Ruling by the Deputy Press Ombudsman
October 14, 2011
This ruling is based on the written submissions of attorneys De Swardt Vögel Myambo, for Mr P. Setou, and the Sunday Independent newspaper.
Complaint
Mr Peter Setou complains about a story in the Sunday Independent, published on August 21, 2011and headlined Hawks investigate complaints – Allegations of a conflict of interest and corruption against Credit Ombudsman.
Setou complains that the newspaper:
• did not contact him for his comment; and
• used a wrong document that falsely alleges that he had an inappropriate relationship with Rudo Consulting.
Analysis
The story, written by Gcwalisile Khanyile, is about complaints by debt counsellor Reginald Nyiko Matjokana against Credit Ombudsman Manie (misspelt in the story – “Mannie”) van Schalkwyk (for conflict of interest), former National Credit Regulator (NCR) CEO Gabriel Davel (for maladministration) and senior manager of education and strategy Peter Setou (for corruption). The story says that Matjokana lodged these complaints with the Public Protector and the Hawks.
Khanyile writes that Setou was being investigated by the Hawks. The complaint with the Public Protector is reportedly about Setou’s relationship with Rudo Consulting (RC), an independent consulting firm with expertise in debt counselling (who was to assist the NCR with monitoring and providing support to debt counsellors).
We shall now look at the merits of the complaint:
Not contacted for comment
The story says that Setou was “unavailable for comment”, implying that it tried to contact him.
Setou complains that the Sunday Independent did not ask him for comment prior to publication. He adds that the newspaper nevertheless proceeded to publish the story – resulting in creating the impression that there was some wrongdoing on his part. His lawyer writes: “The irresponsible manner in which this story was researched and published has tarnished our client’s reputation.”
The newspaper denies this, saying that it contacted Setou about five times on August 19 and 20. It adds: “When we realized that he was not responding, our reporter…then sent him sms notices on his cellphone…” in order to elicit a response from him.
Because Setou has twice denied that the Sunday Independent has tried to contact him, I asked the newspaper for copies of these sms notices.
This is what the newspaper sent me (it says that it sent the first one on August 19 and the other on August 20):
Dear Mr. Setou
I’ve been trying to get hold of you, but your phone is still on voicemail. We are doing a story about corruption allegations against you relating to Rudo Consulting, DSG (Digital Solutions Group) and Feasibility. The Hawks and the public Protector are already investigating you.
1. Why did you record the incorrect figure when you recommended the appointment of Rudo Consulting?
2. Was your intention to deceive other Expo members?
3. You also recorded an incorrect figure on your recommendation for an appointment of DSG, saying the cost was below R100 000 when it was actually more. Why did you do it?
4. Did you have any hidden agenda when you did this? (Please explain). We would appreciate any other comment or additional information related to this matter as we intend to publish the matter we understand to be true.
Our deadline is: Saturday, August 20 2011 @ 17:H00
Kind regards,
Gcwalisile Khanyile
The Sunday Independent Journalist. 076 423 1144/ 011 633 2356
Fax number: 011 633 2216
Or Email: gcwali.khanyile@inl.co.za or gcwalie32@gmail.com
Here is another message:
Dear Mr Setou
I’ve been trying to get hold of you but your phone is on voicemail. Please sms me your email address so that I can send you a set of questions. We are doing a story about corruption allegations against you, some of them are already a subject of investigation by the Hawks and they have already reported to the office of the Public Protector.
Kind regards,
The Sunday Independent Journalist. 076 423 1144/ 011 633 2356
Fax number: 011 633 2216
Or Email: gcwali.khanyile@inl.co.za or gcwalie32@gmail.com
Unfortunately there are no dates to these messages. However, the journalist sent these to me seconds after we have spoken on the phone – which makes it unlikely if not impossible that she has made them up afterwards.
I have checked that the number that the journalist said she used was the right one. It was indeed. Also, there is no apparent reason why the journalist would purposefully send these messages to a wrong number.
Therefore, I believe that I have enough evidence to accept that the newspaper tried to contact Setou.
Wrong document; False allegation
The sentence in dispute says: “Setou allegedly manipulated various contracts to favour Rudo Consulting.” (This allegation came from Matjokana.)
Setou argues that an independent investigative firm, Peter Dixon and Associates, had investigated “these allegations” and concluded that there was no basis and substance to them. He furnished our office with a document titled Project Status Report, authored by Peter Dixon & Associates, dated 27 September 2010 and printed 13 October 2010 to prove his point.
He also makes some remarks regarding Matjokana. I find these remarks to be irrelevant to his complaint, but I have listed them hereunder for the sake of completeness:
• He (Matjokana) is a registered debt counsellor and not a NCR employee;
• He is therefore not qualified to make any pronouncements on the NCR’s internal functions and operations;
• The NCR has been inundated with complaints against him with regards to serious non-compliance with the NCR, including colluding with some NCR staff;
• When these allegations were investigated, he (Matjokana) started targeting him (as the one who was in charge of debt counselling);
• He has been subject to investigation by the NCR “and found to be non-compliant”;
• Areas of his non-compliance include accepting cases and money from over-indebted consumers and not doing anything to assist them;
• He was served a Compliance Notice during July 2011, which may result in him being deregistered as a debt counsellor; and
• Another newspaper recently exposed his collusion with NCR staff (which was apparently not taken into account by Khanyile).
(These comments are irrelevant to the complaint, as my task is not to decide if either Matjokana or Setou is innocent or guilty – my only objective is to establish if the story is in breach of the Press Code or not.)
Sunday Independent replies that the document that Setou provided our office with is outdated. The newspaper sent me a document with an identical title and also dated 27 September 2010, but printed on 29 March 2011, and says that it based its story on the latest information.
The newspaper argues that it did not create an impression that there is some wrong-doing by Setou, but that it merely reflected on an impression that existed with the NCR’s office.
It furnished our office with another document, written by the NCR, directed to Setou and titled Notice to attend a disciplinary hearing. This document, dated August 25, requires Setou to appear before a properly constituted DC hearing that was scheduled for September 23. Attached to this document is another one that outlines the reach and scope of Setou’s “gross misconduct”.
The Sunday Independent also states that Setou was placed on “special leave”, pending the finalization of the hearing. The newspaper adds that speculation as to the fate that could befall Matjokana is useless and concludes that he would therefore not pursue this matter any further.
In his reply to the newspaper’s response, Setou says that Dixon’s report was finalized during 2010 and argues that the report that the newspaper used is not the final one that was accepted by management. It says that the final report differs significantly from the original report, and states: “We challenge the authenticity of this report and contend that it is not a report authored subsequent to the 2010 report but an alteration of the only existing and recognized report of the NCR.”
He continues that he has a right to be presumed innocent until proven guilty and argues that the newspaper had no right to publish articles which seek to undermine this principle. He adds that it was unfair, unbalanced, partial and libelous for the newspaper to not explain that the allegations were made by a debt counsellor who himself was under investigation and who had been investigated before.
The issues at stake are:
• Did the newspaper use the correct document?
• If it did not, how reasonable was it for the newspaper to use that document?
• Was the newspaper’s reportage, based on a right or wrong document, reasonable and fair?
I shall first of all comment on the documents that both parties furnished me with, dated 27 September 2010 but printed on different dates.
The only difference on their front pages is the indication at the bottom of the pages as to when it was printed. (Setou’s document was printed on 13 October 2010 and that of the newspaper on 29 March 2011.)
The next two and a half pages that deal with Matjokana’s affidavit are identical.
The last section of the documents contains recommendations. The main difference is that the newspaper’s version contains a recommendation that the link, if any, between RC and Setou should be investigated, as well as the allegation regarding RC and the University of Pretoria’s tender. In contrast, Setou’s document announces that the accusations leveled regarding RC could not be supported by tangible evidence and that “whilst said accusations were investigated, no wrongdoing was evident” (emphasis added).
This is odd, as the document that calls for an investigation was printed nearly five months after the one that announces the results of an investigation. One cannot call for an investigation that has already been completed.
This means that at least one of these documents (if not both) contain incorrect information.
Let’s put the question whether the newspaper used the correct document on ice for a moment and move on to the question how reasonable it was to have used that document.
Another document that the newspaper provided me with now features – the NCR one, dated 25 August 2011. In this memorandum to Setou, the NCR informs him that he was required to attend a disciplinary enquiry/hearing into several allegations of misconduct against him. These allegations range from preferential treatment of suppliers, fraud and failure to disclose his relationship with a service provider, to breach of the provisions of his special leave. He is also told that, if he was found guilty of any of these charges, he would be dismissed.
I note that the story was published on August 21 – a mere four days before the above-mentioned notice.
This makes the question about the credibility of both documents (which are dated the same, but printed on different dates) irrelevant. The story says that there was an allegation that Setou manipulated contracts to favour RC – and it is true that there was such an allegation. (This has nothing to do with the question whether Setou was guilty or not.)
This means that the newspaper was justified in its reportage on this matter, irrespective of the legitimacy of the document in question.
However, I also need to say that the document that the newspaper used is in line with the memorandum mentioned above – both talk about an investigation that still needs to be undertaken. It was therefore much more reasonable for the newspaper to have used the one that was printed on 29 March 2011, than Setou’s version. His document says that there was “absolutely no basis for me (Dixon) to conclude that in fact Mr. Setou is guilty of any wrong doing” (emphasis added). A conclusion can only be reached after an investigation – whilst the NCR’s investigation was still forthcoming.
Also, the Sunday Independent did not portray Setou as guilty (regarding his argument of being innocent until found guilty). The story says that he was being “investigated” for “allegedly” manipulating contracts. This is a far cry from being portrayed as guilty.
Now for the last issue: How reasonable and fair did the newspaper treat the document that it used?
The document contains this sentence: “I (Dixon) have no evidence to support any of the allegations made against Mr. Setou for any wrong doing as an employee of the NCR.”
It would have been better if the story referred to this sentence. However, the story is not about what Dixon has found, it is rather about the allegations that led to the investigation by the Public Protector and the Hawks.
Finding
The complaint is dismissed in its entirety.
Sanction
There is no sanction.
Appeal
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman