Ramatlakane vs Sunday Times and TimesLive
Tue, May 17, 2022
Date of articles: 20 February 2022 (print and online)
Headline of publication: “Mbalula knew ‘Prasa board was out to get me’”
(Sunday “Mbalula accused Prasa board chair of self-enrichment scheme.”(TimesLive)
Author: Thanduxolo Jika
Mr Leonard Ramatlakane, chairperson of the Passenger Rail Agency of South Africa (“Prasa”), is aggrieved about an article that appeared in print and online on 20 February 2022.
- This ruling is based on the complaint, a response by the publications’ Susan Smuts, documents provided by the publications, as well as a reply from Ramatlakane.
- Ramatlakane sought condonation for his late filing of a reply to the publications’ submissions. He provided a reasonable explanation and condonation is granted.
- The reporting centred around arbitration proceedings before Judge Robert Nugent in which Mr Zola Matthews challenged his axing as CEO of Prasa. Ramatlakane, in his capacity as board chairperson, was the first defendant in the arbitration, Prasa the second and the minister of transport, Mr Fikile Mbalula, the third.
- According to the Sunday Times/TimesLive report, some allegations were made by Matthews as part of the arbitration proceedings, the most relevant ones being:
5.1 That there were WhatsApp messages exchanged between himself (Matthews) and Mbalula in which the latter warned him months before the axing that there was a strategy to get rid of him.
5.2 That Mbalula said in those WhatsApp messages Ramatlakane saw Matthews as a threat to his “self-enrichment” plans at Prasa.
- The report states Ramatlakane was approached for comment prior to publication, and responded as follows:
“I don’t know anything about that, the best people to answer are the people who were exchanging text messages. I can’t speculate. I don’t know, nor can I answer questions about things I was never involved in.”
- The publications also approached Mbalula for comment, who reportedly said:
“I can’t comment on matters that are argued before the arbitration whether correct or incorrect, I am constrained by that.”
- In his complaint, Ramatlakane cites Clauses 1.1. to 1.4. of the Press Code. These clauses deal with reporting of news in a truthful, accurate, fair, balanced, and contextualised fashion.
- A closer reading of the complaint and Ramatlakane’s reply suggests that the true complaint is not about the accuracy of the report, but rather the publications’ alleged failure to afford him a fair opportunity to respond.
- Ramatlakane’s complaints in his own words are:
10.1 “The complaint is not on whether the publication is factual or incorrect. It relates to the principle of the right to be heard, which entails a meaningful opportunity to respond to allegations prior to publication.”
10.2 “When Mr Jika telephonically called me to ask about the text messages, he did not disclose all the relevant facts and circumstances to allow me to adequately respond…”
10.3 “In essence, Mr Jika made a material misrepresentation by failing to inform me that the text messages are not the same ones disclosed in the arbitration proceedings. I therefore gave commentary based on inaccurate information provided by Mr Jika.”
10.4 “The consequence of the misrepresentation made by Mr Jika is prejudicial to me as I have not been provided a true opportunity to comment on serious allegations made against me. Prior to the publication of the article, I was not aware that the text messages between Minister Mbalula and Mr Matthews referred to me as the person who was allegedly enriching himself. Mr Jika purported to rely on the text messages attached to Mr Matthews’ affidavit in the arbitration before Judge Nugent, however the text messages attached to that affidavit do not disclose my name, seemingly Mr Jika is in possession of a different version of the text messages and during our telephonic conversation he failed to disclose this to me.”
- I am satisfied that the complaint is therefore an alleged transgression of Clause 1.8. of the Code which states:
“The media shall seek, if practicable, the views of the subject of critical reportage in advance of publication…”
- The Clause deals not just with the need to approach a subject of critical reportage, but also with the fairness of the opportunity. Clause 1.8. implies other requirements such as reasonable time to respond and asking meaningful questions about all material allegations.
- The significance of Clause 1.8. has been emphasised by the office of the Press Ombudsman. In Gemfields Ltd and Montepuez Ruby Mining Limitada vs The Continent and Mail & Guardian, I stressed that the rationale behind pre-publication comment is not just the audi alteram partem rule, but also to serve as an aid to verify information and eliminate any potential misunderstandings. I will elaborate on the latter aspect below.
The WhatsApp messages
- The crux of the complaint is whether the journalist “misled” Ramatlakane about the messages he was enquiring about when he sought comment from Ramatlakane.
- An unusual feature of the complaint is that there is no clear challenge to the accuracy of the allegation that Ramatlakane was referred to in the WhatsApp messages. The complaint is consistently framed as one of being “misled” about whether Ramatlakane’s name appeared in the messages in possession of the publications or not.
- It appears that Ramatlakane accepts that Mbalula indeed referred to him in the WhatsApp messages. The complainant says:
“Prior to the publication of the article, I was not aware that the text messages between Minister Mbalula and Mr Matthews referred to me as the person who was allegedly enriching himself.”
- The publications also offered to provide corroborating evidence to show that the messages indeed referred to Ramatlakane (without using his name) on condition that the complainant is not furnished with this material. I deem it unnecessary to go to that extent. There is no dispute raised about this aspect in the submissions before me. The dispute is whether Ramatlakane was treated fairly when he was approached for comment.
- Smuts provided the affidavit used in the arbitration proceedings. The affidavit contains screenshots of the WhatsApp messages as they were presented to Judge Nugent in the arbitration hearings. She says those WhatsApp messages were the messages referred to by the journalist when he approached Ramatlakane for comment and which are referred to in the article. There are no “other” messages the reporter concealed, she says. The quotes from the article are indeed from the WhatsApp messages, as attached.
- The messages are slightly redacted. It is, however, unclear whether names were redacted from the messages or whether it was other content that was blacked out.
- Ramatlakane is correct in stating that his name is not visible in the WhatsApp messages attached to the affidavit. He insists that the fact that his name is not explicitly mentioned in the WhatsApp message is crucial.
- However, Smuts points to paragraph 21 of Matthews’ affidavit, which introduced the WhatsApp messages as evidence in the arbitration proceedings:
“In these text messages, Minister Mbalula confirms that the agenda of the first and/or second defendants [Ramatlakane and/or Prasa] was to unfairly and/or unlawfully terminate my employment. The relevant text messages which were sent on 2nd July 2021 and 25 August 2021 respectively are attached…”
- Smuts says the context of the above statement makes it clear that the WhatsApp messages refer to Ramatlakane.
- The relevant WhatsApp message, ostensibly from the minister to Matthews, reads (my underlining):
“…(H)e thinks you are a stumbling block to that agenda bcos he doesn’t no you , Hence he was overwhelmed by thandekas corporation he came to me lobbying for her to become your second in command I refused from that point he realised his 3 yrs self enrichment scheme is in danger he then started to lovby people next to the President that i should be removed…” (sic)
- Read with Matthews’ affidavit, to which the messages were attached, it is clear that Matthews is saying the “he” in the WhatsApp messages are references to the first defendant, being Ramatlakane.
- Smuts also says that the reporter “specifically asked Mr Ramatlakane about the messages and the implication that he wanted to get rid of Mr Matthews as he (Ramatlakane) was involved in some kind of enrichment scheme”.
- Ramatlakane does not challenge this in his reply. His response is that “it must be noted that the Sunday Times does not dispute that I was not informed that my name was included in the WhatsApp messages.”
This response misses the point. The WhatsApp messages in possession of publications did not identify him by name.
- Even if Ramatlakane’s name was not mentioned in the WhatsApp messages, the allegation was posed to Ramatlakane that he is the person who allegedly wanted to get rid of Matthews. I.e. that the “he” referred to in the WhatsApp message is referring to Ramatlakane.
- That is thrust of the allegation that had to be posed to Ramatlakane.
- The following is, in my view, of great relevance:
30.1 Ramatlakane was a party to the arbitration proceedings. He therefore had sight of Matthews’ affidavit and the attached WhatsApp messages. Ramatlakane must have been aware of the allegations in the affidavit, being an allegation that the messages showed Ramatlakane’s “agenda”.
30.2 In his complaint, Ramatlakane confirms his understanding that he was requested to comment on the WhatsApp messages in the arbitration proceedings. He says the journalist “made a material misrepresentation by failing to inform (him) that the text messages (enquired about) are not the same ones disclosed in the arbitration proceedings”.
30.3 Ramatlakane does not – in his complaint or reply – ever deny that Mbalula was referring to him in the WhatsApp messages. He merely states that he was not aware of this before publication and that he was “not informed that the text messages in (the reporter’s) possession and which would form the subject matter of an article made reference to (his) name”.
30.4 There is no allegation that Ramatlakane’s comment was reproduced inaccurately or insufficiently in the article.
30.5 There is no denial of the publications’ version that the reporter asked Ramatlakane for comment on the allegation that he, Ramatlakane, is the one who allegedly hatched a plan to get rid of Matthews.
- This brings me back to the rationale and functions of pre-publication comment as set out in Goldfields: A subject of critical reportage who is afforded an opportunity to respond to allegations also has a measure of responsibility to clarify bona fide misunderstandings. This is particularly applicable when a subject believes the allegations being posed to him or her is factually incorrect. If a subject – despite his or belief that the journalist has the wrong end of the stick – chooses not to respond, to be sketchy in his or her response, or even to lead a journalist down the garden path where there was a real misapprehension, he or she does so at their own peril.
- Ramatlakane had the opportunity to state his version based on the reporter’s specific request for comment on the allegation of Mbalula that Ramatlakane wanted to get rid of Matthews.
- If it is Ramatlakane’s version that the messages did not refer to him (without implying that this is indeed his version), he ought to have said: “The messages do not refer to me. I’m not aware that Mbalula accused me of anything of that sort.”
- The complainant had a fair opportunity to comment and chose to do so in a way he deemed appropriate. There was no breach of Clause 1.8. of the Code.
- The complaint is therefore dismissed.
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
 Complaint 9294, 10 February 2022