Finding: Complaint 8978
Date of publication: May 22 2021
Headline: Gwede Mantashe’s daughter Nombasa Mawela paid for chickens with dirty Eskom ‘kickback” cash
Authors: Kyle Cowan, Sipho Masondo and Azarrah Karrim
Particulars
This finding is based on a written complaint by Ms Nombasa Mawela, a written reply by Mr George Claassen, Internal Ombud of News24, and a written response to News24’s reply by Ms Mawela.
Complaint
Mawela submits that the headline of the News24 article, which was published on its website News24.com on May 22 2021, transgressed Clause 10.1 of the Press Code, which states:
“Headlines, captions to pictures and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.”
Secondly, Mawela submits that the article transgressed the following clauses in Section 1 of the Press Code:
“The media shall:
1.1 take care to report news truthfully, accurately and fairly;
1.2 present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;
1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated.”
Thirdly, Mawela submits that the article transgressed the following clauses in Section 3 of the Press Code:
The media shall:
3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:
3.3.1. the facts reported are true or substantially true; or
3.3.2. the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or
3.3.3. the reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or
3.3.4. it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or
3.3.5. the content was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.”
Fourthly, Mawela submits that some of the user-generated content on News24’s website, Facebook and Twitter pages is both defamatory and in breach of the ethical standards and values of the Press Code and of News24’s own “commenting policy”.
1. Summary of text
1.1. The article was part of a News24 investigation into criminality at Eskom, under the general title “The Eskom Files”, and was based on leaked documents which included bank statements, emails, forensic reports and invoices.
1.2. According to the article, Mawela was paid around R1 million by former Eskom executive France Hlakudi from February 2016 to November 2017, “ostensibly in exchange for full-grown chickens she had reared on a property in Delmas”.
1.3. The article reported that Hlakudi paid Mawela with money he allegedly received as kickbacks from four Eskom contractors on the Kusile power station.
1.4. According to the article, the source of the funds that Hlakudi used to pay the majority of Mawela’s invoices was traced to these four Eskom contractors.
1.5. Mawela maintained that she was unaware of the source of Hlakudi's funds.
1.6. The article also noted her complaint that Hlakudi sometimes delayed making payments to her and, in fact, never settled one invoice that was submitted to him.
1.7. Mawela did not pursue payment for an outstanding invoice after former Eskom acting group chief executive Matshela Koko’s testimony during his disciplinary hearing in November 2017, which reportedly “revealed clues about the source of Hlakudi's funds and the money he paid to Mawela”.
1.8. Hlakudi told News24 that his business relationship with Mawela was legitimate, and that she was not aware of the source of his funds.
Nombasa Mawela
2.1. Mawela complains that the headline is ambiguous, and can be read to mean either that she was involved in corruption at Eskom, for which she received “kickback” cash, or that she used “kickback” cash to pay for chickens.
2.2. She submits that neither of these meanings is true, nor is either of them supported by the content of the article, and therefore regards the headline as inaccurate and misleading, in breach of clause 10.1 of the Press Code.
2.3. Mawela further contends that she is, in fact, not the subject of the article, but rather Hlakudi – and, more specifically, the money that he allegedly received in the form of kickbacks from Eskom contractors.
2.4. She reiterates that she was not aware of the source of Hlakudi’s funds, and argues that this context was not conveyed in the headline.
2.5. Mawela also submits that her father, ANC chairperson Gwede Mantashe – who was named in the headline – was not in any way involved “in the events or circumstances referred to in the article”.
2.6. In addition, Mawela notes that the article was available in full only to News24 subscribers. She believes the absence of any context in the version available to non-subscribers, along with the headline, leads them to the conclusion that she was part of the “criminal network” being exposed by News24 in “The Eskom Files”.
2.7. She further points out that the headline was being used by News24 to promote “The Eskom Files”, and cites an email from News24 dated 31 May 2021, titled “Meet the investigative team behind the Eskom Files”, as an example.
2.8. Such emails and similar promotional material, she contends, mean that a misleading and inaccurate headline was made even more widely available to the public.
2.9. She concludes that, in circumstances where the headline does not correspond with the content of the article, the headline is intended to be sensational, “designed to attract readers with the false narrative that I, the daughter of Gwede Mantashe, am one of the network of criminals responsible for South Africa’s power crisis”.
2.10. Mawela also submits that the article is inaccurate and contains material omissions, in breach of clauses 1.1 and 1.2 of the Press Code, even though she provided News24 with the correct details.
2.11. These include inaccurate details about the period of her employment with Eskom; incorrectly reporting that Hlakudi did not pay for the November 2017 invoice; and incorrectly reporting that her agreement with Hlakudi was subject to the law in the US state of Alabama.
2.12. Mawela further states that the article does not fully explain the reasons why an agreement was only concluded with Hlakudi a year and four months after their business relationship began.
2.13. She also claims that the article inaccurately reports that Hlakudi provided day-old chicks and feed to her business even though News24 was informed that her company paid for the chicks and feed.
2.14. In addition, Mawela contends that News24 was in breach of clause 1.8 of the Press Code by failing to seek her views beforehand on all the allegations about her in the article.
2.15. She says News24 did not ask for her comments on the allegation that invoices were initially titled “Nombasa Mawela” and later “MMAgrivestment” nor on the allegation that Hlakudi always paid funds into her personal account.
2.16. She also says News24 did not ask her for comment on the suggestion in the article that Hlakudi did not settle his invoices late which, she believes, undermines her credibility and influences readers to believe she is corrupt.
2.17. Mawela further states that the article did not exercise care and consideration in a matter which involves her dignity and reputation, in breach of Section 3 of the Press Code.
2.18. She offers several reasons why she believes that the article was not justified on the grounds that it was in the public interest insofar as it relates to her.
2.19. She states that she was portrayed as the subject of an article in a series dealing with those responsible for South Africa’s power crisis, yet there was no allegation that she was involved in looting at Eskom or part of a “network of criminals” responsible for the crisis.
2.20. She contends that her involvement in this matter – to the extent that she received payments from Hlakudi, whether those funds came from Eskom “kickback” cash or otherwise – was as much a matter of public interest as the involvement of any other person or company paid by Hlakudi. Yet, she says, no other individual or business was singled out in the same way as she was.
2.21. Furthermore, she asserts that the fact that Mantashe is her father does not automatically mean that her receipt of alleged “kickback” cash from Mr Hlakudi – in exchange for a service provided to Hlakudi as part of a legitimate business – is automatically a matter of public interest. She adds that the fact that her father is a public figure is immaterial in this case.
2.22. In addition, she declares that she herself is not a public figure, and believes that she would not have been the subject of the article if Mantashe was not her father.
2.23. Finally, she submits that even if the article was in the public interest, the article nevertheless still contravenes Section 3 of the Press Code because not all the facts reported are true or substantially true.
2.24. In light of the above, Mawela argues that her reputation was damaged by the article.
2.25. In support of her claim, she refers to comments by members of the public on the link to the article shared by News24 on its Twitter and Facebook pages.
2.26. She also states that the user-generated content on News 24’s website, Twitter and Facebook pages contain defamatory remarks, in contravention of the Press Code and News24’s own policy on commentary.
2.27. Mawela submits that News24 should be required to make amends by publishing a retraction and/or correction, and an apology on every platform where the article was published (including on its website, Twitter and Facebook).
2.28. In addition, she requests that the retraction and/or correction and apology should be available to all readers of News24, and not only to subscribers.
2.29. She further requests that the retraction and/or correction and apology should be shared by every journalist who shared the article on their personal social media accounts.
2.30. Lastly, she submits that News24 should be required to delete defamatory user-generated content on the article on its website and social media pages.
News24
2.31. News24 denies that the meaning of the headline is ambiguous, and submits that most of Mawela’s complaint is based on “electing to choose the factually incorrect interpretation of the headline”.
2.32. News24 argues that it is clear from a reasonable reading of the headline that it refers to money received by Mawela, and not to money that she used to pay anyone.
2.33. It also maintains that the headline should not be seen in isolation and that the full context was important; the accompanying blurb and bullet points should be taken into account, too.
2.34. It adds that readers were clear about the actual meaning of the headline, and cites the comments on its website in support of its argument.
2.35. It further argues that the headline accurately reflects the content of the article when the content of the article is considered.
2.36. News24 also disputes Mawela’s contention that she is not the subject of the article, but rather Hlakudi, and submits that the entire article is about monies paid to her by Hlakudi.
2.37. It further submits that the source of the funds used to pay her is in the public interest in view of the fact that Hlakudi is facing charges for “accepting and asking for undue gratifications” from certain Eskom contractors.
2.38. In response to Mawela’s claim that she was not aware of the source of Hlakudi's funds, and that this was not conveyed in the headline, News24 replies that, by her own admission, she became aware of this in November 2017.
2.39. On the use of her father’s name in the headline, News24 submits that it is well-known that she is Mantashe’s daughter since at least early 2018 after she sued Koko for defamation and in view of the fact that Mantashe is Minister of Energy (“directly relevant to Eskom”).
2.40. Regarding the use of the headline in the “introductory article” for readers who access the article without a News24 subscription, it notes that a paragraph underneath the headline makes it clear that the article is about funds received by Mawela from Hlakudi, and about the origin of those funds.
2.41. It further states that, whether knowingly or unknowingly, Mawela is inextricably linked to corruption at Eskom allegedly perpetrated by Hlakudi.
2.42. Regarding the use of the headline in emails and similar promotional material, News24 again denies that the headline does not correspond with the content of the article, and contends that Mawela’s objection relies on her own, incorrect interpretation of the headline.
2.43. In addition, News24 claims that, in view of the charges against Hlakudi and the evidence at hand, Mawela – as the recipient of “kickback funds” – is indeed “part of the criminal network that were part of and responsible for corruption at Eskom”.
2.44. Regarding alleged breaches in the article of clauses 1.1 and 1.2 of the Press Code, News24 accepts that the article incorrectly reflects Mawela’s period of employment, and that Mawela informed a reporter that an invoice in November 2017 was paid (it undertook to correct these errors in an update to the story).
2.45. News 24 restates its belief that the agreement with Hlakudi is wholly subject to the laws of Alabama, and contends that scratching out “Alabama” in one instance does not negate the fact that the agreement was downloaded from the Internet and that, for all intents and purposes, it was unenforceable in South Africa.
2.46. News24 dismisses as irrelevant Mawela’s complaint that the article does not fully explain the reasons why an agreement was only concluded with Hlakudi a year and four months after their business relationship began in view of the fact that she confirmed that there was no written agreement between the two parties before then.
2.47. News24 denies reporting that Hlakudi did not pay for the feed or chicks.
2.48. Regarding the alleged breach of clause 1.8 of the Press Code, News24 responds that it fails to see why it should have sought comment on documents provided by Mawela which show that the funds were paid to her personal account and on invoices which show that she initially invoiced Hlakudi as “Nombasa Mawela” and later as MMAgrivestment.
2.49. It argues that the fact remains that the funds were paid into her personal account, and not into a business account. If she believed this required an explanation, it adds, she could have offered one along with the documents.
2.50. News24 further takes issue with Mawela’s complaint that it did not ask her for comment on the suggestion in the article that Hlakudi did not settle his invoices late, and maintains that the article was not about how long it took Hlakudi to pay her, but rather about the source of those funds. It also states that its analysis was based on information and claims made by Mawela.
2.51. Regarding the alleged breach of Section 3 of the Press Code, News24 denies that the article was not in the public interest in relation to Mawela.
2.52. It claims that she was linked to the corruption at Eskom and those who created a power crisis because she was paid with money that allegedly originated from Eskom suppliers.
2.53. In response to Mawela’s claim that the report was unfair in light of how other suppliers/businesses paid by Hlakudi with the same funds were treated, News24 notes that those suppliers are not related to a senior government leader such as Mantashe, and adds that the only reason those suppliers are publicly known is as a result of News24’s reporting.
2.54. In reply to Mawela’s submission that the fact that Mantashe is her father does not automatically mean that her receipt of alleged “kickback” cash from Hlakudi is a matter of public interest, News24 points out that news reports also referred to her relationship to Mantashe during her defamation suit against Koko in 2018.
2.55. News24 denies that the article would not have been published if Mantashe was not her father, and states that she herself refers to service providers that were named in other articles.
2.56. It further notes that South African financial institutions flag the children and family members of senior public officials such as Mantashe as “Politically Exposed Persons”.
2.57. In response to Mawela’s view that the article is not one of public interest because not all its facts are true or substantially true, News24 submits that the article is “overwhelmingly factual, true and correct”, despite minor errors which it undertook to correct.
2.58. News24 denies that the user-generated content on News24’s Facebook and Twitter pages highlighted by Mawela are defamatory, and submits that these comments are carefully screened beforehand by News24.
2.59. It further contends that these comments are part of the public sphere of debate, and merely indicate the frustration and anger of members of the public about certain developments at Eskom.
2.60. It adds that two of the strongest defences against defamation are whether a story is true and whether a story is in the public interest, and argues that the article meets both requirements.
Further arguments
2.61. In reply, Mawela repeats her contention that the headline is misleading, and in breach of clause 10.1 of the Press Code.
2.62. She says the headline suggests that she received Eskom ‘kickback” cash, and that she was using or dealing in that cash, whereas the article reports that it was Hlakudi who allegedly received payments from Eskom suppliers.
2.63. She also denies that the meaning of the headline was clear to News24’s readers, and cites some examples which she believes support her claim.
2.64. She repeats her contention that the same headline on the introductory article and in promotional material would be interpreted by reasonable readers to mean that she paid for chickens with “kickback” cash.
2.65. Mawela also takes exception to the suggestion in News24’s response that she is “indeed part of the criminal network that were part of and responsible for corruption at Eskom”.
2.66. In relation to breaches of Section 1 of the Press Code in the article, Mawela agrees that the two factual errors acknowledged by News24 should be corrected, and requests that these corrections should be accompanied by a public apology.
2.67. She further contends that a News24 reporter acknowledged seeing “N/A” on the agreement with Hlakudi, yet the article still states that it was subject to Alabama’s laws, which she believes to be a material omission.
2.68. Mawela also submits that News24’s failure to fully explain the reasons why an agreement was only concluded with Hlakudi a year and four months after their business relationship commenced was tantamount to another material omission.
2.69. In relation to an alleged breach of clause 1.8 of the Press Code, Mawela disagrees that no judgement is expressed in the article on invoices initially titled “Nombasa Mawela” and later “MMAgrivestment”, and believes the references to the titles of the invoices is linked to the allegation that she received Eskom “kickback” cash.
2.70. She therefore contends that News24 should have sought her comment on the allegations relating to the title of the invoices before including them in the article, and that it should not have expected her to “offer [an explanation] along with the documents”.
2.71. Mawela further submits that her integrity was called into question by the inclusion of the suggestion that Hlakudi settled invoices on time, contrary to the information she says she relayed to News24.
2.72. On the alleged breach of Section 3 of the Press Code, she restates her contention that the article is not in the public interest insofar as it relates to her, and reiterates her view that Hlakudi should have been the subject of the article instead.
2.73. She again submits that the fact that Mantashe is her father does not automatically create public interest, and says he is not mentioned in the article at all except to introduce her.
2.74. She further contends that her defamation suit against Koko in 2018 is irrelevant in determining whether the current News24 article is in the public interest.
2.75. She also rejects News24’s contention that the user-generated content on its Facebook and Twitter pages are not defamatory, and argues that these comments are not limited to Eskom and the power crisis, but are mostly directed at her in her personal capacity.
2.76. Mawela further notes that News24’s response did not address the comments on its website, and reiterates her contention that it contains defamatory remarks.
2.77. She adds that these remarks contravene News24’s own policy on commentary in that they are not fair, constructive and respectful, and requests that these comments be deleted.
2.78. Mawela again submits that News24 should be required to make amends by publishing a retraction and/or correction as well as an apology on every platform where the article was published (including on its website, Twitter and Facebook).
2.79. In addition, she requests that the retraction and/or correction and apology should be available to all readers of News24, and not only to subscribers.
2.80. She further requests that the retraction and/or correction and apology should be shared by every journalist who shared the article on their personal social media accounts.
2.81. Lastly, she submits that News24 should be required to delete defamatory user-generated content on the article on its website, Twitter and Facebook pages.
3.1. Headlines generally provide a brief indication of a key aspect (or aspects) of an article in order to attract the attention of a potential reader. As such, they are not complete, fully developed sentences. It is within this context that Mawela’s complaint that the headline is ambiguous must be assessed.
3.1.1. Firstly, she asserts that it can be read to mean that she was involved in corruption at Eskom, for which she received “kickback” cash. However, such an interpretation demands quite a far-fetched leap in logic, and is not supported by any part of the headline.
3.1.2. Secondly, she asserts that it can be read to mean that she used ‘kickback” cash to pay for chickens. The headline can indeed be read to suggest such a meaning even though, as Mawela rightly argues, this is not suggested by the content of the article.
3.1.4. News24’s contention that readers were clear about the actual meaning of the headline is not consistently supported. (For example, @Scana Rostova tweeted that “the daughter gets kick backs”; this user clearly believes that Mawela received “kickback” money, and not that she was paid for chickens with “kickback” money.)
3.6. In relation to a possible breach of clause 1.8, there is no merit in Mawela’s complaint that she was not asked about the titles of invoices, the payment of funds into her personal account and the time frame within which Hlakudi settled invoices. The information in the report is based on information and claims made by Mawela.
3.13. In relation to complaints about user-generated content, the Press Code refers to the relevant course of action in clause 15.2.
3.13.1. This requires a complainant to send a written notice directly to the particular media and identify the content concerned, specify where it is posted and motivate why it is prohibited.
3.13.2. There is no evidence in Mawela’s submission that this course of action was pursued. However, the Press Code does not make any provision for the Press Ombud to adjudicate when this process has not been followed.
3.13.3. A complaint may only be submitted to the Press Ombud when the particular media decides not to remove user-generated content in response to a written notice about the content in question (in line with clause 15.2.2 of the Press Code).
3.14. Furthermore, Twitter is not under the control of News24, and hence cannot be held responsible for comments on that platform.
3.15. Secondly, News24’s comments policy with regard to Facebook specifically states that content deemed to be “untrue, inaccurate, defamatory, illegal, infringing and/or harmful” must be reported to it along with “reasonable grounds to prove the alleged nature of the content”.[1] However, there is no indication that this was done by Mawela.
3.16. Thirdly, the same requirement to report content deemed to be offensive applies to comments on News24’s website.[2] However, once again there is no indication that Mawela followed this course of action.
3.17. In the absence of prior complaints to specific comments on News24’s website and its Facebook pages, Mawela’s complaints in this regard fall outside the jurisdiction of the Press Code (in line with clause 15.2.2 of the Press Code).
The complaint that the headline is in breach of clause 10.1 of the Press Code is upheld in one respect. However unintentional, the wording of the headline is ambiguous, and is open to the misleading interpretation that Mawela used “kickback” money to pay for chickens.
Mawela’s complaints that the headline is inaccurate in other respects as well are dismissed for the reasons identified in points 3.1.5 to 3.1.8 of my “Analysis”.
The complaint that the article is in breach of clause 1.8 is dismissed as the information on the titles of invoices, the payment of funds into Mawela’s personal account and the time frame within which Hlakudi settled invoices is based on information and claims made by Mawela.
With regard to those breaches of the Press Code which were upheld, News24 must apologise to Mawela. The headline should contain the word “apology”, and the text should:
Secondly, in relation to the breaches of clauses 1.1 and 1.2, News24 should correct the errors in an updated version of the article.
The 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 Khanyim@ombudsman.org.za
Tyrone August
Deputy Press Ombudsman
August 9, 2021
[1] See https://www.news24.com/news24/MyNews24/YourStory/News24s-Comments-Policy-20101109