Johann van Loggerenberg vs. Sunday Times

Ruling by the Press Ombudsman and a Panel of Adjudicators

16 December 2015

This ruling is based on the written submissions of Mr Johann van Loggerenberg – a former employee of the SA Revenue Service (SARS) acting on his own behalf – and those of Susan Smuts, legal editor of the Sunday Times newspaper, as well as on a hearing held on 1 December 2015 in Johannesburg. Adv Muhamed Husain represented Van Loggerenberg and Adv Eric van den Berg, with Smuts, the publication. The members of the Panel of Adjudicators who assisted the Ombudsman were Fanie Groenewald (press representative) and Carol Mohlala (public representative).

He complains about a series of texts published in Sunday Times of 4 October 2015, headlined:

- Call to probe Pravin Gordhan over SARS spy saga – KPMG report confirms our story piles pressure on ex-finance minister (front-page article, running over to page 2);

- Bid to keep report under wraps (front-page side-bar);

- Taxmen’s braai with prostitutes ‘not a brothel’ – SARS official denies running sex club as part of spy operation (story on page 2); and

- Keep shady doings in SARS out in the open (editorial on page 16).

Notes: The stories, and the complaint, are about the establishment of an investigative unit which Sunday Times termed a “rogue” unit. This unit had several names, a matter which is of no material interest to this finding. The panel therefore uses the word “unit” to refer to one or more of them.

Mr Ivan Pillay, also a former employee of SARS, complained about the same matter. The hearing accommodated both Pillay and Van Loggerenberg. Their complaints largely overflow, and it is possible that a minor aspect not included in one of their complaints is ascribed to the other person. The panel believes that this is immaterial, inter alia also as Husain represented both complainants.

The panel suggests that its findings regarding Pillay and Van Loggerenberg may be read in conjunction with one another.

Earlier stories; other issues

Van Loggerenberg argues that the articles in dispute should not be seen in isolation from others dating back to 10 August 2014, because the:

- editor linked these stories in the editorial comment;

- newspaper referred to the matter as “our story” that had been confirmed and vindicated (referring to earlier stories); and

- essence of the allegations made against him mirrored allegations published earlier.

At the hearing, the panel explained that it could not accept complaints about the earlier stories, as these were way out of time. However, the members undertook to take cognizance of the content of those articles for the sake of context and understanding of the stories currently in dispute.

All the parties accepted this decision.

Referring to the earlier stories, Van Loggerenberg says the newspaper coined the phrase “rogue unit” for the unit which was his responsibility, and published their pictures.

Leading up to the October 4 stories, it was alleged that the Sunday Times inaccurately reported that:

- the unit was unlawfully or illegally formed – despite the fact that the Labour Court found on 8 December 2014 (in a ruling on an application brought by Pillay against his suspension) that the Minister of Finance at the time, Mr Trevor Manuel, and the then Commissioner of SARS, Mr Pravin Gordhan, had approved the creation of the unit in 2007 (the latter was said to be on record that the unit was legally established and functioned in support of the SARS mandate with great success);

- both he and SARS had denied the existence of the unit – with nothing to substantiate such a statement and despite various media reports to the contrary, and despite a reference in a book, published in 2012, which referred to the unit, attributed it to SARS, and stated its purpose;

- he had bugged people and specifically the home of Mr Jacob Zuma (before he became President), that the unit “infiltrated” politicians as bodyguards, that he had admitted or confessed that he ran a rogue unit, that he had spied on taxpayers, and that he bought “spy ware” in excess of R500-million – all without any proof;

- the unit and he had something to do with the deaths of former SARS officials; and

- slush funds in excess of R500-million were available for the unit’s use.

This list is seemingly endless – but the picture is clear enough.

The panel allowed the following issues to be tabled, for the sake of the complete picture, without the intention of taking it into account for the purposes of this finding:

- Pearlie Joubert’s sworn affidavit, in which she alleges that Sunday Times was involved in practices she believed to be “unethical and immoral” (specifically regarding the matter with which the complaint is dealing). She stated that she had resigned from the newspaper because of that. The panel is of the view that this matter is relevant for background and context – however, we note that this affidavit has not been tested in court, and therefore we are not taking its contents into account for this finding;

- The accusation that the then editor-in-chief, Phylicia Oppelt, had been used from 2013 onwards by her former husband (Mr Rudolf Mastenbroek) who, it is claimed, has instigated many of the storylines that have since appeared in the Sunday Times. This is not a matter for the panel to decide, as it falls outside its jurisdiction (even if Mastenbroek, as a source, had a vested interest in the matter). The panel has no way of establishing whether the claim is true – and if it is, whether or not Mastenbroek’s information was correct; and

- Van Loggerenberg was constrained in responding to the merits of all the allegations contained in the Sunday Times reports by statutory provisions and other agreements containing blanket bans on his ability to disclose taxpayer information and organisational information, and by lack of access to SARS records – that is his problem, not that of the newspaper.

The reportage of other publications, allegedly with an “alternative narrative”, was not tabled. Such reporting cannot serve as a yardstick for determining the truth or otherwise of an allegation. Issues related to Mr Ronnie Kasrils could also not be entertained, as these fell outside the scope of the complaint.

Also, this finding will take only the bare essentials into account as far as Gordhan is concerned – he has lodged his own complaint, and the Ombudsman will deal separately with those matters.

Lastly, Van Loggerenberg goes to great lengths to explain that the investigation processes prior to the KPMG report (see below) were flawed and that he never had an opportunity to put his side of the case. Again, this falls outside the panel’s mandate as its one and only objective is to adjudicate the reportage by the newspaper – and not the actions of any board or investigative committee.

The complaint in a nutshell

Van Loggerenberg’s complaint comprises of 92 pages. What follows is a cryptic synopsis of this documentation.

He namely:

- questions the legitimacy and standing of a report by auditing firm KPMG – he says that the newspaper was too reliant on its findings without questioning its methods and legality, and the publication indeed needed to query the mere existence of such a report (which could have been falsified);

- complains that the articles falsely insinuated or alleged that he, and some of his sub-ordinates, were guilty of a number of misdemeanours, unlawful actions and general misconduct – such as that he had:

- tried to conceal the unit’s existence;

- misled official enquiries into it;

- been part of a break-in into the house of Mr Jacob Zuma, when bugging devices were planted to spy on him;

- been part of the illegal establishment of the unit (as, he says, Gordhan declared the unit’s establishment to be legal, it was unfair and inaccurate to call it a “rogue unit”.)

He also complains that the newspaper was not justified in stating that the KPMG report had “vindicated” its reportage.

More specifically, he complains that the:

- the story admitting that no SARS brothel existed, did not exonerate him;

- editorial made several incorrect or misleading statements;

- journalists did not:

- make any attempt to verify the allegations in the KPMG document;

- afford him reasonable time to respond to the allegations, and did not reflect most of his response to the journalist;

- obtain its information legally, honestly and fairly;

- newspaper was not in pursuit of public interest, but rather was motivated by non-professional and personal considerations (conflict of interests); and

- texts violated his rights to dignity and reputation – with some dire consequences for his ability to earn a livelihood and causing distress to his family, friends and former colleagues.

The texts

All the articles (except the editorial), were written by Piet Rampedi, Mzilikazi wa Afrika and Stephan Hofstatter.

The front-page story said former Finance Minister Pravin Gordhan should face a probe into whether he knew that a rogue unit at SARS had been spying on taxpayers. Reportedly, this was a recommendation in a KPMG report submitted to SARS commissioner Tom Moyane. The newspaper story stated that this confirmed its earlier reports that the unit had been “engaged in unlawful interception of communication”.

“The report, seen by Sunday Times reporters, reveals that SARS blew more than R106-million in taxpayers’ money running ‘a covert and rogue-intelligence unit’ that spied on South Africans, and then repeatedly lied about its existence to the public.”

The article also stated that the KPMG report said that SARS needed to engage the Office of the Public Protector and apologise for misleading it.

The journalists reported, “SARS officials under the tenure of former SARS deputy commissioner Ivan Pillay told the public protector the rogue unit did not exist. ‘[This] constitutes possible criminal liability to mislead the Office of the Public Protector,’ the report says.”

With reference to the unit, the journalists quoted the KPMG report as saying that:

- it had reported to Pillay “during the entire life span of its existence”;

- it had operated outside the normal controls, protocols and over-sight structures of SARS;

- agents of the unit had been referred to as “ghost employees”;

- agents had unlawfully intercepted communications of taxpayers;

- agents had unlawfully monitored, recorded and transcribed recordings at National Prosecuting Authority offices on his (Pillay’s) instructions; and

- Pillay had established the unit at the time Gordhan had been commissioner of SARS.

The side-bar stated that “strong lobbying” was taking place behind the scenes to classify as top secret the “explosive” KPMG report “exposing shenanigans” at SARS. Two sources reportedly told the newspaper that Deputy Finance Minister Mcebisi Jonas had been leading a campaign to have the report classified. One source said the move was a bid to save SARS’s reputation and protect key former officials – including Pillay. “[Sunday Times] reporters have had sight of the damning, 139-page KPMG report which details the rogue unit’s unlawful activities between 2006, when it was established, and [2014], when it was shut down.”

The story on page 2, denying the existence of a SARS brothel (as previously reported), did not mention Van Loggerenberg.

The editorial said the newspaper’s continued reporting on the existence of a rogue unit were corroborated from three independent quarters – a report by Adv Muzi Sikhakhane, an advisory board under the leadership of retired judge Frank Kroon, and now a report by auditing firm KPMG.

The complaint in more detail

Legitimacy, standing of the KPMG report

Van Loggerenberg questions the legitimacy and standing of the KPMG report – he says that the newspaper was too reliant on the findings without questioning its methods and legality, and the publication indeed needed to query the very existence of such a report (which could have been falsified).

He says in the week prior to publication Sunday Times met with an “anonymous source”, who was in the pay of SARS, and the journalist was shown pieces of paper supposedly containing findings of a KPMG forensic investigation.

Van Loggerenberg says the newspaper made no effort to determine the authenticity of the document, made no effort to corroborate whether indeed the papers constituted the findings of a KPMG forensic investigation, and made no attempt to determine the veracity of the claims made in these pieces of paper. “Instead, Sunday Times takes these allegations, and presents them to the public as is, verbatim, and attribute them to KPMG.”

He adds that the newspaper made no effort to ascertain whether any of these “findings” could be attributed to the unit or to him – knowing full well that they represented only the side of a destructive faction hailing from SARS.

Smuts replies that all the articles were based on a report prepared by KPMG; the articles merely repeated the findings contained in this document – which in any event largely agreed with the findings by Sikhakhane and Kroon.

She says that Rampedi obtained access to the report. Only eight copies had been produced and each had a watermark identifying the receiver. The journalist was therefore unable to take a copy with him as this would have identified his source. This person produced an executive summary which he or she gave to Rampedi. She says the journalist checked the summary against the report to confirm its accuracy. He also took a photograph of the document. “We submit that…the summary is accurate,” she states.

Stories: Guilty of several misdemeanours

Van Loggerenberg complains that the articles falsely insinuated or alleged, among other things, that they (and some of their sub-ordinates) were guilty of a number of misdemeanors, unlawful actions and general misconduct – such as that he had:

- tried to conceal the unit’s existence;

- misled official enquiries into it;

- been part of a break-in into the house of Mr Jacob Zuma, when bugging devices were planted there to spy on him;

- been part of the illegal establishment of the unit (as, he says, Gordhan declared the unit’s establishment to be legal, it was unfair and inaccurate to call it a “rogue unit”.)

Smuts points the panel to the following sections of the summary of the KPMG report to motivate the newspaper’s case on several counts (which largely speak for themselves). She mentions this in connection with Pillay’s complaint, but what follows is also relevant as far as Van Loggerenberg is concerned:

- 1.2.1: “[A] covert and rogue intelligence unit in contravention of the rule of law was established in SARS”;

- 1.2.10: “The unit operated outside the normal controls, protocols and oversight structures. Members of the unit were inter alia referred to as ghost employees”;

- 1.2.11: “The unit engaged in unlawful interception of communications”;

- 1.2.12: “[T]he unit unlawfully monitored, intercepted communication, recorded and transcribed recordings at the National Prosecuting Authority (hereafter referred to as the NPA) offices. The SARS intelligence gathering exercise at the NPA was known as ‘Operation Sunday Evenings’ and was aimed at gathering intelligence in the criminal investigation of the late Mr Jackie Selebi… The reports, transcription and recordings were handed to Pillay for his consideration”;

- 1.2.16: “Pertinent members of SARS misled the State Security, the Public Protector and the general public with regard to the existence of the rogue and covert unit…”; and

- 2.8.3: “SARS needs to engage the office of the Public Protector and apologise for misleading her office. It constitutes possible criminal liability to mislead the office of the Public Protector.” (As Pillay was at all relevant times the deputy or acting commissioner of SARS, the officials who lied about the existence of the unit did so under his tenure).

- Van Loggerenberg attests that Gordhan has declared the unit’s establishment to be legal (against claims by three investigative bodies that the establishment of the Investigation Unit was unlawful, as claimed by the newspaper).

He adds that since March 2008 until his resignation, he was inter alia responsible for the unit. Gordhan has on multiple occasions stated publicly that the unit had been formed lawfully and, during its active service, served the interests of SARS, the fiscus and South Africa. “To refer to the unit as ‘rogue’ is offensive, defamatory and wholly inappropriate when referring to civil servants who have served their country proudly and with great distinction.”

The important point, Smuts argues, is that SARS had never acknowledged the existence of an unlawful unit, or a unit engaging in unlawful activity. The rogue unit was hiding in plain sight behind a façade of licit purpose.

She notes that Section 54 of the Sikhakhane report made it clear that the existence of the unit was not volunteered to them until it was revealed in the media. “It is clear that the people involved in the rogue unit were at pains to conceal its existence/its purpose/its activities, especially to the extent that these were unlawful… There would be no controversy over a legitimately established unit that fulfilled its purpose lawfully. However, one that was illegitimately established, or one that was legitimately established but later went rogue, would be a different matter.”

On the Zuma matter, Smuts says that the story referred to a previous article in which it was stated that members of the unit broke into his house and planted listening devices.

‘Vindicated’

Van Loggerenberg complains that the stories have omitted material information to justify the statement that the KPMG report had “vindicated” its reportage.

He also lists some issues which, he says, should have been reported to render the necessary balance and fairness to the articles. It is necessary to list all of these in order to determine whether this part of the complaint holds water. He says the newspaper reported that the unit had:

- been formed illegally;

- bugged people, and especially Zuma;

- broken into Zuma’s house;

- infiltrated politicians;

- spied on taxpayers;

- operated a brothel;

- something to do with the deaths of former SARS officials, Messrs Nkadimeng and Radebe;

- the unit had slush funds in excess of R500-million;

- owned, used and bought “spy ware” in excess of R500-million;

- used CCTV to spy on Mr Radebe;

- spied on Radebe, Zuma and Jackie Selebi;

- intercepted taxpayers’ communications;

- operated front companies; and

- been involved in underhanded, unlawful or illegal taxpayer settlements.

He adds to this list the allegations that:

- SARS denied the existence of the unit;

- he was an apartheid spy; and

- his charity received donations, in particular from taxpayers under investigation or who are service providers to SARS.

Van Loggerenberg concludes, “Very little of the ‘our story’ that pertains to me is covered by the alleged ‘KPMG report’.” Zuma, he says, was part of this “story”. He asks if that was confirmed.

Smuts says that not all of these issues were covered in the KPMG report (which is why the stories did not include them) and denies that the statement in dispute was unjustified.

To the extent that Van Loggerenberg takes issue with the findings by KPMG, or indeed with those of other bodies that have investigated him and/or the rogue unit, she submits that the proper course of action would be to challenge those investigations.

“To attack us for reporting on investigations into vital organs of state such as SARS – when such matters have an unassailable public interest – is a classic case of shooting the messenger.”

Brothel

Van Loggerenberg complains that an earlier story had implicated him in an allegation that SARS had owned a brothel, but the follow-up article did not exonerate him as his name was not mentioned.

Editorial: Misleading statements

The editorial stated the newspaper’s articles were corroborated from three different sources – Sikhakhane, an advisory board under the leadership of retired judge Frank Kroon, and the KPMG report, which all said that the unit had been established illegally.

Van Loggerenberg complains that the editorial made several incorrect or misleading statements regarding him.

Smuts argues that the newspaper had to face unbridled criticism from many quarters, including from Van Loggerenberg. It is therefore understandable that it expressed the view that it had been vindicated.

No proper verification

Article 2.4 of the Press Codes states, “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be stated in such report”.

Van Loggerenberg says the journalists did not properly verify the veracity of the allegations made against him.

Smuts denies that the newspaper was under any obligation to verify the contents of the report (which was in the public interest) with Van Loggerenberg. “What his right was, was to be heard by those panels,” she argues.

She also argues that it is unreasonable to expect the newspaper to verify the KPMG report. “If we were required to independently verify all such reports then very few of these would see the light of day. KPMG is an international auditing firm with a good reputation. It is reasonable to report on its findings. We would have done so even if the findings were contrary to our previous reports. This is because the investigation dealt with an ongoing matter of vital public interest.”

In his response to Smuts’s reply to his complaint, Van Loggerenberg argues that she admitted that a single, anonymous source had compiled the executive summary. It was also not signed, the pages were not numbered, and the story referred to a report (and not to a summary).

He adds that nowhere in that document is KPMG mentioned – in fact, the “summary” is virtually a verbatim copy of a document compiled by attorneys for SARS, dated 21 August 2015. Furthermore, Commissioner Moyane has stated on record that the KPMG report had not been finalised. That is why the journalist should have corroborated whether the information did indeed come from KPMG.

The panel agrees with Smuts – it would create an untenable situation if the press was expected to verify the contents of a report such as this one.

No reasonable time to respond; response not properly reported

Van Loggerenberg complains that the newspaper did not afford him reasonable time to respond to the allegations made against him.

The day before the stories in dispute were published, Hofstatter sent Van Loggerenberg an SMS text message at 09:29, requesting him to provide a response by 14:00 that same day. He posed seven questions which required of Van Loggerenberg to recall events as far back as 2001.

“In my reply, I indicated that the time period afforded me was insufficient to formulate a complete and meaningful response. I replied nevertheless because of my past experience with Sunday Times insofar articles concerning the very same subject dating back to 10 August 2014. Sunday Times has consistently twisted and misquoted me in virtually every single article published in this regard. As a fact, Sunday Times would typically ask me on the Friday late, just before the pending article set for the Sunday, alternatively on the Saturday before, or in some cases not at all. In virtually none of these instances was I able to first consult with my lawyer.”

Van Loggerenberg says the journalist did not provide him with the KPMG report (the subject of Hofstatter’s questions) – so, he found himself in the “impossible position” of having to defend himself against allegations contained in a report he was not allowed to see and while he was not even sure that it existed.

He adds that Hofstatter asked him seven questions, but only three of his responses were reflected in the stories.

Smuts submits that the newspaper gave Van Loggerenberg a right of reply to the allegations levelled at him, and in fact also reflected a significant proportion of his response in the article.

The panel gives the newspaper the benefit of the doubt as to the question whether the journalist gave Van Loggerenberg a reasonable time to respond – the fact is that Van Loggerenberg did find the time to respond to all the questions. However, the journalist should have provided him with a copy of the summary that he had at his disposal.

Information not obtained legally, honestly, fairly

Article 1.1 of the Press Code states, “[N]ews should be obtained legally, honestly and fairly, unless public interest dictates otherwise”.

The complaint is that the journalists have not obtained their information legally, honestly and fairly.

Smuts denies this. “We also rely on public interest to protect our disclosure of the information concerned.”

The panel: The matter did not get much attention at the hearing. Be that as it may, the Press Code does allow publications to obtain their information illegally – if there is no other way to obtain the data and the matter is in the public interest (Section 1.1 of the Code).

Non-professional, personal considerations

Section 3.1 of the Press Code states, “The press shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflicts of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the press's independence and professionalism.”

Van Loggerenberg complains that the newspaper was not in pursuit of public interest but, rather, was motivated by non-professional and personal considerations (conflict of interests).

Because the panel has no means of deciding if Rampedi was misled by his source, or if he deliberately misled the public, his newspaper, as well as this office, we are not in a position to argue this point.

Dignity, reputation violated

Van Loggerenberg concludes that the stories violated his rights to dignity and reputation – with some dire consequences for his ability to earn a livelihood and causing distress to his family, friends and former colleagues.

He consequently had to resign, and his ability to earn a livelihood has been severely limited. He adds that the articles have also caused great stress to his family, friends and former colleagues. In addition, the reportage has also damaged SARS’s reputation, “a public institution that was held in high esteem by the South African public”.

The panel’s main considerations

The reportage as a whole essentially stands or falls with the validity of the KPMG “report”, and therefore also with its summary.

The newspaper is adamant that both these documents are genuine, and even provides the panel with a photograph of the cover page of the report itself. This is headlined, South African Revenue Service – Report on Allegations of Irregularities and Misconduct – KPMG Services Proprietary Limited. It is dated 3 September 2015.

The panel notes that the articles consistently refer to this document as a “report”, and not a “draft report”.

However, on 14 December Deputy Finance Minister Mcebisi Jonas was (rightly or wrongly) reported as saying that the document being referred to was still a draft and that there was no final report as yet. (Van Loggerenberg brought this matter to the panel’s attention – but we, of course, knew about it already.)

We then asked the newspaper for comment on this issue.

Van den Berg says it is “unusual” for a party to seek to supplement its submissions after a hearing has been concluded. However, if the panel decides to take this matter into consideration, his instructions are to state that Van Loggerenberg has misquoted what was said at the press conference. He states that the report exists and questions Van Loggerenberg’s motives for alerting the panel to what was said at the press conference.

He explains: “The (newspaper’s) investigative units’ sources confirm that the KPMG have handed over the final report. A draft was sent to the Commissioner and SARS’ attorneys commented on the draft. A final report was prepared taking into account the comments in the SARS’ lawyer’s letter. Thereafter eight copies of the report were prepared each one clearly watermarked and the recipients including (sic) the Minister of Finance and his deputy. From a KPMG perspective it appears to be final and was sent to SARS and Treasury some time ago.”

Whether or not Van Loggerenberg has misquoted Jonas is not important. What is, is what the latter in fact said.

These were the Deputy Minister’s words on this matter:

“The KPMG report remains a draft. There is no final report and there is a process of responding to all the issues…that they have raised both in terms of the content and the structure of the report and what to do with the report in any case. That process is going on. Until that process is finalised and has been signed off by both clients, which is SARS and Treasury, we can’t actually have a final report.”

It is unthinkable for this panel to simply ignore these words – whether our action in this regard is “unusual” or not.

To clear up this matter once and for all, the Ombudsman then asked KPMG itself whether the report had already been released or not. I was told on good authority that there were six draft reports, and that the copy that was leaked to Sunday Times was among the earlier ones. Also, that the final report has not been released yet.

Based on this, the panel has to accept that the “report” with which Sunday Times worked was a draft, and therefore that no statement contained in that draft was final. Furthermore, not only could these “findings” have been changed, but there is no reason to assume that even the final findings would have been accepted by SARS (or Treasury).

This means that not only was the content of the stories inaccurate, misleading and unfair, but the conclusions in both the editorial and the sub-headline of the main story (namely that the newspaper’s reportage prior to the “release” of the “report” had been validated) cannot be correct – or were, at best, premature.

The only conclusion that the panel can come to is that the newspaper’s reportage has unnecessarily tarnished Van Loggerenberg’s dignity and reputation.

The panel has to stress that what was contained in the summary may (or may not) turn out to be correct at some later stage – but we are convinced that the newspaper was not justified to present those “findings” as the true version of KPMG’s final report at the time of publication.

This leaves only two options regarding Rampedi, who is adamant that he saw the “report” – either he was misled by his source, or he deliberately misled the public, his newspaper, as well as this office.

The panel is not in a position to determine which of these two possibilities is true, and we leave it to the newspaper to take up this matter with the reporter.

Finding

Sunday Times, in its articles, presented a draft finding – which was later changed by KPMG or may even be rejected by SARS – as a final finding. This was inaccurate, misleading and unfair. It is in breach of Section 2.1 of the Press Code that states, “The press shall take care to report news truthfully, accurately and fairly.”

The newspaper is also in breach of Section 4.7 of the Press Code: “The press shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only by a legitimate public interest and in the following circumstances:

- 4.7.1: “The facts reported are true or substantially true; or

- 4.7.2: “The article amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or

- 4.7.4: “It was reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.” (The reporting in the front-page article was not “prepared in accordance with acceptable principles of journalistic conduct”).

The subheading was comment. Sect. 7.2 states, “Comment by the press shall be presented in such manner that it appears clearly that it is comment.” This was not so in this case.

The newspaper should have provided Van Loggerenberg with a copy of the summary of the KPMG report – without which it was unfair to expect him to comment meaningfully on that document. This was in breach of Section 2.5 of the Press Code that says, “A publication shall seek the views of the subject of critical reportage in advance of publication…” (The implication, of course, is that such a request should include all material aspects of the matter.)

As indicated earlier, the newspaper was not justified to present those “findings” as the true version of KPMG’s final report at the time of publication.

In light of the panel’s finding on the status of the so-called KMPG report, it also finds that the editorial comment was not based on facts that were “true or substantially true” (Sect. 4.7.2) or "truly stated" (Sect. 7.2). Thus, it was not “fair comment”.

The “brothel” story was in a way rectifying earlier reports. In earlier reports the Sunday Times had linked Van Loggerenberg with the establishing of a brothel. In this story, subheaded "SARS official denies running sex club..." Van Loggerenberg’s name was not mentioned. The Sunday Times should have, in accordance with Sect. 2.6, have corrected the fact that Van Loggerenberg did not run a brothel.

The following parts of the complaint are dismissed, namely that the newspaper did not:

- verify the information contained in the document at its disposal

- give Van Loggerenberg reasonable time to respond; and

- obtain its information legally, honestly and fairly.

There is no finding regarding the complaint that the newspaper was motivated by non-professional and personal considerations (conflict of interests).

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breaches of the Press Code as indicated above are all Tier 2 offences.

Sanction

Sunday Times is directed to unconditionally:

- retract all the texts which are in dispute (the stories as well as the editorial);

- apologise to Van Loggerenberg for:

- not having provided him with a copy of the summary; and

- unnecessarily tarnishing his dignity and reputation.

Sunday Times is directed to publish prominently, on page 1, above the fold, a kicker with the words “apology” or “apologises”, together with Van Loggerenberg’s name, which refers to the full apology in the text that should be published on page 2 above the fold. This text should include references to all the allegations made in the texts which are in dispute.

The text, which should be approved by the panel, should end with the sentence, “Visit www.presscouncil.org.za for the full finding”.

The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.

If the articles appeared on the newspaper’s website, the text should be published there as well.

Section 5.5 of the Complaints Procedures reads: “At the conclusion of a hearing, and after a Panel has reached a decision, both parties shall be entitled to address the Panel, personally or in writing, on sanctions and where appropriate mitigation.”

Either party may do so within three working days of receipt of this decision. Please note that this is not an application for leave to appeal – that is a separate process, as explained below.

Appeal

Our 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 [email protected].

Fanie Groenewald (press representative)

Carol Mohlala (public representative)

Johan Retief (Press Ombudsman)

Issued by the Press Ombudsman, 16 December 2015