Thapelo Mmusinyane vs TimesLive


Thu, Jan 31, 2019

Particulars

Date of article: 13 September 2018

Headline: ‘Dodgy’ property valuer lands plum job after ‘acing’ interview

Author of article: Bongani Mthethwa

Respondents: Fienie Grobler, executive editor: daily news stream; and

                        Susan Smuts, internal ombud

Complaint                                            

The gist of Mmusinyane’s complaint is that the article created the false, misleading and unfair impression that he was “dodgy” (because he was said to have been accused in a criminal and a civil matter, while he had not been facing any such charges).

In more detail, he complains that the:

  • story:
    • created the false impression that he was one of the accused in a criminal case and that he was a party in a civil suit against the City of Johannesburg; and
    • said he had not been arrested – while there had been no reason for such an act (as he was not an accused);
  • journalist:
    • was not allowed to report on the matter until his appeal has been concluded; and
    • did not give him a right of reply; and
  • reportage has caused unnecessary harm to his dignity and reputation.

The text

The article said that Mmusiyane, a property evaluator, who was implicated in a R1.94-billion civil damages claim against the City of Johannesburg and in a criminal charge over an alleged dodgy property deal, had been appointed as the eThekwini municipality’s new head of real estates.

Mmusinyane reportedly was found guilty of improper conduct following internal disciplinary hearings over his role in the evaluation of property.

Mthethwa continued: “However, the city’s acting head of communications, Mandla Nsele, said a background check was conducted on Mmusinyane and it was established that he was not found guilty but was cautioned for property transactions.”

Mr Gabriel Mashishi, the manager for governance support at the SA Council for the Property Valuers Profession, reportedly confirmed that a complaint of “improper misconduct” had been laid against Mmusinyane and that he had been found guilty on 8 November 2016 – after which he was cautioned or reprimanded.

The journalist reported that Mmusinyane had challenged both the findings and the sanction, and added that the chairperson of the tribunal had been biased or did not properly evaluate the evidence. He also wrote that the matter had still been pending.

The article ended by stating that Mmusinyane did not respond to requests for comment.

The arguments

‘Dodgy’

Mmusinyane complains that the article created the false, misleading and unfair impression that he was “dodgy” (because he had been accused in a criminal and a civil matter – while he had not been facing any such charges).

Smuts submits: “While it is true that he was found guilty in a disciplinary hearing for his role in the evaluation of the property, we are unable to substantiate the extent – if any – of his involvement of the court case or criminal charge.”

She therefore says the publication is willing to apologise to Mmusinyane for calling him “dodgy”.

Analysis

No adjudication is needed, given the publication’s offer to apologise.

Accused in a criminal, civil case

The story said that Mmusinyani was “implicated” in a R1.94-billion civil damages claim against the City of Johannesburg, as well as in a criminal charge over an alleged dodgy property deal.

Mmusinyane complains this created the false impressions that he was one of the accused in both cases.

Smuts says the publication is willing to apologise to Mmusinyane for linking him to the civil court case and the criminal matter as the publication had no evidence of his involvement in the court cases.

Analysis

Again, no adjudication is needed, given the publication’s offer to apologise.

‘Not been arrested’

The article stated: “While the case was opened at Hillbrow and transferred to the Hawks in April last year, Mmusinyane was not arrested.”

Mmusinyane complains that this statement was unfair as he had not been accused in either the criminal or the civil case – and therefore there was not reasonable reason for him for having been arrested.

Analysis

Given the publication’s offer to apologise for falsely implicating Mmusinyane in civil and criminal charges, it follows that the statement that he “was not arrested” was not only unnecessary, but also unfair and illogical. The impression created was either that he should have, or could have been arrested – while there was no such possibility.

Appeal precludes media from reporting

Mmusinyane says he is exercising his right of appeal (which was pending) and in terms of section 34(3) and (4) of the South African Council of Property Valuers Profession Act “anyone is precluded from pronouncing his finding or finding against him until his appeal has been concluded”.

Smuts disagrees and argues: “It is common journalistic practice to report on developments as they unfold. This is in keeping with the principle of freedom of expression and the public’s right to be informed, and has been endorsed by our courts and the press ombudsman’s rulings. We are, however, willing to reflect in the story that he is appealing the outcome.”

Mmusinyane insists that the newspaper cannot cast aspersion on him while the matter is subject to an appeal. He argues that, once an appeal has been lodged, it suspends whatever a person had been found guilty on.

He asserts: “Until an appeal has been fully dispensed with, the South African Council of Property Valuers and any other person having an interest in the case cannot publicise his guilty finding. Please refer to section 34(4) of the SACPVP Act which is explicitly clear that: If a registered person found guilty of improper conduct lodges an appeal in terms of subsection (1) – (a) the decision of the disciplinary tribunal under section 33(3); or (b) the publication by the council in terms of section 33(5), 40 may not be put into effect before the council or the CBE, or both, has decided the appeal.”

He adds: “Sunday Times is expected and ought to familiarize itself with all the laws governing the issues they intend to publish and comply with them.”

Analysis

If this office forbids the media to report on the outcome of a court case, or that of any other tribunal, it would stifle media freedom. It is indeed common journalistic practice to report on developments as they unfold.

The law may prohibit the SA Council of Property Valuers to publicise a guilty finding if an appeal is pending. However, to the best of my knowledge there is no law that prohibits the media from reporting on such a matter.

If there is an appeal, though, the media should report that fact – which the reporter duly did.

No right of reply

Mmusinyane complains that the publication did not give him a right of reply.

Grobler disagrees. He says Mthethwa contacted the Real Estate department and asked its secretary to speak to Mmusinyane. He says he introduced himself as a Sunday Times journalist and told her that he wanted to speak to him about his appointment. However, he says the secretary did not call the reporter back, even though she had taken down his contact details.

He says Mthethwa then put the allegations to the eThekwini spokesperson, and reflected those responses in the article.

Grobler suggests to resolve the matter by offering Mmusinyane an interview in a follow-up article. Alternatively, he says, the publication we could update its original article with his comments.

Smuts says she stands by Grobler’s earlier submission that Mthethwa attempted to contact Mmusinyane for comment ahead of publication, and adds that telephone records support this.

However, she attests that she has removed the article from the website pending the outcome of this adjudication.

On the other hand, Mmusinyane categorically denies ever having anyone calling his office to speak to him from Sunday Times. He has attached an affidavit from him as well as his PA, who also denies Sunday Times’s allegations.

He says the newspaper called the eThekwini spokesperson – who could not respond or attest to information of a personal nature that only Mmusinyane was privy to. “As a result Sunday Times denied him his right of reply which is key before making any story that has a material effect on damaging his dignity,” he argues.

He says eThekwini as a metropolitan municipality has thousands of employees and landlines and it cannot be correct to call a particular office and claim to have called someone when his own PA disputes ever having received any correspondence.

He adds: “Nothing stops [the newspaper] from admitting they called a wrong office in search of him since he was new in that office at the time.”

Mmusinyane also rejects the publication’s offer to do a formal interview with him. He says TimesLive has breached the Press Code, and urges this office to rule on the complaint that his views were not obtained prior to publication.

He also says it is disingenuous for Sunday Times to continue to present a lie before this office when they in fact knew or ought to have known that the same article was still published on its website.

Analysis

It is not in dispute that the journalist contacted the eThekwini spokesperson. However, Mmusinyane says the reporter should have phoned him, or his PA, directly.

I cannot agree with him – it is normal journalistic practice to contact the official spokesperson of an organisation. It is that spokesperson’s responsibility to contact the person involved, if necessary. By trying to get comment from the spokesperson Mthethwa has fulfilled his duty, as stated in the Press Code.

Also, by the time that I checked, the article was not online anymore.

Unnecessary harm to dignity, reputation

Analysis

I have already found that the following parts of the reportage was inaccurate, unfair and unsubstantiated:

  • The false impression that Mmusinyani was “implicated” in a R1.94-billion civil damages claim against the City of Johannesburg, as well as in a criminal charge over an alleged dodgy property deal;
  • The use of the word “dodgy”; and
  • The statement that he was not arrested (creating the wrong impression that he should have, or could have been arrested).

Given the severity of such implications, it follows that the reportage did cause some unnecessary harm to his dignity and reputation.

Finding

‘Dodgy’

The use of the word “dodgy” was unsubstantiated and therefore unfair to Mmusinyane. This was in breach of Section 1.1 of the Press Code that says: “The media shall take care to report news accurately, truthfully and fairly.”

Accused in a criminal, civil case

The story created the false impression that Mmusinyani was “implicated” in a R1.94-billion civil damages claim against the City of Johannesburg, as well as in a criminal charge over an alleged dodgy property deal. This was in breach of Section 1.1 of the Press Code.

‘Not been arrested’

The statement that Mmusinyane “was not arrested” was unfair and illogical and created the wrong impression that he should have, or could have been arrested. This was in breach of Section 1.1 of the Press Code.

Appeal precludes media from reporting

This part of the complaint is dismissed.

No right of reply

This part of the complaint is dismissed.

Unnecessary harm to dignity, reputation

The false impression that Mmusinyani was “implicated” in a R1.94-billion civil damages claim against the City of Johannesburg, as well as in a criminal charge over an alleged dodgy property deal, the use of the word “dodgy” in this regard, as well as the statement that he was not arrested, could only have harmed his dignity and reputation – and unnecessarily so.

This was in breach of Section 3.3 of the Press Code that states: “The media shall exercise care and consideration in matters involving dignity and reputation.”

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

TimesLive is directed to apologise to Mmusinyane for stating or implying inaccurately, unfairly, and without any substantiation, that he was:

  •  “implicated” in a R1.94-billion civil damages claim against the City of Johannesburg, as well as in a criminal charge over an alleged dodgy property deal;
  • “dodgy”; and
  • not arrested (creating the wrong impression that he should have, or could have been arrested).

 

The publication is also directed to apologise to him for the unnecessary harm that this reportage has caused to dignity and reputation.

TimesLive is also directed to incorporate Mmusinyane’s comment in the apology, should he wish to do so.

The newspaper is directed to publish the apology at the top of the page where the article appeared, with a headline containing the words “apology” or “apologises”, and “Mmusinyane”.

The text should:

  • be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
  • refer to the complaint that was lodged with this office;
  • end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
  • be published with the logo of the Press Council (attached); and
  • be prepared by the publication and be approved by me.

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