Decision to Adjudicate
Complaint 8251
Headline: ‘Former state mining boss banned from SOEs after R1bn bid for Gupta mine’
Publication Date: 10/3/20
Author: Abram Mashego
Particulars
Mr Cameron Staude of Nupen Staude DeVries complains on behalf of Mr Themba Langa, Mwelase Mining and Khololo Mining that City Press, in its article, made allegations about Mr Langa that were “wrongful and defamatory” and that could be understood as inferring that Mr Langa was dishonest.
The article also failed to take reasonable steps to verify the allegations evident from the fact that it referred to “lawyer Themba Langa”. The Mr Langa referred to in the article is not a lawyer.
1.1 The intro to the article reads: “A former chief executive officer (CEO) of a state-owned mining company who was implicated in a controversial transaction to buy a liquidated Gupta mine for a whopping R1 billion, has, after a disciplinary process, been banned from occupying any senior positions at state-owned enterprises (SOEs).”
1.2 The article focuses mainly on the outcome of a disciplinary hearing involving the former head of African Exploration Mining and Finance Company (AEMFC), Mr Sizwe Madondo.
1.3 The hearing was chaired by Advocate Nazeer Cassim SC, who imposed the ban. Mr Cassim is quoted as saying the findings should be forwarded to “the relevant authorities to ensure Madondo is not given a position as a senior employee in any other SOE, otherwise there is no deterrence of wrongdoing.”
Mr Cassim also recommended Mr Madondo’s dismissal.
1.4 It goes on to report that one of the transactions cited in the findings involved a “private partnership with a mining company owned by lawyer Themba Langa to buy a stake in Anglo American in a private partnership with Khololo Mining.”
1.5 It reports that one of Mr Langa’s “other companies, Mwelase, was found to have been appointed to supply coal to Eskom without following proper procedures.” Mwelase, owned by Mr Langa and his wife, Anna, was to supply 150 000 to 250 000 tons of “Eskom-certified coal to the power utility’s Kendal Power Station” in Mpumalanga, and that some of this coal was “sub-standard”.
1.6 It quotes the disciplinary report as saying: “You [Madondo] engaged in negotiations with Themba Langa and Anglo regarding the purchase of the east, west and south blocks from Anglo, as well as the formation of the Mzimkhulu joint venture without authority form the board to do so.
“The board only granted its approval for the commencement of the negotiations with Anglo and the authority to make a nonbinding expression of interest of a 26% shareholding on May 24, 2016.”
1.7 It says Adv Cassim “criticized” Mr Madondo’s relationship with Mr Langa saying it “predated this transaction” He also said Khololo Mining was “not registered” when the initial offer was made by Anglo. It was only registered in March 2016 and Mr Langa was made a director in January 2017. “Thus, Madondo did not make an effort to enquire as to the legal capacity of Khololo because he left matters in the hands of Langa.”
1.8 It goes on to detail other alleged wrongdoings by Mr Madondo, including that he had authorized another private mining company, Lurco, to “use his electronic signature in a bid to buy the Gupta-owned Optimum mine”. It also detailed the charges he faced before the disciplinary inquiry. It references a Gobodo Forensic Investigative report that predates the hearing that found that “while the board had instructed Madondo in December 2018 to conduct due diligence on Optimum’s assets, he allegedly not only signed the bid for the mine but committed the company to buying the mine.”
1.9 The article reports that Lurco “made headlines when it emerged as a successful bidder for the Gupta-owned Koornfontein mine” in Mpumalanga, but failed to raise the required R500-million within the agreed period.
1.10 The article states that the publication had made “several attempts to reach Langa and his wife for comment” through phone calls to his “listed number” and SMSes.
2.1 In a letter to City Press copied to the Press Council, Mr Staude on behalf of Mr Langa and the two mining companies, Mwelase and Khololo, complains about the following sections of the article:
2.2 Mr Staude argues the allegations are “wrong and defamatory” of Mr Langa and would be understood by readers “to mean [he] is dishonest and that his dealings with Madondo and the negotiations regarding the east, west and south blocks from Anglo were not above board, fraudulent and/or duplicitous. This is false.”
2.3 He also argues the allegations were “negligent and reckless in that City Press failed to provide Mr Langa or the companies “the opportunity to respond to or comment.” The reporter, Mr Mashego, “did not take the necessary reasonable steps to verify the allegations as it makes reference to ‘lawyer Themba Langa’” He says Mr Langa is not a lawyer but is the managing director of Mwelase. His and Mwelase’s contact details are “readily ascertainable” on the company’s website.
2.4 He asked the publication to “cease and desist” from publishing or republishing the article and for a copy of the disciplinary report.
3.1 The complaint to the Press Council, made on 4/8/20 on behalf of by Mr Langa, Mwelase Mining and Khololo Mining, largely repeats the complaints in the letter to City Press.
3.2 His lawyer argues the allegations about Mr Langa are wrongful and defamatory and portray him as dishonest, and alleges that his dealings with Mr Madondo regarding the purchase of the east, west and south blocks of Anglo “were not above board” and fraudulent and duplicitous. Mr Langa was not given an opportunity to respond to the allegations.
“It is evident from a reading of the article” that the reporter did not take the necessary steps to contact him as he is referred to as “lawyer Themba Langa” whereas he is not a lawyer, but the managing director of Mwelase and Khololo.
3.3 In respect of the lateness of the complaint – some five months after the article was published – Mr Langa’s representative argues that they immediately contacted City Press to “request a withdrawal of the publication…and to desist from publishing any further article in this regard.” This letter was sent on the 14/3/20.
“When no further publication was made, Mr Langa, Mwelase and Khololo believed the matter had been resolved.” However, they were unaware “of the consequences which may flow as a result of such article being published which contained erroneous facts and allegations.”
They have been “visibly prejudiced” as the article “continues to be found in the course of due diligence processes being conducted by third party funders and potential business partners.” This has caused “significant harm to Mr Langa’s reputation and ongoing business dealings.”
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3.4 City Press has not published any apology or retraction. As a result, the article is causing Mr Langa, Mwelase and Khololo “prejudice and harm in that third parties are questioning Mr Langa and his associated companies with regards to the allegations prior to conducting business with them, as these third parties are left with the unbecoming perception that the article represents the truth, which we submit it does not.” 3.5 They ask for the Public Advocate to condone the late complaint and for City Press to issue a formal apology to Mr Langa, Mwelase and Khololo for failing to provide them with the opportunity to respond to or comment on the allegations made in the article. |
4.1 The Public Advocate, Mr Fanie Groenewald, referring to the harm to Mr Langa allegedly caused by the article, said in reply this “still does not explain the lapse of nearly five months after the article was published. Granting condonation would be unprecedented.”
4.2 He cites an appeal ruling by Judge Bernard Ngoepe in this regard in the case of Spotlight Publications vs Sadmon Projects and Consulting [1], referring to lateness in lodging a complaint:
The longer a delay, the more cogent the explanation should be… None of what is said above even begins to explain why no effort was taken to ensure that the complaint was filed in time. Better explanations with even shorter delays have been rejected in the past. To uphold this condonation would create a very bad precedent. The whole process aims to deal with the complaints as expeditiously as possible.
4.3 He also notes that the article of City Press was based “on the report of Adv Nazeer Cassim SC who chaired a disciplinary hearing of Mr Sizwe Madondo. That being the case, I do not think that City Press was even obliged to seek your views before publication, although they stated in the article that they had tried to reach you for comment, without success.”
4.4 He declined to accept the complaint.
4.5 Mr Langa, Mwelase and Khololo have now appealed to the Ombudsman to adjudicate the complaint.
5.1 The complaint with the Press Council was lodged some five months after the publication of the article.
5.2 I note that Mr Langa’s representatives wrote to City Press a few days after publication stating their objections to the article. I am not sure why they did not follow up with a complaint to the Ombud at the stage.
5.3 That aside, the article deals in the main with Mr Sizwe Madondo and his disciplinary hearing. The information is based almost entirely on the report from the Disciplinary Committee chaired by Adv Nazeer Cassim, SC, including the sections that refer to Mr Langa.
5.4 I am sympathetic to the plight of Mr Langa if it is true that his reputation has been unfairly tarnished in business dealing because of the article. However, the allegations, such as they are, do not aver wrongdoing by Mr Langa. For instance, although the article says that one of his companies “was found to have been appointed to supply coal to Eskom without following proper procedures”, this is a reflection on Mr Madondo’s conduct. Moreover, it is contained in the disciplinary report.
5.5 Adv Cassim, as quoted in City Press, criticized Mr Madondo’s “relationship” with Mr Langa, rather than Mr Langa himself (in any event, it would not have been in his jurisdiction to do so; it was not Mr Langa appearing before him but Mr Madondo).
5.6 On the lack of opportunity to respond: the article records “several attempts” to reach Mr Langa and his wife for comment. The paper also approached Mr Madondo and Mr Jacky Mashapu of the state-owned Central Energy Fund, the holding company for AEMFC, which employed Mr Madondo. The latter confirmed the findings of the disciplinary report.
5.7 However, I am concerned, as are Mr Langa’s representatives, that City Press identifies Mr Langa as a “lawyer”, when in fact he is not.
I easily found a Themba Langa attorneys using Google and have to ask whether this misidentification was the reason City Press could not get hold of the correct Mr Langa.
I am also concerned than an entirely extraneous party – the actual attorney Mr Langa – has been mistakenly dragged into this report.
For that reason, I am going to request City Press to clarify this point in its online platform.
5.8 On the lateness of the complaint: I must agree with the Public Advocate. A five-month delay in lodging a complaint is simply too long without an extremely cogent reason being advanced. The explanation that Mr Langa is now finding a negative fall-out in business dealings as a result of the article is not strong enough to condone such lateness, particularly as he was not the focus of the article and was mentioned only insofar as his relationship with Mr Madondo was concerned.
Mr Langa was referenced in the article only in terms of how the disciplinary report mentioned this relationship.
Decision to Adjudicate
For the reasons stated above, I must agree with the Public Advocate and decline to adjudicate this complaint.
However, I will request City Press to publish a clarification of the fact that Mr Langa is not a lawyer to correct any confusion that may occur with the other Mr Themba Langa who is in fact an attorney.
Appeal
The Complaints Procedure stipulates 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.
Pippa Green
Press Ombudsman
February 7, 2021
[1] http://www.presscouncil.org.za/Ruling/View/appeal-decision-spotlight-publications-and-sadmon-projects-and-consulting-cc-4433