Brian Molefe vs. Sunday Times

Ruling by the Press Ombud

28 February 2017

This ruling is based on the written submissions of Mr Rishaban Moodley of the firm Cliffe Dekker Hofmeyr Inc, on behalf of Mr Brian Molefe, and those of Susan Smuts, legal editor of the Sunday Times newspaper.

Molefe is complaining about a front-page article in Sunday Times of 29 January 2017, headlined

From Saxonwold shebeen to MP – Shamed by public protector, Molefe is set for comeback.

Complaint

Molefe complains that the story inaccurately and misleadingly reported he claimed to have visited a shebeen in Saxonwold – whereas he did say, during a news briefing on 3 November 2016, “There is a shebeen there, I think it’s two streets away from the Gupta house. Now I will not admit nor deny that I was going to the shebeen…” (Emphasis added.)

The text

The article, written by Qaanitah Hunter, said that former Eskom CEO Brian Molefe was heading for Parliament, paving the way for Pres Jacob Zuma to appoint him as a minister.

On the alleged Saxonwold shebeen (the reason for the complaint), the story said:

- “A tearful Molefe claimed that he had been visiting a shebeen in Saxonwold, Johannesburg, and not the Guptas, as the (Public Protector) report suggested”; and

- “My cellphone reflects that I was in Saxonwold 14 times, close to the head of proverbial goats. My cellphone reflects I was in the area… There's a shebeen there, two streets away from the Gupta(s). I will not admit or deny that I've gone to the shebeen. But there is a shebeen there…”

Sunday Times responds

Smuts says there can be no quibble from Molefe that the story quoted him accurately, and calls his failure to acknowledge this in his complaint “puzzling”.

She argues that Molefe appears to ignore the part of the story that quoted him and concentrates instead only on the statement which he claims is inaccurate. “We submit that his failure to take the entire story into account fatally weakens his argument. The article must be considered in its entirety. If there was any weakness in the way that statement 1 is phrased, this is put to rights by the verbatim quote which removes any doubt as to what Mr Molefe said,” she argues.

Smuts adds that Molefe's comments about the Saxonwold shebeen were made with the express intention to deflect attention from his involvement in the Tegeta/Optimum deal which was examined by then Public Protector Thuli Madonsela in her State Capture report – Madonsela placed Molefe in the heart of what appeared to be a criminal and corrupt enterprise.

Smuts continues, “Instead of explaining his 58 calls to Atul Gupta, and the cellphone records that placed him near the Guptas’ Saxonwold compound during the time that the deal was being concluded, he attempted to refute the report by making ill-judged jokes about the Saxonwold shebeen. The joke was on him, however, when social media made fun of him for the comments.”

The legal editor adds that Molefe later tried to backpedal from his comments by claiming his colleague said he goes to Saxonwold every Friday. She quotes Fin24 as reporting that he said, “I said yesterday that when I arrived at work I told someone that the public protector claims I was in Saxonwold 14 times. My colleague said he goes to Saxonwold every Friday. I did not say I went there. My colleague said there is a place in Saxonwold that he goes to on Fridays and Saturdays. I did not say I went there to drink.”

Smuts concludes that Molefe was speaking with a forked tongue when he mentioned the Saxonwold shebeen. “He cannot say he was there, because no one knows where it is or indeed whether it exists. He cannot say he wasn’t there, because he would have to admit he was trying to joke his way out of extremely serious allegations about his integrity and his duty to Eskom and the citizens of South Africa. His comments about the shebeen were not honestly made. He has yet to explain his relationship with the Guptas, and why he apparently put their interests above those of South Africa. We submit that his comments about the shebeen were steeped in duplicity. His complaint should be seen as a further attempt to put distance between himself and the events that gave rise to his comments,” she argues.

Molefe replies

Molefe says the second statement, as reflected under the heading The text above, is not in dispute; the first statement is, as he never said that he had “visited” the shebeen. He invites the newspaper to provide him with proof that he ever said that he had visited the place.

Analysis

I accept that the second statement, as quoted above, is not in dispute.

The disputed statement is not as straightforward as either Molefe or Smuts claims.

Firstly, Smuts’s argument that the two statements should be read in conjunction with each other (the story should be considered “in its entirety”, she says) is not convincing – the statement in dispute was recorded in the beginning of the article (in the fourth paragraph); the undisputed statement was carried only towards the end of the story (in the 33rd of 40 paragraphs).

Had the second one immediately followed the first, and were the sentences joined by a connecting word such as “however”, I would have considered interpreting the first sentence in the light of the second one. As it stands, though, they were (much) too far apart to expect a reasonable reader to have come to the right conclusion.

The fact also remains that the newspaper has not brought forward any evidence that Molefe has said that he had visited the shebeen.

On the other hand: Despite the statement that Molefe would neither admit nor deny that he had visited the shebeen, I note that he followed up that statement with the following words.”[B]ut but I haven’t … my young wife is not aware that there is a shebeen there. But…there is a shebeen there.”

The words “but I haven’t” may be interpreted in various ways, as he did not finish that part of his sentence. One such interpretation may be that he in fact denied that he had visited the place.

More importantly, though, is the context within which Molefe referred to the Saxonwold shebeen. He was talking about a report by the Public Protector, who said his cellphone records placed him in the vicinity of the Guptas’ residence fourteen times. It is within that context that Molefe made the remarks about the shebeen (being in the same vicinity, a mere two streets away).

Why mention the shebeen at all?

Clearly, he was saying that even if he had been in the vicinity of the Guptas’ house, it still would not prove that he had visited the residence – there was another “attraction” in the same area, namely a shebeen.

The implication was that he might have frequented the area because of the shebeen, and not because of the Guptas – otherwise, why refer to a shebeen at all?

This interpretation is evidenced by the fact that Molefe went on to mention that he passed Teazers twice a day on his way to work and back home again – which placed him in the vicinity of that place, but which did not mean that he visited it.

Given all of these considerations, Molefe should not be surprised if a newspaper reads between the lines and comes to its own conclusions.

And yet – the fact remains that Molefe never “claimed” that he had visited the shebeen, and there is no evidence that he ever did. In other words: The statement that he “claimed” he visited a shebeen was just that – a conclusion.

This leaves me with only one possible conclusion of my own: If Sunday Times said Molefe “implied that he had visited the Saxonwold shebeen,” or even that he had “hinted that he might have gone to the place”, I might have decided that the reportage was justified.

What was reported, though, was that Molefe “claimed” that he had been visiting a shebeen – which he never did.

I also need to state, though, that the context within which Molefe referred to a shebeen in the vicinity of the Guptas’ house has to serve as a mitigating circumstance – which will show in the sanction below.

Finding

The complaint is upheld in that the story inaccurately stated Molefe had “claimed” that he had visited a shebeen in Saxonwold. This was in breach of Section 1.1 of the SA Code of Ethics and Conduct which states, “The media shall take care to report news truthfully, accurately and fairly”.

Seriousness of breaches

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

The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.

Sanction

Sunday Times is directed to retract the statement that Molefe had “claimed” he had visited a shebeen in Saxonwold, and to report his pertinent denial to this effect.

The text should:

- be published:

o  prominently on page 2 or 3;

o  online as well, if the offending article was carried on its website;

- start with the retraction;

- refer to the complaint that was lodged with this office;

- end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and

- be approved by me.

The headline should properly reflect the content of the text.

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].

Johan Retief Press Ombud