Appeal Hearing Decision: Zibele Limani vs Daily Dispatch


Wed, May 2, 2018

Before the South African Press Appeal Panel

 

In the matter between:

                                                                                                Matter No: 3608/12/2017                                                                             

 

Zibele Limani                                                                                      Appellant

and

Daily Dispatch                                                                                     Respondent

 

                                           

                                                 Decision

Background

Mr Zibele Limani (“the appellant”), at the time the article was published on the 29th of November 2017 by the respondent, was the acting spokesperson of the King Sabata Dalindyebo (KSD) local municipality. Being aggrieved by the contents of the article, the appellant lodged a complaint with the Press Council against the Daily Dispatch (“the respondent”). The Press Ombud found, on the facts of this case, that the Press Code was not breached  but went on to direct the respondent to give the appellant a right of reply of not more than 400 words on condition that the newspaper would not be accused of unethical reportage in the reply. The findings and sanction did not appease the appellant who requested that the matter be referred to the Appeal Panel. Leave to appeal was granted and the matter was heard by a Panel comprising Judge B Ngoepe, Professor K Govender and Mr F Groenewald on the 10th of April 2018.  This is the unanimous reasoned decision of the Appeal Panel.

The Complaint

In essence, the appellant contended that the journalist, Mr S Ntshobane, misquoted him when he reported that: “KSD has denied blocking the accounts, and Limani yesterday blamed a ‘glitch’ in the system” and further argued that the reference to KSD as “cash-strapped” was mischievous. The appellant wanted a retraction and apology as a remedy.  The respondent stood by the accuracy of the article and contended that it had accurately reported what had transpired between Mr S Ntshobane, and the appellant.

It is worth mentioning that the Appeal Panel had the advantage of hearing the parties and debating the issues with them.  Our conclusion is based, in part, on information obtained at the hearing.

Brief description of the article.

In the article, it is reported that residents were ambushed when KSD prevented some 3600 residents from purchasing electricity. It quotes a DA Councillor who stated that KSD had taken a resolution to initiate a blockage system on accounts that were in arrears. It appeared from the article that a UDM councillor, Mr M Gogo, denied that there was a council resolution to block the accounts that were in arrears. Some residents who were in arrears but who had made arrangements to have their debts settled through periodic payments also had their accounts blocked thus preventing them from purchasing electricity. It was not disputed that these residents should not have had their accounts blocked.

In the 6th paragraph of the article the following is stated:

“KDS has denied blocking accounts, and acting municipal spokesman, Zibele Limani yesterday blamed a ‘glitch’ in the system”.

Later in the article, the appellant is quoted as urging “affected ratepayers to approach the municipality’s finance department with proof that they were paying their outstanding debts”. Mr Limani went on to state “we could not anticipate that this (blockage of accounts) would happen when we updated the system.”

 

Analysis of the arguments.

It was conceded by the respondent that the statement that KSD had denied blocking accounts was factually inaccurate. It is clear that the municipality accepted that the accounts had been blocked and in fact urged the affected residents to approach the finance department to resolve the issue. The respondent acknowledged that this sentence should have read “KSD denied deliberately blocking accounts…”

However the appellant was aggrieved by the use of the word “glitch.” Mr Ntshobane readily acknowledged that it was he and not the appellant that had used the word. He also stated that during the interview he repeatedly used this word and that the appellant neither distanced nor disassociated himself from the word “glitch” being used to describe what had happened. It appears that KSD has the legal authority to block the accounts of residents who are in arrears but it did not intend to block the accounts of those whose accounts were in arrears but who had made satisfactory arrangements with them to settle their outstanding debts.  It seems that the late updating of the accounts of these persons by KSD caused these residents to unjustifiably have their accounts blocked. Had KSD employees timeously updated the accounts then this might not have happened. Thus objectively a glitch in the system that KSD used and operated through its employees resulted in these residents unjustifiably having their accounts blocked. It appears to us that while the appellant had not used the word “glitch” in the interview, he impliedly acquiesced to the use of the word. More importantly, it was a glitch in the system as operated that unjustifiably caused some residents to have their accounts blocked and it was thus permissible for the reporter to refer to a glitch in the system. We are of the view that the appellant’s complaint in this regard cannot be upheld. We will return to a related point later in the ruling.

The appellant also took issue with the description of the KSD as being “cash strapped”. He argued that he had timeously received his salary every month and referred to an article reporting that the Mthatha stadium had been upgraded at a cost of R 10 million rand to KSD. However the respondent referred to instances when the mayor and other councillors had referred to the indebtedness of the municipality and this was reported in the Daily Dispatch. The article in question also referred to KSD being owed over R 300 million rand by residents. The respondent also referred to the quarterly report of the municipality for the 2016-2017 financial year in which it acknowledged that it owed R80 million to its service providers. Thus it is not disputed that KSD was owed a significant amount of money and owed its creditors a large amount. The appellant acknowledged that these debts still exist but argued that KSD has made arrangements to settle these debts over a period of time. In cannot be correct that, because money had been allocated to refurbish the stadium and that salaries of employees are paid timeously, any reference to KSD as “cash strapped” is malicious. Having assessed the various factors pointing to the indebtedness of the KSD holistically, we are of the view that there is a reasonable basis for the respondent to describe the municipality as cash strapped. The appellant’s complaint in this regard is also rejected.       

The appellant also contended that not having a recorded version of the interview “smacks of mischief.” Mr Ntshobane took notes of his conversation with the appellant and made this available. The contents of the notes corroborate parts of the version of the respondent.  There is no basis on the evidence to suggest that the interview was deliberately not recorded in order to maliciously misrepresent the position.  In all probability, Mr Ntshobane formed the view that there would be no need to electronically record the interview and felt that his hand written contemporaneous record of the interview would suffice.  It is our view that it was not unreasonable for him to have formed such a view.

There is, however, an aspect of the article that has caused us concern.  A proper reading of the article suggests that a glitch in the system was the cause of the blocking of the accounts of all the residents who were in arrears with their payments. In other words, it suggests that the blocking of all the accounts was as a result of the glitch and was not as a result of a conscious decision on the part of KSD to block the accounts of some of the residents who had not made satisfactory arrangements to settle their arrears. What is apparent from the information before us is that there was a clear intent on the part of KSD to block the accounts of those residents who were in arrears and who had not made satisfactory arrangements to pay their outstanding debts.

The direct quotes attributed to the appellant appear to us to suggest that he intended to convey that a distinction was in fact drawn between those residents who were in arrears but who had not made arrangements to pay their debts and those who were in arrears and who had made satisfactory arrangements to pay. He only invited the latter category to visit the finance department with proof that they were paying their outstanding debts. Implicit in this was the suggestion that if proof that they were paying their outstanding debts was forthcoming, their accounts would be unblocked. The fact that the other residents whose accounts were blocked were not invited to do the same suggests that their accounts were deliberately and consciously blocked.

Mr Ntshobane acknowledged that he was unclear as to how the system worked and this may have contributed to the incorrect impression created. It was also incorrect to have reported that KSD denied blocking accounts and this factual inaccuracy contributed to the incorrect impression being created. Mr Ntshobane ought to have been alive to the distinction drawn by the comments made by the appellant and by the comments made by Mr Knock that a resolution had been taken to block accounts. It may be that the appellant could have been clearer and more explicit in his responses but we are of the view that the Mr Ntshobane must shoulder the bulk of the responsibility for the incorrect impression created in the article.  The incorrect impression that all the accounts of residents who were in arrears were blocked as a result of a glitch in the system cast KSD in a more unfavourable light than would have been the case if the events were accurately reported.  We are of the view that there were errors in the article and that an inaccurate impression had been created.  Had Mr Ntshobane taken more care, the incorrect impression that was created might have been avoided. As a consequence we are of the view that the respondent breached clause 1.1 of the Press Code in that it failed to take care to report the news accurately. While avoidable errors were made and an incorrect impression created as a consequence, we are of the view that Mr Ntshobane was not malicious. The appellant’s assertions suggesting some mischievous intent on the part of the respondent is unfounded.  

In the circumstances the following order is made:

Order:

1.      The appeal succeeds in part as the respondent is found to have breached article 1.1 of the Press Code.

2.      The respondent is directed to issue an apology for the inaccuracy in the article.

3.      In drawing up the apology, the respondent is to have regard to the comments made in our decision and the statements made in the e-mail sent by the appellant to the respondent dated 29th of November 2017.

4.      The respondent must, within 5 days of receipt of this Order, email a copy of the draft apology to the appellant and to the Director of the Press Council.

5.      Within 3 days of receipt of the draft apology, the appellant must submit its comments, if any, to the respondent and the Director of the Press Council.

6.      Within 5 days after the 3 days referred to in paragraph 5 above, the Director will, in the event the parties do not agree thereon, immediately determine the final version to be published and inform the parties accordingly.

7.      The date for the publication of the apology will be determined by the Director, and shall enjoy the same prominence as the story complained about.

Dated this 28th day of April 2018

Judge B M Ngoepe, Chair, Appeals Panel

Prof K Govender, Member, Public Representative

My F Groenewald, Member, Media Representative.