Appeal Panel Decision: M Ramagaga vs Business Day

Decision: Application for leave to appeal

Applicant: M Ramagaga

Respondent: Business Day

Matter No: 1032/03/2015

Decision

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Introduction

1.        This Decision is based on written submissions by Ms Matshego Ramagaga, (“appellant”) deputy chairperson of the Competition Tribunal and Ms Sharon Chetty,  Deputy Editor of Business Day (“respondent”), the parties’ heads of argument as well as oral submissions made during the hearing on 3 August 2015 in Johannesburg.

2.        The appellant was given leave to appeal the Ruling of the Ombudsman, dated 16 April 2015. The Ruling was based on complaints by the applicant against an article in Business Day, published on 11 March 2015 headlined, Companies Tribunal leaders ‘inflated claims’; with a subhead/pull quote – “The whistleblower is a disgruntled employee who is trying to besmirch…the tribunal” .

3.        The appellant complained that:

Ø  the forensic report on which the article was based was not a conclusive or final report;

Ø  the Business Day article wrongly said: “The (forensic) report said the officials…had inflated their claims for fees and travel by at least R180 000 in the 12 months to September 2013…(and) did not rule out that the amount may be bigger”;

Ø  senior members of the tribunal had not co-operated with the forensic investigation;

Ø  members of the tribunal had applied to the Minister of Trade and Industries for a salary increase, seven months after their appointment;

Ø  she was not contacted for comment prior to publication in contravention of
Clause 2.5 of the Press Code (A publication shall seek the views of the subject of critical reportage in advance of publication; provided that this need not be done where the publication has reasonable grounds for believing that by doing so it would be prevented from publishing the report or where evidence might be destroyed or sources intimidated. Reasonable time should be afforded the subject for a response. If the publication is unable to obtain such comment, this shall be stated in the report);

Ø  the respondent suppressed relevant and important facts, including that the Department of Trade and Industry (“dti”) had cleared her of the allegations; and

Ø  the allegations were unfair, inaccurate, a negligent departure from the facts, an omission and a failure to exercise exceptional care and consideration, which impacted on her dignity and reputation.

4.        The Press Ombudsman, Johan Retief, commented that he “partially agreed” with the part of the complaint that referred to appellant’s dignity and reputation.
However, he dismissed her complaint in its entirety.

5.        The appellant approached the Chair of the Appeals Panel of the Press council of South Africa, Judge Bernard Ngoepe on 8th May 2015 for leave to appeal the Ombudsman’s Ruling. Respondent opposed the application. Leave to appeal was, however, granted on the 29th June 2015.

6.        At the hearing of the appeal, the appellant represented herself, assisted by Ms Kelebogile Galeforolwe and Ms Sikhanyiseleni Mahlangu of attorneys Ledwaba Mazwai.

Respondent was represented by its Editor, Mr Songezo Zibi, its Deputy Editor, Ms Sharon Chetty, and the reporter who wrote the article, Ms Linda Ensor.

The Hearing

     Appellant:

7.        The Appeals Panel heard a detailed submission by the appellant, supported by Heads of Argument as well as additional documentation, outlining her grounds for complaint as set out above. She argued that the newspaper had not tried to contact her. She said that she had been informed by the Chair of the Company Tribunal that he had been contacted by the newspaper, but that she did not know that she was going to be mentioned in the Business Day report as allegedly being guilty of impropriety.

8.        The appellant said that the Grant Thornton forensic report was not conclusive or final.

9.        Appellant also submitted that the forensic report did not say, as reported by Business Day, that officials of the Tribunal had inflated their claims in the amount of at least R180 000. Moreover, she argued, if the respondent had added up the claims mentioned in the forensic report, the total would have come to R177 317.50  and not R180 000 as respondent alleges.

10.    She further submitted that the Grant Thornton forensic report had never suggested that senior members of the Tribunal “of which I form a part” had been uncooperative with the forensic investigators.
“The report merely mentions that there were instances where the senior members were unavailable for discussion on the issues raised in the report, for various reasons,” she said.

11.    The appellant maintained that she had never been contacted for comment, although she was aware that the Chair of the Tribunal, Adv Simmy Lebala SC, had been contacted that day before publication. She also submitted that had the newspaper contacted the Department of Trade and Industry (“dti”) for comment, they would have been told that the report had been dismissed.

12.    Ms Ramagaga submitted that claims that members of the Tribunal had asked for salary increases were “another inaccurate account of what is actually in the report”. The names in the report were redacted, so it was impossible for the newspaper to see who had applied for the salary increases on behalf of the Tribunal members.

13.    She submitted documentation to show that a Parliamentary question, answered in writing and dated 26 November 2014, i.e. more than three months before the Business Day article of 11 March 2015, had dismissed the allegation, saying the Grant Thornton report found no evidence that “the person” had claimed fees which he was not authorised to do by the Minister; and there was also no evidence found that the said person had inflated claim amounts.

14.    She also submitted the media statement issued by the dti on the 16th March 2015; which said that the dti dismissed claims of corruption at the Tribunal. She argued that  “…the article was, and is, misleading as it presented the allegation without indicating that these allegations were…proven to be false…”

15.    The appellant held onto her submission that the report had damaged her dignity and reputation and was in breach of Clause 2.5 of the Press Code of South Africa.

Respondent:

17    The respondent submitted written heads of argument and further written submissions as well as making oral submissions.

18    It submitted that:

Ø  The appellant, despite being named in the report on the 11th March, had taken a month to complain and another week before she submitted a written complaint. This, they submitted, “puts into question her motivation and goes against the spirit and intent of process of the Ombudsman;”

Ø  the writer of the article did everything reasonably required of her to produce an accurate, fair and balanced report; and “strongly rejects” that she had not met her obligations in reporting news, and exercising exceptional care and consideration in regard to appellant’s dignity and reputation;

Ø  Business Day had condoned the late lodging of her complaint to the Press Council as part of its open door policy in dealing with complaints. They indulged her lack of adherence to Press Council  deadlines three times – twice with the initial complaint and again with the Appeal;

Ø  “it is often not possible for all sides of a story to be covered on the same day…there is always the opportunity for the excluded viewpoints to be presented…as soon as possible…establishing the truth…can extend over numerous editions…(we) would gladly have followed up had we known (Ms Ramagaga) was interested in offering clarification”; and

Ø  “(Ms Ramagaga) never exercised her right of reply…she waited a month to make contact…even after establishing our willingness to entertain her complaint, she delayed in sending it”.

19    The respondent submitted that it had attempted to contact the appellant prior to publication. It said that it had phoned the Tribunal and had spoken to her personal assistant who said she was at a meeting, that she would not respond to the issue and had referred them to the chairperson, Mr Lebala, who would comment on behalf of the body. They claimed further to have called back and left reporter Linda Ensor’s cell number, asking that the PA got the appellant to call her. However, Ensor was unable to tell the Appeals Panel the names of any of the people she had spoken to, or even to recall the time when she had called.

20    Respondent said the statement in the report that senior members of the Tribunal had not cooperated with the forensic investigators was “a reasonable deduction” made from “the (forensic) report’s repeated reference to consultations failing to materialise”. They said the forensic investigation had extended over a period from September 2013 to December 2014. “The failure of the Applicant to find a suitable date to meet with the forensic auditors over this extended period of time provides sufficient grounds for the suggestion that there was a lack of cooperation.”

21    They submitted that “given the pressures of time on the day it was not possible to contact the (dti) for comment; there was also no obligation for it to do so as they were dealing with a report tabled in Parliament. They added: “…when the department released the forensic report to the Democratic Alliance in terms of the Promotion of Access to Public Information Act, no caveat was attached that the finding of the report had been rejected by the department and that it contained incomplete and incorrect information.

22    They added that once the article was published it was up to the appellant to contact the newspaper to say that there were errors in the report. She had not done so.

The Appeals Panel:

23    For clarification, the Appeals Panel questioned both parties at length.

24    During this questioning, the respondent conceded three issues:

Ø  the introduction to the article reads:

“A forensic report said to have prima facie evidence of wrongdoing on the part of Companies Tribunal chairman Simmy Lebala SC and deputy chairperson Matshego Ramagaga was tabled in Parliament yesterday”

The respondent conceded that the statement “said to have prima facie evidence of wrongdoing” came not from the report, but was a statement made by a DA member of the Portfolio Committee who had tabled the report in Parliament. They had not quoted him as saying this. They conceded that it would have been better had they done so.

Ø  paragraph 3 of the report read:

“The report suggested that the officials who were appointed on a part-time basis for a five-year term in December 2011 had inflated their claims for fees and travel by at least R180 000 in the 12 months to September 2013. It did not rule out that the amount might be bigger.”

There were two issues raised in relation to this. The first was the use of the phrase, the report suggestedofficials had inflated their claims”. Contrary to what the Business Day report suggests, the forensic report does not use the word inflated. However, the Appeals Panel is of the view that its use was justified as the report highlights many allegations of “overclaiming”.

The respondent conceded that the forensic report did not say that it “did not rule out that the amount might be bigger.” This was the reporter’s own interpretation, not what was said in the report.

Was the failure of the newspaper to contact Ms Ramagaga a breach of the Press Code?

25    Section 2.5 of the Press Code says that:
A publication shall seek the views of the subject of critical reportage in advance of publication; provided that this need not be done where the publication has reasonable grounds for believing that by doing so it would be prevented from publishing the report or where evidence might be destroyed or sources intimidated. Reasonable time should be afforded the subject for a response. If the publication is unable to obtain such comment, this shall be stated in the report.”

 

26    It was not easy assessing this part of the complaint as there is a dispute of fact: Ms Ramagaga is adamant they did not try to contact her; the newspaper is adamant that they did and left a message for her to contact them – but they provide no detail. There is no record of who they contacted, or when.

27    In reaching a finding, we also have to consider that the report was before a Parliamentary portfolio committee and subject to parliamentary privilege and in the public domain. The Ombudsman in his ruling says “it is not the newspaper’s job to verify allegations… contained in a report tabled at Parliament”. Although he raises this in the context of another section of the complaint, it has relevance here as well.  Parliamentary convention is that whatever is said in Parliament is privileged and can be published. Clause 2.5 notwithstanding, it would be an intolerable burden, and a tool to prevent publication if every person named in a report in Parliament had to be contacted prior to publication. The question is whether privilege outweighs Clause 2.5.
We do not have to decide that, however, as we accept Business Day’s submission that the reporter was referred to the Chairperson, as the person who would comment; that they obtained and published his comment; and that they reported that “Members of the Tribunal had not responded to queries at the time of going to press”.

28    We find that Business Day met the requirements of Clause 2.5. We also reinforce that Ms Ramagaga, on her own version, was told by the chairperson that he had been contacted by Business Day, so she was alert to the fact of publication, even if not the detail of what was to be published about her. We also note that even after publication she did not contact Business Day until lodging a complaint more than a month later. She said it was not her “style” to react immediately.

Complaint about alleged lack of co-operation

29    . One of the issues raised by Ms Ramagaga is that Business Day incorrectly stated that the forensic report “also notes that senior members of the tribunal had not co-operated with the investigations.” (Own emphasis). The report does not “note” that senior members of the Tribunal had “not cooperated”. But we do find that it was reasonable of Business Day to infer lack of cooperation with forensic auditors by senior members of the Tribunal, including Ms Ramagaga : The forensic report is replete with the statement… “follow up consultations to obtain explanations on claims submitted and auditor findings were requested, but did not materialise”.  Versions of this statement appear repeatedly on virtually every page of the forensic report – leading to a justifiable conclusion that there was a lack of cooperation with the forensic auditors; accordingly, respondent cannot be faulted.

Did the newspaper damage Ms Ramagaga’s dignity and reputation?

30     While we do find fault with the report in some respects, we do not believe that Business Day’s reportage damaged the appellant’s dignity and/or reputation on the basis she claims, namely, that unlike her chairperson, she was not given the opportunity prior to publication to refute the adverse allegations.

 Firstly, comment from the chairperson of the Tribunal included the statement that… “The whistleblower was a disgruntled employee who was trying to besmirch members of the tribunal and the forensic report had found nothing wrong, he said.”

Secondly, the report contained the statement: “Members of the Tribunal had not responded to queries at the time of going to press”. An average reader would have realised that she had not had the opportunity to refute the allegations, which thing she could still successfully do; the door was still left open.

Thirdly, the chairperson had made Ms Ramagaga aware that Business Day was seeking an interview. She did not enquire afterwards, what it was about. It was certainly possible for her to call Business Day; if not before publication, at least in the days and weeks that followed to set the record straight. She did not do so for some five weeks.

Other issues:

31    We find as follows on other issues raised:

Ø  Was the forensic report on which the article was based a conclusive or final report? We find that nothing turns on this matter.

Ø  That the respondent suppressed relevant and important facts, including that the dti had cleared the appellant of the allegations. We accept that the newspaper was not aware of the written answer to the Parliamentary question and was unaware of this fact.

The Ruling of the Appeals Panel

          32. The Appeals Panel Rules:

 (a) Business Day should have disclosed the source of its opening paragraph; it failed to do so. This was a breach of clause 2.1 of the Press Code

 (b) Business Day incorrectly stated that the forensic report “did not rule out that the       amount (allegedly overclaimed) may be bigger.” This was a breach of clause 2.1 of the Press Code

33    In the circumstances, the Appeals Panel orders as follows:

(i) Business Day publishes a correction in line with paragraphs 32 (a) and (b) above, with equal prominence to the report of 11 March 2015, noting that the Appeals Panel of the Press Council has made such a finding and ordered it to correct its report.

(ii) That such correction be made within the next seven days of receipt of this Decision , and that the proposed text of the correction be submitted to the Press Appeals Panel for approval prior to its publication.

(iii) Save as found in 32 (a) and (b) above, the Ruling of the Press Ombudsman dated 16 April 2015 is confirmed.

         Dated this 13th day of August 2015

Appeals Panel:
Judge Bernard  M Ngoepe ,Chairman
Mr Moshoeshoe Monare, Member representing the Press
Mr Peter Mann,     Member representing the Public