Date of publication: 2 February 2022
Headline: Public Protector defends appointment of former SARS man Luther Lebelo
Author: Kyle Cowan
Particulars
This finding is based on a written complaint by Mr Luther Lebelo, together with a number of annexures, and a written response on behalf of News24 by its Public Editor Dr George Claassen, Assistant Editor: In-depth News Mr Pieter du Toit and Senior Investigative and Data Journalist Mr Kyle Cowan.
Complaint
The complainant submits that the article transgresses Clauses 1.1, 1.2, 1.8 and 3.3 of the Press Code:
“The media shall:
“1.1 take care to report news truthfully, accurately and fairly;
“1.2 present news 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 summarization;…
“1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;… ”
“3. The media shall:
“3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:
“3.3.1. the facts reported are true or substantially true; or
“3.3.2. the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or
“3.3.3. the reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or
“3.3.4. it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or
“3.3.5. the content was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party;…”
1. Summary of article
1.1. The article is largely based on a statement issued by the office of the Public Protector to explain the appointment of former SA Revenue Service (SARS) official Luther Lebelo as its chief of staff and head of communications in December 2021.
1.1.1. He was reportedly described as former SARS Commissioner Tom Moyane’s “hitman” in testimony before the Nugent Commission of Inquiry into corporate governance at SARS in 2018.
1.2. According to the statement by the Public Protector’s office, Lebelo was interviewed in November 2021 and appointed a month later to a fixed-term two-year contract after a rigorous vetting process, which included criminal, qualification and reference checks.
1.2.1. The statement declares that the Public Protector’s office learnt during this process that Lebelo and SARS parted ways on the basis of a mutual separation agreement, “which makes it clear that neither of the parties admitted liability and that the separation did not constitute a dismissal”. It also notes that Lebelo was paid R1.2 million by SARS to leave.
1.2.2. News24’s article states that it has previously asked SARS to confirm or deny the characterisation of the settlement as a “no fault” agreement, but that it has yet to respond.
1.3. According to the article, Lebelo was involved in the suspensions of senior SARS officials who were part of an alleged list of officials targeted for removal, and “tried without success to further propagate the disproven narrative that a rogue unit had operated at SARS during his testimony before the Nugent Commission”.
1.3.1. He reportedly racked up a R700 000 legal bill in preparing for his testimony before the Nugent Commission. This bill reportedly revealed that an attorney had been tasked with finding documents to link former deputy commissioner Ivan Pillay and former senior enforcement official Pete Richer to “the alleged rogue unit narrative”.
1.4. Responding to queries at the time, the Public Protector’s office reportedly said that there were no adverse findings against Lebelo in the Nugent Commission’s report apart from a recommendation that he be disciplined for an opinion piece in Business Day in 2016 which brought SARS into disrepute.
1.4.1. According to the News24 article, the statement of the Office of the Public Protector does not mention that Lebelo was in fact suspended by SARS after the Nugent Commission’s report was issued to SARS.
1.4.2. The article adds that it is the first time any claim has been made that Lebelo was ever disciplined for writing the Business Day opinion piece. It stated that it would seek comment from SARS to determine whether it agrees with the assertion that Lebelo was disciplined for bringing SARS into disrepute with his opinion piece.
1.5. The article further states that it previously asked if the Public Protector had read the Nugent Commission report: “However, the statement makes it clear that [Public Protector Busisiwe] Mkhwebane’s office sees nothing untoward with Lebelo’s appointment.”
1.5.1. In response to an enquiry from News24 about whether Lebelo authored the statement in his capacity as head of communications, Public Protector spokesperson Oupa Segalwe said the statement represented the position of the Office of the Public Protector and confirmed that Lebelo was not the author.
2. Arguments
The complainant’s submission initially included a complaint about a News24 article published on 15 January 2022. The Public Advocate decided not to condone the lateness of this complaint. Nevertheless, the News24 article published on 2 February 2022 – which is the subject of this adjudication – includes certain aspects which were in the January article, too.
In view of the overlap in the content of the two articles, the Arguments below will include those aspects of the complaints about the January article which apply to the February article as well, and include the respondent’s response to those aspects of the complaints about the January article which also apply to the February article.[1]
Luther Lebelo
2.1. Firstly, the complainant objects to being labelled a “hitman”.
2.1.1. In his complaint about News24’s January article, he states that no finding was made by any tribunals to the effect that he was a hitman, and claims that only the media used this label to refer to him.
2.1.2. While he accepts that News24 did not give him this moniker, he argues that its continued use is harmful and that it impugns his dignity and reputation.
2.1.3. In addition, he notes that neither the Nugent Commission nor the Zondo Commission confirmed in their findings that he played the role of a “hitman”.
2.2. Secondly, the complainant takes issue with the reference in the February article that he was “implicated in the unnecessary and damaging restructuring of SARS, undertaken by private advisory firm, Bain”.
2.2.1. He specifically denies that he was involved in the suspensions of senior SARS officials “who were part of an alleged list of officials that were targeted for removal”.
2.2.2. He submits that this allegation is “unsubstantiated, damaging and derogatory”, and was made “without stating upfront the fact that such claims were not confirmed in findings”.
2.2.3. He argues that this leaves readers with the impression that these claims were findings and, as such, contends that they breach Clause 1.1 of the Press Code which enjoins journalists to report news “truthfully, accurately and fairly”.
2.3. Thirdly, the complainant also denies that he “tried without success to further propagate the disproven narrative that a rogue unity had operated at SARS during his testimony before the Nugent Commission”.
2.3.1. He includes this allegation among those that he regards as “unsubstantiated, damaging and derogatory”.
2.4. Fourthly, in relation to the January article, the complainant submits that he was entitled to be given an opportunity to comment prior to publication on what he regards as “critical reportage”. In light of his complaint that the February article is in breach of Clause 1.8, this is presumably the same basis of his complaint.
2.5. In conclusion, Lebelo states that the February article has prejudiced him in the extreme, and submits that the only way to remedy this is through “a number of measures including retractions, corrections and apologies”.
2.5.1. In support of this claim, he cites Clause 1.10 of the Press Code, which obliges the media to “make amends for presenting inaccurate information or comment by publishing promptly and with appropriate prominence a retraction, correction, explanation or an apology on every platform where the original content was published, such as the member’s website, social media accounts or any other online platform; and ensure that every journalist or freelancer employed by them who shared content on their personal social media accounts also shares any retraction, correction, explanation or apology relating to that content on their personal social media accounts” (complainant’s emphasis).
2.5.2. In addition, he cites Clause 1.11, which compels the media to “prominently indicate when content that was published online has been amended or an apology or retraction published. The original content may continue to remain online but a link to the amendment, retraction or apology must be included in every version of the content which remains available online” (complainant’s emphasis).
2.5.3. Lastly, he wants News24 to retract its labelling of him as “SARS or Moyane Hitman” and to apologise, as prescribed in Clause 1.10.
News24
2.6. Regarding the use of the word “hitman” in its article, the respondent submits that the complainant himself used it in his testimony before the Nugent Commission and refers to the transcript of the proceedings as proof.[2]
2.6.1. As an example, it refers to page 2 397 of the transcript records, which quote the complainant as saying on 27 September 2018: “And you’ll remember that the one thing that really put me in a very painful state is when one of famous books been written where I was quoted as a Moyane hitman and what, what and all those kind of bad words and it was very painful for me and my family because when you portray someone as a suspension hitman you create an impression that this guy is, this guy just enjoys suspending people.”
2.6.2. It also refers to the following quotes in the transcript records, “If I don’t come here and clear my name I’ll be carrying this baggage of being called a hitman who suspended people” (pages 2 762-2 763), and “And consequentially I’ve been alleged to have been a hitman who has suspended people” (page 3 920).
2.7. The respondent identifies the book referred to in point 2.6.1 above as Jacques Pauw’s The President’s Keepers – Those keeping Zuma in power and out of prison, which was published in 2017.
2.7.1. It notes that Pauw quotes an anonymous SARS source who refers to the complainant as follows on pages 181-182: “He’s Moyane’s hit man. At SARS, some call him the ‘head of suspensions’.”
2.7.2. The respondent adds that, according to a source at SARS, it was Pauw who first coined the description of the complainant as a hitman.
2.8. The respondent further argues that News24 is not alone in describing the complainant as a hitman at SARS and provides a list of links to other media sites in which nine articles refer to him as a “hitman” either in the headline or in the body of the text.
2.8.1. Furthermore, the respondent contends that the complainant has not in any way refuted the description of him as a hitman at SARS, and claims that various other sources and former SARS employees have also used this description to refer to him.
2.8.2. It adds that the first part of the Zondo Commission into State Capture[3] has been devastating in its findings on what happened at SARS during Moyane’s term of office, and asserts that the complainant was an integral part of operations to get rid of SARS officials regarded as standing in the way of the “state capturers”.
2.9. In relation to the January article, the respondent argues that the focus of the article was not on the complainant as a SARS “hitman” but on his appointment to the Office of the Public Protector despite the Nugent Commission’s findings.
2.9.1. As a result, it points out, News24 approached the Public Protector’s office for feedback on the processes it followed before appointing the complainant.
2.9.2. In addition, News24 states that it did not approach the complainant directly for his comments in view of the fact that he occupies a dual role at the Office of the Public Protector as chief of staff and head of communications. As such, “it was clearly understood that he would have had sight of the questions and a hand in drafting the responses”.
2.9.3. Furthermore, it points out that Segalwe is quoted in the story describing the processes which led to the complainant’s appointment. In this sense, it argues, the audi alteram partem rule was diligently applied by News24.
2.9.4. It states that there was no need to seek the complainant’s reaction to his appointment as he did not appoint himself; the focus of its article was to ask the Public Protector’s office why he was appointed despite the Nugent Report’s findings against him.
2.9.5. The same arguments presumably apply to the February article.
2.10. Specifically in relation to the February article, the respondent repeats its submission that it is based on a public statement by the Public Protector’s office on the appointment of the complainant.
2.10.1. According to the respondent, its article outlines the Public Protector’s reasons for the appointment “despite serious concerns and criticism” in light of the findings of the Nugent Commission on SARS. It gives the context of the criticism and the complainant’s actions at SARS.
2.10.2. It states that its defence of the January report also applies in full to the February report: “The latter only elaborated by publishing the Public Protector’s statement and then gave the context of why the statement was issued. What was testified about Mr Lebelo at the Nugent Commission and the findings about him, were still the same and News24 gave the context putting the Public Protector’s statement in perspective.”
2.11. With regard to the findings of the Nugent Commission, the respondent argues that the complainant ignores these.
2.11.1. Among the examples it cites is the following statement on page 16 of the Commission’s final report: “[40] … We have been told that Mr Lebelo’s delegated authority to dismiss employees has also been removed. We are gratified by [this decision]. It is time that dignity and decency return to SARS.”[4]
2.11.2. It also refers to the Nugent Commission’s dismissal of the complainant’s continuing affirmation of an alleged “rogue unit” at SARS on the same page: “[41] We have become acutely aware as the inquiry has progressed that the Commission has been sought to be drawn into an onslaught upon those who managed SARS before Mr Moyane arrived, founded upon allegations once peddled by the Sunday Times to a beguiled public for a year and more, about a ‘rogue’ unit that was alleged to have existed within SARS, which is what Mr Lebelo’s documents were all about.”
2.11.3. The respondent also rejects the complainant’s contention in his complaint about the January article that his suspension was not due to the Nugent Commission’s findings (this assertion is repeated in the February article). It submits that SARS issued two statements which confirm that his suspension followed the Commission’s recommendations.
2.11.4. The first SARS statement, issued on 31 July 2019, announces the precautionary suspension of the complainant and two other executives, and states that it is “part of an ongoing comprehensive review of the whole SARS leadership by the Commissioner in terms of good governance, and further, in response to the report on the Commission of Inquiry into Tax Administration and Governance by SARS, the ‘Nugent Report’ ”.[5]
2.11.5. The second SARS statement, issued on 21 August 2021, announces the precautionary suspension of a fourth executive, and repeats that it is “part of an ongoing comprehensive review of the whole SARS leadership by the Commissioner in terms of good governance and, further, in response to … the ‘Nugent Report’ ”.[6]
3. Analysis
3.1. Regarding the first complaint, my analysis – and finding – will be confined to the one specific instance in the February article in which the word “hitman” is used. The use of the word elsewhere falls outside the ambit of this complaint.
3.1.1. The reference in the February article appears in the following sentence: “Lebelo, who was described as former SARS Commissioner Tom Moyane’s ‘hitman’ in testimony before the Nugent Commission of Inquiry into corporate governance at SARS in 2018, was appointed in December 2021.”
3.1.2. However, by its own admission in its response to the complaint, News24 states that the complainant “is in fact the only person to have used the term ‘hitman’ during testimony before the Commission” (my emphasis).
3.1.3. It is therefore misleading to report that the complainant was described as a hitman before the Nugent Commission when he was, in fact, the only person to use that word – and did so only to register his objections to it.
3.1.4. This is clear from News24’s own references to the Commission’s transcript records in its response to the complaint (see points 2.6.1 and 2.6.2 above) as well as from a perusal of the rest of the transcript records.
3.2. The second complaint – that the complainant was not involved in the suspension of senior SARS officials – is open to question on several grounds.
3.2.1. The Nugent Commission declares in its “Primary Conclusions” that “there has been a massive failure of integrity and governance at SARS” (Page 3), and states: “There are many elements to good governance. Principally, in any organisation, it is the oversight role of senior management structures, that are able to put a brake on abuse of authority, but senior management was driven out or marginalised at SARS, and we have seen no evidence that senior management appointed by Mr Moyane was anything but compliant.” (Page 4)[7]
3.2.2. While this statement by the Nugent Commission does not specifically name the complainant, it is reasonable to infer that – as a member of SARS’ senior management at the time – he is included in this statement.
3.2.3. Such an interpretation is supported by the previously cited comment in Chapter 1 of the Commission’s report: “We have been told that Mr Lebelo’s delegated authority to dismiss employees has also been removed. We are gratified by [that decision]. It is time that dignity and decency return to SARS.” (Page 16) This is a clear indication that, by implication, the Nugent Commission included the complainant in certain events that transpired during Moyane’s tenure as SARS Commissioner.
3.2.4. The same view can be taken that the complainant is included in the Commission’s recommendation that “the new Commissioner of SARS conduct a performance review of EXCO members appointed by Mr Moyane, taking account of their capacity for senior management, their appreciation of good governance, and their capacity for inspiring public confidence in the integrity of SARS, bearing in mind the matters dealt with in this report”. (Page 195)
3.2.5. An indication that the complainant was among those regarded as playing a role at SARS that raised serious concern is the fact that the revenue service placed him on provisional suspension in direct response to the Nugent Commission’s report (see points 2.11.4 and 2.11.5 above).
3.3. The third complaint relates to the complainant’s denial that he attempted to advance the narrative of a SARS rogue unit in his testimony before the Nugent Commission.
3.3.1. The Commission deals with aspects of this issue in a section under the subheading “Attempts to resuscitate the ‘Rogue Unit’ ” (as well as elsewhere in its report).[8]
3.3.2. As noted earlier, the Commission states on Page 16: “We have become acutely aware as the inquiry has progressed that the Commission has been sought to be drawn into an onslaught upon those who managed SARS before Mr Moyane arrived, founded upon allegations once peddled by the Sunday Times to a beguiled public for a year and more, about a ‘rogue’ unit that was alleged to have existed within SARS, which is what Mr Lebelo’s documents were all about.”
3.3.3. The report goes on to declare: “The Sunday Times did great damage to SARS and the people of South Africa and the Commission will not now pick up where it left off.” (Pages 16-17)
3.3.4. According to the Nugent Commission, therefore, there was clear intent on the part of the complainant to perpetuate the narrative of a rogue unit within SARS.
3.4. There are two separate, but related, aspects that need to be considered with regard to the complainant’s fourth complaint, namely that the article was in breach of Clause 1.8 of the Press Code.
3.4.1. The one aspect is that the article deals, in part, with the processes followed by the Office of the Public Protector before it appointed the complainant.
3.4.2. This is based on a statement issued by the Public Protector’s office which provides details on the processes it followed before the complainant was appointed.
3.4.3. The article further notes that Segalwe confirmed that the statement represents the official position of the Office of the Public Protector.
3.4.4. Taking this statement as its starting point, the article goes on to question why the Public Protector’s office made the appointment in spite of certain pronouncements of the Nugent Commission.
3.4.5. As News24 rightly observes in its response to the complaint, the complainant did not appoint himself. For this reason, it was perfectly justified in approaching the Public Protector’s office for comment.
3.4.6. In doing so, News24 sufficiently complied with the audi alteram partem rule in relation to this part of the article.
3.4.7. The second aspect that needs to be taken into account is that the article also provides background to the criticism of the complainant’s appointment in light of the Nugent Commission.
3.4.8. The Nugent Commission – or, more properly, the Commission of Inquiry into Tax Administration and Governance by the South African Revenue Service (SARS) – was constituted on 24 May 2018 under Proclamation 17 of 2018. As such, its proceedings and final report are part of a privileged occasion.
3.4.9. The references in the article that are critical of the complainant are based on the final report of the Nugent Commission (see points 3.2 and 3.3 above). Accordingly, these references do not require comment from the complainant.[9]
4. Finding
The complaint that the article is in breach of Clause 1.1 is dismissed (for the reasons identified under points 3.2 and 3.3 of my Analysis).
The complaint that the article is in breach of Clause 1.2 is upheld. While the word “hitman” was indeed used at the Nugent Commission, the article did not disclose that the only person who did so was the complainant, nor did it provide the context in which it was used – both material omissions (see point 3.1 of my Analysis).
The complaint that the article is in breach of Clause 1.8 is dismissed (see the reasons outlined under point 3.4 of my Analysis).
The complaint that the article is in breach of Clause 3.3 is dismissed. It meets the key requirements of this clause, most notably that the information in the article is true or substantially true (see points 3.2 and 3.3 of my Analysis).
News24 is required to apologise to the complainant for breaching Clause 1.2 of the Press Code. The headline should contain the word “apology”, and the text should:
Appeal
The 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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za
Tyrone August
Deputy Press Ombudsman
21 June 2022
[1] The submissions of both parties invite such an approach. The complainant states that “all in all, my submission above should suffice in responding to the second article”, while the respondent states: “The defence of News24 about the 15 January report, also applies in full about the 2 February report.”
[3] https://www.gov.za/sites/default/files/gcis_document/202201/judicial-commission-inquiry-state-capture-reportpart-1.pdf
[8] For example, see Pages 12-15 of the Nugent Commission’s final report..
[9] Deputy Press Ombudsman Herman Scholtz makes a related point in another context in Siyabonga Gama vs Sunday Times (16 June 2021): “Fortifying my view that “Clause 1.8 is not applicable to reportage on privileged occasions or documents are post-2015 decisions by the Ombud that followed the premise that privilege trumps Clause 1.8 …” (my emphasis).