ANC vs. Daily Dispatch

Mon, Apr 20, 2015

Ruling by the Press Ombudsman and a Panel of Adjudicators

20 April 2015

This ruling is based on the written submissions of Mr Gwede Mantashe, Secretary General of the ANC, on behalf of that party, and those of Bongani Siqoko, editor of the Daily Dispatch newspaper, as well as on a hearing on 14 April 2015 in Johannesburg. Mantashe, Mr Krish Naidoo, Mr Zizi Kodwa and others represented the ANC, and Siqoko appeared on behalf of the publication. The ANC brought two witnesses, Mr Lonwabo Sambudla (identified in the report as Pres Jacob Zuma’s son in law), and Mr Bongani Mpeluza (the owner of Siyenza, the company that the story was about).

The members of the Panel of Adjudicators who assisted the Ombudsman were Philip van der Merwe (public representative) and Moshoeshoe Monare (press representative).

Complaint

The ANC is complaining about a front-page report in the Daily Dispatch of 28 February 2015, headlined ANC family links to R631m EC deal. This article was subsequently published on Dispatch Live, headlined ANC faces behind toilet tender scandal.

The party complains that the:

- article carried a number of inaccuracies which were potentially damaging to the reputation of the ANC and the standing of individuals and those associated with them (details below);

- story omitted to mention crucial facts (details below);

- journalist did not contact the company or the municipality, nor did he adequately verify the facts with him;

- headlines were misleading, malicious and damaging to the standing of the ANC leadership; and

- report perpetuated the idea that Black and African politicians were only successful because of their “links” to the “right” people.

The ANC also complains about the use of seven pictures that accompanied the story, saying that these people had nothing to do with the company mentioned in the report.

The text

The story, written by Siphe Macanda, said that the Siyenza Group with links to several high-ranking national ANC leaders had been handpicked and awarded a tender in excess of half a billion rand to build toilets for a rural Eastern Cape municipality. An investigation by the newspaper reportedly found that proper procurement procedures had not been followed, “which the municipality has admitted (to)”. The relatives or family members of ANC leaders who were allegedly involved were Mantashe’s wife Nolwandle, his son Buyambo, Sambudla, and Small Business Development Minister Lindiwe Zulu’s son Buitumelo Itholeng. “The Dispatch understands that Nolwandle’s company has been subcontracted…to provide ‘health and safety’ service,” Macanda added.

Seven pictures accompanied the stories. Three of these were used bigger; they were of Pres Zuma, Gwede Mantashe and Minister Lindiwe Zulu. Four smaller pictures depicted Sambudla, Itholeng, Buyambo and Mantashe’s wife.

The pictures were linked or connected to illustrate a web of connections between those reportedly involved and their association to ANC leaders.

The arguments – prior to the hearing

Erroneous perceptions

Mantashe complains that the use of his picture, as well as those of Zuma and Zulu, revealed a deliberate, malicious intent to cast aspersions on them and to insinuate and create certain negative perceptions of them. He says this was exacerbated by the introductory sentence that stated, “[A] company with links to several high-ranking national ANC leaders was handpicked (‘…proper procurement processes were not followed…’) and awarded a tender in excess of half a billion rand to build toilets for a rural Eastern Cape municipality.”

The (erroneous) perceptions he complains about are that the three individuals were:

- portrayed as the owners of the company;

- directly (or indirectly) involved in the awarding of the tender contract;

- using their status in society to put pressure on the municipality; and

- beneficiaries to the contract with full knowledge thereof.

Mantashe also questions the motive behind the statement that his son had just completed his studies at Fort Hare and was now working for his mother’s company. “Where is the crime in a situation where a child helps their parents, unless in an illicit act?”

He says that:

- Zuma’s son-in-law has nothing to do with the project, neither directly nor indirectly; and

- his wife is a professional in her own right (implying that she does not need his stature to get things done), and asks why there were question marks behind her professionalism. He also wants to know why her skills were of any concern to the story.

Siqoko replies that the newspaper’s intention was to present its readers with the finding of its investigation into a substantial and questionable tender. “The presentation of the story is crucial to understanding the links. This is common in newspapers. Readers are therefore presented with a complete package which in fact dispels many of [Mantashe’s] ‘erroneous conclusions’.”

He adds that Siyenza Group owner Bongani Mpeluza himself confirmed, on the record, that Zuma’s son-in-law was involved in that company. “We never said that Sambudla (Zuma’s son-in-law) is involved in the project but wrote about his involvement in Siyenza Group, which is the company that has been awarded the contract.”

The editor also says the story never stated or suggested that:

- Ms Mantashe’s skills were of any concern. “We stated the links between her company and Siyenza”; and

- Mantashe’s son was committing a crime. “Again, his involvement in the company reinforced the family links. His academic history was provided as background information.”

 The Ombudsman’s considerations (prior to the hearing)

On 12 March 2015, the Ombudsman wrote the following e-mail to Siqoko:

“At the end of your reply to this complaint, dated March 9, you state that the facts and substance of the story are factually accurate ‘having been confirmed officially by the Amathole district municipality and the company itself’.

“I take it that you have this documentation/correspondence at your disposal, as the information was confirmed ‘officially’.

“It would be helpful if you could provide me with the documentation, as a matter of urgency.”

The editor then sent the Ombudsman, amongst other things, the official response by the municipality to the reporter’s questions. Of particular note in this regard is the sixth and ninth questions, which addressed the issue of whether the tender had been advertised or not, and whether the normal tender procedures had been followed.

The municipality responded that, due to limited time frames set [by] the Development Bank of Southern Africa and the National Treasury, Section 32 of the Supply Chain Management Regulations had been used in appointing the main contractor. Therefore there had been no advertisement, nor had the normal tender procedures been followed.

For clarity’s sake, the relevant section states:

1. A supply chain management policy may allow the accounting officer to procure goods or services for the municipality or municipal entity under a contract secured by another organ of state, but only if…

a. the contract has been secured by that other organ of state by means of a competitive bidding process applicable to that organ of state;

b. the municipality or entity has no reason to believe that such contract was not validly procured;

c. there are demonstrable discounts or benefits for the municipality or entity to do so; and

d.  the other organ of state and the provider have consented to such procurement in writing.

Sub-regulations (c) and (d) do not apply if:

a. a municipal entity procures goods or services through a contract secured by its parent municipality; or

a. a municipality procures goods or services through a contract secured by a municipal entity of which it is the parent municipality.

The municipal manager reportedly said it was due to the limited time-frame given by the Development Bank that it did not follow the normal procedures – a statement that was reportedly denied by the Bank.

These are the questions that need to be discussed at the hearing:

· Did the use of the pictures of Zuma, Mantashe and Zulu falsely create negative impressions about them (as they had not directly been involved in the procurement of the tender)?

· Was it fair and accurate to state that proper procurement procedures were not followed, while Section 32 was not mentioned or explained in the article?

· Did the municipality in fact adhere to the requirements set by Section 32?

· Was there a “motive” behind stating that Mantashe’s son had just completed his studies at Fort Hare and was now working for his mother’s company?

· Did Sambudla have anything to do with the project, either directly or indirectly? and

· Did the story place any question marks behind Ms Mantashe’s role and influence behind the tender?

Omissions

Mantashe complains that the report did not:

- provide substantive evidence which warranted the “parading of faces of ANC leaders”;

- inform readers of the full complement of the owners/shareholders of the company;

- explain the links that supposedly existed between the various people “involved” (save for familial ones); and

- state that his wife’s company was sub-contracted to provide health and safety; and neither did it reveal who the main contractor was.

The editor says the report clearly stated who the individuals were and referred to their connections with the tender, as well as to their family links to senior ANC figures. The story also mentioned that Nolwandle’s company was sub-contracted to provide health and safety, and who the main contractor was. 

The Ombudsman’s considerations (prior to the hearing)

The questions are whether or not the report:

- provided substantive evidence which warranted the “parading of faces of ANC leaders”;

- was obliged to inform readers of the full complement of the owners/shareholders of the company;

- explained the links that supposedly existed between the various people “involved” (save for familial ones); and

- stated that Ms Mantashe’s company was sub-contracted to provide health and safety, and revealed who the main contractor was.

Not (adequately) asked for comment

Mantashe complains that the aspects mentioned under the sub-headline “Omissions” could have been easily established by contacting the company or the municipality that has contracted it.

He also says that Macanda called him, and asked if it was true that the tender had been awarded due to his (Mantashe’s) influence. Mantashe states that he then asked the reporter about the nature of this influence, and some other relevant questions. The reporter responded “that he should not be asked questions but his questions must be answered”.

Mantashe says he explained to Macanda that he wanted to understand the allegation, after which the reporter promised to come back to him before the end of that day – which was not done, not then and not afterwards. He says that even though he brought this matter to Siqoko’s attention, the story still appeared – “without these facts presented or some of the allegations verified and substantiated”. He concludes that the newspaper merely contacted him as a formality. “I gave them all the time to clarify the points but they chose to cut their communication and [to] publish [an] unbalanced story.”

Siqoko replies that the newspaper gave Mantashe an opportunity to respond, and that some of the issues he had raised were included in the report (such as the fact that his wife’s company was sub-contracted, and that his son was working for his mother). He adds that Macanda did not see a need to contact Mantashe again, as the latter’s questions were irrelevant – “and we were never going to reveal our sources…or who was making the allegations of political influence”.

 The Ombudsman’s considerations (prior to the hearing)

The central question is whether the newspaper adequately adhered to Section 2.5 of the Press Code, which states: “A publication shall seek the views of the subject of critical reportage in advance of publication…”

Headline misleading

The headline read: ANC faces behind toilet tender scandal

Mantashe opines that this was misleading, malicious and damaging to the standing of the ANC leadership, as the party does not adjudicate tenders, nor does the party approve service providers/contractors at any level of government.

The newspaper does not respond to this part of the complaint.

The Ombudsman’s considerations (prior to the hearing)

Section 10.1 of the Code reads: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”

However, a second issue is at stake here: If the story itself is inaccurate and unfair, and the headline reflects the inaccuracies or unfair reporting, the headline itself would be in breach of the Code.

The crux of the matter, therefore, is whether the story itself portrayed the “ANC faces” behind the “toilet tender scandal” – and if so, if this was accurate and fair. If not, the headline would also be inaccurate and unfair (even though it may have reasonably reflected the contents of the story).

Societal outcasts

Mantashe concludes that the story perpetuated the idea that Black and African politicians were only successful because of their “links” to the “right” people. “Therein, the narrative presupposes a corrupt and corrupting relationship, without even making a tangible proof to that effect. In the end, our families are wittingly or unwittingly relegated to being societal outcasts who can be neither employed nor be businesspeople.”

Siqoko says Mantashe fails to understand the importance of the story – it involves R631-million of taxpayers’ money. The public has every right to know where this money is going, “especially in light of what appear to be very dubious circumstances”.

He adds, “[Mantashe] seems to suggest that we should refrain from our investigation of this project simply because family members of ANC members are involved, whereas we would argue it is for this very reason that investigation is mandatory. As a newspaper that regularly promotes the successes of black business and their owners, his accusation that we are pandering to a certain narrative rings hollow.”

The editor concludes that most of the complaint is based on perceptions that may or may not have been created. However, the facts and substance of the report are factually accurate, “having been confirmed officially by the Amathole district municipality and the company itself”. The links of the main individuals involved in the tender to senior leaders of the ANC is also factually correct.

He notes that the matter has already been referred to the Public Protector for investigation.

The Ombudsman’s considerations (prior to the hearing)

Did the story perpetuate the idea that Black and African politicians are only successful because of their “links” to the “right” people?

Arguments – at the hearing

For a large part, the arguments as set out above were repeated.

In addition:

Zuma’s son-in-law Lonwabo Sambudla testified that he was not a shareholder or a director of Siyenza Group and that he had not been involved in the sanitation project – and that the statement in the story that he had been linked to the company was therefore false.

Owner of Siyenza Bongani Mpeluza said he was the sole owner, director and shareholder of the company. He also testified that:

- he has 81 sub-contractors, of whom Mrs Nolwandle Mantashe was one – so why did Daily Dispatch selectively picked her out (he asked);

- approximately 1 300 workers are employed in the project – so why did the newspaper single out Mantashe’s son Buyambo (he asked);

- he has no direct communication with Zuma (implying that the President did not use his influence in the procurement of the contract);

- the inclusion of a picture of Zulu was unfortunate, as she was not involved in the company; and

-· he went to the newspaper, and inter alia told the editor that Sambudla was not involved in the company.

Naidoo argued that the municipality gave the newspaper enough information in order for it to have written a balanced story. He added that the awarding of the tender to Siyenza must have been minuted, and that the newspaper should have obtained those minutes. Also, the publication did not ask the municipality if there had been political pressure when the tender was awarded. He questioned the veracity of the statement in the story that “very little work” had been done in the project.

Mantashe noted that, of the 7 pictures that accompanied the story, there was not a single person who was involved in Siyenza.

He testified that the reporter had asked him (telephonically) about an allegation that he had influenced the procurement of the tender. He responded by asking, “What is the nature of this influence?” The journalist then said he would call back later that day – “which he did not do”.

Mantashe also said that the story got his son’s degree wrong – he held a degree called B.SC Agricultural Economics.

He concluded that Daily Dispatch represented specific interests, and repeatedly stated that the newspaper had been malicious in its reporting.

Kodwa explained that the ANC was an organisation, and as such it had nothing to do with Siyenza. He emphasised that the mentioning of the “ANC” pointed to malice on the part of the newspaper. He said the ANC was never consulted.

Siqoqo denied that he had specific “interests”. He mentioned that payment for the project started in September, while the work only commenced in January. The editor testified that Mpeluza told him that Sambudla had been involved in the company. He argued that he did speak to Mantashe, who was the Secretary General of the ANC. He admitted that the newspaper could not independently verify its conclusion that the company’s or its owner’s link or connection to individuals related to ANC leaders was the reason behind the awarding of the tender to Siyenza.

The panel’s considerations

The thrust of the complaint is the Daily Dispatch’s conclusion that the company’s or its owner’s connection to family members or relatives of influential people in the ANC was the reason for the decision of the awarding of the tender.

The newspaper, directly or by implication, concluded and created the impression that the company’s link to Zuma’s son-in-law, Mantashe’s wife and son, and Minister Lindiwe Zulu’s son were the primary or the sole reason why the tender was awarded to Siyenza.

This conclusion may or may not be correct – the panel has no concrete evidence either way. However, in this particular report Daily Dispatch failed to independently verify its conclusion. This made the reportage fundamentally unfair.

Of course, the mere showing of a relationship between individuals involved in government contracts and top political leaders is not necessarily unfair. (This is why such individuals and leaders are legally and morally obliged to declare such relationship, especially in circumstances where there is potential conflict of interest.)

However, any insinuation or impression – as in this article – that there was impropriety, undue influence or pressure, fraudulent or corrupt relationships has to be proven. The burden of proof is on the newspaper. Such reasonable proof and evidence would have provided a basis to question the credibility of individuals involved, form grounds for making such links and provide a justification to make allegations of impropriety.

The lack of such proof was likely to cause some serious, unnecessary harm to the subjects’ dignity and reputation.

Section 4.7 of the Press Code says: “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

“4.7.3: The report amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; 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 story did not meet any of these “circumstances”.

Editors and newspapers have an immense responsibility to report accurately, truthfully and fairly, and to provide reasonable proof of allegations of impropriety.

The newspaper was entitled to ask questions regarding the rationale, process, controversy, perceived lack of transparency and other issues related to the awarding of the tender to Siyenza. When the municipality, Siyenza and others involved in the awarding of tender could not offer a satisfactory explanation, it was the newspaper’s duty to dig deeper, ask questions and look at all the role-players, including relationships and links.

The publication has, quite justifiably, cast doubt as to whether Siyenza was qualified, capable and competent, or deserved to be awarded the tender.

This was also fuelled, and understandably so, by some of the individuals who were related to powerful politicians and had some dealings with the company or its owner.

The newspaper seemed to have been motivated by a quest to hold decision-makers to account for taxpayers’ money, transparency about decisions, and also to the public.

However, this does not excuse the newspaper from proving its conclusions and accusations against any individual.

The lack of getting comment from Mantashe is a serious issue. The latter was justified in asking the reporter what the nature of the alleged influence was – and the journalist’s failure to make good on his promise to contact Mantashe later that day failed to meet the requirements of the Press Code.

Some last remarks:

- Siqoko did not dispute that the relationship between Zulu’s son and Siyenza only went so far as Boitumelo’s involvement in Siyenza Prospectus, a subsidiary of Siyenza;

- The reference to Zuma’s son-in-law was merely an attempt to give background information;

- The complaint that the report perpetuated the idea that Black and African politicians were only successful because of their “links” to the “right” people is a generalization;

- The editor conceded that Sambudla had no factual relationship with Siyenza or its subsidiaries despite being the friend or having done other unrelated business work with Mpeluza. However, even if that information was wrong, the newspaper was justified in reporting the “link” – Daily Dispatch merely reported what Mpeluza himself told the editor. Siqoko had no reason to disbelieve him. But the newspaper's failure to contact Sambudla – despite their attempts – led to the newspaper making a wrong conclusion.

Given all of the above, it follows that:

- the headlines, while reflecting the content of the stories, were and fundamentally unfair to the subjects; and

- although the newspaper is justified to illustrate – through text and images – the link and connection of any beneficiary of state contract to political leaders and the latter's influence on the awarding of the contract, this must be based on factual, accurate information. Given how the newspaper failed to prove, in this report, the connection and the influence to award the tender, and failed to show the link to some of the players shown in this picture, the use and motive for the usage is based on unproven conclusions.

The editor intimated during the hearing that the newspaper has more evidence to prove its report. While such a possibility may exist, the panel confined its decision on this particular report that was the subject of the complaint.

We accept that The Daily Dispatch and the editor were motivated by a fair objective and motive to unearth reasons behind the inexplicable or unsatisfactorily explained awarding of the tender and whether there was any undue influence or political and other pressure. The newspaper was trying to hold those who exercise public power and administrative action to account. This is the newspaper's duty and role in an open society. Even though it has failed to prove the thrust of its report, its effort and role should not be diminished.

Finding

Daily Dispatch, despite its efforts and good intentions to investigate the reasons behind the awarding of the tender, failed to verify the link between the awarding of the tender and the influence of the ANC leaders mentioned in the story and depicted in the pictures.

This is in breach of the following sections of the Press Code:

2.1: “The press shall take care to report news truthfully, accurately and fairly”;

2.4: “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”; and

4.7: “The press shall exercise care and consideration in matters involving dignity and reputation…”

While the newspaper got comment from Mpeluza and tried to get hold of Sambudla, it failed to return to Mantashe, who is the subject of the story, to answer his concerns about his influence over the tender, which is the nub of this story. This is in breach of Section 2.5 of the Press Code that states: “A publication shall seek the views of the subject of critical reportage in advance of publication…”

The headlines, that reflected the content of the stories, were based on information that could not be proven, and therefore unfair. This is in breach of Section 2.1 of the Code.

The complaints regarding the motive of the paper for writing the story and other related issues raised by Mantashe are dismissed.

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 Code, as described above, are Tier 2 offences.

Sanction

Daily Dispatch is directed to apologise to the ANC for failing to verify the suggested link between the awarding of the tender and the influence of the ANC leaders mentioned in the story, depicted in the pictures and suggested in the headlines, and for the possible unnecessary harm that this did to their dignity and reputation.

The newspaper is reprimanded for failing to get proper comment from Mantashe.

This apology should feature prominently on the front-page, immediately underneath the masthead, and should include the words “apology” or “apologises”, and “ANC”, with a reference to the proper apology inside.

This apology must be on either page 2 or 3, and it should encompass a proper summary of the panel’s finding.

The newspaper is free to state that it stands by the rest of the story as far as the awarding of the tender is concerned, if it wishes to do so.

The newspaper should provide the texts to the panel prior to publication, who shall consult with Mantashe before the final texts are approved.

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 days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be reached at [email protected].

Moshoeshoe Monare (press representative)

Philip van der Merwe (public representative)

Johan Retief (press ombudsman)

Issued by the Press Council, April 20 2015