Musa Capital vs City Press

Complainant: Musa Capital
Article: Fight for mine cash heats up – Administrator says Bakubung should sue financial advisers
Date: 5 March 2012
Respondent: City Press
Complaint

Musa Capital (MC) complains about a story in City Press, published on 11 September 2011 on page 3 of its business section and headlined Fight for mine cash heats up – Administrator says Bakubung should sue financial advisers.

MC’s main complaint is that the story omits relevant information that it gave the journalist that would have provided context to the story.

The firm also complains that the story:
  • presented a report as fact that has not officially been tabled, accepted/dismissed or discussed by the community;
  • deliberately damages its reputation; and
  • is neither fair nor accurate (details are discussed below).
Analysis

The story, written by Andile Ntingi, is about a report drafted by state-appointed administrator and chartered accountant Abel Dlamini involving the management and  financial affairs of the Bakubung tribe, including a R6 billion platinum mine in which the Bakubung has “a substantial stake”. One of the report’s recommendations is that a law-suit be instituted against the private equity firm MC, financial advisers of the Bakubung. The story states that MC has helped the community to sell a portion of its stake in the construction company Wesizwe Platinum – an effort that has reportedly raised R527 million. Ntingi writes that this money then became a bone of contention, with accusations that MC and some members of the royal family have benefited from this transaction – whilst the majority of the 33 000-strong community “remains dirt poor”. The story quotes Dlamini’s report as saying: “A damages claim against Musa should be investigated as soon as possible before Musa has an opportunity to dissipate assets.” MC’s executive director Will Jimerson reportedly replied that Dlamini’s claim was without any substantiation.

The panel will now look at the merits of the complaint:

Relevant information, context omitted

MC complains that the story omits relevant information that would have given context to the story.

Jimerson argues that both he and Ms Simone Lipshitz, head of MC’s PR agency, timely made the newspaper as well as the Premier’s Office (North West) aware of the “fact” that Dlamini’s report contained unsupported claims and inaccuracies, and that the report was subject to discussion and amendment. The firm explains that it gave the newspaper “official documentation” to substantiate this (“additional information material to the allegations made by Mr Dlamini in his report”) – and complains that City Press omits this (necessary) context which “establishes the questionability of its (the Dlamini Report’s) accuracy and validity”. MC argues that this omission constitute a breach of the Press Code.

The “official documentation” refers mainly to a report that MC has written to refute Dlamini’s claims.

Jimerson pointed out that the story cited one of the errors (that MC earned R72 million in fees) as fact – despite the “fact” that Ntingi acknowledged to both himself and Lipshitz that this was an error.

City Press replies that:
  • Jimerson’s response to the Dlamini’s report that MC supplied it with, was not an “official document”;
  • it gave MC a right of reply – which “appears significantly” in the story; and
  • some of the quotes in the story did come from that document, adding that these quotes were attributed to MC.

In its response to the newspaper’s reply to its complaint, MC addresses the story’s (alleged) lack of quoting from its response to the Dlamini Report, as well as the way in which the story quoted Jimerson.

Regarding its response to the report and the story’s alleged lack of quoting from it, MC states the following:

  • No information from its document is quoted in the article (only from Ntingi’s interview with Jimerson) – evidence of the newspaper’s bias against MC;
  • It provided the newspaper with a detailed point-by-point rebuttal of every allegation made by Dlamini – but the story omitted this information;
  • City Press had evidence, verified by independent third parties (as contained in its response to Dlamini’s report), to the effect that MC had provided the Bakubung with R700 million in liquidity – and yet the newspaper reported the allegation that it had stolen the community’s money, whilst omitted the firm’s view to the contrary;
  • The documentation it gave the newspaper was indeed “official” in that it had been received by the Premier’s office and was an official Musa document. It asks: “Does the fact that our document was not commissioned by the Premier make it any less relevant or credible than Dlamini’s? Especially given that our document includes third party proof from auditors and financial institutions that Dlamini’s report is a lie?”
  • The relevance of quoting from its report lay in the fact “that there is substantial material from credible third parties which would make it clear to the reader that it is not ‘Musa’s word’ versus Mr. Dlamini, but instead Mr. Dlamini versus auditors, accountants and multiple lawyers”. Jimerson said this brought into question Dlamini’s competence – a “vitally relevant point to the reports and article in question”; and
  • There is no fairness and objectivity in quoting from the Dlamini report, but not  from MC’s document – “surely, a Dlamini claim should be set against a direct Musa response to the Dlamini claim?”

Regarding the way in which Jimerson was quoted, MC says:

  • Simply being quoted in itself does not guarantee objectivity – the latter is only determined by the relevance of the information mentioned, adding that the story quotes him highly selectively;
  • Even though the story quotes Jimerson, his quotes are only used “a long way after the damaging accusations from Dlamini are given prominence”;
  • Jimerson is not quoted with any support from the third parties quoted in his report; and
  • Jimerson is quoted as an individual who is “unofficial”, whereas the “official” nature of the Dlamini report is given undue weighting.

The panel has confined the complaint (the “relevant information” that the story allegedly omits) to the report that MC has written in response to Dlamini’s one.

Firstly, we note that the story’s coverage of the Dlamini Report is not in question – this report was in the public interest, and there was no complaint that the article misrepresented that document.

Also, we believe that the journalist did well to quote Jimerson fairly extensively. This went some way in bringing balance to the story.

However, although the story does contain some information from MC’s report (which the journalist read prior to publication), we are convinced that that the failure to mention that such a report existed, that it contained some documentary evidence from independent third sources and that it was presented to the Premier as MC’s official response to the Dlamini Report, resulted in an unbalanced story.

This is the point: when one reads the Dlamini Report and the story only, there seems to be no problem. But when one also takes MC’s report into account, one gets a totally different impression – one that the story should have reflected. Thus, it should have mentioned that such a report, together with its documentary evidence, existed.

We hasten to state that we:
  • are not saying that the one report is correct or more correct than the other (we are in no position to make such a judgment, nor are we required to do so); and
  • do not expect from the journalist to have made such a decision (quite the contrary!).

We do, however, believe that Ntingi should have mentioned the existence of MC’s report, together with the documented “evidences”, and left it to the public to decide for itself – the neglect of which resulted in an unfair reflection of the issues that were at stake.

Report not officially been accepted

MC complains that, although the Dlamini Report was not officially sanctioned, the story presents its contents as fact.

MC notes that Dlamini’s report has not been tabled at the time of the publication of the story in dispute nor had it been discussed with the community – both of which should have happened before the document could be regarded as official.

MC also objects to the newspaper’s argument that the report was official because it was written by someone who was appointed by the province – it argues that the official nature of the report did not guarantee its accuracy.

City Press admits that Dlamini’s report had not been tabled, but adds that the story made that clear.

The sentence that the newspaper refers to reads: “MEC for local government and traditional affairs Paul Sebego said the report was still to be tabled before the provincial government’s executive.”

MC replies that this quote is “buried in the middle of the report” and does not clarify that the report had not been officially accepted. “This leaves the inference in the public’s mind that Dlamini’s recommendations about Musa carry the imprimatur of the province.”

The panel is satisfied that the story is clear about this issue – it explicitly states that the Dlamini Report “was still to be tabled before the provincial government’s executive”, which clearly indicates that the contents of that report were not yet officially sanctioned. It also precludes the notion that the story presents the contents of that report as fact.

We do not believe that the statement about “still to be tabled” was “buried” in the middle of the story. Although it may have been better to mention it earlier in the article, the way it was published cannot constitute a breach of the Press Code.

Deliberate damage to reputation

MC complains that City Press has deliberately damaged its reputation.

The firm states that the publication of unofficial and unfounded allegations against it could potentially “severely damage” the firm’s reputation and therefore contravenes the first article of the Press Code (that deals with truthful, accurate and fair reporting). It argues that, as a financial services organisation, its reputation is seminal to its credibility and adds that the newspaper published the story, despite it having pointed this out to its journalists. It alleges that Ntingi himself noted that MC “was being unnecessarily maligned” in the Bakubung affair.

It argues: “City Press…knew before writing their report that the Dlamini claims were at the very least questionable, and in Musa’s view, supported by third party evidence, were factually incorrect and deliberately damaging.”

Jimerson concludes that:
  • Ntingi wanted to put MC in a bad light and that he had aligned himself with forces that mounted a smear campaign against this company “some 18 months ago”; and
  • the newspaper’s “deliberate and calculated” unfair and inaccurate decisions, its neglect to put matters into context, and its material omissions of fact all contravened the Press Code.

City Press denies this, stating that the statements in the story were based on fact and that it was published in the public interest. It adds that the report indeed raised some issues that did not put MC in the best light, but argues that the story merely reported on the findings and recommendations in that report.

It adds that if its intentions were malicious and deliberately tarnished MC’s name, it would not have quoted MC so extensively in the story.

MC replies: “How is it possible to claim lack of malice and bias against Musa when the story is about an unverified report claiming that Musa has stolen money from the Bakubung Ba Ratheo, when both the reporter and the editor are in possession of evidence verified by independent third parties, including financial institutions and auditors, that proves that Musa has actually provided the community with R700 million in liquidity that the community would not otherwise have had?”

The panel does not believe that the damage that the story did to MC (because of the neglect mentioned under the first heading above) was deliberate. The newspaper’s argument at the hearing that if Ntingi was “deliberate” in causing MC damage he would not have quoted Jimerson so extensively, is convincing. The journalist’s failure to cover MC’s report adequately indeed caused MC unnecessary – but not deliberate – damage. We put this neglect down to Ntingi not being diligent enough in this matter; we accept that he was not deliberately malicious and that he did not want to cause MC harm.

This point will be amplified in our discussion about the photograph that accompanied the story (below).

Reporting neither fair nor accurate

Jimerson complains that the following issues provide additional grounds for believing that the newspaper was neither fair nor accurate in its reporting. He says that:

  • Ntingi took a telephone call in his and Lipshitz’s presence – a call “from someone who was a member of the small constituency (the so-called ‘Concerned Group’) who fuelled the smear campaign against Musa and its client”; he claims that Ntingi told them that this person said to him: “Why don’t Musa just get out of the way? Why don’t they take their cut and give us the rest of the money.” From this, Jimerson concludes that Ntingi was fully aware that the source who provided him with the report had vested and nefarious financial reasons for maligning his company – and states that the journalist therefore should have doubted the veracity of the Dlamini Report;
  • the prominent use of a plug quote from the Dlamini Report (to the effect that a damages claim against MC should be investigated before the firm had an opportunity to dissipate assets) showed “a clear bias against Musa” and unequivocally claimed that MC had criminal intentions;
  • Dlamini’s “official” status as the author of the report is used to validate his allegations – while the latter’s mandate only lasted for six months. He adds: “To omit the fact that he is no longer the community’s Administrator is to distort the facts” – and says that this gives greater credibility to Dlamini’s report;
  • Ntingi acknowledged that Dlamini’s had bad intentions and a bad history, and even said that he would include that in the story – a promise that he did not keep; and
  • the picture and its caption were misleading, in that they wrongly led readers to believe that the protest depicted in the photo was against MC. This, he said, showed the newspaper’s “malicious and negligent intent”.
To this, City Press replies as follows:
  • Ntingi denies Jimerson’s version regarding his telephone conversation and says that that call was personal;
  • Readers would have understood that the plug quote was a recommendation made by Dlamini – which Jimerson disputed in the same story. The newspaper adds that the purpose of the story was to highlight Dlamini’s recommendations;
  • The “information” as to Dlamini’s alleged motivation was speculative and could not be proven; moreover, the article was about Dlamini’s findings, not about himself; and
  • A grievous error was made in publishing the picture, “which had no relevance to the story” – something for which the newspaper says it is willing to apologise.

Jimerson replies that Lipshitz was a witness to the telephone call; and that the information regarding Dlamini was not speculative, but based on proven facts.

The panel will discuss the five bullet points mentioned above by MC one by one.

Firstly, the telephone call: at the hearing, the panel accepted that the call that Ntingi took while Jimerson and Lipschitz were at his office was indeed a private conversation that had nothing to do with the matter at hand. Jimerson was therefore mistaken about that specific call.

We also noted that the following matters were not in dispute:

  • Someone from the “Concerned Group” did say to Ntingi that MC should get out of the way and give the Bakubung the rest of the money (in a previous conversation); and
  • Ntingi communicated this to Jimerson.

We do not agree with Jimerson’s argument that Ntingi should have realised that that source had vested and nefarious financial reasons for maligning his company because of the above-mentioned statement – and that the journalist, on the basis of that, should have doubted the veracity of the Dlamini Report.

On the contrary, we believe that Ntingi did well as far as this matter is concerned – he listened to both sides (as he should have done), and he did not act as a spokesman for the Concerned Group – otherwise he would not have mentioned the statement in question to Jimerson.

Secondly, the plug-quote from the story: This is standard journalistic practice and does not prove that the newspaper was biased against MC.

Thirdly, the neglect to state that Dlamini was no longer the Bakubung’s administrator (giving greater credibility to his report): The Dlamini Report was official, even though it was not tabled at the time of the publication of the story. As the report was commissioned by the provincial government, he was acting on behalf of the Premier. The fact that his tenure had since expired was of no consequence.

Fourthly, regarding Dlamini’s alleged “bad intentions” (which was not included in the story): The panel cannot make any finding on Dlamini’s supposed intentions.

Lastly, the photograph: The newspaper has apologised for using a picture that incorrectly highlighted the community’s protest against MC.

The fact that City Press did so immediately after having been made aware of this mistake and unconditionally offered to apologise for this, again confirms our belief that the newspaper was not malicious or that it deliberately tried to cause harm to MC.

We also note that the caption to the picture was misleading, as it falsely linked the picture to the story.

Finding
Relevant information, context omitted

The failure to mention the existence of MC’s report, together with the “evidences” from outside sources, resulted in an unfair and unbalanced reflection of the issues that were at stake.

This is in breach of:
  • Art. 1.2 of the Press Code that states: “News shall be presented in context and in a balance manner, without any intentional or negligent departure from the facts, whether by…material omissions…”; and
  • Art. 1.1 that says: “The press shall be obliged to report news…fairly.”

Report not officially been accepted

This part of the complaint is dismissed.

Deliberate damage to reputation

This part of the complaint is dismissed.

Reporting neither fair nor accurate

The first four parts of the complaint is dismissed.

The use of a picture and its caption that misleadingly projects the image that a protest was staged against MC is in breach of Art.:

  • 5.1 that says: “…captions to pictures shall give a reasonable reflection of the contents of the report or picture in question”; and
  • 5.3 that states: “Pictures shall not misrepresent or mislead…”
Sanction
City Press is directed to apologise to MC for:
  • failing to mention the existence of its document (responses to Dlamini’s report) and the independent sources that are mentioned in that document; and
  • publishing a misleading photograph and caption.

The newspaper is directed to publish a summary of this finding (not the full ruling) and the sanction in an appropriately prominent manner and on the same page and section that the story in dispute was published. After setting the context, the story should start with what the newspaper got wrong. The text should include some relevant information contained in MC’s document that responds to issues raised in the Dlamini report, and the fact that the document was officially handed to the Premier. After that, City Press is free to elaborate on the parts of the complaint that were dismissed.

The newspaper should furnish our office with the text prior to publication. Please add to the text: “Visit www.presscouncil.org.za (rulings, 2012) for the full finding.”

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party 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. He can be contacted at Khanyim@ombudsman.org.za.

Ethel Manyaka (public representative)
Neville Woudberg (press representative)
Johan Retief (Deputy Press Ombudsman)