Ruling by the Deputy Press Ombudsman
December 15, 2012
This ruling is based on the written submissions of Mr P.B. Soobrayan, Director-General of Basic Education, and The New Age (TNA) newspaper.
Complaint
Mr PB Soobrayan complains about a front page story in TNA on 6 August 2012, headlined Textbooks: DG must go.
Soobrayan complains that the story was inaccurate, contained distortions, and misrepresented the facts because the:
· story presented allegations as fact;
· contract with EduSolutions was cancelled, yet the story portrays the opposite;
· story incorrectly linked him to allegations involving his “mother-in-law”; and
· newspaper did not give him a right of reply.
Analysis
The story, written by Siyabonga Mkhwanazi, was about Soobrayan who was “in the firing line” following a Presidential task team probing the Limpopo textbook saga. This came after Soobrayan reportedly refused to follow an instruction from the National Treasury to buy textbooks. The story also stated that the task team was of the view that Soobrayan withheld important information from Minister of Basic Education Angie Motshekga.
Allegations as fact
Soobrayan complains that the assertions in the story were presented as fact, but that instead they were entirely based on conjectures – which Mkhwanazi credited to a “highly placed source” in an attempt to give weight and credence to the inaccuracies.
However, even a cursory reading of the story makes it clear that this part of the complaint has no foundation – the reporter consistently attributes information to sources, even though there may be an exception or two. Soobrayan did not point out which allegations the story presented as fact, and therefore I also respond in general terms.
Inaccurate, distortion, misrepresentations
The story says that the Hawks were called in “to investigate EduSolutions for inflating prices of the textbooks and its pricing of learning materials in Limpopo”.
Soobrayan states that the department cancelled the contract with EduSolutions and adds that that company took the department to court because of that. The statements saying that he “ignored a clear directive from the Treasury that he should buy school books for the province” and that he “allowed EduSolutions, a private company, to manage the process without clarifying that Treasury had approved the additional budget” were therefore distortions and misrepresentations. Furthermore, he argues that the story left readers with the impression that he was in some way linked to EduSolutions and that he refused to carry out instructions – presumably for his own benefit. This, he says, was exacerbated by the following sentence in the story: “This is not the first time that Soobrayan is linked to a scandal involving the supply of textbooks worth millions of rands.”
TNA admits that Mkhawanazi has not seen the report as it has not been made public. The newspaper argues that the newspaper therefore is not in a position to dispute the accuracy of the content of the report. It says that this aspect of the complaint cannot be properly adjudicated until the report becomes publicly available “and accordingly the complaint in this regard is premature”.
The newspaper adds that its two sources were highly placed individuals and states that it “has no reason to doubt the accuracy of the information provided”.
In the famous Bogoshi-City Press court finding, the judge stated that a publication has to show that it was reasonable for it to publish its information, even if that information later proves to be incorrect.
In this case, it boils down to the credibility of the sources. If these sources were credible, and independent of each other, and if the information gained from them was attributed and not stated as fact, then the newspaper is in the clear.
I therefore asked TNA to disclose their identity and positions – a request that was refused. I find this strange, as the newspaper did state in its response to the complaint that it was prepared to disclose information pertaining to the identities of the sources to this office (alone).
This makes it impossible for me to make a decision as to the credibility and the independence of the sources.
TNA newspaper does not respond to the complaint regarding the EduSolutions matter. As this is a large part of the complaint, I also find this quite odd.
An internet search quickly proved Soobrayan right.
So these are my conclusions:
· The statement that Soobrayan refused to carry out instructions – presumably for his own benefit – was baseless and unfair, and certainly must have caused him some serious unnecessary harm; and
· If the references to EduSolutions had no foundation, as I have indicated above, then it follows that the sentence that it was not the first time that Soobrayan was linked to a scandal involving the supply of textbooks worth millions of rands was also without foundation – and, again, also unfair.
Linking Soobrayan to allegations involving his mother-in-law
The story says that he was married and that he had a mother-in-law.
Soobrayan denies both these allegations.
TNA says that Soobrayan’s mother-in-law was already in the public domain and that Mkhwanasi obtained his information from an old story. The newspaper adds that it was not in a position to verify the accuracy of these allegations, but says that it was willing to publish that it could not verify the accuracy of the allegations – and that, accordingly, it retracts these allegations and apologises to Soobrayan for any harm caused.
I welcome this approach by the newspaper.
I have seen so many times that newspapers use other publications as sources, without even trying to independently verify the information. Other publications are not primary sources. So, if a newspaper quotes from old stories without being able to verify the information, it should not state it as fact, but make it clear that this information comes from a secondary source. Published information is not true just because it was published. This practice can easily merely repeat lies, which later in the public’s mind become the truth.
There is nothing wrong with quoting old articles, but then it has to be presented in such a way that this is clear, and not presented as fact – which, in this case, did happen.
No right of reply
Soobrayan complains that the newspaper did not ask him for comment. He states that Mkhwanazi only contacted him after the publication of the story. He says: “He (Mkhwanazi) continued to insist that there had been no grounds to put any questions to me as he had based his comments on my personal life on an article that had been printed in the Mail and Guardian in 2011.” He adds that the Department of Basic Education strongly refuted any allegations of impropriety on his behalf (after the story was published) and stated that the Auditor-General had found that the tender process had been entirely above board.
TNA says that, as soon as the decision was taken to publish the story, Mkhwanazi contacted the spokesperson of the DBE, Mr Panyaza Lesufi, and requested a response to the allegations. The newspaper alleges that Lesufi declined to comment and instead referred him to Presidential spokesperson Mac Maharaj – whose response was incorporated in the story.
The newspaper also notes that:
· the standard practice is to seek comment from the DBE’s spokesperson – which it did;
· it cannot be held responsible for the fact that Lesufi did not contact Soobrayan – as he should have done – to inform him that a response was required; and
· the follow-up story incorporated Soobrayan’s response to the allegations.
It concludes that Soobrayan was provided with an adequate right of reply.
The newspaper’s argument is sound.
Finding
Inaccurate, distortion, misrepresentations
THA did not have the Presidential report at its disposal at the time of publication, and therefore relied on their sources. As I do not have any information about these sources, I am not in a position to come to a finding on the credibility of the sources. However, some action needs to be taken in this regard – see “Sanction”.
The references to Soobrayan’s relations with EduSolutions were in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news…accurately…”
The statement that Soobrayan refused to carry out instructions – presumably for his own benefit – certainly must have caused him some serious unnecessary harm and was in breach of Art. 1.1 of the Code: “The press shall be obliged to report news…fairly.”
The statement that it was not the first time that Soobrayan was linked to a scandal involving the supply of textbooks is in breach of Art. 1.1 of the Code: “The press shall be obliged to report news…fairly.”
Linking Soobrayan to allegations involving his mother-in-law
The appalling practice of quoting secondary sources (in this case a newspaper) and present it as the truth is in breach of the following articles of the Press Code:
· Art. 1.3: “…Where a report is not based on facts or is founded on opinions, allegations, rumour or suspicion, it shall be presented in such manner as to indicate this clearly”; and
· Art. 1.4: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.”
No right of reply
This part of the complaint is dismissed.
Sanction
The New Age is directed to apologise to Soobrayan for:
· incorrectly linking him to EduSolutions;
· unfairly stating that he refused to carry out instructions; and
· incorrectly stating that he was married and therefore had a mother-in-law.
The newspaper is directed to:
· publish a story on the Presidential report now that it is available (if it has not done so already, in which case this part of the sanction falls away) and furnish this office with this text prior to publication;
· publish the text that it indicated that it was willing to do in its response to the complaint. This text should also include the apology as indicated in the sanction above. It should furnish this office with this text prior to publication; and
· publish this text before the end of the year if there is no application for leave to appeal.
As the offence was published on the front page, the apology and retraction should be on the same page. In addition, this text may refer to the parts of the complaint that were dismissed. This text should refer to the story on the Presidential report, which may be published inside the paper (if appropriate).
Appeal
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party 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. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman