Sunday Times and me

Michelle Solomon

It was just past midday on a Friday, 1 April 2011, when I saw the suit-clad security guard. I told him who I was there to see. "Where are you from?" he asked. I could have done without the sneer, I thought.

"I am here in my private capacity," I told the guard. "I have to make a personal delivery."

As he picked up the phone to call the Powers that Be, he indicated to a gathering of black leather couches on the far side of the foyer. The couches had seen better days, but I took my seat and watched the procession of journalists and businesspeople walking to and from the stainless steel turnstiles.

I opened the envelope I had been clutching and pulled out the wad of documents. I carefully scanned each page for my signature, and then I counted the money. It was all there. I put every page and banknote individually back into the envelope and sealed it. I realised then that it had gotten a bit dirty on the way, and suddenly wished I had bought a spare. I looked up and saw a man of average height with dark hair and glasses scanning the lobby for someone. It was my cue.

Only one of us knew what to do

I greeted Howard Benatar with a firm handshake, and though we had only spoken once before about a month ago, we both knew why I was there, though only one of us knew what to do.

Benatar is chief financial officer of Avusa Limited, and I was serving him with his first Promotion of Access to Information Act application. We made the exchange, but not before Benatar checked each individual page of the document and counted every banknote of my application fee, and signed an acknowledgement of receipt.

As he folded the envelope closed, just as I had five minutes before, he admitted it was his first PAIA application. "I didn't even know I was the information officer until you called me," he chuckled. The Promotion of Access to Information Act, signed into law in 2000, required that public institutions and private companies appoint an information officer responsible for any access to information protocols in line with the Act.

Benatar asked me what exactly it was that I was looking for.

"The Sunday Times report document of 2008. The report that was never published."

System gatekeeping and policy failures

The report is said to detail the systemic gatekeeping and policy failures of the Sunday Times newsroom, and was completed in December 2008. This was according to a source who had informed me about the existence of the document earlier in March this year. A quick web search did not yield the report.

What I did find was an "executive summary" of the report that was published on the TimesLIVE website in December 2008.

According to the summary, various problems in the Sunday Times newsroom were the apparent root cause of inaccuracies that saw the weekly paper forced to make some embarrassing high-profile story retractions in 2007 and 2008.

It was after these retractions that Avusa Limited and Sunday Times management called for an independent panel to investigate. This panel was constituted by former Mail & Guardian editor Anton Harber, Mail & Guardian ombudsman and Press Council judge Franz Kruger, media lawyer Dario Milo, and Inter Press Service African regional director and Fray Intermedia founder Paula Fray.

Long list of recommendations for reform

The four spent September through November of 2008 investigating the Sunday Times newsroom and interviewing staff, and in December presented Avusa with a report of their findings, as well as an apparently long list of recommendations for reform in the newsroom. One of these recommendations, according to my source, was that the report be publicly distributed.

My interest now piqued, I called the Avusa switchboard and asked various staffers for the document. At first the existence of the document was denied. Only later was the report's existence acknowledged, as well as what became Avusa's catch-phrase in my dealings with them: "But it was not publicly distributed."

Bafflingly, the report was, and continues to be, buried by Sunday Times and Avusa staff. The only document publicly distributed the allegedly sanitised executive summary of 900 words.

Again I contacted Harber, and asked him why the document was not distributed by the panellists. He said the four had signed a confidentiality agreement prior to starting their investigation. I asked him if he felt the recommendations for reform made by the panel were implemented at the Sunday Times, and he said he was "disappointed" to note that rather few of them had been taken up. "We gave them a useful set of tools to use and they missed the opportunity [to improve]," Harber said on Monday.

"Frustrated" by Avusa management's decision"

He also told me he was "frustrated" by Avusa management's decision to withhold the 2008 report from public debate.

"The Sunday Times should be setting an example for the kind of openness and public accountability they expect from others," Harber said, and added Avusa was "being silly" by refusing to release the 2008 report. "They are being hypocritical, and drawing more attention to the report than it would otherwise have received if they had just released it."

When I contacted Milo, however, he said it was Avusa's decision whether or not the company publish the document. He felt that since it was the company that called for investigation in the first place, publication was their call. Milo added he was not in a position to comment on the matter, since he often represented the company in their legal battles.

The remaining two panellists, Kruger and Fray, either referred comments to Harber, or were unavailable for comment.

Insisted all were implemented

This week, Avusa Limited MD Mike Robertson claimed "all of the recommendations of the committee were implemented", but referred detailed queries to Avusa editor-in-chief Mondli Makhanya. Makhanya was the editor of the Sunday Times at the time of the 2007/8 story retractions and subsequent investigation by the independent panel in 2008, and insisted all of the recommendations made by the panel (and which were in the executive summary) were implemented at the Sunday Times.

The list of recommendations in the executive summary does not include the panel's recommendation that the 2008 report document be publicly distributed, however. "How many of the panel's other recommendations were excluded from the executive summary?" I asked Makhanya. And how many recommendations did the Sunday Times staff not only fail to implement, but actively counter?

I asked Makhanya why Avusa did not release the report document in 2008, and why the company was obstinate about releasing it now. He said: "It's not like we are trying to be all cloak and dagger about it [the report].

"We felt it would be better [to withhold the report] in terms of affecting the findings internally," Makhanya said, before adding: "And it was never meant to be a public document".

Express intention of it being published

Report panellist Harber insisted in prior conversation with me that the document was compiled by the panellists with the express intention of it being published. I put this to Makhanya, who refuted Harber's claim and said the panellists only "encouraged" Avusa to make public the 2008 report.

"It was our [Avusa's] document that we were going to use to fix a problem we had as an organisation... For the sake of fixing what need to be fixed internally it was better that we do it the way we did it," Makhanya said.

"We could have been all glorious and said 'Let's air our dirty linen in public'... but a debate was going on in the Sunday Times, and it was not what we wanted to do," Makhanya added, and asserted that the "executive summary was published". I pointed out that the summary is only 900 words compared to the 88-page report document. A lot of "dirty linen" was never aired.

"But it is our dirty linen," Makhanya insisted.

"In their best interest"

He added: "I took a decision, along with my executive, that our primary task was to fix [problems] inside the organisation, and to publish the document would demoralise people even further. I am 100% accountable for that decision. As the leader of the people working at the Sunday Times at the time, I decided that this [withholding the report] was in their best interest."

During March, I made several informal requests to Avusa staff members for the document, including MD Mike Robertson. In March, Robertson described the buried Sunday Times report as an "internal document" and on Monday as "legally privileged", and as such he would not release it. He did not explain how the document was legally privileged, however.

I was also referred to Sunday Times deputy managing editor Susan Smuts, who similarly refused to release the report as it was considered "private".

In October 2007, Milo wrote that the "protection granted to private information evaporates, however, if the information relates to a matter of public interest". At the time, Milo was referring to the legal battle between the Sunday Times and then health minister Manto Tshabalala-Msimang, after the paper reported extensively on the minister's leaked private medical records.

Similarly

Media experts then argued that the invasion of privacy was in the public interest, as Tshabalala-Msimang was a "public figure" and the reports raised questions about whether she was able to perform her duties. Similarly, the 2008 Sunday Times report raises questions about whether the paper is able to report on the news "truthfully, accurately and fairly" as is required by the Press Code to which the paper purports to ascribe.

The Sunday Times employed this same public interest argument in 2010, when the Sunday Times reported the existence of a "love child" fathered by President Jacob Zuma. Constitutional law expert Pierre de Vos was quoted by Times LIVE as saying "the more you become a public figure and the more your actions have public consequences and are publicly important, the less you can demand to have your privacy protected."

Again, as the newspaper that boasts the largest readership in South Africa at more than four million, the Sunday Times is itself a "public figure" and it is in the public interest that the 2008 Sunday Times report document be released.

Milo continued in 2007: "Our constitutional commitment to democracy requires that issues such as hypocrisy on the part of public officials be properly ventilated and debated. A politician who does not practice what he or she preaches should be held to account to the public, provided always that the media has a reasonable basis for believing the truth of the allegations."

Additional and worrying hypocrisy

In the case of the Sunday Times report, an additional and worrying hypocrisy needs to be "properly ventilated" - Smuts, deputy managing editor at the Sunday Times, would not release the 2008 report, and also sits on the Press Council's Appeal Panel. According to the council's constitution, it and the appeals panel are supposed to "promote and to develop excellence in journalistic practice and ethics", as well as the "adoption of and adherence to those standards of practice and ethics".

When asked about Smut's role as a Appeals Panel member and her subsequent refusal to release the 2008 report document, Harber described Smuts' actions as "hypocritical", but added: "She may just be following orders [from Avusa management]". Smuts was unavailable for comment this week.

In March, Makhanya spoke at the Regulations and Rights conference at the University of the Witwatersrand, and agreed with former Constitutional Court Judge Kate O'Regan in her assertion that the (South African) media needed to be reflexive. "Our duty is to be noisy, but with that comes the responsibility of being truthful and fair," Makhanya said at the conference, which focused on interrogating the rights and responsibilities of African media.

Following the refusals to release the Sunday Times report document to me, I was forced to submit a PAIA application to Avusa Limited. As Avusa is a private company, I am required to argue that the document must be released to protect or exercise my Constitutional rights. In an unfortunate irony, I found myself arguing that Avusa's continued secrecy and refusal to release the 2008 report infringes on my right to freedom of expression and access to information.

I delivered the PAIA application

So, on 1 April I delivered the PAIA application to Howard Benatar, Avusa Limited's information officer.

At the time of writing this, I have yet to receive a response from Avusa regarding my application. According to the Promotion of Access to Information Act, Avusa has 30 days to release the document, refuse my application, or ask for an extension.

These days, the South African media faces the twin evils of the proposed media appeals tribunal and the Protection of Information Bill, and it has been pointed out to me by fellow journalists that by pursuing the release of the 2008 report from the Sunday Times, I may be providing more weaponry for the ANC in their pro-state media regulation debate.

But, while this may be true, I find the burial of the report document unconscionable. Every day that I sit and do nothing about this report, I am complicit in the underhanded and ill-conceived actions of the Sunday Times and Avusa, as well as the resulting denial of media accountability and transparency. How can we hope to fight this onslaught if respected media houses like Avusa are too afraid to air their own shortcomings in public?

Undermine credibility of the paper

The Sunday Times and Avusa have forgotten that the Sunday Times is a newspaper and brand of posterity, and their actions undermine not only the present but also the future credibility of the paper. They are merely the current guardians and custodians of that brand.

The Sunday Times and Avusa's lack of commitment to the cause of truth and accuracy is shameful. Isn't it true that we should be a fearless breed that serves the truth and people of this battered country and no-one else? That we should never cease in our commitment and that, not unlike The New York Times in the infamous Jayson Blair case, we feel duty bound to admit our mistakes, when they inevitably happen?

Call me an idealist, but I say "yes".

DISCLOSURE: In 2010 Michelle Solomon worked for the Daily Dispatch, an Avusa-owned title, as a junior reporter and resident consumer journalist. The newspaper is based in East London. She left the paper in January this year after she was awarded a scholarship to pursue her Masters at Rhodes University.

* Originally published on The Daily Maverick on 7 April 2011. Please see comments there.