial headquarters in Calata House in April 2018.

The newspaper cites emails and an affidavit that show that the initial invoice was created by the ANC’s provincial manager Mongezi Dyala. Mr Dyala confirmed to the paper he had created the invoice and sent it to the municipality using his ANC e-mail account and that he had done so “on Madikizela’s instruction”.

But he claimed “the money was not for plant hire but to assist the municipality after it failed to pay taxi operators that ferried thousands of people to a memorial service for Winnie Madikizela-Mandela”.

1.5 He is quoted as saying: “The municipality was under pressure from taxi operators and they did not have money. The municipal manager then approached Madikizela for assistance. He [Madikizela] then asked me to pay the taxi operators from the party funds.” He also said Mr Madikizela had instructed him to invoice the municipality for plant hire instead of transport.

1.6 The newspaper reports that Mr Madikizela declined to comment, saying he had “addressed the allegations in other media”. The paper cites the M&G quoting him as dismissing the claim as “malicious” He also denied “instructing the municipality to pay the invoice”.

1.7 The Sunday Times reports that  its investigations show the money was paid by the municipality “to a company owned by Lonwabo Bam, a businessman friend of Madikizela, in July last year”. At the time of the transaction, Mr Madikizela was provincial treasurer of the ANC. He was appointed MEC for human settlements in November 2018.

1.8 It then reports that Mr Mabuyane, who’d become ANC provincial chair “after a chaotic conference” received R450 00 from the municipality “via a company owned by Bam, who invoiced it for plant hire even though he had not provided any such service”.

It describes Mr Mabuyane as being instrumental in Cyril Ramaphosa’s campaign for the presidency and as (then) the Premier-elect for the Eastern Cape.

1.9 The newspaper cites “a trail of emails” between Mr Bam, Mr Dyala and the Mbizana municipal manager Mr Luvoyo Mahlaka, which include an invoice from “MTN Plant Hire dated April 16, 2018.”

1.10 Mr Bam is quoted as “admitting” that the money he paid to the company renovating Mr Mabuyane’s home “was siphoned off from the municipality”.

He also said: “I never did any work for Mbizana worth that much. I was instructed by Madikizela to submit an invoice to the Mbizana municipality claiming R1,1m.”

1.11 He gives further details in a sworn affidavit he made to the police, dated April 27, 2019. In that he said on July 24, 2018, Madikizela called him to “instruct” him to submit the invoice.

He also asked him to forward the invoice to him. “Hours after I sent Madikizela the invoice, R1,1m was paid into my account.”

1.12 Mr Bam says he was then instructed to pay R450 000 to a company renovating Mr Mabuyane’s house. The latter, reports the paper, had “previously claimed that the money to renovate his home was a ‘loan’ from Madikizela”.

It quotes Mr Mabuyane at some length saying he “vehemently” denied allegations of impropriety. “I reject with the contempt it deserves any accusation that seeks to involve me in wrongdoing. I have nothing to do with that. This is just blatant malice, this issue of my loan I did last year around July. The question is, why is it coming up only now, almost a year later, if there is anything wrong? Surely you cannot rule out underhand manipulation.”

He said he would appear before the ANC’s integrity commission “to clear his name”.

1.13 The newspaper also quotes the municipal manager Mr Mahlaka who said the money paid to Mr Bam was for “transportation of people by the Mbizana Taxi Association”.

Hogarth column

In that week’s satirical “Hogarth” column, the paper used a short piece referencing Mr Mabuyane.

The full text appears below:

The voice of the people

Ever heard of the ANC slogan Amandla asemasebeni, loosely translated as “The power is in the branches”? Well, it’s about to assume new meaning in the Eastern Cape. The chiefs at Luthuli House have chosen party provincial chair Oscar Mabuyane as premier-elect of that province. Mabuyane hails from the town of Engcobo, nicknamed Emaseleni (the place of thieves) by locals — you know, branch members. Now you know where all the power lies in the Eastern Cape.

  1. Arguments

Mr Sicwetsha on behalf of Mr Mabuyane

2.1 Mr Sicwetsha contends the story is a “departure from ethical journalism”.

The newspaper did not “take due consideration to the information provided to them by their source”, nor did it obtain information from the municipality about this matter to give the article context.

 

2.2 He also argues that Mr Mphumzi Zuzile, one of the authors of the story,  “is an active member of the ANC, has an undeclared conflict of interest in that he was in the group that opposed the election of Mr Mabuyane to the position of Provincial Chairperson, he blames Mr Mabuyane for the end of his employment contract in government after his former MEC, Mrs Thandiswa Marawu was removed as the MEC for Public Works. The personal vendetta Mr Zuzile has against Mr Mabuyane, which brings the conflict of interest of personal proportions, was not declared to the reader” as prescribed by the Press Code.

2.3 Mr Sicwetsha argues the Sunday Times story was published as a “follow up” to the Mail&Guardian story. “This is important because it proves the story was not a breaking story and there was no urgency [to publish]..when they did not have all the accurate information..”

The “attitude” of the newspaper appears to have been “to drive sensationalism and not focus on ethical journalism”.

2.4 The newspaper used the affidavit of Mr Bam “to question a number of people alleged to be involved one way or the other” but did not go further to “obtain official documents from the municipality” that would either support or disprove his claims.

He added: “ We have information that the newspaper started sending questions to these individuals on Saturday, a day when they were not at work so that, some of them could access information to respond to the allegations.”

He stresses the interests of his office to to “report unfairness, inaccuracies of the story that supports an angle, which seeks to suggest Mr Mabuyane benefited from impropriety”.

2.5 Had the newspaper accessed information from the municipality, which it was required to provide as a public institution, it would have provided proof that the report that money was “siphoned off from the municipality” was false.

Yet because the newspaper’s intention was “not to report this news story truthfully, fairly and accurately”, it relied only on the affidavit from its source rather than requesting the full detail “of this particular procurement” from the municipality.

The newspaper had sent only “narrow questions” to those named by Mr Bam in his affidavit. Thus the responses were limited.

These questions focused on one narrative: wrongdoing by the municipality, Mr Madikizela, and “to some extent”, Mr Mabuyane.

The newspaper also “summarized” the response that Mr Madikizela gave to the M&G, which is “tantamount to omission [and] summarization…because they left out critical aspects of his response”.

2.6 This, argues Mr Sicwetsha, showed an intention “to give the reader only the view of Mr Bam”.

For instance, they had left out Mr Madikizela’s response to the M&G : “As in any friendship, a number of favours hands between myself and Mr Bam, some personal and some financial. I am aware that Mr Bam is going through serious financial challenges..” (sic)

He also told the M&G that this may be why the allegations about them (Mr Mabuyane and Mr Madikizela) had surfaced.

2.7 Mr Sicwetsha then quotes a lengthy extract from the M&G which cites Mr Madikizela:  “I have never instructed Mthombeni projects to invoice any municipality for work done or for any other reason. I owed (sic) a plant hiring company that Mr Bam used. Mr Bam would pay as and when his clients paid him. At the time of me buying my car I was expecting some payments from Mr Bam for my plant that he has used and other monies he had borrowed from me. I instructed him to pay that amount to LSM distributors, as it was at the time convenient to do so.

“However, I see that there is a deliberate link to connect the R500 000 to the R1.1 million he claims to have defrauded the municipality of. He knows quite well that the invoice in question was for a job he did for the municipality after it was surrendered to him by another service provider. For that matter, he did not even have monies to initiate the work and again I came to his rescue.”

The M&G also reported that: “Madikizela said he had provided Bam with Allan Morran Design’s banking details because Mabuyane, as his friend, had asked him for a loan to pay for alterations to his home.”

2.8 The Sunday Times had “deliberately” left out this part of what Mr Madikizela had told the M&G,which provides the other side of facts to what Mr Bam said”.

Three people confirmed that the fees paid to Mr Bam were “for transporting people to the memorial services and yet the newspaper does not see the need to request official documents from the municipality.”

2.9 He also complained that the words “claimed” were used in relation to comment given by Mr Mabuyane, Mr Dyala and Mr Mahlaka (of the Mbizana municipality), whereas Mr Bam’s comments were quoted with the verb “he stated”. This threw “suspicion to what was said by other people it interviewed…while giving confirmatory label to what was said by Mr Bam..”

2.10 Because of this “omission, summarization and bias”, the introduction to the article is “misleading” in that it presents claims by Mr Bam as “verified fact” when “all they are are just claims”. There was no attribution in the introduction, nor “evidence obtained independently from ethical gathering of information by the newspaper’s journalists”.

The Sunday Times did not “verify the accuracy of doubtful information..” nor did it mention it was “denied access to information they had requested for this story”.

Thus the news was not presented “in context and in a balanced manner…[the reporting] was an intentional and negligent departure from the facts because they allowed distortion, published distorted information as facts without verifying information with the municipality”; omitted and summarized information “to change the truth about the actual events in order to sustain their narrative..”

2.11 Mr Sicwetsha also cites clause 1.8 of the Press Code (“the media shall seek the views of the subject of critical reportage in advance of publication”). He says the newspaper sent only “narrow questions to confirm or deny claims by Mr Bam”; it also did not request information from the municipality.

It “ignored” the information that the money that was paid to Allan Morran Design for Mr Mabuyane’s house was a “loan” from Mr Madikizela, who in turn had received money from one of his debtors (Mr Bam).

Without verification, the newspaper drives a narrative that Mr Mabuyane received money from the municipality through a business that was paid for not performing any work for the municipality. This false reporting is wrong and must be stopped.”

2.12 The information from the municipality, Mr Dyala and from Mr Madikizela was that the money paid to Mr Bam’s business was for “transporting people for the municipality”.

2.13 On the Hogarth column, Mr Sicwetsha argues that this proved further its intent to damage Mr Mabuyane’s reputation.

2.14 He says there are “two ways to look at the text” [reproduced above]: one is as a “lousy attempt at satire. It’s lack of humour, its reckless labelling of Mabuyane and associating him with thievery based on a disputed meaning of the nickname…[proves] their unethical intent.”

2.15 The second way to look at the text is the “true meaning” the newspaper attaches to the story: “..they are telling its readers that Mr Mabuyane is not to be trusted because of the nickname of where he was born. This is ethically wrong because whether humour or not, it is in bad taste, damages his reputation and puts him in a negative light in society.”

In spite of the fact that it was supposed to be satire, journalists “are not permitted to insult people’s integrity [and] associate them with criminal conduct”.

2.16 On the conflict of interests: Mr Sicwetsha argues that one of the journalists who authored the story, Mr Mphumzi Zuzile, is a member of the ANC “who is perpetually opposed to Mr Mabuyane”. In fact, he had declared his opposition on Facebook.

He is still an “active” member of the ANC’s Walter Sisulu branch in Gonubie, East London, and was one of those ANC members who was opposed to Mr Mabuyane’s election to the position of provincial chairperson.

Mr Zuzile “also blames Mr Mabuyane for the fact that he no longer works for the provincial government after the deployment of his former boss, Mrs Thandiswa Marawu as the MEC for public works ended”.

This proves a “personal and political vendetta” that Mr Zuzile has against Mr Mabuyane. It also shows a “clear conflict of interest”.

2.17 It is not clear whether Mr Mabuyane’s office should ‘deal with” Mr Zuzile “as a member of the ANC or as a journalist”. He also offered evidence of Mr Zuzile’s membership of the ANC, which will be discussed later.

He argues “it could be that the influence of this conflict dictated the frame of the story by the newspaper.” The editor was aware of this and “allowed this vendetta and conflict of interest to influence this framing of this story, the gathering of information, the narrow questions sent to people…and the nature of the Hogarth text.”

2.18 The paper did not “have an obligation to drive Mr Bam’s narrative” but to provide readers “with truthful, factual, and accurate content on a matter that deals with public affairs.” The introduction to the story was “the opinion of the Sunday Times” because it was not attributed to anybody.

2.19 Mr Sicwetsha also attached several documents to his argument, including those from the municipality about procurement and payment, and an ANC membership card apparently belonging to Mr Zuzile, dated 9/11/2015, and company information, including tax certificates of Mthombeni Projects

  1. Among the other documents are:
  • A Memorandum of Agreement between the Eastern Cape Department of Sports, Arts, Culture and Recreation and the Mbizana Municipality for transport of people to Winnie Madikizela-Mandela’s memorial service dated 15 May, 2018 and due to expire on 31st September (sic), 2018;
  • Information on the government Central Data Base about Mthombeni Projects, which describes the firm as being in the area of water supply, sewerage, water management and remediation”;
  • A payment request from an official in the Mbizana Municipality dated 1/8/2018 for Mthombeni Projects for R1.1 m for “transportation of people from 31 wards to Winnie Madikizela-Mandela’s memorial service”
  • A supply chain management document relating to transport for the memorial service, dated 14/7/18 listing “Maikenjo Trading” as being responsible for transport arrangements in the Alfred Nzo/OR Tambo districts, and an invoice numbered 002 from Mthombeni projects to Maikenjo Trading dated 16/4/18 for R1.1m for “Transportation of 25000 people from 31 wards of Mbizana local municipality to the Winnie Mandela memorial service[3]

Sunday Times

2.21 Ms Susan Smuts, legal editor, responded on behalf of the newspaper.

2.22 She says the paper does not dispute the MoA between the provincial department and the Mbizana municipality for transport. The point is that it is not between Mr Bam and the municipality.

She also says the paper does not take issue with the documents showing “proof of payment” to Mr Bam of R1.1 million. “The basis of the payment though is open to question.”

2.23 She says the newspaper’s information is “that the municipality ran into trouble because it could not afford to pay taxi operators for transporting residents to the memorial service for Winnie Madikizela-Mandela in April and turned to the provincial ANC to bail it out. The ANC paid the money.

It is not clear why it should turn to the ANC rather than another arm of government. She also notes that Mr Madikizela was provincial treasurer of the ANC at the time.

A false invoice was generated to enable the municipality to pay Mr Bam, who in turn paid the money as per instruction from Mr Madikizela.”

2.24 Mr Bam’s sworn statement includes the following information:

  • He was instructed by Mr Madikizela to submit an invoice for R1,1 m.
  • He was told to contact Mr Mongezi Dyala, the ANC office manager at Calata House, the ANC’s provincial headquarters, who in turn told him to email the invoice to Mr Mahlaka, municipal manager at Mbizana.
  • He compiled an invoice – numbered 002 on 24/7/18 and sent it to Mr Mahlaka.
  • Mr Dyala called Mr Bam and said Mr Mahlaka had not received the invoice. Mr Bam then obtained a different email address from Mr Mahlaka.
  • Mr Madikizela asked him to forward the invoice to him which he did via WhatsApp.
  • An amount of R1.1 m was then deposited in his bank account. Mr Mahlaka called later to tell him this.
  • He did nothing for the municipality to earn the money
  • The invoice submitted was drafted by Mongezi Dyala – the only thing Mr Bam added were his company particulars
  • Mr Madikizela instructed him to deposit R450 000 into the account of Allan Moran Design on behalf of Mr Mabuyane, and R350 000 into IPM Plant Hire, Mr Madikizela’s business account, which he did in two batches
  • He paid the remaining R300 000 into accounts as per instruction by Mr Madikizela.
  • Mr Mabuyane thanked Mr Madikizela for the payment to Allan Morran Design by SMS.
  • Mr Bam, Mr Madikizela, Mr Mahlaka and Mr Dyala were all aware that the money was paid for services not rendered.

2.25 The Sunday Times investigated the allegations and approached the parties for comment.

2.26 “We obtained an email trail which suggested that Mr Dyala had first sent an invoice to Mr Mahlaka for KOO Construction and Projects which detailed plant hire to the value of R1.1 m. The later invoice from Mthombeni Projects for “plant hire” for the same value is “identical in every way .

“This is highly suspicious.”

2.27 Mr Dyala told the newspaper he had sent an invoice to Mr Mahlaka “after the latter telephoned Mr Madikizela to say the municipality was broke and needed the ANC’s help in paying the taxi operators for transporting residents to the memorial service. Mr Dyala confirmed that the ANC had paid for the transportation.”
Mr Dyala’s  invoice could not be processed as he was not registered on the municipal data base for service providers. It was then that Mr Madikizela instructed him to ask Mr Bam to submit an invoice.

This indicates that a false invoice was generated to enable the municipality to pay Mr Bam, who in turn paid the money” as instructed by Mr Madikizela.

2.28 Ms Smuts says the paper obtained Mr Bam’s affidavit late on Friday. They then set about sending questions to people. “It is true that we sent questions to people on Saturday. However the insinuation that the questions would only have reached them during office hours is devoid of truth. They were all contacted by telephone or mobile applications.”

Mr Mahlaka did not ask for more time to respond; Mr Dyala did not call back but the newspaper managed to speak to him later. Mr Madikizela agreed to answer questions although the spokesperson complained they had been given little time.

The complaint that they asked only “narrow” questions is “without merit”: the questions pertained to the story we wrote” Mr Mahlaka did not indicate they could back up the payments with documents.

2.29 Mr Sicwetsha’s disquiet that they did not obtain documents from the municipality is “misplaced”. Firstly, the newspaper did not know that such documents existed; secondly no one the paper spoke to mentioned them, in particular not the municipal manager.

Nor could the municipal manager explain why the invoice referred to plant equipment rather than transportation services.”

 

2.30 The payment confirmation the Sunday Time saw shows that Mr Bam was paid for “transportation” although the invoice reflects “plant hire.” This indicates that the payment “is not a true reflection of the services rendered.” (the invoice bears the same number, 002, as what the paper suspects is a “template” invoice from MNT Plant Hire to KOO Construction)

It is clear that Mr Bam’s invoice was copied from the earlier one to KOO.

2.31 Both Mr Bam’s affidavit and a screenshot the paper saw indicates that part of the money was paid to Allan Morran Design on the instructions of Mr Madikizela.

2.32 The complaint about not using the whole of Mr Madikizela’s response to the M&G “cannot hold water”. Firstly, Mr Madikizela himself has not complained, secondly using quotes given to another newspaper “is fraught with risk” in case the source was misquoted in the original article. Thirdly, the paper did not know what questions the M&G posed to him. The quote also discussed a R500 000 payment which was not the focus of the Sunday Times story. Lastly, Mr Madikizela’s response as quoted in the M&G “does not answer the questions we sent to him”. Thus the Sunday Times had no option but to summarize the pertinent aspects of his comments to the M&G and attribute them to that newspaper.

2.33 The bulk of Mr Madikizela’s response  (to the M&G) was about loan arrangements between himself and Mr Bam and not relevant to the Sunday Times story which was about the “apparent misuse of public funds”.

2.34 Mr Mahlaka could not answer questions about the payment for transport to the memorial service and another invoice for “plant hire”. The Sunday Times had two identical invoices for “plant hire”, one from MNT Plant Hire and the other from Mr Bam (dated three months later). In addition it had Mr Bam’s affidavit. “We were correct to raise questions in the light of this evidence. It was for the municipality to tell us if we were wrong and within its power to make documents available to us. However, Mr Mahlaka did neither.”

2.35 On the complaint that attributions said either ‘stated’ or “claimed” depending on who was speaking, Ms Smuts said there was no material difference – it was merely to attribute information to the person quoted.

 

2.36 On whether the introduction is supported in the story (as it is not attributed): Ms Smuts says the combination of Mr Bam’s affidavit, the generation of an invoice for plant hire rather than transportation, the fact that the invoice was copied from another invoice, that Mr Dyala confirmed he created “the first invoice on Mr Madikizela’s instruction” – all support the intro that money was “siphoned” from the municipality. “Furthermore not one person disputed that R450 000 of the money paid to Mr Bam by the municipality was used towards Mr Mabuyane’s house.”

2.37 There was no suggestion of wrongdoing on the part of Mr Mabuyane, “nor any suggestion that he played any role in the municipality paying money to Mr Bam”. The newspaper also carried his response in the article.

Private loan arrangements are “beside the point….What is in issue is the use of public funds to service these loans.”

The documents included in the complaint include an invoice from Mthombeni to Maikenjo Trading for R1 100 000 for transporting people for the funeral. It is not clear what we are to make of this, since this arrangement does not seem to involve the municipality. Suspiciously, the invoice is also numbered 002, the same number as the invoice for plant hire.

“It is true that a municipal voucher, as presented in the complaint, reflects that Mthombeni was paid for transportation, but this does not explain why this invoice was for plant hire. We note that the municipal documents submitted with the complaint do not include an invoice from Mr Bam to the municipality for transportation.

The news reporting was a “proper ventilation of a matter of public interest”.

2.38 Insofar as the Hogarth item is concerned, “the column has been a feature of the newspaper for decades and has always contained commentary, including in the form of satire.” Ms Smuts argues this is protected comment as defined by section 7 of the Press Code. It is also “clearly presented as comment” and appears regularly on the op-ed pages. Even if it is “lousy”, there is nothing in the Press Code to prohibit it.  “The complaint that we are telling our readers that Mr Mabuyane is not to be trusted because of the nickname of where he was born cannot be sustained. We did no such thing.”

2.39 In respect of the complaint that the reporter Mr Mphumzi Zuzile has a conflict of interests because he is a member of the ANC, Ms Smuts argues this is “without merit”. She confirms he was previously a member of the ANC and worked for the former MEC Mrs Marawu. The form sent by Mr Sicwetsha is dated 2015 and his membership has since lapsed. He has lived and worked in Johannesburg since the beginning of 2019. “His previous association with the ANC would give him insight into the parties featured in the story. However, he no longer has any interest in the outcomes of ANC rivalries other than as a journalist.” If Mr Sicwetsha has evidence of Mr Zuzile’s “active” ANC membership, he should share it.

Further arguments

2.40 In response to the Sunday Times, Mr Sicwetsha argues that the documentation  he provided “proves them wrong and confirms there was proper and procedural procurement and payment of what was rendered...This deals with the claim that money was siphoned from the municipality and used to renovate Mabuyane’s home.  Our position remains that Mr Madikizela loaned Mr Mabuyane the money.

2.41 The newspaper did not elicit more information from the Municipal manager nor look for documents: this was not an “investigation” but rather “shoddy journalism”.

The newspaper relied only on Mr Bam’s affidavit, did not use sufficient information from the municipality and omitted and summarized comment from Mr Madikizela.

Mr Sicwetsha reminds the Ombud that the Sunday Times has in the past claimed it has done an “investigation: such as that into the so-called Rogue Unit at SARS. “We submit that the newspaper should not be allowed to get away with wrongdoing here only for them to come and apologise years later.”

2.42 He disputes the fact that this was an “investigation”, saying by its own admission it received the Bam affidavit late on a Friday, then rushed to publish the story a day later. They threw “a fishing line into a dam hoping to make a big catch”. If it had been an investigation “it would have it would have accessed all critical information to this story beyond the single document they based their questions on. By relying on the Bam affidavit, the newspaper limited its scope.” Thus this was not an “investigation”.

2.43 He also explains some of the documents he submitted to the Ombud:

  • The DSRAC contract with the Mbizana Municipality: this provides context “critical to the genesis of the payment of money to Bam’s account”. It would have been given to the newspaper had it requested it.
  • On the two invoices numbered 002: the newspaper failed to ask Mr Bam about why he had two invoices with the same invoice number – 002. He argues the municipality had paid the invoice with the same number so “how did Bam include an invoice with the same number but with different contents for payment?” The newspaper could have verified what Bam claimed but instead it relied on his claims.
  • Ignoring the Mbizana municipality’s response: “The newspaper’s extrapolation of information from Mbizana Municipality’s Municipal Manager (MM) shows that his response to the questions was ignored, and never explored further as… required by the Press Code.”  If they had explored the responses properly, “they would have requested information proving” what the municipality said. Also, the newspaper did not indicate its report was based on limited information as required by the Press Code.
  • Claims of false invoice: “Without evidence, the newspaper says the municipality paid a false invoice. And yet information in possession of the municipality proves that it was paying for the transporting of people and not for plant as claimed by Bam in his affidavit. The newspaper did not investigate this matter and did not seek the municipality to verify this information. It is worth noting that the municipality is a constitutional institution that is audited by the Auditor General so its procurement is audited and hence the information from it should have been sought.” The newspaper has not shown how it verified the information contained in Bam’s affidavit.

2.44 He also queried how the newspaper accessed Mr Bam’s affidavit and if they verified that their sources “are indeed members of the ANC that opposed Mabuyane’s election and appointment as Premier.”  

2.45 On the conflict of interest and whether Mr Zuzile is still a member of the ANC: Mr Sicwetsha argues that ANC rules are that when a member’s fees are in arrears, “it does not mean membership is cancelled”.  The ANC constitution says they are simply not regarded as members in good standing. A member has to actively resign to cease being a member of the ANC. The M&G had mentioned that those behind “spreading the claims” in the affidavit were those opposed to Mr Mabuyane becoming Premier. “These are the same people that together with Mphumzi Zuzile opposed Mabuyane’s election at the provincial conference.”

He also provided a screengrab of a text message from Mr Zuzile to one of the ANC members [unnamed] “showing his opposition to Mabuyane based on his ill-informed perception that Mr Mabuyane had a personal vendetta against him.”

This perception of bias on the part of Mr Zuzile was heightened by questions he sent to Mr Mabuyane asking if he had declared interests in certain entities in the Eastern Cape while he was MEC for Finance. In the end the newspaper did not publish this story.

2.46 The newspaper also failed to obtain comment from “the subjects of critical reportage” sufficiently in advance. Citing Clause 1.8 of the Press Code, Mr Sicwetsha says this clause “was intended to ensure that people that are subject of reporting are given adequate time to be given proper information and for them to respond properly to what they are asked. This was to avoid situations where information is narrowed to the whims of the main source and interests of the newspaper and journalist”.

2.47 Mr Sicwetsha also cited a previous Ombud's ruling Mabuyane vs Saturday Dispatch where a panel ruled that the newspaper was wrong to report as fact a story about a recording of officials, apparently referring to him but not directly so, showed that he wanted to influence a tender as the information was not verified.

2.48 On the Hogarth column Mr Sicwetsha maintains the newspaper had made “defamatory” allegations about Mr Mabuyane. “This is not satire but defamation of character’. It was “fake news” hidden “behind a satire cloak; abuse of satire….This is wrong and the Ombudsman cannot allow the newspaper to damage Mr Mabuyane’s reputation by hiding behind satire”.

  1. Analysis

3.1 There are three central questions that pertain to the main story.

3.2 The first is of verification: did the Sunday Times have enough information to assert without attribution that “more than R1m was siphoned from a struggling municipality in the Eastern Cape – and part of the money was then used to renovate the home of the ANC provincial chair and premier-designate Oscar Mabuyane”?

3.3 Second is the argument of “omission”: whether the Sunday Times omitted key information by “summarizing” Mr Madikizela’s response to another newspaper that the money paid for Mr Mabuyane’s house was actually a loan.

3.4 The third is of whether there was a conflict of interests in that one of the reporters, Mr Zuzile, had been an ANC member in the Eastern Cape.

3.5 On the verification: the Sunday Times had as a basis to write its story an affidavit from Mr Bam, as well as an email trail that suggested that Mr Mongezi Dyala, the ANC’s provincial manager, had created an initial invoice to the Mbizana municipality. This Mr Dyala confirmed to the Sunday Times. He added he did it on Mr Madikizela’s instruction.

In his affidavit, which the Ombud has seen, Mr Bam described his company as a building and construction company. On 24/7/18 Mr Babalo Madikizela “instructed” him to submit an invoice to the Mbizana municipality for R1,1m. “He also told me that for further information I must contact Mr Mongezi Dyala, who is the office manager at Calata house (ANC office).”

At the time Mr Madikizela was the ANC provincial treasurer and, said Mr Bam, a friend of his.

Mr Dyala told him to email an invoice to Mr Mahlaka, the municipal manager at Mbizana.

I there and then complied sending tax invoice number 002 from my office dated 24/7/18..to Mr Mahlaka’s email

On 30 July 2018, Mr Madikizela asked him to forward the invoice to him, which he did via WhatsApp. On 1/08/18, R1,1 m was deposited in his account. “This payment was made to me but there is nothing I have done for the municipality. The invoice I submitted was drafted by Mr Mongezi Dyala who is the office manager of Mr Babalo Madikizela. Everything in that invoice was written by him and I only wrote the particulars of my company as he sent me a draft invoice.”

3.6 He had been told by Mr Madikizela that the ANC chair in the province wanted to renovate a house “but he had a problem with the deposit…After I have informed him that the money was in my account he told me that I must do that problem of Oscar Mabuyane…and that he was to send the account in which I must deposit the money.”

On 1/08/18, Mr Bam accordingly made a deposit of R450 000 into the Nedbank account of Allan Moran Design..

3.7 Mr Bam testified to other deposits as well, but these are not germane to the Sunday Times story.

3.8 He also says that he has a screenshot of an SMS sent to Mr Madikizela by Mr Mabuyane thanking him for assistance.

Myself, Mr Babalo Madikizela, Mr L Mahlaka, who is municipal manager of Mbizana local municipality we were all aware that this money was just paid for nothing as there was nothing done for Mbizana Municipality. There was no services rendered by Mthombeni Projects to the municipality.”

He says he was aware that it “was wrong to perform these transactions…and therefore decided to come forward and divulge this situation before it is investigated by the Government..”

3.9 I spoke to Mr Bam while investigating this complaint and he reiterated the contents of his affidavit. I put to him Mr Sicwetsha’s suggestion that the money was actually to pay for the transport of people to Winnie Madikizela-Mandela’s memorial service and he replied that that was “a lie.. Mthombeni is a construction company, we don’t even have combis”.

3.10 I also spoke to Allan Morran, the draughtsman, who confirmed he had managed renovations for Mr Mabuyane’s house in Bunker’s Hill East London and confirmed that he had received an amount of R450 000 on 1/8/2018. However, the bank, when I asked, would not reveal the depositor.

3.11 An affidavit is not necessarily perfectly true but the probability of truth is higher than simply a “claim”. This was a statement sworn before a commissioner of oaths at a police station on 27/4/19. It is also may be, as Mr Sicwetsha points out, that Mr Bam himself may need to explain why his invoice to the municipality was for “plant hire” but that the payment confirmation was for “transportation”.

Certainly, he admits to wrongdoing himself. One can only speculate why Mr Bam made the statement at all, particularly as he claims to have been friends with Mr Madikizela for 15 years.

3.12 The documentation in possession of the Sunday Times shows two identical invoices: one from MNT Plant Hire to KOO Construction (dated 16/4/18) is as follows:

 4

TLB

R340 000.00

0

R340 000.00

1

Watercart

R243 000.00

0

R243 000.00

2

Vibrator Roller

R172 000.00

0

R172 000.00

2

Excavator

R345 000.00

0

R345 000.00

Total Discount

0

Subtotal

R1 100 000.00

           


The one from Mthombeni Projects to the Mbizana Municipality (Invoice 002) is for exactly the same items and for the same price (dated the 24/7/18), showing a strong probability that, as the Sunday Times suggest, that the first was used as a “template” for the one Mr Bam submitted.

3.12 In the documentation from the municipality sent to me by Mr Sicwetsha there is another Invoice 002 sent to Maikenjo Trading CC in Matatiele for “Transportation of 25 000 people from 31 wards of Mbizana Local Municipality to the Winnie Mandela memorial service” dated 16/04/18. It is also for R1,1 m.

But there is no explanation of who Maikenjo Trading cc is or why Mthombeni Projects should be invoicing them for “transportation”. Mr Sicwetsha asked, pertinently ,in his response to the Sunday Times why Mr Bam did not explain why he had two invoices with the same number.

Mr Sicwetsha, when I spoke to him, strongly rejected the claim that Mr Bam was paid for doing no work for the municipality. He reiterated it was for “transport”, even if it appears from the documentation that the invoice for transport was actually sent to the Maikenjo Trading company.

3.13 Mr Sicwetsha urged me to speak to the municipal manager, Mr Mahlaka. I asked him about the apparent contradiction between an invoice for plant hire and a payment confirmation (to Mr Bam’s company) for transport and the involvement of the Maikenjo Trading Company.

Mr Mahlaka made the following points in writing:

  • Mthombeni Projects (for Mr Bam) was paid for the transportation of 25 000 people to the Provincial memorial service of mama Winnie Madikizela Mandela held on the 10 April 2018 in Bizana town. The main organizer of the memorial service was the Provincial department of Sports, Recreation, Arts and Culture.
  • I don’t know why Mthombeni Projects submitted an invoice for Plant Hire, my only speculation may be that he was not properly instructed by those who ceded payment to his company. When Mthombeni Projects submitted an invoice for Plant Hire we immediately rejected it as we did not hire such services from anyone. Mthombeni thereafter submitted an invoice for the transportation of 25 000 people to the memorial service. Maikenjo Trading was a company contracted by the Eastern Cape Provincial Department of Sports, Recreation, Arts and Culture for transportation services. When Maikenjo Trading came to Mbizana to render the services as per appointment, the local transport industry (Bizana Taxi Association) rejected Maikenjo claiming that they are the only ones with permits to transport people from various routes in Bizana and therefore they will not allow any other company or person to transport people. 
  • The municipality paid an invoice for transportation of 25 000 people to the memorial service of Winnie Madikizela Mandela. The payment was made to Mthombeni Projects as per the written instruction of the Mbizana Taxi Association and Maikenjo Trading. 

3.14 However in spite of the “Payment confirmation” from the Mbizana Municipality to Mthombeni Projects, dated 1/8/18 for the amount of R1,1 m with the reason for payment being “Transportation of people” and despite the fact that there appeared to be some sub-contracting, this does not contradict the report that money was taken from the municipality and part of it went towards home renovations. It introduces an element of doubt that the payment was made for no services rendered.

3.15 The Memorandum of Agreement from the Eastern Cape Department of Sport, Recreation, Arts and Culture and the Mbizana Municipality dated 15/5/18 is “to cover some of the cost associated with transportation of the public” for the memorial service of Winnie Madikizela-Mandela held on 10 April 2018. The amount of funding from the department is R1,1 m. The agreement is set to expire on “31st September 2018”.

3.16 Other documents include information from the government’s Central Supplier Data Base, which shows Mthombeni Projects as a supplier. However, Mthombeni Projects is described as falling under the “industry classification” of “Water supply, sewerage, waste management and remediation activities.” It is difficult to understand why such a company would have been involved in transporting people to a memorial service.

3.17 I asked Dr Crispian Olver, a former senior official and expert in local government to “interpret” the documents.  He confirmed they showed an agreement from the provincial Department of Sport, Recreation, Arts and Culture to pay various municipalities to provide transport services for the memorial. “There is also a purported procurement process by DAC which resulted in the appointment of various services providers for this service, Mthombeni projects being one of these. However, we have no evidence that such a DAC procurement process was followed, only that service providers were pulled off the central supplier database (hence all the forms from the database). According to the contract with DAC, Mbizana municipality is meant to run its own procurement process in order to be able to pay Mthombeni projects. The documents show that Mbizana did create a payment folder for Mthombeni, but there is no evidence that this was done legally. What is suspicious is that the second invoice from Mthombeni was for plant hire (Invoice 002), which suggests that in fact the municipality had not procured transport services, and that there had been no legal process to pay them...”

3.18 There is also still a question about why a construction company that specializes in “water supply, sewerage and waste management” should be paid for transport services.

3.19 The other question is why Mr Mabuyane’s office, and not Mr Madikizela, is the complainant in this matter. The Sunday Times did not accuse Mr Mabuyane of any wrongdoing. It says merely that an amount of R450 000 was deposited into the account of the draughtsman renovating his house. Mr Bam says he did this on the instructions of Mr Madikizela. Mr Madikizela told the M&G this was part of a loan agreement. Mr Bam’s central claim is that he was paid by the municipality and did not provide services in return. This newspaper did not claim that Mr Mabuyane was involved in this, nor does it suggest he even had knowledge of it. Furthermore, it was Mr Madikizela who declined to comment to the Sunday Times, not Mr Mabuyane, who did provide comment.

3.19 The complaint of “omission” with regards to the editing of Mr Madikizela’s comment to the M&G cannot hold as Mr Madikizela was given an opportunity to comment by the Sunday Times and declined it.

Moreover, the newspaper put questions to the municipality about the apparent discrepancy between an invoice for “plant hire” and payment for “transportation” and Ms Smuts, in her argument, said Mr Mahlaka could not answer these questions when they spoke to him.

3.20 There is also nothing in the story to suggest the R450 000 was not a “loan” from Mr Madikizela to Mr Mabuyane.

3.21 Is there reasonable evidence to suggest that the introduction to the Sunday Times story is true – that money was “siphoned off” from a small municipality (by means of questionable invoices) and part of this was used to pay Allan Morran Design?

3.22 The latter point is common cause, and there is no evidence that this was not part of a private (if clumsy) loan arrangement. The major question is whether the money was paid in return for no services. The contradictory invoices, the involvement of another company, and the fact that Mthombeni Projects was paid for “transport”, something not part of its core services raise more questions than answers. There is also the question of why Mr Bam would willingly risk a charge of crimen injuria by swearing to a false statement.

3.23 However, the statement from Mr Mahlaka and the payment confirmation are enough to cast some doubt over whether Mr Bam was paid ‘for nothing.” As to his motivation, Mr Sicwetsha told me that Mr Bam has had a “fall-out” with Mr Madikizela. “He’s trying to throw mud at whoever is close to Babalo…we believe that he’s using the information falsely.” Mr Sicwetsha also sent me a letter from the Public Protector’s office stating that her office had declined to investigate the matter, although this is not relevant in this adjudication.

3.24 Thus on the “verification” aspect, in terms of 1.3 of the Press Code, it would have been more prudent had the Sunday Times used the word “allegedly” in the intro about money being “siphoned from a struggling municipality”. Although an affidavit and the invoices from Mr Bam show strong circumstantial evidence, a newspaper cannot be a court of law that decides whether a sworn statement is in fact true or not.

3.25 In terms of 1.8, the right of reply, the Sunday Times spoke to critical sources reflected in its story, including Mr Dyala from the ANC, Mr Mahlaka from the municipality, who told the newspaper, as he told me, that money was paid to Mr Bam for “transportation of people”. They also approached Mr Madikizela, who declined to comment further than he had already commented in the Mail&Guardian and this was fairly reflected. There is no suggestion in the story of wrongdoing on the part of Mr Mabuyane, but as is a central figure in the story, he was also approached for comment and this was fairly reflected.

3.26 On the complaint about a conflict of interests on the part of the reporter Mphumzi Zuzile: It is true that Mr Zuzile worked for the provincial government and that soon after Mr Mabuyane was voted in as provincial chair he left his job as an aide to then MEC Ms Thandiswa Marawu.

According to the Sunday Times, he was “previously” a member of the ANC when he worked for Ms Marawu. Mr Smuts says the membership card provided by Mr Sicwetsha is from 2015. He has not paid his dues since then and his membership has lapsed.

Mr Sicwetsha replies that membership of the ANC never lapses – not paying fees simply means you are not a member in “good standing”.

3.27 Mr Zuzile has previously been an award-winning reporter at the Daily Dispatch before working for the provincial government. When Ms Marawu’s term as an MEC ended, he left the provincial government and started his own business before joining the Sunday Times and moving to Johannesburg at the beginning of 2019.

3.28 Several journalists have moved between the media and jobs as government or SOE spokespeople: this is not unusual.

However, in a time where political competition – particularly within the ANC – is fraught, it is important to avoid any perception of a conflict of interests.

In this case, Ms Smuts informs me that the reporter who first received the tip-off about Mr Bam’s affidavit was in fact Mr Zuzile’s co-author Zingisa Mvumvu. So there must be doubt about whether Mr Zuzile was simply used as a weapon in a factional battle.

3.29 Also, the membership card is from nearly five years ago and there is no evidence since then that he has re-activated his lapsed membership.

3.30 Conflict of interests in the Press Code is a serious offence and thus the burden of proof must be high. In this case, there is no evidence that Mr Zuzile is a current member. The story is also of critical public interest.

3.31 Having said that, it may be wise for newspapers to advise their reporters that membership of political parties, whether lapsed or active, detracts rather than adds to perceptions of their professionalism. But in this case, there is no evidence that Mr Zuzile’s past association with either the provincial government or the ANC played a role in the article he co-authored.

3.32 On the Hogarth column: Hogarth is a satirical column published on the Op-ed page of the Sunday Times. It is an opinion column, protected by clause 7 of the Press Code under certain conditions. One of these is that it takes “fair account of all material facts that are substantially true.

In this case, the item was a play on words – a pun using certain words and nicknames for places in isiXhosa. It may not have been that funny – even “lousy”, as Mr Sicwetsha describe it – but the Code does not make a prescription about “good” or “lousy” satire. There is no dispute about the facts on which it was based. Nor can a play on words about a nickname for Mr Mabuyane’s birthplace Emaseleni (a place of thieves) be said to be defamatory of Mr Mabuyane himself.

Finding

The Sunday Times has shown it had sufficient grounds for reporting the allegation and it was well within the public interest to do so. It should, however, have inserted a word such as “alleged” into its intro to give the reader a sense that the claim that money was transferred to Mr Bam's account for “nothing” was contested. This is a breach of clause 1.3 of the Press Code.

For the rest, it afforded key players, including Mr Mabuyane, a right of reply. Mr Madikizela was offered a right of reply but declined. It would also be unreasonable to expect the Sunday Times to “lift” Mr Madikizela’s entire reply to another newspaper.

There is no dispute about the facts on which the Hogarth column was based whether it was “lousy” satire or not; moreover it did not accuse Mr Mabuyane himself of being an “isela” (thief),.

The Sunday Times is to apologise for not indicating in the introduction to its story that the claim that money was “siphoned from a struggling municipality” was contested by some roleplayers.

This is a Tier 2 offence. 

The newspaper should apologise for this and its apology should be published on the same page as the original print story in the newspaper, with a link to its online story, and be approved by the Ombudsman.

The Press Council logo and a link to this finding should also be published.

The rest of the complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven (7) working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

 Pippa Green

Press Ombudsman

February 10, 2020

Appendix

The documents provided by Mr Sicwetsha are:

  • An online banking confirmation from the Mbizana municipality to Mthombeni Projects for R1,1m, dated 1 August 2018
  • An online banking confirmation from FNB showing payments made to various parties including Mthombeni Projects
  • A “Cashbook Request” dated 31/07/18 for R1,1m to Mthombeni Projects for R1,1 m for “Transportation of people”.
  • A confirmation from Mbizana Municipality titled “Cashbook Cheque/Deposit Authorisation  date 1/08/18 showing payment of R1,1 million to Mthombeni Projects with a subject line “Transportation of People”
  • A “payment request form” from Mr S N Majova from the Finance division of the Mbizana Municipality for R1.1m to be paid to Mthombeni Projects with Reason for Payment given as “Transportation of people from 31 wards to Winnie Madikizela Mandela Memorial Service.
  • A Supply Chain Management document from the Department of Sport, Recreation, Art and Culture dated 14/7/18. Item 5 lists Maikenjo Trading as presumably being responsible for the Alfred Nzo/OR Tambo district.
  • A document dated 20 November 2017 from the Contract Management Unit of EC Dpt of Sport, Recreation and Culture head of department Mzolisi Matutu to “The Manager, Maikenjo Trading Co,” for “Transport services for the Dpt for a period of three years.”
  • Tax Invoice 0002 from Mthombeni projects to Maikenjo Trading dated 16/4/18 for R1.1 m for “Transportation of 25000 people from 31 wards of Mbizana local municipality to the Winnie Mandela memorial service
  • A tax clearance certificate dated 26/2/18 for Mthombeni Projects and a Tax Compliance status certificate dated 26/2/18.
  • A CIPC certificate for Mthombeni Projects, with a registration date of 18/01/2018
  • A copy of Mr Bam’s ID document
  • An account confirmation letter for Mthombeni Projects
  • A Central Supplier Database registration document (for government)for Mthombeni Projects which classifies it as in the “water supply, sewerage, water management and remediation” group, with Edgar Lonwabo Bam as the director/owner
  • A memorandum of agreement between the EC Dpt of Sport, Recreation, Arts and Culture and the Mbizana Local Municipality (represented by Mr Luvuyo Mahlaka the municipal manager) for the department to “part-fund” the municipality in the amount of R1.1 million “to cover some of the cost associated with the transportation of the public from different areas of Mbizana Mafumbatha Stadium to attend the Memorial service on 10 April, 2018, and authorising the Municipality “the right to procure the services of transport operators within the surrounding areas of Mbizana to transport the pubic to the memorial service..”, and “agreement to remain in force until 31 September (sic) 2018 unless terminated…” The agreement is signed 15 May, 2018.
  • An ANC membership form for “Mpumzi Zuzile” dated 0/11/2015 with an address given in Gonubie, East London.


[2] This story was also the subject of an Ombudsman finding. http://www.presscouncil.org.za/Ruling/View/lubabalo-mabuyane-vs-mailguardian-4418

 

[3] For a full list of documents see Appendix