Public Protector Thuli Madonsela on Sunday expressed ‘disappointment’ at the publication of what she said was “confidential information” by the Sunday Times newspaper after it published a confidential report which it said was in its possession.
The newspaper on Sunday [17 July 2011] published contents of the said report which had apparently criticised the South African Police officials for booking their boss, Nathi Mthethwa, in a hotel he was not entitled to stay in. The published confidential report is said to be “highly critical of officials in the police ministry for flouting travel regulations” and that it was likely to “further strain relations” between the police and Madonsela.
The report has however cleared Mthethwa of any wrongdoing as he had not personally instructed staff to book him into those hotels after his controversial stay at Cape Town’s Table Bay andDurban’s Hilton hotels in 2008 and 2009.
Background of the investigation
Madonsela’s investigation came after Sunday Independent newspaper reported on 18 October 2009 that Mthethwa had “run up a five star hotel bill of more than R500 00 in five months in his home town of Durban”. Headlined “Minister in new hotel splurge” and written by Makhudu Sefara, the report revealed that between December 19 (2008) and April 25 (2009), Mthethwa was “intermittently booked into the luxurious Hilton Hotel along with members of the VIP Protection Unit at a cost of R578 499”.
The newspaper claimed it was in possession of the bills saying, “The Sunday Independent is in possession of his bill, which shows the names of the bodyguards he was with, on which dates he was at the hotel and for how long”.
According to the report at the time, the bills revealed that Mthethwa had spent Christmas (2008) and New Year (2009) at the luxurious hotel and that during this “uninterrupted 17-day stay from December 19”, he was not accompanied by any guards and its bill amounted to R86 180”. Mthethwa was further booked into the same hotel on the night before Valentine’s Day (2009) and at that time with four VIP protection guards which cost about R38 516 in two days, Sunday Independent reported.
The newspaper further reported that from April 19 to 25 (2009), Mthethwa and two guards stayed at the same hotel at the cost of R89 007. It said The Hilton bill was double what Mthethwa cost taxpayers during his stay at a five star hotel in Cape Townat the time his house was renovated earlier that year.
Mthethwa told the newspaper that he was doing government work although he could not explain why he stayed at one of the “most expensive hotels inDurban”. When confronted with the R234 000 bill for his stay at the luxurious Table Bay Hotel, Mthethwa said he did not know the hotel cost that much. His spokesperson at the time, Zweli Mnisi, told the newspaper that “as soon as the issue of the hotel costs was brought to the attention of the minister, he instructed a senior official to conduct a full investigation into the matter.
Mnisi released a statement following the newspaper questions saying:
“All these were official programmes aimed at engaging local stakeholders in the fight against crime, which included consultation with local authorities as part of preparation for the elections.
The programme entailed conducting roadshows, meeting with the local stakeholders involved in the crime fighting initiatives. These included communities, local policing structures, leaders of political parties as well as traditional leaders. These roadshows would, at times, be conducted with other national and provincial government leaders who form part of the government’s security cluster.”
Sunday Times broke the law?
This is not the first time Sunday Times has reported on a confidential report compiled after it was investigated by Madonsela. It is in fact the second time. Madonsela – expressing her ‘disappointment’ with the Sunday Times reporting on the confidential report not made public by her – also conceded that “this is the second time in less than a month that the newspaper in question publishes information contained in a confidential report”.
Last month, on 19 June, Sunday Times also reported on a leaked Public Protector’s “provisional and confidential” report saying it was critical of Police Commissioner Bheki Cele over the lease deals before it was even officially released and made public by Madonsela herself. It was only last week Thursday that the reported leaked report to and reported by Sunday Times was released by Madonsela.
At the time of the leaked provisional and confidential report last month Madonsela had refused to comment and answer the newspaper questions saying it was “supposed to be confidential until the final report is released”. The protector said she was “saddened that the leaking and publishing of confidential information relating to her ongoing investigations is becoming a trend despite previous appeals to the media not to publish such details”. She condemned “in the strongest of terms the conduct of the [Sunday Times] newspaper…”
In addition to a planned meeting with the South African National Editors’ Forum, Madonsela said in a statement on Sunday that an “urgent” meeting with the newspaper “will be sought with a view to establish why the newspaper continues to act unethically and in breach of the law”. She said Section 7(2) of the Public Protector Act 23 of 1994 outlawed the “disclosure of the contents of documents such as provisional reports as such documents are part of investigations and therefore not for public consumption”.
Madonsela reiterated that the “publishing of leaked provisional reports undermines justice, fairness and the integrity of her investigations” and that “it also has the potential to strain relations between her office and some of its stakeholders, some of whom are at times the subject of investigations”. She said in a statement issued by Kgalalelo Masibi, a Senior Manager: Outreach, Education and Communications in the Public Protector office and appealed to other media houses “not to publish details of the document in question”.
Last month, in one of my blog posts, I have raised the same “ethical” question too. And I now feel vindicated by Madonsela’s statement regarding Sunday Times’ publication of the Against The Rules Too report. Titled “Did Sunday Times act ‘ethically’ in publishing “Against The Rules Too” report?” I asked whether or not the newspaper’s publication of the provisional and confidential protector report was “unethical”.
That Madonsela sought an “urgent” meeting with newspaper to establish whether or not it acted “unethically and in breach of the law” when it published a confidential report which it said was in its possession confirmed what I said in my blog post that “despite the great respect I have for Press and Media Freedom – I, however, felt and still do feel that Sunday Times’ publication of “Against the Rules Too” was unethical as the report was, you could say, ‘sub juce’ or that it was still to be considered and that subjects thereof were still to comment on what had been found”, I wrote in my Facebook Notes a few days before”. My comments came after a response to the above statement that the report “was a legit scoop, published on the basis of overwhelming public interest. The compelling argument for immediacy is in the clear pressure and threats exerted on officials and senior civil servants to sign off on these dodgy deals”.
“We also have to ask ourselves, too, whether it really was necessary that contents of such a report be made available, whether publication thereof was in the public interest and not against the law and whether that was ethical and in line Press Council standards.
But most importantly we need to ask whether publication of the report – whatever it wanted to achieve when it was published at the time – strengthens supporters of Media Appeals Tribunal and Information Bill as Mail & Guardian Editor, Nic Dawes thought the SABC’s continued denial to publish its apology to the newspaper did which he said “could threaten the system of statutory self-regulation in the broadcast sector”.
I now feel vindicated that the Public Protector realised that Sunday Times may have acted unethically and unlawful in publishing its “provisional and confidential” report on the SAPS lease deals which she had not released nor made public and just about a month after I raised the same issue last month.