Ramatlakane vs Sunday Times and TimesLive (2)
Wed, May 18, 2022
Ruling by the Deputy Press Ombud
Date of articles: 27 February 2022 (print and online)
Headline of publication: “Prasa chair ‘tried to settle dodgy R4.5bn contract” (Sunday Times) “Prasa chair embroiled in fallout from unlawful R4.5bn contract” (TimesLive)
Author: Thanduxolo Jika
- The complainant is Mr Leonard Ramatlakane, chairperson of the Passenger Rail Agency of South Africa (“Prasa”).
- e complains about an article that appeared on TimesLive and in Sunday Times of 27 February 2022
- This ruling is based on the complaint, a response by the publications’ Susan Smuts, as well as a reply from Ramatlakane. The publications also provided me with the legal opinion referred to in the article, the High Court judgment in question, WhatsApp correspondence, Ramatlakane’s letter and a draft Prasa minute of a meeting between Prasa and Siyangena executives.
- In terms of paragraph 6.1.3. of the Complaints Procedure, I called for further information and representations from the parties on a specific aspect which will be discussed below. I thank both parties for complying with the request.
Background to the complaint
- Approximately a decade ago, Prasa awarded several controversial contracts for security services at train stations to Siyangena Technologies (Pty) Ltd (“Siyangena”).
- In 2016 and again in 2018, Prasa applied to the Gauteng High Court (Pretoria) to review the various contracts based on irregularities with the agreements. Prasa asked the court to set aside the contracts and was successful in their litigation.
- However, this is not the end of the matter. The court also had to decide what a just and equitable remedy would be. To this end, the Court ordered Prasa and Siyangena to:
7.1 Agree to an independent engineer, or to approach the Court to appoint such independent engineer.
7.2 The engineer’s task will be to do a valuation of all the work already performed by Siyangena.
7.3 Prasa and Siyangena then must agree on the value of the work that has been performed (or approach the Court if there is no agreement).
7.4 Prasa and Siyangena must finally calculate how much money Prasa already paid to Siyangena and apply set-offs. If Prasa paid Siyangena more money than the value of the work performed, Siyangena must refund Prasa. Similarly, if the work performed is more than the amount already paid, Prasa must pay the difference to Siyangena.
- Siyangena was not satisfied with the outcome of the High Court matter and launched an appeal with the Supreme Court of Appeal. That appeal is still pending.
- In the meantime, Prasa obtained a legal opinion about the feasibility or otherwise of entering into settlement negotiations requested by Siyangena. This also requires some background.
- According to the legal opinion I perused, the opinion was sought on “the chances that Prasa may be called upon to pay Siyangena the full amounts on its own without deductions or set-off, this taking into account the Gijima case”. The Gijima case refers to an earlier judgment of the Constitutional Court that also concerned a government tender being set aside where Gijima was still entitled to compensation.
- Prasa wanted to know from the advocate if it is “fair even to consider settlement, and if yes, what would have to be taken into account in settlement”. In total, Prasa posed four legal questions to the advocate.
- According to the legal opinion, Ramatlakane then raised 10 additional questions for the advocate in a follow-up mail. These questions requested that “the legal opinion should help guide on a roundtable discussion with Siyangena”. He also asked the advocate what would happen if the court finds that Mr. Lucky Montana, former CEO of Prasa, had a “credible explanation” for benefits he reportedly received from awarding the contracts to Siyangena. This aspect was an underpinning of the High Court’s finding of irregularities. Ramatlakane, through his questions, was apparently quite concerned that Prasa could be forced to make substantial payments to Siyangena and appears to lobby for some type of deal with Siyangena. For example, he asked: “If Siyangena provided information that they wanted to find a settlement and we were not responsive, what would the implication be? i.e. would the Board of Control be – panelist for such failure?” (sic) Also: “Should Prasa push hard that Siyangena restore/reinstate all the equipment to what they were before COVID 19…?”
- The questions rightly raise eyebrows.
- The legal opinion states that Siyangena cannot return to site, as suggested or enquired by Ramatlakane. The opinion is not generally supportive of settlement negotiations and explains why the Siyangena case is distinguishable from the Gijima case.
- The advocate explained that Siyangena would have to withdraw its appeal in the Supreme Court of Appeal before any type of settlement about rand and cents, the outstanding issue of just and equitable compensation, would be appropriate. While the SCA appeal is pending, the advocate advised Prasa to continue defending the High Court judgment. It was, after all, Prasa who approached the court to set aside the contracts.
- It is only against the above-mentioned context that the articles forming the subject of the complaint can be evaluated.
- In essence, the article makes the following allegations:
17.1 Ramatlakane is accused of “working to settle a dodgy R4.5bn contract that was ruled unlawful and invalid by a full bench of the high court in Pretoria”.
17.2 Ramatlakane arranged a meeting with Mario Ferreira, owner of Siyangena, to discuss settlement proposals.
17.3 The contract in question is being investigated by the Hawks.
17.4 “Instead of acting to ensure that Siyangena received no more of Prasa’s money” Ramatlakane wanted to find an “amicable solution that is beneficial to both” Prasa and Siyangena.
17.5 “Despite Siyangena’s contract being investigated by the Hawks, and Prasa having won its civil case against the company, Ramatlakane sought a legal opinion in July last year to guide Prasa on a ‘roundtable discussion with Siyangena’ and whether there would be any benefit in negotiating a settlement.”
- Ramatlakane cites Clauses 1.1. to 1.4. of the Press Code in his complaint. The clauses deal with accurate, truthful, fair, balanced, and contextualised presentation of news.
- Going into more particulars, Ramatlakane complains that the article had “material omissions” from his written responses to the publications that distorted the state of affairs. The heart of the complaint is summarised as follows:
“The Sunday Times and TimesLive articles, notwithstanding the submissions I made to the publications, seek to advance the narrative that I, acting on my own volition and without the necessary Board authority, initiated settlement negotiations with Siyangena with the aim of ensuring that Siyangena benefits financially.”
- He also cites several paragraphs in the article in support of the complaint. I will deal with those quotations below.
- The complaints may be categorised as follows:
21.1 Alleged omissions from Ramatlakane’s response to the publications. This speaks to Clause 1.2. of the Code which requires publications to “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”.
21.2 Alleged distortions of facts to serve a “narrative” that Ramatlakane acted in his own interest and without Board authority in initiating settlement negotiations with Siyangena with the aim of ensuring that Siyangena benefits financially. This also relates to Clause 1.2.
21.3 An alleged factual inaccuracy, being the statement that Ramatlakane sought a legal opinion while it was, in fact, Prasa who sought the opinion. Clause 1.1. is applicable to this category. The media shall take care to report news truthfully, accurately, and fairly.
- The complainant gives a summary of his submissions to the journalist prior to publication. The publications did not challenge the accuracy of what Ramatlakane says he informed the journalist.
- In a nutshell, he told the journalist that Siyangena proposed a meeting to discuss settlement negotiations, that the Prasa board subsequently resolved to seek a legal opinion, the board considered the legal opinion and then resolved that Prasa should engage in a meeting with Siyangena. Ramatlakane, in compliance with the resolution, ensured that the meeting took place and, lastly, that there is no settlement agreement between Prasa and Siyangena.
- Ramatlokane’s version was reported as follows in the article:
24.1 “Ramatlakane denied ever meeting Ferreira and said he only wrote to him to communicate a board decision that the meeting with Siyangena could go ahead. He did not respond to why he became involved in an operational matter.”
24.2 “‘There was nothing sinister or illegal about the meeting in issue…The letter communicated the decision of the board that the meeting could go ahead,’ Ramatlakane said.”
24.3 “‘The board’s response to any matter is within an assessment of the benefit towards Prasa and the wellbeing of the commuters.’”
- Clause 1.2. requires a fair account of the complainant’s version to be included in the article. It does not require a verbatim reproduction of his comment.
- It goes without saying that irrelevant comment need not be included. The very last statement by Ramatlakane – that there was no settlement – need not have been included in the article as there was no suggestion that a settlement agreement was in fact reached.
- The article further states that Ferreira requested a meeting and Ramatlakane responded to Ferreira’s request.
- The remainder of Ramatlakane’s comment is fairly reflected in the quoted passages and there was no distortion or misrepresentation of his comment.
- This category revolves around three paragraphs in the article that Ramatlakane is aggrieved about:
29.1 “However, instead of acting to ensure that Siyangena received no more of Prasa’s money, Ramatlakane responded in September last year to a letter Ferreira wrote asking for a meeting about their ‘ongoing litigation’, to explore an amicable situation that is beneficial to both Siyangena and Prasa.”
29.2 “Despite Siyangena’s contract being investigated by the Hawks, and Prasa having won its civil case against the company, Ramatlakane sought a legal opinion in July last year to guide Prasa on a ‘roundtable discussion with Siyangena’ and whether there would be any benefit in negotiating a settlement.”
29.3 “‘This thing was run solely as an operation purely by the chair, no one else… He had no business talking to the Siyangena CEO,’ said a source close to Prasa.”
- Ramatlakane views the above-mentioned paragraphs as distorted narratives as he believes it questions whether he was on a frolic of his own without board authority, that he “failed to ensure that Siyangena does not receive Prasa’s money”, and that he personally sought the legal opinion
- Smuts, on behalf of the publications, says there is a clear and obvious public interest in the subject matter.
“We deny that our story accused Mr Ramatlakane of being a mastermind to ensure Siyangena benefitted from a settlement between Prasa and itself. We did raise questions about why Mr Ramatlakane was involved, or appeared to be driving, operational matters rather than Mr Matthews. And we did raise questions about whether the decisions pursued were in Prasa’s best interests. We did not go further than this. These are legitimate questions to ask and are in the public interest.”
- Smuts further denies that the article insinuates that he acted in his personal capacity or without authority from the board. I agree with this submission.
- The article makes it clear that Ramatlakane acted in his capacity as board chairperson representing Prasa and not in his personal capacity. The article records:
33.1 “Documents seen by the Sunday Times indicate that Leonard Ramatlakane agreed to, and arranged, a meeting between Prasa executives and Mario Ferreira…”
33.2 “Ramatlakane wrote:…Prasa confirms its willingness to meet with you…”
33.3 “Ramatlakane” sought a legal opinion “to guide Prasa” in the process.
- All of the above indicates the correct position that Ramatlakane acted in his capacity as board chairperson and with concurrence of the board.
- The allegation that Ramatlakane should not have become involved in operational matters was put to him prior to publication.
“No more money”
- Where the narrative in the article may be skewed, is in the following paragraph:
“However, instead of acting to ensure that Siyangena received no more of Prasa’s money, Ramatlakane responded in September last year to a letter Ferreira wrote asking for a meeting about their ‘ongoing litigation’, to explore an amicable situation that is beneficial to both Siyangena and Prasa.”
- I requested further submissions from both parties based on my prima facie view that there is an omission of a material fact in the first part of the sentence and the article in general.
- Smuts responded by saying:
“As for the phrase "instead of acting to ensure that Siyangena received no more of Prasa's money", we submit the context of the story makes it clear that Mr Ramatlakane is expected to ensure that Siyangena did not receive more money than it was entitled to.
“We submit the narrow reading that Prasa should literally not pay out any more money to Siyangena is only one possible reading of the sentence, and not necessarily the most reasonable?. The phrase certainly does not amount to an omission, distortion or inaccuracy of the judgment. In addition to the context explained above, the phrase was not presented as a quote or finding of the court. Nor did the story report on the particulars of the judgment - it concerned, rather, the conduct of Mr Ramatlakane after Prasa's court victory.”
- Ramatlakane insists that the paragraph implies that he did not ensure that Siyangena does not receive any financial benefits from Prasa. He says in response to the request for further submissions:
“The reading of the judgment suggested that parties should engage in the calculation towards settlement which must be submitted to the high court for payment order.
“It’s clear that both Prasa and Siyangena would have hard negotiations on matters.”
“How would a report without reading the judgment make this suggestion that a matter that was discussed by the board would favour Siyangena?”
- It is true that the article was not about the High Court judgment and its particulars. But the particulars cannot be divorced from the subject matter of the article. It is the publications that juxtaposed the court “victory” with the subsequent conduct of Ramatlakane and Prasa officials.
- The High Court judgment as it stands does not mean Prasa is obliged or mandated not to give any more money to Siyangena. As I already explained above, the contrary is true. The High Court judgment explicitly envisages a scenario where future payments might have to be made to Siyangena and that the parties still had to agree amongst themselves – or litigate to establish – the rand and cents to be paid as part of the just and equitable remedy.
- A sentence that says that Prasa was affable to settlement talks despite the High Court judgment and “instead of” ensuring that Siyangena received “no more of Prasa’s money” leaves the impression for an ordinary reader that settlement negotiations in principle would go against the High Court order. The real situation is much more nuanced, as is evidenced in the legal opinion reported on.
- I am not convinced that a contextual reading of the paragraph could mean anything other to a reasonable reader than an (incorrect) statement that the High Court order meant there should be no more payments to Siyangena.
- I am fortified in this view if one considers other excerpts from the article:
44.1 “The insider said: ‘Prasa doesn’t have to pay Ferreira a cent, he can appeal as many times as he wants. That contract was dodgy and courts have ruled in Prasa’s favour and it should defend that.”
44.2 “Another insider told the Sunday Times this week: ‘There is absolutely no reasonable prospect of success for Siyangena to win that case. It doesn’t make sense why Ramatlakane would even entertain any discussions about a possible settlement because that contract was ruled by a full bench of judges to be invalid and unlawful.’”
- The article fairly raises concerns about the settlement negotiations, such as the apparent zealousness, the fact that Prasa seemingly did not follow their own legal advice, etc.
Omitting the clarification of the outstanding “just and equitable compensation” leg was, however, a material omission that distorted the narrative.
- The publications breached Clause 1.2. of the Code through the omission.
Alleged factual inaccuracy
- Ramatlakane’s main gripe on accuracy is the sentence that “he” sought a legal opinion while it was Prasa’s board who sought the opinion.
- It is fair to state that Ramatlakane sought a legal opinion. The report makes it clear that he sought the opinion on behalf of Prasa.
Ramatlakane raised 10 additional questions after the board’s initial four questions to the advocate. He was personally and actively involved in seeking the legal opinon. It is relevant that Ramatlakane formulated those questions.
- There is no suggestion in the article that he did this in any other capacity than his capacity as Prasa chairperson. The article records that he sought advice “to guide Prasa” on possible settlement negotiations.
- The complaint on this score is dismissed.
- The publications breached Clause 1.2. of the Code by omitting to state in the article that the High Court did not only declare the contract invalid, but also ordered that a process to calculate just and equitable compensation to either Siyangena or Prasa should follow.
- The remainder of the complaints are dismissed.
- The infringement is a Tier 2 infringement.
- The publications are directed to publish an apology to Ramatlakane meeting the following requirements:
56.1 It should state the omitted fact as summarised in paragraph 50 above.
56.2 The apology should appear at the top of the online article.
56.3 The apology should appear either on page 2 of the Sunday Times or the page where the original article appeared.
56.4 The wording of the apology must be approved by the Deputy Ombudsman prior to publication.
56.5 The apology must contain a hyperlink to the full ruling (online article) and reference to www.presscouncil.org.za (print edition) where the full ruling may be found.
The Complaints Procedure lays 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.
Deputy Press Ombud
16 May 2022