CASE NUMBER: 06/2009 DATE OF HEARING: 9 APRIL 2009 CITY OF TSHWANE COMPLAINANT vs ELECTRONIC MEDIA NETWORK LIMITED RESPONDENT TRIBUNAL: PROF HENNING VILJOEN (ACTING CHAIRPERSON) MR BRIAN MAKEKETA DR LINDA VENTER PROF GERRIT OLIVIER Complainant: Adv Joe Nalane, accompanied by Mr Ronnie Makopo, Legal

Department, Tshwane and Ms Landiwe Kunene from Renqe Kunene Inc.

Respondent: Dr Dario Milo and Ms Noxolo Ntombela from Webber Wentzel

accompanied by Mr George Mazarakis and Ms Susan Purén from “Carte Blanche”.

________________________________________________________________________ Disclosure by Carte Blanche of many incidents of fraud, corruption, nepotism and other illegalities occurring in the Tshwane Metropolitan Municipality – 25 complaints lodged by the Municipality against the broadcaster based on clauses 35 and 36 of the Broadcasting Code of Conduct – as to clause 36, evidence submitted by the Respondent that they tried from 11 September 2008 to the date of the broadcast, 5 October 2008, to secure television interviews with the executive mayor and the city manager – the only positive response they could get was

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an e-mail on the Saturday evening before the Sunday broadcast, containing not more than a general denial of the accuracy of the allegations suggested by written questions sent to the Mayor and the City Manager – Tribunal finding that Respondent made all reasonable efforts to present opposing points of view, and no violation of clause 36 could be found – as to clause 35, the right to comment on controversial issues of public importance is part of the media’s right to freedom of expression, the only qualification being that such comment shall be an honest expression of opinion and presented in such manner that it appears clearly to be comment, and shall be made on facts truly stated or fairly indicated and referred to – Respondent submitting almost 400 pages of evidence to substantiate their allegations – Complainant, despite this evidence and despite the fact that it could produce no evidence to counteract the allegations in many of its complaints, still persisting with its complaints before the Tribunal – Tribunal finding no contravention of clause 35 and dismissing all 25 complaints – City of Tshwane vs M-Net Case No: 06/2009(BCTSA) ________________________________________________________________________

SUMMARY On 5 October 2008 Carte Blanche , in its usual investigative programme, had inserts wherein they disclosed many incidents of fraud, corruption, nepotism and other illegalities occurring in the Tshwane Metropolitan Municipality. As a result Tshwane Metropolitan Municipality lodged 25 complaints against the broadcaster, which they later stated to be based on clauses 35 and 36 of the Broadcasting Code of Conduct. As to clause 36, the Respondent submitted evidence that they tried from 11 September 2008 to the date of the broadcast, 5 October 2008, to secure television interviews with the executive Mayor and the City Manager. They also submitted 35 written questions to the Mayor and the City Manager, upon which they intended to base their interview. The only positive response they received was an e-mail on the Saturday evening before the Sunday broadcast, containing bare denials of 2 of the allegations implicit in certain questions, and no more than a general denial of the accuracy of allegations implicit in the written questions sent to the mayor and the city manager. The Tribunal found that the Respondent made all reasonable efforts to present opposing points of view and that no violation of clause 36 could be found. As to clause 35, the right to comment on controversial issues of public importance is part of the media’s right to freedom of expression, the only qualification being that such comment shall be an honest expression of opinion and presented in such manner that it appears clearly to be comment, and shall be made on facts truly stated or fairly indicated and referred to. The Respondent submitted almost 400 pages of evidence to substantiate their allegations and to prove that their comments were made honestly. The Complainant, despite this evidence and despite the fact that it could produce no evidence to counteract the allegations in many of its complaints, continued to persist with its complaints before the Tribunal. The Tribunal, after considering all the evidence, could find no contravention of clause 35, and dismissed all 25 complaints. _______________________________________________________________________

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JUDGMENT

PROF HENNING VILJOEN

[1] On 5 October 2008 the well-known investigative programme “Carte Blanche” was

broadcast with an insert alleging certain occurrences of nepotism, corruption and

various other irregularities in the Metropolitan Municipality of Tshwane. Perhaps

unsurprisingly, the Metropolitan Municipality lodged a complaint with the

Broadcasting Complaints Commission of South Africa. The gist of the complaint is as

follows:

“The programme made certain statements which put the city in a particularly bad light.

The programme suggests that the city is involved in corruption, scams and irregular

activities. The programme is inaccurate and has presented untruthful statements of and

about the city and its officials.”

The Complainant averred that the Broadcaster had violated the Broadcasting Code of

the BCCSA. Initially the producers of Carte Blanche were cited as second Respondents

in this matter, but only broadcasters, signatories to the Code of Conduct, can be cited in

terms of our Rules. Thus, the only respondent before this Tribunal is Electronic Media

Network Limited.

[2] In its complaint, the Municipality listed some 25 detailed complaints, and in the

complaints document of 35 pages gave the Complainant’s version in response to each

of the Broadcaster’s allegations. Some of the allegations were merely denied. These

detailed complaints will be dealt with below. The Broadcaster, in turn, lodged a

document of 32 pages, entitled “First and second Respondents’ response to City of

Tshwane complaint”. It is necessary, in my opinion, to thoroughly scrutinise this

document.

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[3] The attorney for the Respondent (the Broadcaster and the programme producer) starts

off with a discussion of the clauses of the Broadcasting Code that may possibly have

been violated and comes to the conclusion that these might be clauses 35 and 36. He

then gives an exposition of the law relating to freedom of expression and the media,

quoting some 18 court cases and BCCSA judgments. Thereafter, he deals with each

and every complaint and the Complainant’s version of the particular occurrence. The

attorney does this in a thorough and painstaking manner, with reference to evidence

contained in some 34 documents attached as annexures, one being a 111-page forensic

report by Deloitte on the Tshwane Metropolitan Police Department (Annexure “H”).

The documentary evidence covers almost 400 pages.

[4] After this response by the Broadcaster’s representative, the Complainant lodged a

further document entitled “Complainant’s reply to Respondent’s answer”. This

document contains a great deal of repetition of the statements made in the complaints

document, and does not materially contribute to the consideration of the complaint.

[5] Five days after the broadcast, the executive mayor of the Tshwane Metropolitan

Municipality released a 12-page document entitled “Comprehensive response to the

allegations contained in the Carte Blanche programme, broadcast on 5 October 2008”.

From this response it appears that the mayor regarded the broadcast as an attempt by the

opposition parties, the DA in particular, to discredit the ANC. In the response, the

mayor deals with some, but not all of the allegations contained in the broadcast, as well

as some issues not mentioned in the broadcast, such as the change of street names. As

counsel for the Complainant dealt with all the allegations contained in the broadcast, we

do not find it necessary to deal with the mayor’s response. We did not hear argument

on this point, but the Tribunal is of the view that we cannot consider the mayor’s press

statement because it was made after the broadcast, and it was not addressed to the

BCCSA. We have also been informed that the mayor, in a statement to her own

council, said that the Metropolitan Municipality had obtained a court interdict against

Carte Blanche to stop them from airing further allegations about the Municipality.

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According to the Respondent, this is untrue. We do not regard it as necessary for this

Tribunal to decide the veracity of these statements.

[6] A hearing of this complaint, lasting about 4½ hours, took place on 9 April 2009. At the

start of the hearing, the Tribunal and the parties viewed the insert complained of. The

insert began with a retrospective view of some disclosures by Carte Blanche during

October 2003 and August 2004 of negligence, incompetence, corruption, fraud and

nepotism in the Tshwane Municipality. The insert then continued with certain follow-

ups on these disclosures, while the rest of the programme contained new disclosures.

[7] At the start of the hearing, counsel for the Complainant was asked to state which clause

or clauses the Complainant based its cases for contravention of the Code upon, since

this was not mentioned in any of the documents lodged by the Complainant. Counsel

confirmed that he based his case on clauses 35 and 36 of the Code as suggested by the

attorney for the Respondent. These clauses read, respectively:

35 Comment

35.1 Licensees shall be entitled to broadcast comment on and criticism of any actions or

events of public importance.

35.2 Comment shall be an honest expression of opinion and shall be presented in such

manner that it appears clearly to be comment, and shall be made on facts truly

stated or fairly indicated and referred to.

36 Controversial issues of public importance

36.1 In presenting a programme in which controversial issues of public importance are

discussed, a licensee shall make reasonable efforts to fairly present opposing

points of view either in the same programme or in a subsequent programme

forming part of the same series of programmes presented within a reasonable

period of time of the original broadcast and within substantially the same time slot.

36.2 A person whose views are to be criticised in a broadcasting programme on a

controversial issue of public importance shall be given a right to reply to such

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criticism on the same programme. If this is impracticable however, opportunity for

response to the programme should be provided where appropriate, for example in a

right to reply programme or in a pre-arranged discussion programme with the prior

consent of the person concerned.

Was the broadcast in contravention of clause 36 of the Code?

[8] In dealing with these clauses, we think it is appropriate to start with clause 36. From

documentary evidence submitted by the Respondent, it is clear that on 11 September

2008 the managing editor of Carte Blanche endeavoured to comply with clause 36 by

writing to the Complainant, announcing Carte Blanche’s intention to do a story on “the

appointment of Commissioner Mpo Mmutle and others and the financial practices of

the Metro.” The letter also contained a request for an interview with the mayor, Dr

Gwen Ramokgopa, and the city manager, Mr Kiba Kekana. The letter gave 7 days ’

notice of the interview and announced that the interview would be on camera with Devi

Sankaree Govender.

[9] The next day, on 12 September, the producer received an e-mail from one Jabu Dyantyi

wherein he requested on behalf of Mr Console Tleane that the producer, Ms Susan

Purén, send through questions in preparation for the interview. In the e-mail a promise

was also made that the availability of the executive mayor and the city manager for the

interview would be confirmed on the following Monday (i.e.15 September). On

Tuesday 16 September the producer e-mailed 16 questions addressed to the mayor and

19 questions addressed to the municipal manager in preparation for the interviews.

When nothing was forthcoming regarding the confirmation of the interviews, the

producer e-mailed the municipality on 17 September and again on 22 September,

pointing out that Carte Blanche had already wasted money in arranging for a camera

crew for the interviews on the dates mentioned in the first letter. In apparent

desperation, the producer also sent e-mails to the MEC for Local Government, Gauteng

and to the National Treasury in the hope that they could prod the municipality into

action.

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[10] On 23 September 2008, again after no further reaction to their request for the interviews

was forthcoming, the managing editor of Carte Blanche once again wrote to the

Complainant, requesting the interviews but moving the date on to Thursday 25

September. In the absence of an interview, the request was for a response in writing, to

be broadcast during the programme. However, these further efforts came to naught.

[11] At 18:02 on Saturday 4 October 2008, an e-mail was sent by Mr Console Tleane,

Executive Head: Integrated Communication, Marketing and Information Services of the

municipality, to Ms Susan Purén – just a day before the intended broadcast. In the e-

mail the following, inter alia, was stated:

“The City of Tshwane wishes to state that allegations and innuendo contained in the

questions posed and that will apparently be broadcast on 05 October 2008 are

inaccurate in almost all instances. Innuendo concerning the political and

administrative leadership is not true and not borne by facts. Instead there are many

misrepresentations that will be exposed at other platforms.”

The only allegations dealt with in this e-mail concerned the use by Ms Lebogang

Mahaye of municipal funds for a massage and one about the alleged intimate

relationship between Ms Cecilia Moumakoe and the City Manager, Mr Kiba Kekana.

Both allegations were denied. It should be mentioned that at the end of the broadcast

on 5 October 2008, the presenter, Mr Derek Watts, referred to the abovementioned e-

mail and gave a summary of its contents.

[12] It may be concluded from all these events that the producers of this particular Carte

Blanche programme went to great lengths to comply with the provisions of clause 36 of

the Code. However, from 11 September to the date of the broadcast on 5 October 2008,

there seems to have been no serious effort by the metropolitan municipality to engage

with the producers of the Carte Blanche programme, except for the e-mail of 4 October

which contained not much more than a general denial of the veracity of the allegations

implicit in the questions sent to the municipality.

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[13] In his argument on the applicability of clause 36, and apparently in defence of the

mayor and the city manager’s not being prepared to appear on television, Mr Nalane for

the Complainant relied heavily on the fact that the broadcast dealt with more issues than

those raised in the questions that were sent on 16 September. According to him, a fair

process was not followed because the municipality was not warned beforehand of all

the issues that were to be exposed in the insert. He argued that the persons mentioned

in the programme had a right to privacy and it was the duty of the municipality to

protect its employees.

[14] Mr Milo, for the Respondent, started off by objecting to the fact that the Complainant

argued a different case at the hearing to the one it presented in the papers before the

Tribunal. In the light of the findings at the end of this judgment, and judged by the

manner in which he argued his case, it did not appear that the representative for the

Respondent was in any way disadvantaged by this matter, and we do not intend to

spend any time on his objection. In addition, Mr Milo referred to all the efforts,

mentioned above, that the producers had made in attempting to comply with clause 36

of the Code, and he asked the question: “What more do you expect a broadcaster to

do?” He mentioned that the producer of a programme such as the one under discussion

is not obliged to submit questions to the interviewee beforehand, and even after having

done so, is not bound by those questions. He argued that it is fair to expect that the

political head and the most senior official of the municipality might have some

knowledge at least of matters that had previously been exposed by Carte Blanche, and

of other matters that were already in the public domain, as will be referred to later.

[15] We have come to the conclusion that the period of time allowed by the producer of the

Carte Blanche programme – namely, from 11 September to 5 October 2008 – for the

Complainant to respond to the questions put by the producer or to engage in any

manner with the producer, was reasonable. We do not think that the Complainant’s

excuses that it is a large institution and that it was not granted enough time, are

sufficient reason to find otherwise. We find that it was reasonable to expect of the

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mayor and the city manager of a municipality that has committed itself to “the

principles of good governance and being transparent, accountable and people centred

(sic)”1 to face the media and accept responsibility for what later in this judgment appear

to be substantiated cases of fraud, corruption, nepotism and other illegalities – all

matters of serious public concern. This expectation is also endorsed by section

152(1)(a) of the Constitution of South Africa which provides that:

The objects of local government are –

(a) to provide democratic and accountable government for local communities.

For the Complainant to argue that the broadcast covered more than was suggested by

the questions sent to the mayor and the city manager, does not advance the

Complainant’s argument. Up until the date of the broadcast, the Complainant could not

and did not know exactly what was to be disclosed by Carte Blanche. There was also

no onus on the part of Carte Blanche to announce to the Complainant the exact contents

of the programme before such broadcast. That is part of editorial freedom. It seems

unreasonable for the mayor and city manager to proffer their imaginings of what the

producer might present to the viewers of the programme, as an excuse for withhold ing

permission for the interview. By this we are not saying that the mayor and the city

manager were obliged to grant interviews. It was their choice not to co-operate, but as

the most senior representatives of the Tshwane Metropolitan Municipality, they ran the

risk of the viewing public drawing negative conclusions regarding their failure to

respond in public.

[16] Had it appeared, after 11 September, that the mayor and the city manager might need

more time to prepare for the requested interview, we think that they should have

requested an extension of the deadline for the interview. Any refusal by the producer to

accede to such a reasonable request would, depending on the circumstances, have

strengthened the Complainant’s case based on clause 36. However, from the facts

1 See the “Comprehensive response to the allegations contained in the Carte Blanche programme, broadcast on 5 October 2008” – Annexure Z7

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before us, it appears that the mayor and the city manager deliberately, or at least

negligently, failed to present themselves for an interview. If they could not or would

not accede to this request, they should at least have made other arrangements for some

other responsible official to face the Respondent or have responded in writing to the

questions sent to them on 16 September. In the event, the reasonable viewer of the

programme is left with the uncomfortable impression that incompetence, fraud,

corruption, nepotism and other illegalities are so rife in the Tshwane Metropolitan

Municipality that the mayor has no answer to the allegations, or, worse still, that she is

not even aware of the issues raised. Taking all these factors into account, we have

decided that the Respondent had taken all reasonable steps to “fairly present opposing

points of view” as required by clause 36 of the Code, and the Complainant’s case on

this point is thus dismissed.

Was the broadcast in contravention of clause 35 of the Code?

[17] Clause 35 of the Code requires of a broadcaster, when broadcasting comment on and

criticism of any actions or events of pub lic importance, to do so honestly and to do so

on facts truly stated or fairly indicated and referred to. This relates to the principle of

freedom of expression that is protected in section 16 of the Constitution of South

Africa. The freedom of the press, expressly mentioned in section 16(i)(a), is one of the

pillars of the democratic state. Without this freedom, there cannot be a democracy.2

Yet, as with other rights and freedoms enshrined in our Constitution, this freedom,

cannot be unlimited. For this reason, section 36 of the Constitution provides for

limitations to these rights and freedoms, on condition that such limitation is reasonable

and justifiable in an open and democratic society. The Broadcasting Code of Conduct

has, accordingly, been agreed upon by role players in the broadcast industry. In effect,

this Code puts some limitation on the broadcasters, who are signatories to the Code.

Clause 35 of the Code is such an example. The effect of this clause is that signatories

to the Code do not have an unfettered right to broadcast anything and everything,

2 See, inter alia, South African National Defence Union v Minister of Defence and Another 1999(4) SA 469 (CC) and S v Mamabolo 2001(3) SA 409 (CC)

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including comment on matters of public importance.

[18] In applying the limitations to the fundamental right to freedom of expression as

determined by clause 35, we are guided by the judgments of our courts. A good

example of judicial interpretation of this freedom, as it relates to the printed media, is

to be found in the case of Mthembi-Mahanyele v Mail & Guardian3. In this decision

by our Supreme Court of Appeal, we read the following which is particularly relevant

to this case4:

Freedom of expression in political discourse is necessary to hold members of

government accountable to the public. And some latitude must be allowed in order to allow robust and frank comment in the interest of keeping members of society informed about what government does. Errors of fact should be tolerated, provided that statements are published justifiably and reasonably: that is with the reasonable belief that the statements made are true. Accountability is of the essence of a democratic state: It is one of the founding values expressed in section 1(d) of our Constitution.

and in the following paragraph of the judgment:

The State, and its representatives, by virtue of the duties imposed upon them by the

Constitution, are accountable to the public. The public has the right to know what the officials of the State do in discharge of their duties. And the public is entitled to call on such officials, or members of government, to explain their conduct. When they fail to do so, without justification, they must bear the criticism and comment that their conduct attracts, provided of course that it is warranted in the circumstances and not actuated by malice.

It is clear from these passages that the “messengers” (the media) have a duty to inform

the public what the politicians and the bureaucrats are doing in the discharge of their

functions and duties. They (the politicians and the bureaucrats) are, after all, in the

service of the public and are expending their (the public’s) tax money on the services

that they are committed to provide. The “messengers”, on the other hand, have the duty

to publish and broadcast their statements “justifiably and reasonably”, as stated by the

Supreme Court of Appeal.

[19] In the present case the Respondent ’s response to the complaint, dated 18 December

2008, contained detailed answers to each of the complaints, gave a thorough exposition

3 2004 (6) SA 329 (SCA) 4 At paras 65-6

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of the legal principles applicable to this broadcast and, as stated in paragraph [3] above,

attached almost 400 pages of evidence of the facts upon which the broadcaster based its

comment. Despite this evidence of the facts on which the comment was based, the

Complainant chose to persist with this complaint to the BCCSA. At the hearing,

counsel for the Complainant, in reaction to a pertinent question by the chairman,

maintained his original position, namely, that the allegations by the broadcaster were

untruthful and that the insert was inaccurate. That left us no other choice but to ask the

Respondent to present proof that their comment on and criticism of the Tshwane

Metropolitan Municipality was undertaken in an honest manner and was based on facts

truly stated or fairly indicated and referred to. We will now deal with each of the

allegations complained of.

[20] Chief of the Metro Police Commissioner Mmutle Clocks 181 km/h in peak traffic

In paragraph [6] above, reference is made to certain retrospective inserts on Tshwane

Metropolitan Municipality broadcast by Carte Blanche in previous programmes. On 24

August 2004, comment was broadcast on the chief of the Metro Police of Tshwane,

who was alleged to have driven at a speed of 181 km/h to his place of employment. The

aim of this retrospective insert, according to the Respondent, was to put the

controversial reappointment of Mr Mmutle as chief of the Metro Police into context.

Counsel for the Complainant objected to this insert, stating that the Complainant could

not comment on the event for which documentary evidence, such as the relevant

logbook, was not available. We allowed the insert because the allegation concerning

Commissioner Mmutle exceeding the speed limit while driving his official vehicle was

not the focus of the broadcast on 5 October 2008. The focus was his reappointment.

We were also informed by the Respondent ’s representative that after the insert of the

police commissioner’s speeding offence in August 2004, there was no complaint

lodged by either the commissioner or the Metropolitan Municipality. Counsel for the

Complainant did not object to the statement of this information, and we accept it as

being true. Furthermore, as this information had been in the public domain for a long

time, in the sense that it had been reported on in the media, we dismiss the complaint.

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The other allegations about commissioner Mmutle were dealt with in the papers before

the Tribunal and at the hearing at a later stage, but it is our opinion that it makes sense

to deal with all the allegations against the commissioner together, since they concern

the same person.

[21] Purchase of three Volvos for high speed patrols but which were used for

something else

Before dealing with this allegation, we must make mention of the so-called Deloitte

report. The forensic auditing arm of the firm Deloitte was engaged by the Tshwane

Metropolitan Municipality to investigate various matters regarding the Metropolitan

Police Department. This resulted in a report by Deloitte, dated 26 May 2004, which

was attached to the Respondent’s document entitled “First and second Respondent’

response to City of Tshwane complaint” as Annexure H. The Respondent has relied on

this document for many of the allegations contained in the insert. This allegation about

the three Volvo motor cars was also part of the retrospective inserts mentioned above in

paragraph [6]. As with the allegation about the speeding commissioner, the focus was

not on the Volvo cars but on the controversial reappointment of commissioner Mmutle.

The purpose of the insert was to comment on the fact tha t commissioner Mmutle

allowed the unauthorised use of the vehicles by his three deputies during his first term

of office and, despite this, was reappointed for a second term. The Deloitte report

confirmed the unauthorised use of the vehicles, and the Respondent had reliable factual

information upon which they based their insert. Consequently, the complaint regarding

this insert is dismissed.

[22] Awarding of a multi-million rand tender for guns to a questionable company

This allegation, like the previous two, was also part of the retrospective inserts

mentioned in paragraph [6]. The purpose of this was also to paint a picture of

commissioner Mmutle’s past and to put his reappointment into context. The allegation,

as broadcast by Carte Blanche in August 2003, was that commissioner Mmutle and his

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team awarded a multi-million rand tender for guns to a questionable company. In its

investigation of this matter, Carte Blanche found that the company existed on paper

only, and this fact was included in the insert. The Metropolitan Municipality never

complained about the broadcast of August 2003. The Complainant admitted that it

investigated the matter and that, as a result, the owner of the company in question was

arrested and the tender cancelled. By making this admission, the Complainant in fact

confirmed the truth of the Respondent’ allegations. On these grounds this complaint is

dismissed.

[23] The legal requirements for Chief Mmutle and his deputies

This insert has to be judged on the same basis as the previous ones, namely, to put the

reappointment of commissioner Mmutle in perspective. This insert was also broadcast

in August 2003, and the matter was later reported on by Deloitte. This matter relates to

the appointment of a certain KSB Sekhudu as Deputy Chief Commissioner of the

Tshwane Metropolitan Police, as well as commissioner Mmutle’s role in his

appointment. The insert reveals that when Mr Sekhudu applied for this post, he created

the impression that he had previously been employed by the South African Police

Services by stating the following in his curriculum vitae (Annexure I):

SAPS vehicle unit

- I joint (sic) vehicle theft unit task team of SAPS

- Tracing of stolen vehicles

It later transpired that he was not previously employed by the SAPS. The report by

Deloitte, who investigated the matter after the first insert, stated that the quoted part of

the Deputy Commissioner’s CV created the impression that he was a member of the

SAPS. As to the role of commissioner Mmutle in the appointment of the Deputy

Commissioner, it was stated in the insert that Mr Sekhudu is a “…close personal

relative of commissioner Mmutle”. This matter was also investigated by Deloittes (see

Annexure H) and they reported the following:

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“Mr Mmutle informed us that Mr Sekhudu is married to a cousin of his. Mr Mmutle

admits that he never declared this interest. Mr Mmutle was part of the selection and

interview process and did not excuse himself from the interview process.”

These facts are in stark contrast with the Complainant’s statement in paragraph 11.3 of

its complaint document as follows:

“Commissioner Mmutle was not at all involved in the appointment of Deputy Chief

Sekhudu.”

What is even more astonishing is that Mr Sekhudu in his CV gave the name of

commissioner Mmutle as one of his references. Although the Respondent did not

allege that the appointment of the Deputy Commissioner was irregular, such a notion

may have been impressed on the minds of reasonable viewers. This, however, would

not have been in contravention of clause 35, since the report by Deloitte confirmed that

the chief and his deputy were related, and that the chief was involved in the selection

process and in the interview with Mr Sekhudu. The latter undoubtedly demonstrates

that an irregularity took place. We find that the Respondent was justified in disclosing

this information, and consequently this complaint is also dismissed.

[24] The report that was compiled in respect of Commissioner Mmutle was never made

public

We have to agree with the Respondent that it is not clear what the complaint is

regarding this part of the insert. The Complainant in its response to the broadcast states

that there is no requirement that the report should have been published and by

implication admits that the report was not made public. The exact wording of the

broadcast that gave rise to this particular complaint is:

“The events that followed were compiled in a report that has never been made public.”

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A separate complaint was lodged regarding the “… events that followed”. We are only

dealing here with the complaint regarding the words broadcast as quoted above. In this

complaint, the Complainant refers to the “… wild and unfounded allegations when the

matter involving the charges against Commissioner Mmutle has been made public

through media statements …” These so-called wild and unfounded statements relate to

another matter in respect of which the Complainant lodged a separate complaint.

Counsel for the Complainant was not forthcoming with an explanation as to what the

complaint was actually about. Our view is that this is not a valid complaint.

[25] Six charges leveled against Commissioner Mmutle but he struck a deal with his

comrades, resigned and the charges withdrawn In the complaint document, the only response by the Complainant to this allegation is

that the charges were unconditionally withdrawn. However, on closer inspection of the

documentary evidence, quite another picture immerges. In the city manager’s report to

the mayoral committee (Annexure J – the so-called Blake report) the following is stated

with regard to the disciplinary action taken against commissioner Mmutle:

“During this first hearing all charges against the Commissioner were withdrawn

following a meeting convened amongst the Executive Mayor, The Speaker, The Chief

Whip and the Commissioner. The purpose of the meeting was to expressly to (sic)

reach a settlement that would accommodate all the interests of those concerned with as

little further unsatisfactory publicity as possible.”

The report continued to state that it was agreed at that meeting between the parties that

the charges would be withdrawn and that commissioner Mmutle would resign to take

up a new post in the SAPS. The Respondent even included in the documentation a

letter by the national commissioner of the SAPS, commissioner Selebi, wherein

commissioner Mmutle had been recalled to the SAPS (Annexure M). It is therefore

clear that there was not merely an unconditional withdrawal of the six charges against

Mmutle, but that there was an agreement that the charges would be withdrawn if the

commissioner resigned. The Respondent was justified in making such allegations

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because they based these on documentary evidence that originated from the

Complainant. This complaint must therefore also be dismissed.

[26] The other Tshwane metro police officers

In the insert the following was stated: “The other Tshwane Metro Police Officers who

were charged also walked free on technical grounds.” The Complainant’s response to

this allegation was that the allegations against the officers were probed by independent

parties, that they were found not to be proven and that the officers were cleared. The

Respondent once again submitted written evidence upon which Carte Blanche’s

allegation was based. In the Blake report (Annexure L) it is stated that all the charges

against the three officers were dismissed on the basis that there were inconsistenc ies in

the application of the rules and/or policies, apparent non-compliance with the enabling

statute, and confusion as to which policies were applicable. We agree with the

Respondent that, taking all the evidence into consideration, it is clear that no finding on

the merits of the charges was made. We find that the insert constituted honest comment

on a matter of public concern and the complaint is thus dismissed.

[27] Council got rid of Commissioner Mmutle’s successor and advertised the position

The Complainant’s response to this allegation is that the Metro Police and Emergency

Services departments were organised into a new Community Safety department, that all

employees in these departments had to re-apply for their jobs and that commissioner

Mmutle’s successor, Mr Hlula Msimang, declined to apply for the new post. They state

further that the Municipality and Mr Msimang amicably settled this matter. The

Respondent justifies the allegation by stating that the information was in the public

domain, and they then refer to Annexures N and O. This is a web page printout of a

report by City Press entitled “Metro cop mayhem” dated 2 February 2008. In the

report, various names of officials in the Police Department are mentioned, including

Mmutle, Sekhudu, Coetzer, Mokhine and Baloyi, and the problems they are having

with or are causing to their employer are also mentioned. The only reference to

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Msimang is a statement that he is seeking legal advice because his post has been

scrapped. The report ends by stating that Msimang would continue to serve the city

until such time that either of the parties decide to terminate the relationship. We have a

problem with the interpretation of the words used by the Respondent in the insert,

namely “… Council simply got rid of Commissioner Mmutle’s successor …” Here,

the impression likely to be created in the mind of the reasonable viewer, is, to our mind,

that Mr Msimang was unfairly dismissed. This is contrary to a situation where the

employer reorganises or restructures its municipality, or part thereof, and then settles a

dispute resulting from this restructuring. The outcome in both cases is the same,

namely, the termination of an employment contract, but the impression created in a

broadcast of this nature is totally different. “To get rid of” smacks of arbitrariness of

action by the employer, leaving the employee out in the cold, whilst a settlement after a

retrenchment leaves one with a feeling that justice has been done. Had the Respondent

relied on this document alone, we would have found a contravention of clause 36.

However, the Respondent also relies on Annexure O, which is a webpage printout of a

report by. In this report the following is stated: “Hlula Msimang replaced Mmutle, but

Msimang’s contract had now been terminated out of the blue and Mmutle would again

succeed him.” Further on, it is stated that “[T]he ANC’s irrational step would cost the

metro council millions.” This creates the impression of an unfair dismissal, and the

Respondent was justified in presenting the comment in the manner it did. We wish to

state that this complaint, of the 25 lodged by the Complainant, caused the most doubt in

our minds. On a balance of probabilities, however, we find that there was no

contravention of the Code, and the complaint is dismissed.

[28] Commissioner Mmutle was appointed to the re-advertised position

In this instance the wording of the insert was: “Guess who got it (the re-advertised

post)? Commissioner Mmutle of course.” The complaint reads that the allegation is

made that commissioner Mmutle was improperly reappointed. The word “improperly” is not used in the insert. In effect, the insert comments on a fact that is common cause.

What the Respondent does admit, though, is that commissioner Mmut le should not

have been reappointed to his post, given his poor track record and the allegations of

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corruption that had previously been leveled against him. Given the controversy

surrounding commissioner Mmutle, which was in the public domain at that stage, we

agree with the Respondent that the insert amounted to fair comment on a matter of

public importance, and that it was based on facts truly stated. It follows that there was

no contravention in this regard, and the complaint is dismissed.

[29] Appointment of Commissioner Mmut le’s secretary

On the insert, pertaining to this complaint, it was stated that commissioner Mmutle

brought with him from Atteridgeville Police Station his secretary, Alice Lebelo, to be

his executive secretary at the Tshwane Metropolitan Municipality. It was alleged that

Ms Lebelo does not even have a typing qualification, and that a post was fraudulently

created for her. The Complainant does not deny that she was appointed as executive

secretary to commissioner Mmutle, or that she does not have a typing qualification. As

to the fraudulent scheme to have her appointed, the Respondent displayed on the insert

a copy of an e-mail dated 29 August 2008 from a certain Valerie Steyn, HR – Key

Accounts Specialist of the Municipality. In our view, it is important to quote the whole

e-mail (Annexure Q). It is addressed to Mr Giep de Wet and reads as follows:

“Our telephone conversation of just now refers.

I have just spoken to Phillip Ratsiane on above matter. As we believe a verbal agreement was reached between your Commissioner and our Mr Tumagole (acting ED:HR Strategic), this arrangement was not officially recorded (although Mr Phala from my office confirmed the arrangement afterwards in a mail.

Phillip agreed that, based on above agreement reached, A!ice Lebelo could start to

work as early as Monday (1 Sept 08), but he suggested that we rather follow a “process” of appointing her. We could potentially create problems and grievances unless we go this route.

Please note that we will try and streamline suggested process as effectively as

possible. To protect all relevant parties, as well as our HR-processes, Corp HR will advertised (sic) the post of Exec Secretary on Monday at the One Stop Service for a short period and we will have interviews hopefully next week or the week after that.

I checked with Philip and the arrangement is that a cash focus will be arranged for

Alice, should the process not be finalised by the end of the month/before SAP closes. This is to ensure that she would he paid although we are still in process of finalising the appointment.

Your office is thus welcome to liaise with Alice regarding WHEN you like her to start.

It is suggested that your Office also liaise with Lerato to make the necessary

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arrangements wrt her acting in the current post.” This e-mail is clear evidence that there was an agreement between the officials to have

the commissioner’s choice of secretary appointed and to then fraudulently advertise the

post despite the fact that a decision to fill the post had already been taken. To

compound the fraud, it is stated in the complaint document, dated 1 November 2008, in

paragraph 18.3, that “(T)he position was advertised and the process of filling it has not

yet been concluded.” With all this damning evidence at their disposal, we are convinced

that the Respondent was truthful with its comments on the appointment of the

commissioner’s secretary. No contravention of the Code could be found and the

complaint is dismissed.

[30] Kiba Kekana, the city’s municipal manager, re-appointed Commissioner Mmutle

against the will of Dr Gwen Ramokgopa

The only response by the Complainant to this allegation is that it is not true because

commissioner Mmutle’s appointment followed a proper process which was open and

transparent. The Respondent based the allegation on the fact that this information was

in the public domain at the time when the insert was broadcast. For this purpose they

relied on the news website of the Freedom Front Plus, dated 29 July 2008 (Annexure

S). They also state that they further based their allegation on information supplied by

highly-placed sources employed by the municipality whose identities are confidential.

The Respondent refers to a judgment of the European Court of Human Rights5 for its

reliance on confidential information. It may be lawful for the media to use this method

of gathering information, as this judgment confirms, but the problem for the decision-

maker, in the present case this Tribunal, is that we have no objective norm by which we

can judge the reasonable veracity of such information. However, it is clear that the re-

appointment of commissioner Mmutle was a controversial matter of public importance.

It is also clear from Annexure S that the resignation of President Mbeki and the

divisions within the ruling party also had its effect on municipal politics. We find that,

with the information at their disposal, it was fair for the Respondent to comment in this

5 Goodwin v United Kingdom (1996) 22 EHRR123

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way on the re-appointment of commissioner Mmutle. This complaint is dismissed.

This concludes the allegations regarding commissioner Mmutle and the relevant

complaints that followed the broadcast.

[31] 1998 Pass rate for a group of 128 new recruits

This complaint also concerns one of the issues that was part of the retrospective inserts

and was broadcast with the object of putting the comments on commissioner Mmutle in

perspective. This concerned a claim by the Metropolitan Police Department that new

recruits in the traffic department obtained a pass rate of 98%. The Respondent alleged

in the insert that marks were artificially increased so as to manipulate the pass rate.

The Complainant incorrectly made reference to the 1998 figures, as a check on the

insert reveals that no date was mentioned in the broadcast. In the Complainant’s

response it is stated that the head of vocational training was charged before a

disciplinary hearing, but found not guilty, and therefore there was no wrongdoing. The

Respondent based its allegation on the Deloitte report (Annexure H) where it is stated

that the head of vocational training admitted to the investigators that he had given

instructions for the marks to be increased. He was charged for directly altering the

marks whilst he in fact gave the instruction for the marks to be altered. He was

apparently found not guilty on this technical point. We find that the Respondent had

sufficient objective evidence on which they based their allegations and the complaint is

dismissed.

[32] Council spent hundreds of thousands of rand probing the allegations Carte

Blanche made

This statement, made during the insert, seems to be reasonable in light of the Blake

report and the Deloitte report referred to above (Annexures K and H respectively). The

Deloitte report must have cost the Municipality a lot of money. Common knowledge

and common sense suggest that such a comprehensive investigation by forensic

auditors does not come cheaply. We find that such comment was fair. The Blake report

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expressly refers to the disciplinary action against commissioner Mmutle and the 6

charges that he had to face. Of especial concern to us is the Complainant’s response in

paragraph 12.2, where the following is stated: “It is denied that Deloitte ever confirmed

the allegations that were made. The full council, flowing from the Deloitte report, did

not find anything against the commissioner.” I refer to paragraphs [21], [23] and [31]

above, where reference is made to the Deloitte findings. These are three examples

where the Deloitte report confirmed the allegations by the Respondent in the previous

broadcast. The Complainant was aware, or should have been aware, of the Deloitte

findings in this regard. Further to the second sentence quoted above, one might ask: If

the Council did not find anything against the Commissioner, why was he charged in a

disciplinary hearing? The Complainant should also qualify its statement that it did not

find anything against him since there was an agreement that he would resign if the

charges were withdrawn. The merits of the charges against him were thus not decided.

One gets the uneasy feeling that the response by the Complainant was not made in good

faith, or that this was an attempt to mislead the Tribunal. However, we do not make a

finding in this regard. The complaint is, nevertheless, dismissed.

[33] Dr Ramokgopa apparently appointed her friend as her spokesperson

This allegation, as well as the response to it, is quite unsatisfactory. Apart from

submitting that this allegation was already in the public domain, and naming the

spokesperson, the Respondent gives no proof upon which they base their allegation. In

its response, the Complainant merely states that the allegation is incorrect. It is not

clear whether they mean that the spokesperson was not appointed by Dr Ramokgopa or

whether she was not appointed as spokesperson or whether she was not a friend of the

mayor. No evidence, documentary or otherwise, was submitted by the Complainant to

substantiate the denial of the correctness of the allegation. The only saving element for

the Respondents is that the word “apparently” was used in the insert. That makes the

allegation sufficiently vague, so that not much value can be attached to it. In this

instance the complaint is also dismissed.

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[34] Appointment of Cecilia Moumakoe as executive head in the private office of the

municipal manager

The allegation in the insert is that Cecilia Moumakoe, whose only qualification is a

diploma in travel and tourism, and who has very little experience, was appointed as

executive secretary to the municipal manager, Mr Kiba Kekana, at a salary of “around

R800 000”. A further allegation is made that she is romantically involved with Mr

Kekana. Annexure T, attached to the Respondent’ response dated 18 December 2008,

contains the curriculum vitae (CV) of Ms Moumakoe. The allegations about her

qualifications and experience are substantiated by this document. From this document,

it also appears that she had given the name of Mr Kekana as a reference. His e-mail

address on this document is given as ljoel@salga.gov.za. From this it appears that, as

at the date of her CV, Mr Kekana and she were both employed at the South African

Local Government Association. From this it does not necessarily follow that they are

romantically involved. The Respondent again relies on confidential information for

this allegation, which makes it again difficult for us to judge the veracity of this

information. The saving element for the Respondent is that the Complainant came

forward at number ninety-nine with a bare denial of this allegation, and this was

broadcast with the insert. As to the alleged salary of R800 000: if the information at

the disposal of the Respondent was that that was the salary of the previous incumbent

of the post, it would not be unreasonable of the Respondent to assume that the salary of

the present incumbent would be “around” the same. We cannot find any contravention

of the Code in this instance and the complaint is dismissed.

[35] Marketing Tshwane as a destination of choice

Several allegations gave rise to this complaint and we deal with them in the order in

which they appear in the papers. The first part of the complaint is that the allegation is

made that Kennedy Khabo received a contract from the Metropolitan Municipality to

present “South Africa Week” in the United States of America “by virtue of his

friendship with the city manager”. As pointed out by the Respondent, that was not

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stated in the insert. The wording in the insert is : “Khabo … is an old friend of Kiba

Kekana”. One might infer, however, from this insinuation that the contract flowed

from the fact that they were friends. The Respondent does admit that Kekana was

appointed to the post of city manager after the contract had been awarded, but avers

that Kekana was a mayoral advisor at the time (for the awarding of the contract) and

“South Africa Week” was originally a mayoral committee project. This was not denied

by the Complainant. The second part of this complaint has to do with the fact that it is

alleged on the insert that Khabo is not VAT registered. The Complainant states that

Khabo, being a registered vendor, had submitted a tax clearance certificate. However,

the documentary evidence submitted by the Respondent (Annexure U) denies the

validity of this assertion. As to the specific amounts mentioned in the insert that the

Complainant spent on dinners and for a business forum, exhibition space, etc, no

documentary evidence is supplied by the Respondent. On the other hand, the bare

denial of the truth of these allegations is not helpful. There also seems to be confusion

regarding the date of “South Africa Week”. In the insert, the words “SA Week 2007”

appeared in the top left-hand corner of the screen. The Complainant, in its response to

the allegation, states that the broadcast is misleading because it is not related to the

2008 South Africa Week. We do not think it is necessary to determine what the year of

the South Africa Week was in order to decide whether there was a violation of the

Code. Considered in context, and on a balance of probabilities, we are not convinced

that the Respondent violated the Code in this instance, and the complaint is dismissed.

[36] Use of exclusive venues

The allegation was that the Tshwane Metropolitan Municipality sometimes spent as

much as R300 000 on exclusive venues at places as far away as Hazyview, while the Municipality has its own upmarket conference centre that could be utilised for a fraction of the price. This allegation is substantiated by documentary evidence (Annexure V). A further allegation under this complaint is that a certain Ms Lebogang

Mahaye had a full body massage at such a breakaway, costing R1 300, for which the Municipality – in effect the ratepayers – were billed. The only response by the Complainant to these allegations is that Ms Mahaye paid for the massage out of her

25

own pocket. No proof of this has been forthcoming. The denial by Ms Mahaye reached the Respondent at number ninety-nine, and it was included in the insert. There was, furthermore, no denial by the Complainant that the amounts mentioned by the Respondent were spent by the Municipality on its “legotlas”. No contravention of the

Code could be found and the complaint is dismissed. [37] Proper internal financial control

The allegation was, inter alia, that there was no proper financial control at the Tshwane

Metropolitan Municipality, that the Auditor General has given the Municipality

qualified audits for the past eight years, and that the AG’s report contained 23 pages of

discrepancies. The AG’s report is attached as Annexure W. In its response, the

Complainant merely made the bland statement that the city’s finances are under control,

and then seems to try to justify this statement by referring, without any further proof, to the fact that the city’s long- and short-term ratings have been confirmed by Global

Credit Ratings. The Complainant does not give any explanation for the qualified

reports and the 23 pages of discrepancies. In light of the evidence, we have to agree

with the Respondent that the Complainant’s response is absurd. The complaint is

dismissed.

[38] Number of bodyguards for the Executive Mayor

In the context of the discrepancies highlighted in the AG’s report, the allegation was

made in the insert that the number of bodyguards used by the executive mayor was

incorrectly stated. The response by the Complainant was that the matter of the mayor’s

bodyguards is a security matter that cannot be openly discussed. As this matter is

mentioned in the AG’s report (Annexure W, par. 13.12) and the Complainant could not

explain or deny this allegation, no contravention could be established and the complaint

must be dismissed.

[39] Head of procurement Hamilton Mhlom

The allegation is that the head of procurement got the Municipality to pay a further R8

26

million for computer equipment from another supplier, that there was an investigation,

that he is back at work, and that there was no explanation (presumably of what became

of the investigation). The Complainant confirms that there was a forensic investigation

into an IT equipment tender, that disciplinary charges were laid agains t Mr Mhlom and

another official, and that Mr Mhlom was found guilty on a minor charge. It appears

that the allegation in the insert was substantially true and that the Respondent’s version

is not denied by the Complainant. This complaint is also dismissed.

[40] Qualifications of finance department personnel

The allegation is that the chief financial officer of the Tshwane Metropolitan

Municipality, who is in charge of an annual budget of R15 billion, is not a qualified

chartered accountant, that she earns an annual salary of over R1 million, and that before

her appointment to the position in 2006, an industrial psychologist had warned that she

would find it very difficult to comply with the demands of the position. In its response,

the Complainant states that all the incumbents of the senior positions meet with the

required standards, and then goes on to set out the CFO’s qualifications and experience.

However, the Complainant does not deny any of the allegations in the insert and the

complaint is consequently dismissed.

[41] Price Waterhouse Coopers

In the insert, the Respondent made the statement that the Municipality appointed

outside auditors, Price Waterhouse Coopers, to assist with current financial statements.

The two tenders that were awarded to the same auditors were valued at R7.9 million

and R800 000 respectively. The Complainant does not deny this, but, in an apparent

effort to justify this, states that the fees “are not at all unreasonable”. The Respondent

had not stated that the fees were unreasonable. We find that there was no valid

complaint in this instance.

[42] Six senior officials who have been out of work since 2003

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An allegation was made that of the 34 managers who lost their jobs when the Tshwane

Metropolitan Municipality was formed, six are still collecting salaries and benefits,

though only one comes in to work. This has cost the Municipality R22 million to date,

and should they stay on until age 65, this amount will increase to R227 million. The

response by the municipality is that “only nine managers are currently suspended” and

that no extraordinary amounts were paid out to employees for termination of

employment contracts during the past three years. This is tantamount to saying that the

Respondent is correct but that the number of suspended managers is in fact in excess of

that stated in the insert! The Respondent did not make any allegation regarding

amounts paid out to employees whose contracts were terminated, so we think that the

reference to “extraordinary amounts” is irrelevant. The final response by the

Complainant in this regard requires some comment. It is stated that it is not the city’s

policy to disclose personal information about employees and former employees. We

regard the fact that employees who have been suspended for five years are still

receiving salaries not as a piece of personal information about the employees, but as

vital information to which the public, especially the ratepayers of Tshwane, are entitled

in a transparent and democratic society. As the veracity of the allegation is not

challenged, we do not regard this as a valid complaint.

[43] Adrianus Weyers

The allegation was made that three years ago Adrianus Weyers wrote to the Department

of Labour and the Engineering Council of South Africa, voicing his concerns about

electricians of the Municipality who scored low marks in skills tests. As a result of

these electricians being employed, three people allegedly died because of electrical

shocks. Weyers was suspended by his employer. He took the case to the High Court

and won, but he has not been reinstated. The only response by the Complainant is : “[I]t

is the policy of the city not to comment publically (sic) on individual employee

matters.” The same objection may be leveled against the Complainant as in the

previous complaint. According to the article published on the Fin24 website (Annexure

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Z2), the Municipality suspended a whistleblower because he disclosed information to

the effect that the safety of the public had been compromised through employment

equity practices, and the Municipality then disobeyed a court order to reinstate the

whistleblower. If this is true, and the Complainant does not contradict the Respondent,

this is information which the public should have access to because their safety is at

stake and their tax money is being used to pay for a case which should not have gone to

court in the first place. As the Complainant does not object to any part of this insert

and does not indicate any grounds on which they base their case, this complaint is not

regarded by the Tribunal as a valid one.

[44] Pushing people out of the system — Tommy Harrington

This concerns a complaint about the insert regarding the Chief Building Inspector,

Eastern Region, Tommy Harrington. In a telephone interview with Harrington in New

Zealand, several allegations of fraud and corruption within the building control team

are made by him. The Complainant’s response to these allegations is that Mr

Harrington was investigated for misconduct and that he resigned and went to New

Zealand after he was confronted by the internal auditors. They also deny that he was a

senior manager as indicated in the insert, stating that the chief building inspector is a

junior manager. It is not necessary for the Tribunal to determine the correctness or not

of the Complainant’s statements. The question is whether the Respondent’ comment

was an honest expression of opinion and was presented in such manner that it appeared

clearly to be comment, and was made on facts truly stated or fairly indicated and

referred to. The Respondent’s argument in this regard is that the allegations made by

Harrington were in the public domain, and that they submitted two newspaper reports

(Annexures Z5 and Z6 respectively) upon which they based their allegations. They

further submitted Harrington’s letter of resignation including his reasons for doing so,

and letters of complaint by the public (Annexures Z3 and Z4 respectively). It appears

that the Respondent had sufficient facts upon which they based their allegations, and it

cannot be said that they violated clause 35. For these reasons this complaint is

dismissed.

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[45] Conclusion

The result of this long and arduous quasi- legal battle is that no contravention of the

Broadcasting Code of Conduct was found and all the Tshwane Metropolitan

Municipality’s complaints against Carte Blanche are dismissed.

PROF HP VILJOEN Commissioners Makeketa, Venter and Olivier concurred with the judgment.