Particulars
Complainant: Mr Puleng Mabe, in his personal capacity
Date of articles: 13 – 19 July 2018
Headlines: SIU probes Pule Mabe’s associates – Net widens as investigators find evidence of fraudulent activity conducted in three provinces; and: Waste pickers lament nondelivery.
Pages: 16 and 17
Online: Yes
Author of article: Thanduxolo Jika
Respondent: Dario Milo and Daniel Sive, of Webber Wentzel
Complaint
Regarding the first article, Mabe complains that the:
Mabe also complains that the second article has:
In conclusion, Mabe complains that the articles have harmed his dignity and reputation, and sought to portray him as a lawless and corrupt person who wilfully flouted the law and / or used his position to influence or improperly manipulate procurement processes. He says the “sting” of the articles was that he had concluded unlawful contracts and used Enviro Mobi as a vehicle in that process. He says this “boarders on harassment”.
He asks for:
Not adjudicated
Regarding the second article, Mabe also complains it:
I have not adjudicated these matters as the:
The texts
The first article said that law enforcement agencies had been looking into how Enviro Mobi and Mvest Trust, run by family members and close business associates of ANC spokesperson Pule Mabe, had scored more than R149-million in suspicious contracts in North West, Gauteng and the Free State over a three-year period.
The SIU had reportedly already met with a North West government subsidiary, the North West Development Corporation (NWDC), to investigate financial irregularities in the awarding of a R49-million laundromat tender to Mvest Trust, run by Mabe’s cousin Eulender Rakoma and his former employee and business associate, Tinyiko Mahuntsi.
Jika wrote this followed an internal probe at the NWDC that found there had been possible fraud in the payment of the R49-million to Mvest Trust, as the individuals who had signed for the payment did not have the authority to do so.
The second story detailed how, despite numerous promises having been made to waste pickers (and substantial contracts having been awarded to Enviro Mobi), the waste pickers did not yet receive three-wheeler (“kariki”) motorbikes which had been meant to assist them to collect waste.
It had reportedly emerged that the three-year, R26-million contract between the department and Enviro Mobi was unlawful. “The dodgy contract in which Enviro Mobi, a company in which ANC spokesperson Pule Mabe once held a directorship and now holds patent rights, has been referred by Gauteng Premier David Makhura to the Special Investigations Unit for alleged financial irregularities,” the journalist wrote.
The reporter also spoke to some workers who were expecting karikis.
The arguments; analysis
First article
Sub-headline
The sub-headline read: Net widens as investigators find evidence of fraudulent activity.
MABE complains that this statement was bizarre and reckless, and not supported by the content of the article. He says while the story referred to “possible fraud”, the sub-headline stated this as fact. He argues that the words “evidence of fraudulent activity” were unbalanced, out of context, and false.
THE M&G says the sub-headline must be assessed in the context of the headline, which stated that there was a probe regarding Mabe’s associates. The newspaper argues: “A reasonable reader of ordinary intelligence would regard the words in the sub-headline … as meaning that persons investigating Mr Mabe’s associates have found evidence of deceitful activity where persons have made false representations to cause harm to other persons (fraud).”
Webber Wentzel (WW) says in this regard, the article stated that:
WW concludes the sub-headline reasonably reflected the contents of the article, as the story reported on evidence of fraudulent activity being discovered.
In addition, WW says a source also provided the newspaper with a copy of the NWDCs internal probe which found that the:
“It is accordingly clear that there is a strong factual basis to support the statement in the by-line of the first article that evidence of fraudulent activity has been found, and that Mr Mabe's complaint is baseless,” WW concludes.
MABE replies that no “evidence of fraudulent activity” had been found in relation to the Free State. He states: “The Mail & Guardian has failed to provide any cogent explanation for the manner in which a single forensic report pertaining to one province is transmogrified into evidence of fraudulent activity in three provinces.”
He adds that the newspaper qualifies its reporting by consistently attaching the label “seemingly” to its conclusions. He says it can be accepted that “seemingly” is synonymous to “possibly” or “apparently”, and therefore does not constitute a definitive finding as set out in the sub-headline.
Analysis
The sub-headline stated as fact that investigators had found “evidence” of fraudulent activity in three provinces. The question is if the content of the article supported this statement, which was presented as a statement of fact.
The story said that the SIU had been investigating the relevant contracts in three provinces and that this had been preceded by an internal probe at the NWDC “that found that there was possible fraud” (emphasis added). The rest of the story mainly consisted of actions by Enviro Mobi that could have been suspect.
With this in mind, let me now take a closer look at WW’s submission.
According to its own argument, the article stated that:
There is nothing wrong with this argument. Note the consistent use of words such as “suggested”, “possible”, and “might have” (as well as “seemingly”) in WW’s submission.
However, what is debatable is not WW’s argument, but its conclusion. A reasonable conclusion would not have been that “evidence” of fraudulent activity had been discovered, as suggested by the sub-headline, but rather that possible evidence was discovered, or maybe that there were some indicators to this effect (or some similar phrase).
While the story itself contained many indicators that there could have been fraudulent activity, it nowhere stated it as fact that evidence to this effect had in fact been found – and neither does WW state so in its argument. The SIU was still busy with its deliberations as to investigate or not, and the NWDC found “possible fraud”.
So: If the sub-headline was proclaiming that there was “evidence” of fraud, the question becomes where this so-called evidence was.
WW also argues quite correctly that the sub-headline must (inter alia, that is) be assessed in the context of the main headline. But the latter stated that a probe was underway (whether that was correct is not relevant at this stage) which suggested that that no final conclusion or finding had been made at the time of publication. Besides, the article itself did not once mention even a provisional finding by the SIU.
The sub-headline turned possibilities (question marks) into a fact (exclamation mark).
So then, the article mentioned two bodies of investigators – the SIU, that had still been busy with its investigation and had not come to any sort of final conclusion, and the NWDC (which was not a law enforcement agency), that had found evidence of possible fraud.
I have no evidence before me to support the statement in the sub-headline that “evidence” of fraudulent activity was found, and neither was it supported by the content of the article.
The SIU; investigating ‘agencies’
The article stated: “Law enforcement agencies are looking into how a company and a trust run by family members and close business associates of ANC spokesperson Pule Mabe scored more than R149-million in suspicious contracts across three provinces.”
MABE complains it was inaccurate, unfair, unbalanced and defamatory to state that law enforcement “agencies”, including the SIU, had been investigating him.
He says, “Without accepting that the SIU is indeed investigating [me], the reportage that ‘law enforcement agencies’ were investigating [me] is defamatory and cannot be possibly be true in light of the Mail & Guardian’s own reportage. The Mail & Guardian seeks to portray a situation that there is a multitude of law enforcement agencies investigating [me], by extension. However, there is only one law enforcement agency mentioned in the first defamatory article.”
He adds that even a cursory attempt to verify the veracity of the alleged investigation by the SIU would have revealed that the SIU cannot institute an investigation without a presidential proclamation – which never happened.
THE M&G says the SIU has conducted preliminary investigations and assessments regarding allegations of fraud, corruption and maladministration prior to an empowering proclamation being assented to by the President.
WW argues Mabe fails to appreciate that the SIU works together with other government and law enforcement agencies when investigating fraud, corruption and maladministration, and to institute civil litigation. Therefore, a reasonable reader would have interpreted the meaning of “agencies” in accordance with this understanding and in light of the information contained in the article, it adds.
The law firm also points out that:
MABE replies the SIU response dated 13 July 2018 states that, in order for it to investigate a matter, its legislation requires “that we obtain a Proclamation from the President”. Despite this, he says, the newspaper has failed to update its reportage to reflect the information received from the SIU, which is in breach of Section 1.9 and 1.10 of the Press Code.
He says that reasonable readers of ordinary intelligence would not have understood the inner workings of the SIU as they were not lawyers and were unlikely to be aware of the details of the SIU’s governing statute (which provides that it can only investigate pursuant to a presidential proclamation). Even Jika was unaware of this, he adds, as he kept on repeating that the SIU was investigating the matter – despite the fact that the SIU stated that there was no ongoing investigation in respect of the above contract.
Analysis
The issues are if:
The SIU: It is noticeable that WW itself says the SIU confirmed in writing that it was not conducting an investigation pursuant to a Presidential Proclamation, but that the unit was still assessing whether the matter relating to the NWDC fell within its mandate. This means that the SIU was still in the process of deciding / deliberating / considering whether or not it should investigate the matter. The main headline, which stated as fact that the SIU was probing Mabe’s associates, as well as the body of the story, which followed suit, can therefore not be correct.
Law enforcement agencies: If it was not true that the SIU was already investigating the matter, it follows that the use of the plural can also not be correct. I also take into account that the NWDC was not a law enforcement agency.
Investigating Mabe: This part of the complaint has no leg to stand on. Both the headline and the article stated that the subject of the investigations were Mabe’s (close) associates – not Mabe himself. It is his prerogative to conclude that he, by association, was also the subject of investigation. Based on what was published, though, I do not share that conclusion.
Contracts ‘suspicious’
The article said: “… business associates of … Mabe scored more than R149-million in suspicious contracts across three provinces”. (Emphasis added.)
MABE complains that the use of the word “suspicious” was inaccurate, unfair, reckless and defamatory, as no finding of illegality or unlawfulness has been made in relation to such contracts. He singles out the reportage on the Free State contract in this regard, saying there is no evidence to this effect.
THE M&G argues there is no need for a finding of illegality or unlawfulness to have been made in order to justify the description of a contract as being suspicious. It argues that the media are well within their constitutionally protected right to freedom of expression to comment that a contract is suspicious prior to such a finding being made where the facts justify such description.
“To suggest otherwise would be [to] fundamentally curtail the ability of the press to fulfil their duty to keep the public informed on issues of high public interest regarding allegations of the unlawful mismanagement, abuse and misuse of public funds. It would also not accord with defamation law principles,” WW says.
It adds that the use of the word “suspicious” was clearly protected comment, which is an appropriate litmus test in the circumstances.
WW says that in The Citizen 1978 (Pty) Ltd and Others v McBride (Johnstone and Others as amici curiae) 2011 (4) SA 191 (CC), the Constitutional Court set out the following requirements that must be met to succeed with the defence of protected comment:
MABE says the Mail & Guardian’s reliance on the provisions of Section 7.2 of the Press Code is misplaced, as the articles were not presented in such a manner that they appear clearly to be comment. Instead, it was presented as clear statement of fact.
He argues that reasonable readers would not have perceived the statement in question to be an opinion or inference, as it did not indicate with reasonable clearness that it constituted comment. He adds the Mail & Guardian’s defence must fail because the article did not constitute comment as defined by the courts, and was not presented as comment either.
Citing several sentences in the article, he concludes that he was the focus of the article and therefore involved in the “suspicious” contracts (read: direct involvement in alleged unlawful contracts) solely by virtue of his association with Enviro Mobi.
Analysis
I have stated this repetitively in earlier findings, but I need to repeat it here: Section 7 of the Press Code, which is about protected comment, pertains to editorials, opinion articles and cartoons only, and not to hard news.
Therefore, if comment appears in hard news stories (which is not normal journalistic practice, but does occur in interpretative journalism such as entertained by the M&G), it cannot claim to be “protected” as per Section 7 of the Code. Such comment therefore needs to conform to other criteria.
But let me first take a closer look at the relevant sentence. It said: “Law enforcement agencies (stated as fact) are looking into how a company and a trust (stated as fact) … scored more than R149-million (stated as fact) in suspicious contracts (stated as?) …”
I take the following references in the story into account:
From this, I believe it was reasonable to conclude that the contracts across three provinces were “suspicious”. The litmus test here is that of reasonableness.
Given this context, I therefore contend that the reasonable reader would have interpreted the use of the word “suspicious” as comment – but they would also have realised that this comment was based on rather solid evidence. (See the first sentence of Section 1.3 of the Press Code.)
Also: Please note that the word “suspicious” does not equate with a verdict of guilty – it merely says there is reason to be sceptical or doubtful about a certain issue. In this case, I believe, such a conclusion was reasonable.
Given all of the above, I contend that the Mail & Guardian was justified to have stated as fact that the contracts were “suspicious” – because the facts justified the description (as stated by WW), and not because it was protected comment as per Section 7 of the Code.
Right of reply
MABE complains that the newspaper did not give him a right of reply, as it should have.
THE M&G says it has provided him with extensive rights of reply in May 2018 (prior to publication) in relation to the relevant allegations in the article, and adds that the article fairly included the substance of this reply. It argues that there was no need to give him a further opportunity to reply as they contained no further information about his relationship with Enviro Mobi or the Mvest Trust.
WW refers to Mthembi Mahanyele v Mail & Guardian Ltd and Another [2004], where Lewis JA held that the Mail & Guardian was not required to ask a person who was defamed in an article for comment prior to the publication of the article where that person's stance on the issue was known.
Analysis
I have obtained a list of questions sent by Jika to Mabe, and WW’s argument in this regard is convincing. I do not believe it is necessary to belabour that argument any further.
The second article
‘Dodgy’
The story said: “The dodgy contract in which Enviro Mobi, a company in which ANC spokesperson Pule Mabe once held a directorship and now holds patent rights, has been referred by Gauteng Premier David Makura to the Special Investigations Unit for alleged financial irregularities”.
MABE complains that the story described the contract between Enviro Mobi and the Gauteng Department of Agriculture and Rural Development as “dodgy” without any finding in this regard, and adds that this description insinuated illegal or untoward activities on his part (as the article stated that he was a director of Enviro Mobi).
THE M&G says it is a fact that Mabe was a director of Enviro Mobi, and submits that it was well within its constitutionally protected rights and obligations to report on this fact.
WW argues there is no need for a finding of illegality or unlawfulness to have been made in order for a contract to be described as “dodgy” where there are facts that justify such description. Any suggestion to the contrary would fundamentally curtail the ability of the press to fulfil its duty to keep the public informed on issues of public interest regarding allegations of the unlawful mismanagement, abuse and misuse of public funds, it states.
The newspaper argues that the use of this word was clearly protected comment. As indicated above, the test is set out in the McBride case:
Analysis
The same argument goes for this part of the complaint as with regard to the one about “suspicious” contracts, as argued above.
Mabe’s association with Enviro Mobi
The article referred to Mabe as a former director of Enviro Mobi in which he still held patent rights.
MABE complains that the story inaccurately and untruthfully has sought to portray him as being intricately involved in unlawful or illegal activity by virtue of his associations. In this regard, he refers to a previous ruling by me, in which he says this type of reportage was censured.
THE M&G argues that Mabe’s understanding of this decision is incorrect and adds that the article merely reported that Mabe was associated with Enviro Mobi.
WW says it is common cause that Mabe:
In addition, it adds, the service level agreement which was signed between NWDC and the Mvest Trust prominently featured two companies (Enviro Mobi and Kariki Media) of which Mabe was a former director.
“It is accordingly beyond doubt that Mr Mabe is associated with the Mvest Trust and Enviro Mobi,” WW concludes.
Analysis
I am not getting involved in the parties’ argument about the different interpretation of one of my previous findings – while, of course, I shall take the relevant finding into account, if necessary.
WW’s arguments in this regard are justified, and they do not require any more consideration – I have little doubt that Mabe indeed is associated, in some way or another, with Mvest Trust and Enviro Mobi. I have also already ruled that the “investigation” into these entities did not involve Mabe as a person (at least, not as far as the article in question is concerned).
Mabe’s patent rights
The story stated: “… the dodgy contract in which ANC spokesperson Pule Mabe once held a directorship and now holds patent rights”.
MABE complains that this statement is false, as an individual cannot hold patent rights in a company. He adds that the newspaper should have verified its facts before making such a statement.
THE M&G argues that this part of the complaint is based on a misunderstanding of the meaning of the statement in question, as it did not mean that Mabe held patent rights in the company.
WW argues: “A reasonable reader of ordinary intelligence would have read this statement in context as meaning that Mr Mabe is associated with Enviro Mobi though (sic) patent rights which he holds (and which presumably are exploited or otherwise used by Enviro Mobi). This is accurate in all respects.”
Analysis
I find WW’s argument, with respect, rather puzzling. It says the statement that Mabe held patent rights in the company did not mean that he held patent rights in the company – it means, it says, that he was associated with Enviro Mobi through patent rights that he holds.
I honestly do not understand this line of reasoning.
Be that as it may, in a ruling of 9 August 2018 (also Mabe vs. the M&G) the adjudication panel stated that Mabe was a holder of patent rights in Enviro Mobi – to which Mabe did not object. I have no reason to change my opinion on this matter at this time.
Right of reply
MABE complains that the newspaper did not seek his comments prior to publication.
THE M&G says Mabe has provided it with an extensive right to reply in May 2018 in relation to the relevant allegation.
Analysis
See my adjudication of the same matter (regarding the first article) above. I have no reason to decide otherwise regarding the second article.
Dignity, reputation
MABE complains that the articles have tarnished his dignity and reputation, and sought to portray him as a lawless and corrupt person, who wilfully flouted the law and / or used his position to influence or improperly manipulate the procurement process. The sting of the articles, he submits, was that he had concluded unlawful contracts and using Enviro Mobi as a vehicle in that process. He says this “boarders on harassment”.
THE M&G opines that Mabe is attempting to deter it from exercising its right and fulfilling its duty as watchdog to keep the public informed about allegations of unlawful conduct and the abuse of state resources in which he and his associates have been implicated, which was of high public interest.
WW emphasises that Mabe’s position in society triggered the Mail & Guardian’s right and duty to keep the public informed regarding the allegations of the unlawful mismanagement, abuse and misuse of public funds in so far as they have implicated him. It also submits that the newspaper has strictly complied with the requirements expressed in the Press Code regarding dignity and reputation.
MABE says he is bemused by the Mail and Guardian’s “mischievous” contention that he was attempting to deter the newspaper from exercising its right and fulfilling its duty to keep the public informed on issues of high public interest”. This allegation is unsupported by the facts relevant to this matter, he says – he is merely exercising his right to correct perceived injustices.=
He concludes that the Mail & Guardian should have ensured that it verified or made reasonable attempts to verify the allegations before publication of the defamatory articles, instead of seeking to maximise commercial benefit by inflaming the situation through sensationalised reporting.
Analysis
I have already stated that the articles did not report that Mabe was under investigation – what were at stake, were questions regarding companies ran by people with whom he had been associated in different ways.
I have no reason to believe that Mabe’s reputation and dignity have unnecessarily suffered as a result of this reportage – also not in the few instances where I have found in his favour.
Finding
First article
Sub-headline
The sub-headline was in breach of Section 10.1 of the Press Code that says: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”
The SIU; investigating ‘agencies’
The article stated as fact, but without justification, that the SIU and law enforcement agencies were investigating some contracts, while the SIU was still considering whether to do so or not, and while the NWDC – that had conducted an internal probe – was not a law enforcement agency. This was in breach of Section 1.1 of the Press Code that says: “The media shall take care to report news truthfully [and] accurately…”
The complaint that Mabe himself were being investigated is dismissed.
Contracts ‘suspicious’
This part of the complaint is dismissed.
Right of reply
This part of the complaint is dismissed.
The second article
The complaint regarding this story is dismissed in its entirety.
Dignity, reputation
This part of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are all Tier 2 offences.
Sanction
The Mail & Guardian is reprimanded for inaccurately stating as fact:
(I am not ordering an apology to Mabe, as he was not the subject of an investigation, and was merely mentioned as being associated with some companies.)
The newspaper is directed to publish:
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.
Johan Retief
Press Ombud