Complaint 8901
Date of article: 14/03/2021 (print and online)
Complainant: Mr. Siyabonga Gama
Respondent: Sunday Times
Headline: “Did the Gupta Four know? Zondo says that’s the question”
Author: Mawande AmaShabalala
Particulars
Complaint
2. Mr. Siyabonga Gama complains about an article concerning proceedings before the Judicial Commission of Inquiry into Allegations of State Capture, commonly referred to as the “Zondo Commission”.
3. The thrust of the article was that four former executives from Transnet and Eskom, being Messrs. Gama, Brian Molefe, Garry Pita, and Anoj Singh came under scrutiny for their alleged links to the Gupta family. A sizeable portion of the article (seven of the 27 paragraphs) deals with the testimony of former drivers and bodyguards of the former executives some six months prior to the publication of the article. The drivers and bodyguards testified in camera about allegedly suspicious visits to the Gupta compound in Saxonworld and large sums of cash that allegedly changed hands. The remainder of the article recounts in general terms the alleged capture of state-owned companies while the four executives were at the helm.
4. The article is alleged to breach the Press Code in four respects:
5. For reasons that will become apparent, I deem it appropriate to consider the issue of pre-publication comment first.
Does privilege trump the obligation to seek comment?
6. It is common cause that the journalist did not contact Mr. Gama for comment prior to publication.
7. Mr. Gama relies on Clause 1.8. of the Code, which reads:
(The media shall) 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.
8. The Sunday Times denies that it had any obligation to contact Mr. Gama for comment in respect of testimony given and statements made during open proceedings before a judicial commission of inquiry. It was argued that Mr. Gama’s argument is an “unprecedented contention and contains a grave threat to constitutionally guaranteed freedom of the press, as well as the constitutional principle of open justice”.
9. The newspaper relies on the judgment of the Constitutional Court in S v Mamabolo 2001 (3) SA 409 (CC) in which the importance of the open justice principle was confirmed and on Media 24 (Ltd) & Three Others v National Director of Public Prosecutions & Others [2012] JOL 29172 (GNP) where the Gauteng High Court granted access to the media to a disciplinary hearing. The court remarked:
“(T)he constitutional ‘default position’ regarding the dispensing of justice is that it must be done in public rather than behind closed doors. It is also clear that this principle applies not only to court proceedings per se, but also, where appropriate, to other fora where justice is dispensed.”
10. Mr. Gama’s lawyers replied that “the merits of these cases cannot be relied upon in these circumstances”. I disagree.
11. What the Sunday Times is relying on, is reportage on privileged proceedings. The Media24 case confirms that the principle is not only applicable to court proceedings, but also to other fora where justice is dispensed. I find that the Zondo Commission also falls within the type of proceedings that are privileged.
12. As the complainant relies on Clause 1.8. of the Press Code, it is necessary to consider the proper interpretation of that clause and how it interacts with the principle of privilege. The question arose in the Appeal Panel Decision of Ramagaga vs. Business Day when Judge Ngoepe and two panellists considered the then Clause 2.5, which contained similar provisions to the current Clause 1.8:
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 (as the newspaper complied with Clause 2.5).
13. Mr. Gama argues that Clause 1.8. remains applicable. He says the caselaw cited by the Sunday Times does not specifically exclude the obligation to seek pre-publication comment. Furthermore, Clause 1.8 lists exclusions, being cases where the media might be prevented from reporting, or evidence destroyed, or sources intimidated. The subject matter of the article under scrutiny does not fall under one of those listed exclusions.
14. The argument goes further that it also does not aid the Sunday Times to refer to Clause 3.3.3 of the Press Code which lists fair and accurate reportage of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum as an example of when concerns of dignity and reputation might be overridden by public interest. Mr. Gama’s lawyers state:
“The complainant accepts that (Clause) 3.3.3 applies to the proceedings of the Zondo Commission, however, nowhere does it state that because the reportage pertains to such proceedings the Respondent is excluded from having to seek the views of the subject prior to publication.”
The contention is flawed for two reasons.
15. Firstly, the argument loses sight of the fact that the Zondo Commission proceedings is the subject of reportage, rather than Mr. Gama per se. In my view, Clause 1.8 is therefore not applicable if the subject of the reportage is privileged proceedings itself. The position would, of course, be different if a journalist (also) reports on aspects outside of what transpired during the privileged occasion. This is so as the affected person, as opposed to the proceedings itself, would be the subject of reportage in that scenario.
16. Secondly, Clause 1.8 is in my view a general provision to protect the reputation and dignity of a subject of critical reportage. It cannot be isolated from Clause 3 which deals with matters of reputation and dignity in more detail. The clauses must be read together. Clause 3.3.3 safeguards dignity and reputation through the imperatives of fair and accurate reporting in instances such as the current one where Clause 1.8 is not applicable.
17. Even if I am wrong in my interpretation given above, I am of the view that the qualification of “practicability” in Clause 1.8 would also remove the obligation to seek comment from someone who is implicated during a privileged occasion. It is important to note that the qualification of “practicability” was not contained in Clause 2.5 of the Press Code which was effective in 2015 when the Appeals Panel considered the Ramagaga matter.
18. There are sound public policy reasons why it cannot be compulsory to seek a running commentary on evidence being led before a court or tribunal. It is indeed ironic that Mr. Gama’s lawyers insist in his complaint that he will not accept a right of reply from the Sunday Times as the matter is “sub judice”. The newspaper correctly points out that the matter was also “sub judice” at the time Mr. Gama insists there was an obligation to approach him for comment.
19. A further reason why it is not practicable to seek comment in situations such as the current one, is the fact that it is broadcast, streamed and tweeted live to millions of viewers, readers, and listeners. The Zondo Commission itself publishes the full transcripts of proceedings daily. To suggest that members of the public may go and read every word of testimony as it occurs and before the implicated persons get to respond, but that print and online publications should desist from reporting what is already in the public domain until they obtain comment, is nonsensical and offends the principle of open justice. Not to mention that such an obligation would be an “intolerable burden, and a tool to prevent publication”, as highlighted in Ramagaga.
20. Fortifying my view that Clause 1.8. is not applicable to reportage on privileged occasions or documents are post-2015 decisions by the Ombud that followed the premise that privilege trumps Clause 1.8, even though the issue was not explicitly explored.
21. In Forensic Data Analysts, Keith Keating v Daily Maverick (1 June 2018), the Ombud held:
“When a journalist reports on Parliamentary processes…the reporter’s only task is to truthfully and fairly reflect what was said (as is also the case with court cases) – without:
22. In Danikas v Mail & Guardian (2 February 2021), the Ombud, assisted by two adjudicators, said:
“The panel had a robust discussion about whether the De Kock panel report to the NPA head… was in fact a ‘quasi-judicial’ document. If so, the elements of the article that pertain to that would fall in a category of reportage exempt from a right of reply.”
23. I am satisfied that the article in question was on proceedings of a privileged occasion and that there was no obligation on the Sunday Times to contact Mr. Gama for comment.
Was the reportage balanced and accurate?
24. Relying on privilege is a double-edged sword. It can only be relied on where the reportage was factually correct and balanced. This includes the obligation to give a fair account of the different versions put before the Zondo Commission. This is reflected in Clause 3.3.3 discussed above and underscored by further provisions.
25. Clause 1.1 of the Press Code states:
“(The media shall) take care to report news truthfully, accurately and fairly.”
26. Clause 1.2 of the Press Code states:
“(The media shall) 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.”
27. This requirement does not mean that a publication cannot interpret the proceedings or that it is restricted to report any and all detail. Whether an article is balanced must be decided on a case-by-case basis.
28. Mr. Gama contends that the article was unbalanced and inaccurate for the following reasons:
Alleged failure to report Mr. Gama’s version
29. Mr. Gama submitted transcripts of his testimony before the Zondo Commission on 11 March 2021 – three days before the Sunday Times’ article was published – to the Ombud and the Sunday Times.
30. In extreme summation, Mr. Gama testified that he visited the Gupta compound only once under the misapprehension that it was to be a business meeting with Mr. Salim Essa at an office. He met Mr. Tony Gupta there. He has never met any of the other Gupta brothers.
31. The Sunday Times responds by saying the transcript contains Mr. Gama’s “own general version as to how he knew the Guptas” and that this was not a response to the testimony of Witness Two (one of the drivers). This is correct.
32. However, the article also deals with “general” allegations not specifically related to the testimony of Witness Two. It says, in paragraph Four of the article, that “the four (including Mr. Gama) were all connected to the Gupta family while running state companies”. Paragraph 15 states: “When Molefe and Singh left Transnet, Gama and Pita appear to have entrenched the Gupta project…” Indeed, the very inclusion of Mr. Gama in the “Gupta Four” implies (quite correctly so) in general terms that he is implicated by proceedings before the Zondo commission.
33. The only general reference in the report to Mr. Gama’s version is contained in the second last paragraph of the article, in a parenthesis:
“Zondo said that "in the end", the tough question the commission will have to ask - despite their denials - is whether the four men "knew what the Guptas, or their associates, were doing?"
34. This cannot suffice. It was well within the rights of the Sunday Times to report interpretatively, and in general terms, that Mr. Gama was linked to the Guptas by the testimony, but it is unbalanced not to record his general exculpatory version that he has met only one Gupta brother once after being lured to the compound under false pretences.
35. The Sunday Times is alive to this requirement to include the versions of implicated persons, where available. In dealing with the drivers’ testimony, the report states in paragraph 21: “Molefe denied ever getting money from the family, as did Singh. Gama was not asked to state his side of the matter.”
36. The Sunday Times states that the reason why Mr. Gama was not asked to state his side of the matter was his own lawyers’ insistence that he should not be questioned about the evidence of Witness Two. “The Sunday Times was perfectly entitled and indeed was required by the Press Code to report that the complainant was not questioned about the allegations relating to the testimony of Witness Two.”
37. In turn, Mr. Gama replied that the reason for his lawyers’ request is important. In the quotations provided by the Sunday Times itself, it is evident that Mr. Gama’s lawyers told the commission they want to cross-examine Witness Two, await information to be able to do so, and therefore did not want to deal with the evidence of Witness Two at that time.
38. This is crucial context. Indicating that one plans to cross-examine a witness implies that the testimony is disputed. Stating that Mr. Gama was not asked to state his side of the matter did not fairly reflect Mr. Gama’s position at the time.
39. For all the reasons above, the Sunday Times breached Clause 1.2. of the Press Code by not reporting in a balanced manner.
What did Justice Zondo say?
40. Mr. Gama takes issue with the headline and with paragraphs 25–27 of the article, which reads:
“Molefe insisted that their proximity to the Guptas did not mean they were engaged in crimes such
as money laundering, fraud and corruption.
Zondo said that "in the end", the tough question the commission will have to ask - despite their
denials - is whether the four men "knew what the Guptas, or their associates, were doing?"
"The position is that you might not have known of certain things that the Guptas and their
associates may have done in relation to Transnet and Eskom, or whether you knew and therefore
you may have been complicit, or it was a question of negligence," he said.”
41. Mr. Gama complains that paragraph 26 is misleading, mischievous and reckless as it misrepresents Justice Zondo’s words.
42. Fortunately, it is not necessary to guess what was said. It is necessary to quote a substantial part of the transcripts of proceedings on 9 March 2021 to place the paraphrased quotation in context with my underlining for emphasis:
“CHAIRPERSON: Yes, no Mr Molefe that is fine but remember what I said, I think yesterday, that each witness comes and gives answers to questions that the Evidence Leader is not obliged to, at this stage necessarily accept that as true. He is entitled to probe further, to test it if he thinks it should be tested, as long as you are given a chance to deal with what he puts to you to try and test it. So he (the evidence leader) mentioned yesterday, if I recall correctly, that one of the issues as he sees them, in regard to your evidence or your role, will be whether despite the fact that you had a certain relationship with Mr Ajay Gupta or the Gupta family. The position is that you might not have known of certain things that the Gupta’s and their associates may have done in relation to Transnet or whether you knew, and therefore you may have been complicit, or it was a question of negligence. And then I think he said, or whether the question is whether they were too smart for you to pick up what they may have been doing. So when he was putting this to you, he wanted to make sure that as he puts questions as we go further, you know that these are the things he’s trying to deal with so that you can answer knowing the context, you know. So that in the end, if I ask him the question when he makes his submissions or presents argument at the end, if I asked the question on this evidence, can it be said that Mr Molefe knew what the Gupta’s or their associates were doing? He can say, I put these questions to him, or he gave these answers and I did not just accept that I probed further, and these were his answers. Based on his answers, my submission is that he knew, or my submission that he did not know. So that is what he is trying to do.
MR MOLEFE: Chair, my evidence is that I did not know, in the interest of progress let us move on.”
43. Justice Zondo engaged Mr. Molefe to explain to him why the evidence leader insists on posing certain questions to him. The Sunday Times fairly conveys this in paragraph 25 of the article.
44. It is paragraph 26 that is contentious. The Sunday Times did not place quotation marks on the paraphrased question in paragraph 26. It is acceptable to paraphrase quotations and a reasonable degree of latitude should be allowed in this respect. The contents of the paragraph are difficult to reconcile with the transcript quoted above. Justice Zondo never referred – explicitly or by implication – to the four men, which includes Mr. Gama. He refers to the possible question he might ask “on this (Mr. Molefe’s) evidence”.
45. It is striking that the quotation in paragraph 27 is indeed a verbatim quotation from the transcripts.
46. Although it is easy to imagine that the Zondo Commission would, given its mandate, ask the question ascribed to Justice Zondo in relation to all four men who were mentioned in the report, it is not the question he posed in that week. It is inaccurate to say the Chief Justice framed the question in those terms.
47. It is significant that lawyers for the Sunday Times make the following statement: “The Sunday Times did so by formulating a question that the commission had to ask: did these witnesses know about alleged impropriety involving the Guptas?”
48. It is a valid question and valid theme for the article. There was nothing wrong with the introductory paragraph. However, it remains the question of the newspaper and not Justice Zondo’s question.
49. To my mind, the words of the presiding officer in a matter – whether it is court proceedings or a tribunal – carries a special weight. It could easily be read, rightly or wrongly, as indicative of a presiding officer’s prima facie view of a matter. It is not to be quoted incorrectly or loosely.
50. Paragraph 26 therefore breached Clause 1.1. of the Press Code.
Allegations stated as fact?
51. Mr. Gama complains that paragraph 4, stating that “the four were all connected to the Gupta family while running state companies”, is published as fact and not “as an allegation based on in camera testimony given by in camera witnesses”.
52. The fact that the testimony was given in camera and the identities of the witnesses are not known to the general public, is completely irrelevant. It remains testimony during privileged proceedings.
53. The Sunday Times says the statement is correct. “This was based squarely on the comments made by the evidence leader, the statement of the driver/security guard witnesses as well as, more broadly, on the evidence that was freely available in the public domain… ‘Connected’ simply means one thing is linked to another. It does not convey culpability.”
54. I agree with the submissions. Mr. Gama was, in fact, connected to the Gupta family through the testimony. He admitted visiting the Gupta compound on one occasion and meeting more than once with Mr. Salim Essa, an associate of the Guptas. A witness indeed testified that Mr. Gama received large sums of cash. The evidence leader indeed said: "What ties the four of you together is that you had at least some connection with the Guptas.” The paragraph was therefore accurate and fair in all respects.
55. Mr. Gama complains about paragraph 15, which reads: “…When Molefe and Singh left Transnet, Gama and Pita appear to have entrenched the Gupta project.…”.
56. He says that, notwithstanding the use of the word “appear” in the paragraph, the Sunday Times fails to include the basis upon which this supposition is made.
57.This is not a statement of fact, but an allegation that was raised before the Commission. It is not necessary, and indeed not possible, to include every detail of the proceedings in the article. The journalist’s role is also to interpret and summarise the proceedings. The succession of executives at Transnet was the subject of testimony before the commission.
58. Mr. Gama further complains about paragraph 17, which reads: “…According to former bodyguards who testified in camera, Molefe, Gama, Singh and Pita went to the Guptas to collect cash which they deposited at Knox Vault…”, as well as paragraph 19 referring to testimony from a driver about “lots of cash being found in relation to Mr. Gama”.
59. Mr. Gama says these are untested allegations presented as fact. I disagree. The article clearly ascribes the statements as a version of witnesses. A reasonable reader would not read the statements as facts.
60. Lastly, Mr. Gama argues that the Sunday Times “had a responsibility to verify the credibility and veracity of the allegations and, if unable to do so given that the witnesses testimony was anonymous, it was critical to have approached the comment”. This is incorrect. A journalist cannot be expected to verify the credibility and veracity of allegations made during a privileged occasion. That is the work of the Zondo Commission itself.
61. Mr. Gama’s complaints on these scores are dismissed.
The headline
62. The complainant takes issue with the use of the phrase “Gupta Four”. He says: “Given the widespread negative and undesirable media attention that the Gupta family has received over the last few years, it is inevitable and cannot be disputed that any association with the Gupta name will ultimately attract adverse and harmful connotations and cause reputational damage.”
63. Mr. Gama’s lawyers proceed: “The complainant vehemently denies that he is part of the “Gupta Four” and…there is no evidence to justify such an offensive statement. Allegations by anonymous witnesses do not constitute concrete proof nor any reasonable basis upon which the Complainant can be referred to as a ‘Gupta Four’.”
64. Lawyers for the Sunday Times say the denial that he is “a Gupta Four” is hardly surprising as the “Gupta Four” does not exist. “It is not a political party or a string quartet,” but rather a “descriptive device employed by the Sunday Times in reference to persons who stand accused of certain things”. It is “uniquely South African”, according to the Sunday Times. Examples are cited of other similar cases such as the Delmas Four, the Upington 14, and the Waterkloof Four.
65. It is argued that it was an evidence leader of the Commission who lumped the four together by the following quotation: “…what ties the four of you together is that you had at least some connection with the Guptas”.
66. Moreover, Mr. Gama and the three others have, as a matter of fact, been implicated in the Zondo Commission proceedings. I have already explained why I agree with this submission.
67. In summary, the Sunday Times submits: “The phrase Gupta Four…is employed in line with its ordinary usage, as a reference to implicated or accused persons. However, the Sunday Times went even further to ensure that its reportage was fair and balanced by clearly indicating that there was a question that still remained to be resolved by the commission.” The introductory paragraph also refers to a “Gupta Four puzzle”.
68. Mr. Gama’s reference to “allegations by anonymous witnesses” is misplaced. They are not anonymous to the commission and that is, in any event, besides the point. There is indeed a reasonable basis for the use of the term Gupta Four, being the fact that the four former executives have been implicated in testimony during privileged proceedings and were grouped together by the evidence leader.
69. It is not the Sunday Times who invented, or caused, the connotation that Mr. Gama seeks to erase.
70. In reply, Mr. Gama also stresses the fact that nobody used the phrase “Gupta Four” at the commission and that more than four people have been implicated so far. The Sunday Times did not allege that the phrase was used at the commission. It is its own phrase. “Gupta Four” is also not a factual statement, especially when used as part of a question in the headline and with reference to a “puzzle” in the first paragraph.
71. There is, however, another issue with the headline considering the finding I made about the inaccuracy of the words ascribed to Justice Zondo. It logically follows that the headline is incorrect due to the use of the words “says Zondo”.
72. The complaint against the headline is upheld to this limited extent.
Conclusion
73. The complaint of a breach of Clause 1.8. is dismissed.
The complaint of a breach of Clause 1.2. is upheld.
The complaint of a breach of Clause 1.1. is upheld.
The complaint of a breach of Clause 10 is partially upheld.
74. The breaches are Tier 2 infringements.
75. The Sunday Times is directed to publish an apology to Mr. Gama, at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling, which should contain the following:
76. The wording of the apology must be approved by the Deputy Press Ombud before publication.
77. The apology must be published on the same page as the original article and at the top of the online version of the article.
Appeal
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.
Herman Scholtz
Deputy Press Ombud
14 June 2021