Ruling by Ombudsman's Panel: Robert Gumede vs Mail & Guardian, July 23 2009
Ethel Manyaka, Public representative on Press Appeals Panel;
Peter Mann, Press representative on Press Appeals Panel; and
Joe Thloloe, Press Ombudsman.
The complaints against Mail & Guardian relate to two articles by investigative journalist Adriaan Basson - the first dated October 17, 2008 under the headline Major ANC donor in graft probe; and the second on November 7, 2008 headlined Gumede not off the hook.
The gist of the stories was that a criminal case of corruption had been opened against Mr Robert Gumede, chairperson of listed information technology company GijimaAST. The police were investigating allegations that he had bribed Telkom executives to win a R600-million tender.
At the time the stories were written Gumede had just donated R10-million to the ANC.
Gumede's complaints were that the two stories transgressed various clauses in the SA Press Code in that they were not truthful, accurate and fair; they did not give news in context and in a balanced manner; they had material omissions; the journalist did not take the necessary steps to verify the information; he had misrepresented or suppressed relevant facts; and the comment in them did not take fair account of all available facts which were material to the matter.
M&G argued that the articles were fair and accurate and in addition, it had offered Gumede the right of reply in the opinion section of the newspaper, which he had declined.
This complaint again brought the question of the use of anonymous sources in news reports into sharp focus.
Investigative journalist Basson told the hearing that in October 2008 he got a tip-off from "an impeccable source" about the police investigation. After he had investigated the information he was 100 percent sure that it was correct. He also convinced his editor, Ms Ferial Haffajee, that the source was reliable and he got the go-ahead to run with the story.
He gave Gumede the opportunity to respond and he had incorporated the responses in the story. The footnote on the story directed readers to the M&G website where the response was published in full.
He said he had not verified his story with the National Prosecuting Authority, the police or the Johannesburg Specialised Commercial Crime Unit because he believed his sources "100 percent".
It was only on October 27, after he had received Gumede's complaint, that he sought information from the NPA and it was on March 3, 2009, three days before the matter was first set down for hearing in the Ombudsman's office, that he approached the police.
The South African National Editors' Forum's Guidelines on confidential briefings and sources states: "Anonymous sources should generally be used only as a last resort - i.e. when there is no other way to get and publish the story."
This suggests that Basson worked in reverse - published and only thereafter went to sources he could have placed on record.
During the hearing he could not give the panel anything to indicate why he believed his sources were so impeccable that he did not have to go to the authorities that were dealing with the criminal case. He would not place the sources in context nor indicate how they were related to the information because that might reveal their identities. He gave us nothing. We therefore have no way to evaluate his assessment of the sources and are expected to take his word for it.
The newspaper also argued that at the time that it published the story, the police investigation was ongoing. It also assumed that readers would know that the matter was reported to the police in February 2007 from the case number they quoted in the story, 781/ 2/2007.
M&G argued that its beliefs at the time of publication were vindicated by the information it subsequently got from the NPA and the police after Gumede laid his complaints with the Ombudsman's office.
It also argued that the front page of the case docket - copies proffered by Adv Andre Bezuidenhout, for Gumede - also vindicated its report.
The note from Superintendent Lungelo Dlamini of the SAPS says: "The case has been allocated to a new investigating officer who (recently) has been in contact with the complainant. Investigation is still continuing and, at this stage it is difficult to set out a specific date as to when the docket will be forwarded to the NPA."
At first glance it seems to vindicate the M&G. but when you read it alongside the NPA's response on October 29, 2008, it raises fresh questions.
NPA spokesperson Tlali Tlali had written: "The query refers to the docket that was sent to the NPA's Specialized Commercial Crimes Unit for planning and decision. We took a decision not to prosecute on 25 June 2007 based on the lack of sufficient evidence. The complainant was dissatisfied with the decision and made representations to us. Following a careful consideration of representations made, we decided that some allegations contained in the representations ought to be followed up in order to establish the veracity thereof. The decision whether a comprehensive investigation into the allegations should be undertaken will depend on the outcome of the enquiry underway. No nole prosequi certificate has been issued in the matter.
This in October 2008. Does the SAPS response five months later mean that the police were only then contacting the complainant to establish the veracity of the allegations in the representations? Had a decision been taken to reopen the corruption investigation?
Basson did not ask the questions even though he expects us to accept that the case had been reopened.
He tried to argue that the new investigating officer was Detective Captain J Velloen, whose name is stamped across the top of the docket cover. Again there was no evidence to tell us if the stamp was on the docket when the case was opened in February 2007.
What is clear on the docket cover is that the date of the alleged offence was August 4, 2001, six years before the charge was laid, and the complainant is J. Sterenborg.
On 25 June 2007 a prosecutor we now know to be Pierre Tickner of Specialised Commercial Crime Unit in Johannesburg wrote NOLLE PROSEQUIon the docket.
On November 14, 2007 somebody else wrote HEROPEN (reopened).
If Basson had seen this docket and had found it a corroboration of the information from his sources, it would have been a reasonable inference. He however told the hearing that he had not seen it before the hearing. The panel cannot hold that against him - we now have the omniscience of hindsight. The newspaper should be measured on the work it did after it was tipped off.
When the newspaper found out that the case was opened in February 2007, it was duty bound to find out why it had taken so long - all of 18 months - before there was a prosecution. It was important to talk to the prosecutors and the police and not assume that its sources were infallible.
It had to find out why it had taken six years for the charges to be laid. Basson knew - as shown by the report - that it was related to alleged bribery of Telkom executives, a story he had covered while working for Beeld newspaper. He should have inquired more diligently about the outcome of the 417 hearings he had covered in 2006, and which covered some of the allegations. It is not sufficient to say Gumede claims to have won all combat rounds thus far and Sterenborg, who lives in England, could not be reached for comment.
Irony in the story is that Sterenborg is not mentioned directly as the complainant in the criminal case. Instead Basson slides gingerly over this information by stating: "The charge comes after a series of battles between Gumede and his business partner, John Sterenborg."
We saw the same dainty dance when Basson refrained from telling his readers that the case had been opened in February 2007. There was no reason to assume that readers would know this from the case number.
If Basson had gone to Tlali before publishing, he would have had a different story to tell, that said Sterenborg was trying to get the NPA to review its earlier decision not to prosecute Gumede. That story would have been differently coloured and would have carried a completely different meaning.
Still arguing on the first story, Bezuidenhout said Basson had sensationally overstated the Telkom tender as "worth an estimated R600-million".
"This information is false (orders of about R170-million were generated over the four year contract currency) and has been corrected on the record not only in previous publications but also at an insolvency inquiry into the affairs of Applied Card Technologies (Pty) Ltd, which was liquidated during February 2002."
Basson's responded by saying that the R600-million figure had been used in several news reports before and had not been questioned. Again, a lame excuse. There is no reason to use figures because everybody else is using them. It is the responsibility of the journalists to get the facts and figures right.
On the first article, Haffajee said that Gumede's response was carried fairly and that between 200 and 300 words of the story were his side. Readers were also referred to the full version of his response carried in M&G Online. The panel's responsibility is to look at what was published in the story and not to go beyond into another medium. Many readers would end up with only the print version.
Our reading shows that Gumede's responses warranted more investigation by Basson - to summarise it by saying Gumede claims to have won all combat rounds is insufficient and casts doubt on the "claim". Court records can be checked. The journalist's responsibility was to tell the reader if Gumede was right or wrong.
Haffajee said the newspaper had offered Gumede space to reply in the opinion section of the newspaper. The M&G was not acknowledging any wrong-doing but it trusted its readers to make up their own minds after reading the original story and Gumede's version.
Gumede had rejected this offer but she said it was still open.
Gumede believes the newspaper wronged him and it should acknowledge that and make amends. The panel agrees with him.
The panel decided not to make findings on allegations of racism and other alleged inaccuracies in the stories because these were not sufficiently canvassed before the hearing, Gumede did not lead evidence on them and they only surfaced during the questioning of Basson by Bezuidenhout.
The poster advertising that week's edition - KEY ZUMA FUNDER IN GRAFT PROBE - was raised as a complaint by Bezuidenhout during the hearing. He argued it did not reflect what the story said. He argued it had been used because Zuma was "covered in controversy".
Haffajee argued that Zuma and ANC were interchangeable and there was nothing wrong with using an established journalistic device.
That could have passed if Gumede had not been more specific in his responses to Basson before the publication of the article: "I have personally donated to the ANC, since its unbanning. I have done so under the leadership of ANC presidents: Comrades Tambo, Mandela, Mbeki and now Zuma. The donations were always to the ANC and not to the sitting ANC president and I intend to do so in the future, no matter who the ANC president is."
The poster makes nonsense of this response from Gumede. It's immaterial that Basson did not write the poster - the sub-editors should have read the contents, including what was being shifted to the web pages, before writing the poster.
This was written after the newspaper received the complaint from Gumede's attorney Ms Nicqui Galaktiou. She had written: "...should Mr Basson have intended to write a fair and accurate article in the public interest, particularly an article with such gravity and serious consequences as this one, he would not have failed to publish that in fact the National Director of Public Prosecutions at the office of the Commercial Crimes Court, Johannesburg, has decided over a year ago not to prosecute Mr Gumede on any alleged charges laid by Sterenborg. The National Director of Public Prosecutions indeed issued a certificate refusing to prosecute him (a certificate nole prosequi), without the need to contact our client and without his knowledge."
Basson told the hearing that he panicked when he got this email, believing that the story he had written was wrong. He wrote to Tlali asking for clarification and got he response quoted earlier in this ruling.
All he saw in Tlali's response was the sentence "No nole prosequi certificate has been issued in the matter". It's now obvious that the second story was written out of that feeling of relief and possibly a you-can't-pull-wool-over-my-eyes attitude. He ignored the rest of Tlali's email. Obviously no certificate was issued but there was a decision not to prosecute, which is not reflected in the story.
Here he also misquotes Galaktiou's letter to M&G. At no stage did she say "the National Director of Public Prosecutions, Vusi Pikoli," had issued a certificate (our italics). She said "the National Director of Public Prosecutions at the office of the Commercial Crimes Court, Johannesburg". And obviously in the next sentence "The National Director of Public Prosecutions" refers back to the Johannesburg office of the previous sentence.
The panel finds that there were breaches of the code.
- Paragraph 1.2, which states: "News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts..."
The story did not mention the name and the full background of Sterenborg, the complainant in the criminal case. It also did not mention the date on which the charge had been laid.
- 1.4, which 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."
A tip-off from an anonymous source needs corroboration and in this one the obvious places to find it were the NPA and the police, which M&G ignored.
- 1.1, which states: "The press shall be obliged to report news truthfully, accurately and fairly."
On the R600-million, the panel finds there is no reason to use figures because everybody else is using them. It is the responsibility of the journalists to get the facts and figures right.
- Paragraph 5.2, which reads: "Posters shall not mislead the public and shall give a reasonable reflection of the reports in question."
This poster made nonsense Gumede's responses to the newspaper.
- Paragraph 1.1, which reads: "The Press shall be obliged to report truthfully, accurately and fairly."
Basson conjured up the name of suspended National Director of Public prosecutions Vusi Pikoli out of his imagination. Nowhere does Galaktiou refer to him.
- Paragraph 1.2, which reads: "The press shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts..."
The story omitted to mention that a decision had been taken on June 25 2007 not to prosecute Gumede and that this was an investigation into the allegations that Sterenborg had raised in his representations. No decision had been taken on reopening the case against Gumede.
The panel recommends that editors distribute the South African National Editors' Forum's Guidelines on confidential briefings and sources among all their journalists and run workshops on it.
The panel rules that the Mail & Guardian carry a shortened version of this ruling and an apology, both of which will be provided by the Press Ombudsman.
Please note that our Complaints Procedures lays 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 Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal.
Issued by the Press Council, July 23 2009
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