Complaint 8971
Date of articles: 28 May 2021, 29 May 2021, 5 June 2021
Complainant: Sibongiseni Jerome Mthembu
Respondent: News24
Headline: The Eskom Files (various)
Author: Kyle Cowan, Sipho Masondo, Azarria Karrim, and Pieter du Toit
Particulars
Complaint
3. Mthembu contends that News24 breached Clauses 1.1., 1.2., 1.3. of the Press Code, which reads:
“The media shall:
4. Mthembu further contends that News24 breached Clause 2 of the Press Code, which deals with the independence of the media and conflicts of interest.
5. The complaints centre around three articles published on 28 May 2021, 29 May 2021, and 5 June 2021, respectively.
Background
6. The backdrop to the complaint is the Econ Oil & Energy (“Econ Oil”) scandal. The widely reported allegations are that Econ Oil obtained massive contracts to supply fuel oil to Eskom through improper assistance by certain Eskom officials and some cash lubrication.
7. Mthembu was the head of Eskom’s legal department until his resignation in December 2019. In that capacity, he was apparently in charge of certain investigations and liaising with external law firms contracted by Eskom to conduct investigations into malfeasance at the state-owned utility. It must be noted that Mthembu strenuously denies that he was ever involved in the Econ Oil investigation specifically, which will be dealt with below.
8. In his reply, Mthembu gives a very crisp summary of his complaint when he states:
“The matter we are dealing with here is News24’s malicious and baseless accusations–
9. News24 emphatically denies publishing any false, malicious or misleading information.
10. Also of relevance is the fact that investigative journalist Kyle Cowan e-mailed detailed questions to Mthembu on 4 May 2021, and Mthembu responded comprehensively on 5 May 2021 – i.e. well before the published articles.
Mthembu’s version
11. In broad terms, Mthembu emphasises in his submissions that he was never in charge of the Econ Oil investigation and it is therefore unfair to implicate him in the Econ Oil matter.
12. According to him, he was only in charge of the Medupi and Kusile investigations. He refers me to Eskom’s instruction on 8 August 2018 to Bowmans to investigate aspects pertaining to those two power plants.
13. According to him, Bowmans’ mandate was suspended through a memorandum dated 25 June 2019 due to “costs and budgetary constraints”. States Mthembu: “The Memorandum was prepared by me, recommended by Jan Oberholzer and approved by Mr Calib Cassim, the current Chief Financial Officer of Eskom.” He wants News24 to “clarify” that he only drafted the memorandum, but that the other two men co-signed the suspension of the mandate.
14. The suspension of Bowmans’ mandate was not specifically aimed at any investigation into Econ Oil or Matshela Koko, but rather the mandate to investigate Medupi and Kusile.
News24’s version
15. The publication disputes that Bowmans was only mandated to investigate Medupi and Kusile. News24 rightly points to an annexure submitted by Mthembu himself where it refers to a mandate given to Bowmans on 9 May 2018 already. The August mandate referred to by Mthembu, was thus a further mandate to investigate Medupi and Kusile.
16. The first Bowmans report that raised irregularities with Econ Oil was submitted to Eskom in January 2019. The suspension of Bowmans’ mandate therefore put the Econ Oil investigation (among others) on ice and the Econ Oil investigation only regained traction in 2020 when the new CEO was appointed.
17. The memorandum referred to by Mthembu is not the formal suspension of Bowmans’ mandate, as he contends. The mandate was already suspended by then, and the memorandum only dealt with availing funds to resume or continue a few specific incomplete Bowman investigations, despite the suspension of Bowmans’ broader mandate.
Article 1
18. With that overview, I now consider the contents of the articles. The first article is headlined ‘Documents are missing’: De Ruyter’s battle against corruption as SIU pleads for resources.
19. The two paragraphs Mthembu complains of, read:
" .... Despite these successes and requests from the SIU that Bowmans' mandate be extended, Mthembu, the then acting head of the legal office, and Solly Tshitangano, the now-suspended chief procurement officer, informed Bowmans on 15 May 2019 its cooperation agreement with the SIU to investigate various parts of the business – including significant instances of alleged corruption at Kusile, former acting chief executive Matshela Koko and allegations of corruption around contracts with ABB and fuel oil supplier Econ Oil – was terminated".
And:
'Budgetary constraints"
"According to documents in the Eskom Files, the power utility suspended Bowmans' mandate and relationship with the SIU, seemingly because Mthembu and Tshitangano pled poverty before they put the brakes on the investigations".
20. It should be noted that Eskom’s official response, quoted in the article, confirms that Bowmans was initially given a mandate in May 2018 (not August 2018) to investigate procurement irregularities in general and that this appointment process was headed by Mthembu. The official response also says Bowmans’ mandate was suspended in May 2019 (not June 2019) and that the reason provided was budgetary constraints.
21. The report also quotes chief operations officer, Jan Oberholzer, as saying he was not consulted before the mandate was suspended. Although not attributed to Oberholzer, the report further states that Oberholzer requested Mthembu to tell Eskom’s board about a request from the Special Investigation Unit to broaden the scope of the Bowmans investigations, but that Mthembu did not do so. Mthembu’s response that Oberholzer never requested him to do so, is reflected in the report.
22. Mthembu confirms in his submissions to me that he was involved in the suspension of the Bowmans mandate (although he disputes the extent of his involvement).
23. The two contentious issues are therefore whether a) Mthembu stopped investigations into Econ Oil and Matshela Koko and b) whether he did so alongside Solly Tshitangano (“Tshitangano”), then chief procurement officer.
24. I don’t think the involvement of Tshitangano is seriously disputed. It is, in fact, a finding of Nazeer Cassim SC in Tshitangano’s disciplinary hearing. News24 also provided an e-mail from the ‘Eskom Files’ from which it appears that Oberholzer berated Mthembu for copying in Tshitangano in e-mails about the “confidential cases” while it was unclear what interest the chief procurement officer could have.
25. News24 argues, correctly in my view, that it is an objective fact that the consequence of the suspension of the Bowmans mandate also stopped the investigations into Econ Oil and Matshela Koko as those were some of the matters Bowmans was busy with at that stage. Eskom’s official response also confirmed that some of the incomplete investigations were later resumed, but Econ Oil was not one of them.
26. This is essentially what the article conveys. The entire, broader mandate was suspended on 15 May 2019 and, in a parenthesis, states: “including significant instances of alleged corruption at Kusile, former acting chief executive Matshela Koko and…”
27. I therefore see no inaccuracy or breach of Clauses 1.1. and 1.3.
28. However, Mthembu does have a different version which News24 painstakingly obtained from him on 5 May 2021.
29. News24 must be commended for the thorough nature of the questions posed to Mthembu. It put all the relevant allegations to him. Similarly, Mthembu should be commended for his thorough response to the questions.
30. It is therefore unfortunate that some of these relevant responses were not used. News24 states in their submissions: “One can note that Mr Mthembu’s responses in some cases were accepted, based on available evidence, and therefore did not feature in our reporting. Other responses were taken into consideration and weighed against the available evidence.”
31. If I may paraphrase News24’s response: Mthembu’s responses were weighed and found wanting, and therefore discarded.
32. The audi alteram partem rule is sacrosanct in journalism. It is not (only) for the journalist’s benefit to obtain or verify information, but for the reader of the article to hear the other side and decide for themselves – regardless of how inadequate the journalist thinks the response may be. If a response is contradicted by other evidence, this may be pointed out.
33. Mthembu was asked: “Can you confirm that in May 2019, yourself and Mr Tshitangano suspended the mandate of Bowmans and can you please provide clarity for the reasons for this?”
34. Mthembu denied this, and his denial should have been included in the article.
35. Mthembu was also asked: “Do you deny that you and Mr Tshitangano acted in a manner to benefit Econ Oil with regard to the suspension of the Bowmans mandate in May 2019?”
36. Mthembu vehemently denied this by saying the suspension “had nothing to do with Econ Oil” and he was never involved in the Econ Oil investigation. Again, this should have been included, whether News24 believes Mthembu or not.
37. The omission of Mthembu’s exculpatory comments to the allegations was a breach of Clause 1.2. of the Press Code, as it caused a loss of balance and context.
Article 2
38. The second article was titled ‘Axed Eskom boss Solly Tshitangano was “intent on promoting the interests of Econ Oil”’. This article was reportage of the disciplinary findings of Cassim SC I already alluded to.
39. The only paragraph involving Mthembu is a paragraph in the timeline of events which reads:
“February 2019 – Tshitangano and former head of legal Jerome Mthembu terminate Bowmans’ overall mandate, in Cassim’s view, ‘to promote the interests of Econ Oil’, quashing investigations into multi-billion-rand contracts.”
40. This article is on a different footing than the first article, as it relates to reportage of findings of a disciplinary tribunal. The paragraph in question clearly indicates that this was a finding of Cassim SC.
41. Mthembu does not take issue with the accuracy of the reporting on Cassim SC’s findings. He merely states that News24 had “evidence” to the contrary to its disposal, ignored same, and “reported Adv Cassim’s finding implicating (him) in the investigation of Econ Oil as ‘gospel truth’.”
42. This complaint is meritless.
43. In my view, a disciplinary hearing such as the one conducted by Cassim SC also falls within the category of privileged reporting that court and parliamentary proceedings belong to. In the recent case of Gama v Sunday Times (Complaint 8901), I provided full reasons why this type of privileged reporting is much broader than court reporting. The same reasons are applicable here, and more so due to the public interest in eradicating malfeasance at the country’s largest state-owned company which has brought South Africa’s economy to its knees.
44. A journalist’s role is to report the privileged proceedings accurately and fairly. News24 is not there to second-guess the ruling by Cassim. Neither was News24 obliged to include Mthembu’s views on the finding of an independent tribunal.
Article 3
45.The third article is titled, ‘Solly Tshitangano claims Bowmans probe at Eskom is unlawful…but he approved it’
46. Here the relevant paragraphs, as identified by Mthembu, are:
"What Tshitangano failed to tell Gordhan was that he had motivated the awarding of three contracts to Econ Oil in the course of 2019 worth more than R18 billion, even after Bowmans had provided Eskom with a preliminary report that found evidence of impropriety and possibly corruption by former Eskom official Thandi Marah in her
dealings with Econ Oil. Shortly after this report was provided to Eskom, Tshitangano and former head of legal Jerome Mthembu suspended Bowmans's co-operation with the SIU, and by May 2019 Bowmans mandate was suspended, again with the knowledge of Mr
Mthembu and Tshitangano. Bowmans was also told by Mr Mthembu that it could only finalise investigations into matters as instructed by Eskom- But Econ Oil was not finalised until after De Ruyter's appointment."
47. News24 rightly points out that Mthembu does not deny knowledge of Bowmans’ preliminary report in January 2019 that found evidence of impropriety in Thandi Marah’s dealings with Econ Oil.
48. Instead, Mthembu distinguishes in his submissions between ‘Econ oil-specific’ investigations and those that happened to uncover Econ Oil matters. He refers to “the initial mandate/investigation which led to the January 2019 report (that) focused on Ms Mara’s alleged improper relationship with Ms Mlonzi, the director of Econ Oil”, and then the May 2020 investigation which “focused more directly on Econ Oil”. This distinction is untenable.
49. I am not convinced there are any factual inaccuracies in the above-mentioned paragraphs.
50. The only criticism to be raised against this article, is again the omission of Mthembu’s denials.
Independence and conflict of interest
51. Mthembu raised a possible breach of Clause 2 of the Press Code in his complaint.
52. He provided no basis in his complaint that justifies an interrogation of this complaint. It stands to be dismissed.
Conclusion
53. The complaint of a breach of Clause 1.1. is dismissed.
54. The complaint of a breach of Clause 1.2. is upheld only for Articles 1 and 3.
55. The complaint of a breach of Clause 1.3. is dismissed.
56. The complaint of a breach of Clause 2 is dismissed.
57. The breaches are Tier 2 infringements.
58. News24 is directed to publish an apology to Mthembu which should contain
the following:
59. The apology should be published at the top of Article 1 and 3.
60. An apology (which combines the apology for Article 1 and 3) must be published separately on News24 at a similar time of day and week than the original articles and contain the word “apology” in the headline.
61. The wording of the apology must be approved by the Deputy Press Ombud before publication.
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.
Herman Scholtz
Deputy Press Ombud
25 August 2021