Finding Complaint 8208
Date of article: 24 June 2020
Headline: Restaurantwerkers sukkel om kop bo water te hou
Author: Danie Keet
Online: Yes
Particulars
This finding is based on written submissions by Ms Megan Ross, an attorney from Nicqui Galaktiou Inc, representing Ms Bezuidenhout, and written responses from the publisher of the Stellenbosch News, Mr Johan Pienaar.
Complaint
Ms Corlandi Bezuidenhout, who runs a restaurant and coffee shop in Stellenbosch, known as Meraki, complains through her attorneys about an article in Stellenbosch News headlined “Restaurantwerkers sukkel om kop bo water te hou.” She complains that the article, about how the lockdown regulations had affected various restaurants and their workers in Stellenbosch, failed to give her a proper right of reply and to give her adequate time to do so. It reported, among other things, that workers from her restaurant were “stief behandel”, on the apparently difficult relationship she had with her then landlord, and that five of her workers who spoke to the publication had not heard from her since the closure of the restaurant in March.
Her legal representative, Ms Megan Ross, filed a lengthy complaint referencing two complainants, Ms Bezuidenhout as the first complainant and her business, Kookhuijs (Pty) Ltd t/a Meraki, as the second.
Ms Ross submitted an enormous amount of documentation – in total, including annexures and the publication’s response, there were 120 pages.
I have tried to write this finding in clear language and refer, in the main, to Ms Bezuidenhout, who is the first complainant, as she is the person who was referenced in the story and who felt her rights were transgressed. The second complainant is her restaurant, Meraki.
Specifically, she complains that the following clauses of the Press Code were transgressed:
The media shall:
1.2 present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;
1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such;
1.7 verify the accuracy of doubtful information, if practicable; if not, this shall be stated;
1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;
1. The text
1.2 The intro states: “Although several restaurants in Stellenbosch have suffered and are facing closure, there are also those that have begun doing business again especially during Level 3 lockdown regulations.”
1.3 It goes on to note that most restaurants had made agreements with sympathetic landlords, which had helped bring them through this economic crisis.
“Unfortunately it is also the case that breakdowns in management and communications between restaurant owners and employees have left a bitter taste.”
1.4 It reports that employees from Meraki [the restaurant that was run by Ms Bezuidenhout], which it describes “as one of the most popular coffee shops in Stellenbosch”, have complained about being harshly treated (“stief behandel”), and have not been kept up to date with developments by the owner, Ms Bezuidenhout.
1.5 It reports that five employees who were willing to talk to Stellenbosch News said they had not heard from the restaurant owner since the shutdown in March.
“They” are quoted as saying: “On the day of the shutdown we each received a plastic bag with groceries and that was that.” They also alleged (“beweer”) that their unemployment insurance forms of their service period of approximately five years were not properly completed and thus they had had no payments from the fund.
1.6 The article quotes someone named only as “Carly”, who worked as a waitress in the restaurant, saying: “On the forms it was written that we had only four months of service…but we’ve worked here more than five years.” She says as far as she knows three other employees received pay-outs from the UIF “but we others have received nothing yet (maar ons ander het nog niks gekry nie).”
1.7 The story refers to a “statement” Bezuidenhout had released where she blamed the landlord, Paulo Sandri, for his stubborn demand (“hardnekkig eis”) that she must pay the full monthly rental. She also said that he had demanded at least half the rental (during the lockdown) while he had kept back four months’ rental as a deposit. She said she had negotiated with him over rental fees, escalating deposits and rentals for years. (“verhuringsfooie, toenemende deposito’s en huurgelde.” )
1.8 It then refers to an earlier statement from Mr Sandri, the owner of the building where Meraki was situated, about reaching an agreement with his tenants so that they could survive the pandemic.
It quotes him saying among other things that with the national lockdown on 19 March he had told his tenants that he would give them rental relief “during this difficult time”. He offered a 50% rebate on rentals during April and May and a 30% reduction in June and July.
“Meraki was one of the shops that accepted my offer and we also offered qualifying tenants the option to take back one third of their deposits in the meantime.” (“die opsie gebied on ’n derde van hul deposito’s tydelik terug te ontvang.”)
1.9 He also said that he had been in a legal dispute with this tenant (Meraki) over three months’ outstanding rentals worth about R100 000 since July 2019.
“We tried to avoid legal action but our attempts to get the necessary response from her were in vain.”
He expressed his misgivings about her campaign on social media to defend herself.
1.10 It then cites Bezuidenhout saying she was looking at various opportunities to establish Meraki at another site in town. “Until then, there are no separation packages for the staff offered, because we are hoping to find a place where we can re-open in terms of the emergency regulations.
“We are doing everything in our power to accommodate the staff and we followed all the guidelines before the emergency regulations were announced, so that they could get UIF.
“There is huge dissatisfaction over the UIF claims. Some of our staff’s payments were made and others, which met the same criteria, remain unpaid. I’ve now called in professional help but no one can throw light on this, Six out of the 14 of Meraki’s staff had been paid UIF. All the contributions due by the employer over the service period were paid, and I circulated an auditor’s report that confirmed this to the staff. Notwithstanding regular inquiries to the UIF office, they remained unanswered. There are several business in Stellenbosch that are in the same difficulty and we, as restaurateurs are pushing as hard as possible for a solution.”
She says the auditor’s certificate shows that all payments over the years were made correctly to the unemployment fund and she had fulfilled her duty in this respect.
“I have personally on various occasions made inquiries to the fund about the ten workers who have applied and not yet been paid. The answer that comes back every time is that it’s “in process”. My auditor from Somerset West also followed up, without success. Meraki's staff is apparently one of the many restaurants in the Western Cape whose staff are paid piecemeal (‘stuk-stuk’) by the Unemployment Insurance Fund, for no apparent reason.”
1.11 She says this situation – where only six of her 14 workers have been paid – is “heartbreaking…notwithstanding our persistent attempts…
1.12 Meanwhile, says the article, Bezuidenhout had begun a crowd-funding project to collect money. In the past weeks more than R37 000 was collected but no payments were made to workers. “Until today the ‘crowd-funding’ funds have not been paid over to me,” she said in response.
She is further quoted as saying she’d personally paid for food parcels and delivered them to 38 staff members, valued at about R1 000 each.
1.13 It then quotes Bertus Basson described as a “well-known restaurant-owner in Stellenbosch saying it was time for restaurant owners and building owners to stand together to save each other during this difficult time.”
2. The Arguments
Ms Megan Ross for Ms Bezuidenhout
2.1 Ms Megan Ross, takes issue with several aspects of the article.
2.2. She contended that not all allegations were put to Ms Bezuidenhout for comment. In support of this she provides details of the email exchange between her and Mr Keet, the reporter, that preceded the article.
2.3 On 11 June, a few minutes before 3pm, Mr Keet emailed Ms Bezuidenhout telling her he had tried to phone her a few times but could not get hold of her.
I translate and summarize the questions he put to her:
<>1.2.3.4.5.6.·······················Ms Bezuidenhout was also not given an opportunity to respond to the allegations made by those described as her workers, quoted as saying: “On the day of the closure we were each given a plastic bag with groceries and that was that. They also alleged that their unemployment insurance forms of their service period of approximately five years were not properly completed and thus they have had no payments from the fund.”
2.9 She argues that apart from being “factually incorrect”, these statements were not put to her for comment. Ms Bezuidenhout “was obliged to terminate business operations” because of the emergency regulations pertaining to the pandemic promulgated on 26 March 2020. The food parcels were not delivered on that date – they were personally delivered by her on 24 April and 30 April to staff members at their residences.
The lawyers have attached photographs to show this.
2.10 They also quote (and provide a picture) of her employee Carlyn (named as “Carley” in the article) who sent a WhatsApp message to Ms Bezuidenhout saying (translated): “Again many thanks. I really appreciate it. I didn’t think it (the parcel) was so good.”
2.11 They argue that Ms Bezuidenhout asked Mr Keet for copies of the incorrect UIF documents, which were not provided.
2.12 Thus the allegation that workers received food parcels on the day of closure and that their service of five years was not properly reflected in the UIF documents was not “truthful, accurate, or fair”, nor presented in context.
2.13 She also complains about parts of the article that reference the landlord Pauli Sandri. It cites him as saying that he had come to an agreement with tenants so they could survive the pandemic and lockdown; moreover tenants had been given a 50% reduction in their rentals in April and May and 30% in June and July.
“Meraki was one of the shops that accepted my offer and we also offered qualifying tenants the option to take back one third of their deposits in the meantime.”
He also is quoted as saying that since July 2019, he had been in a legal battle over three months outstanding rental valued at more than R100 000.
He says he took steps to resolve the dispute “but our attempts to get the necessary reaction from her were in vain.”
He also expressed his misgivings about her campaign on social media.
2.14 Ms Bezuidenhout’s lawyers argue that she was not given an opportunity to respond to Mr Sandri’s allegations. Had the reporter done so, he would have been informed that there were “multiple disputes” that arose between her and the landlord between July 2019 and May 2020.
The essence of these were:
2.15 The “substantial correspondence” between the restaurant’s attorneys and the landlord could have been made available to Mr Keet.
2.16 In February 2020, almost six months after the new lease agreement had been concluded, the landlord demanded payment of legal costs from Ms Bezuidenhout’s business of some R65 000 and R67 000 “to enforce the rights of the landlord” for lease agreements that came to an end in July 2019.
The landlord “unilaterally” then, without court authority, “applied self-help and set these legal expenses off against the deposits” he held. Ms Bezuidenhout objected to this in writing, saying it was contrary to the rule of law.
2.17 There were a number of disputes between the landlord and the restaurant at the time including:
2.18 This was the background against which Mr Sandri told the newspaper that he had tried to compromise with the tenant “om hulle tegemoet te kom.”
2.19 There was an initial 50% reduction in rental in April and May, and Ms Bezuidenhout paid.
On 20 April, Mr Sandri said the landlord was willing to give only a 30% rental reduction (but this was not actually a reduction as the rental was made up of 70% from the tenant and 30% against the deposit held) for the month of June 2020. She was also told that it would be expected to supplement the deposit amount by 1 December 2020.
Far from being an “indulgence”, this was a “flagrant disregard of the legal position that during the lockdown period” when a business could not operate no rental could be lawfully collected by the landlord. As a consequence of this “unreasonable and confusing demand”, and the fact that the landlord had “self-appropriated” the deposits, Ms Bezuidenhout decided to vacate the premises.
2.20 Thus the article published “defamatory and scurrilous” allegations against Ms Bezuidenhout and her business based on the information of Mr Sandri, including that there was a dispute about an outstanding rental of R100 000. This is untrue and she was not given a chance to respond to them.
2.21 In respect of the paragraph that reports that although R37 000 had been raised through a “crowd-funding” project, no workers had got pay-outs: the article cannot “conclude that Ms Bezuidenhout collected R37 000 from a crowd-funding project but failed to make any payments to staff”. They say the reporter, Mr Keet was “expressly informed” that 32 (sic; in fact she said 38) staff members received food parcels valued at around R1 000 each which she personally funded.
2.22 The second paragraph, which reports that most of the restaurants had come to agreements “with sympathetic landlords”, was also opinion and not truthful or accurate or contextual. “It created the impression” that the landlord Paulo Sandri was “sympathetic”, and that while most restaurants concluded the agreements with the landlord, the Second Complainant [Ms Bezuidenhout’s business] failed to do so.”
2.23 The third paragraph that says that “unfortunately” there is also a breakdown in communication between restaurant owners and employees that has left a “bitter taste”. This was not truthful, and contained opinion: “It created the impression that the Complainants applied deficient management and communication practices.”
2.24 In conclusion, Ms Bezuidenhout’s attorneys say the newspaper had a responsibility to “verify the facts” and take into consideration “available and critical information.” This verification could have been done “had Mr Keet engaged with the Complainants properly and afforded them a right of reply relevant to the content of the offending article..”
Mr Keet failed to provide Ms Bezuidenhout and her business a reasonable time to respond to requests for answers, giving her just a few hours to answer questions when in fact the article was published only 13 days later.
The reporter failed to provide Ms Bezuidenhout with “sufficient detail” so they could be afforded the opportunity to answer all the allegations published. Had she been afforded such an opportunity, “there would at least have been balanced and factual correct reporting.”
2.25 The legal representatives for Ms Bezuidenhout and her business ask for the article to be removed from the website and all other social media platforms; alternatively that the publication publish an apology and correction.
Mr Johan Pienaar for Stellenbosch News
2.26 In response, Mr Pienaar, the publisher of Stellenbosch News, sets out to explain the context of the story, to argue why the complaint should be dismissed, and to propose an amicable solution to the dispute.
2.27 He says on 9 May, 2020, Ms Bezuidenhout posted on her Facebook page announcing the closure of Meraki, blaming trading conditions and “a yearlong bullying battle with my landlord”.
2.28 The newspaper followed up on this and contacted the landlord “who then provided proof that he had indeed been more lenient with tenants.”
He says they contacted Ms Bezuidenhout via email and WhatsApp for a response “but none was received”.
2.29 The article that was subsequently published under the headline: “Eiendomseienaars, huurders – help mekaar in pandemie” on 15 May did not specifically mention Meraki as the newspaper had not received comment from Ms Bezuidenhout. “We noted in this article that we approached Ms Bezuidenhout for commentary on several occasions, identifying her only as the owner of a coffee shop and [said] that we will add commentary when we received such.”
2.30 Mr Pienaar then references two other articles – one by Netwerk24 (29/5/2020), the other by Maroela Media (8/6/20), which published Ms Bezuidenhout’s comments posted on Facebook about the landlord without obtaining comment from Mr Sandri. In the Maroela Media piece “Mr Sandri was painted as the villain but no comment was sought from him.”
2.31 Between 15 May 2020 (when the first article in Stellenbosch News was published) and 8 June 2020 the newspaper tried to contact Ms Bezuidenhout for a comment on the original article but received no response.
2.32 Because of the articles mentioned above, the newspaper decided to follow up on its original story (published on 15 May) on 11 June, “given the facts in our possession.” Ms Bezuidenhout had been informed about the original article “on several occasions” when she was approached for comment on 11 June, “this time with a deadline.”
Ms Bezuidenhout’s response was received too late for publication on 11 June “and in an abundance of caution” it decided to postpone publication.
Ms Bezuidenhout was aware of the delay in publication when the newspaper approached her again for comment on 17 June.
2.33 The follow-up to the story was then published on 24 June “ventilating both sides of the issue”.
The next response the newspaper received was this complaint to the Ombudsman, which contained “a number of statements that had not been communicated to us before or after publication of either article.”
2.34 Referring to the emailed questions provided by the complainant, Mr Pienaar says the description of questions asked “is incomplete.” In fact, questions were also raised about the payments of UIF, the crowdfunding project, and the rental issues. Also, it was not “the first request for answers” as the paper had contacted Ms Bezuidenhout for comment before this “and our requests were ignored.”
2.35 The fact that the article was published only on 24 June, rather than 11 June, when Ms Bezuidenhout’s response was sought, was because she responded only after their daily deadline. Having not received the comment “we pulled the article” rather than publish it without. There are only two people on the editorial staff and thus the story could only be picked up again on 24 June after other publications had picked it up. They also posed follow-up questions to Ms Bezuidenhout on 17 June to clarify certain issues.
2.36 They argue the paragraphs Ms Bezuidenhout has identified as transgressing the Press Code do not reflect her response, which the newspaper obtained and reflected.
In terms of the charge that the newspaper did not verify facts or allegations and did not put all the allegations to her for a right of reply, the newspaper said it believes it acted “responsibly” and “ethically” and stands by its article.
2.37 In terms of the complaint that the newspaper reported that workers complained they were “stief behandel”, Mr Pienaar says it was clear that the article reported allegations and complaints made by Meraki employees. “Ms Bezuidenhout was free to respond to the question by Mr Keet as to how she is assisting the employees, by stating that she is in contact with them on a continuous basis. Nonetheless her comment they will do everything to accommodate their employees was reported in the article.”
There was no “conclusion” that workers were treated harshly. This was what workers complained about and the comments of Ms Bezuidenhout were published in the article.
2.38 The quotes from her workers that Ms Bezuidenhout complains of saying they had each received a bag of groceries and “that was that” reflect the “substance of the complaints in the employer’s (sic – I assume they mean employees’) own words.” Ms Bezuidenhout’s refutation of these allegations and her explanations were published. “We were happy to publish the explanations of Ms Bezuidenhout without documentary proof.”
2.39 On the money from the crowd-funding effort, “it is factually true by Ms Bezuidenhout’s own admission that the money…had not been received..” The paper reported that she had distributed food parcels worth “in her words” R38 000 to employees, and was reported as such.
2.40 On the complaint that Ms Bezuidenhout was not given a chance to respond to the statements attributed to Mr Paulo Sandri (the landlord): “Mr Keet in his numerous enquiries to Ms Bezuidenhout asked for comment on this article.” The complaint to the Ombudsman is the first time she commented on this matter. She also admits to this dispute in her own Facebook post which the newspaper understands is now the subject of a defamation claim. However, the newspaper has not published this assertion as it has no proof.
2.41 On whether there is a legal dispute between the landlord and Ms Bezuidenhout, it is clear that by her own statements there is a dispute “as reported in outstanding monies due or not due. Mr Sandri believes this amount is due and stated it as such on the record which we reported on.”
On the paragraph that “most of the restaurant owners had come to agreements with sympathetic landlords”, Mr Pienaar says it refers to all restaurants and owners in Stellenbosch, not only Ms Bezuidenhout and Mr Sandri.
2.42 The newspaper denies that it has transgressed the Press Code and asks for the complaint to be dismissed.
However, it says it is prepared to do a follow-up article “in the light of the information provided…limited to the issues reported on and where the complainant felt her response had not been adequately reported.” It cautions though that were she to make “any further allegation” against Mr Sandri “or her employees”, their response would be sought and published.
It was Ms Bezuidenhout who sought “to place this matter in the public domain”. Initially the newspaper did not name her and then postponed an article as it had not received a “timeous response” from her.
The newspaper said it went to lengths to get comment from her “beyond the measures taken by most publications”, and in fact the other two publications (Netwerk24 and Maroela Media) published her comments without getting any response from Mr Sandri. That she did not complain about, that shows “a touch of double standards.”
2.43 The paper concludes that Ms Bezuidenhout had the “time and opportunity” to answer all the allegations made by Mr Sandri and her employees and that she was given “ample space” to respond.
The newspaper recounts the paragraphs where her response was reflected:
She was looking for another site for her restaurant, and until then there were no separation packages for staff as they were looking for a place where the restaurant could open in terms of emergency regulations. “We are doing everything in our power to accommodate the staff…”
“There is huge dissatisfaction over the UIF claims. Some staff were paid, others, who fell under the same criteria, were not. I have now called in professional help but no one can cast light on this. Six out of the 14 staff from Meraki have received their UIF payments. All contributions were paid over by the employer over the service period and I circulated an auditor’s note confirming this to the staff. Notwithstanding regular inquiries to the UIF office, our inquiries remain unanswered. There are various businesses in Stellenbosch that are in the same difficulty and we are pushing as hard as possible for a solution.”
2.44 She is quoted as saying that her auditor had issued a certificate saying that all the payments over the years to the fund were correct and she had met her obligations.
“I personally on various occasions made inquiries with the fund on behalf of the 10 [in fact by her arithmetic the number should be 8] workers who had not yet been paid. Each time the answer is ‘it’s in process’. My auditor in Somerset West also followed up inquiries without any success. Meraki’s staff is apparently one of several restaurants in the Western Cape whose staff have being paid piecemeal by the UIF without apparent reason..”
She said six out of 14 staff members had been paid and there is no reason why the others have not been.
“It’s heartbreaking for me that my staff have not yet been paid, notwithstanding our persistent attempts..
Until today the ‘crowd-funding” has not yet been paid to me..”
“I bought food parcels from my personal funds for my staff and distributed them. I have already delivered them to 38 staff members; they cost about R1 000 each and I personally funded them. I have not until today received money from the “crowd-funding.”
2.45 In any case, the publication argues, Ms Bezuidenhout could have asked for a right of reply after publication or given further details and they would have entertained it.
The above quotes show that she had responded to all the allegations levelled against her and was given “ample time” for a response.
Further arguments
2.46 Ms Bezuidenhout’s lawyers response to the newspaper’s argument comprises 30 pages. What follows is an attempt at a summary.
2.47 With regard to proof of the attempts to contact Ms Bezuidenhout they refer to an email sent to the Ombud’s office by Mr Pienaar that says that Mr Keet deleted “most records on his cellphone to create space on it.” He is willing to state under oath that he tried to contact Ms Bezuidenhout on several occasions prior to and after the publication of the 15 May article.
2.48 This is relevant because what the newspaper called the “bigger context” – referring to the first article published on the 15 May – became part of the defence about whether Ms Bezuidenhout was afforded a reasonable opportunity to reply.
This is a key part of the complaint.
“Journalists have a substantial advantage when they afford persons an opportunity and reasonable time to respond to questions; they know the inside details which they want to report on and they craft their questions accordingly. Journalists should take special care they do not pay lip-service to granting persons an opportunity to respond to questions where the real issues to be published are not addressed.”
The article shows the “substantial harm” caused by “reckless reporting” to craft an article without providing the person an opportunity to meaningfully respond to the subject matter of an article.
This was a form of “entrapment journalism.”
2.49 Ms Bezuidenhout raised this concern with Mr Keet in her response to him on 17 June when she said she was “uncomfortable with the way in which he approached her for information.” She noted that she had been given a few hours to answer “troubling” questions the week before, and now she was again under pressure.
In this second request for answers no reference was made to the landlord, Mr Paulo Sandri. These questions concerned only the UIF forms for the Meraki staff.
2.50 In its response the newspaper referred to a “bigger context” and brought up the first article published on 15 May.
The publication made various claims about how Ms Bezuidenhout was asked “numerous” times for comment through WhatsApp and email.
Ms Bezuidenhout’s lawyers say the response referencing the first article was “peculiar” because the first article was not the subject of complaint nor was Ms Bezuidenhout aware of it.
2.51 The publication says it “contacted Ms Bezuidenhout via email and WhatsApp for a response but none was received.” It also says it tried to contact her between 15 May and 8 June for comment on the original article, and that she had been informed of the article “on several occasions.”
Ms Bezuidenhout’s attorneys has asked the Ombudsman to direct the publication to provide details of the emails and WhatsApp messages, as well as proof of attempts to contact her between 15 May and 8 June. They ask for proof about how Mr Keet, the reporter, “tried to contact” Ms Bezuidenhout, as well as how she was approached for comment.
2.52 The lawyers query whether the introduction of this “further context” by the publication – referring to the previous article – constitutes affording Ms Bezuidenhout a right of reply.
2.53 The reporter referred to a Facebook post by Ms Bezuidenhout announcing the closure of her coffee shop and blaming trading conditions and a “year-long bullying battle with her landlord.”
Mr Keet then contacted the landlord who “provided proof” that he had “indeed been more lenient with tenants.”
In spite of saying he had tried to contact her, no evidence was provided.
2.54 The article of May 15 “contained a blatantly negative narrative” against Ms Bezuidenhout. They cite a paragraph that says (translated): “Now there is a storm in the proverbial teacup or perhaps in this case coffee cup, over tenants and their buildings’ owners on social media platforms for heartless behaviour, in spite of the fact that their own affairs are shadowy (duister).”
There is no explanation for this phrase, although the reference is “clearly directed at the Complainants.”
2.55 The article goes on to chronicle the plight of waiters who have worked for years and are now suffering with no salaries for the foreseeable future.
2.56 The “narrative” advanced a “story-line that property owners and tenants should be working together during the crisis.”
2.57 Paulo Sandri is identified as one of the biggest property owners with more than 70 small-business tenants. He details his engagements with the (as yet unidentified) complainants.
2.58 In this article (May 5), two photographs appear of people identified as “employees” with captions saying: “All they could get – a bag of groceries. A worker from the coffee shop in Ryneveld St.” The other was identified as “another worker from the coffee shop..”
Ms Ross says “both these narratives are false and misleading.”
They attach affidavits of the two employees who appear in the pictures, Ms Thumeka Makhamba and Ms Beauty Thulisile Sithole. Both of these women denied they were employed at Meraki and that they received only a bag of groceries when Meraki was closed. (However, they said they were employed at Café Furlough, in Dorp Street, a restaurant also owned by Ms Bezuidenhout.)
2.59 This “negative narrative” is supported by an unidentified waiter from Meraki who says they were given the option to get separation packages. He had tried to claim unemployment insurance but was unsuccessful.
2.60 The article also quoted a “prominent Stellenbosch person”, Mr Andre Pelser, calling on property owners to work with tenants to survive the economic crisis. He said people should not use “Facebook and other social media platforms to slander each other.”
2.61 This article cites Paulo Sandri saying that Ms Bezuidenhout’s busines was in arrears with rental payments of more than R100 000 and that he “had done everything” to help her.
2.62 It reported that her employees only received a single bag of groceries when Meraki closed and were treated unfairly.
2.63 Thus, Ms Bezuidenhout’s representatives believe, it was with “this perception” that Mr Keet approached her on 11 June “fully aware of the contents of the original article”, which he wrote.
He should have addressed questions to her to “deal with the specific topics he intended to report on”.
2.64 As regards Mr Paulo Sandri, there were no details provided of how he was more “lenient” with tenants, and there was no proof provided of this.
2.65 Ms Bezuidenhout denies she was ever contacted for this article via email or WhatsApp for a response and the reporter could not provide any proof of this.
2.66 Her attorney says Ms Bezuidenhout did not identify Mr Sandri in her Facebook post.
They also argue that the newspaper’s argument that two other publications painted Mr Sandri “as a villain” creates “the impression that [it] acts as the custodian” for him.
Ms Bezuidenhout was also not approached for comment by either of those publications, and if Mr Sandri felt aggrieved he could have laid a complaint with the Press Council. It is also “noteworthy” that he was not identified.
2.67 They also deny that Ms Bezuidenhout was informed about the original article in response to the publication’s claim that she had been “informed about the original article on several occasions.”
The original article was published on 15 May but the first WhatsApp message was sent to Ms Bezuidenhout on 11 June, while the second request was sent on 17 June. “No inference can be drawn that [she] knew about the original article whatsoever.”
2.68 It is not true that the paper “ventilated both sides of the issue” It did not provide an opportunity to Ms Bezuidenhout “to respond to the essence of the original article” or issues reported in the second article that is the subject of complaint.
Both requests for responses from Mr Bezuidenhout were answered. The publication’s failure to invite responses to specific issues creates the “overwhelming impression that was at play was entrapment journalism…”
2.69 On 11 June, six issues were raised:
2.70 But in the actual article, other issues were addressed; namely:
2.71 Ms Bezuidenhout’s representatives contest the claim by the publication that it had tried to contact her beforehand. They say in the first email she received on 11 June, Mr Keet refers only to phone calls he had made (“Ek het al n paar keer probeer skakel..”), not emails he had sent. Neither WhatsApp messages nor emails can be produced as evidence.
Thus there is also no evidence that their requests for comment were “ignored”.
2.72 Insofar as the rental issues were concerned, the question asked was, as above: “How did the building owner engage you in matters of payment of rent in the lockdown period?”
Her answer was (translated): “The owner of the building, notwithstanding the lockdown, has demanded 50% of the rentals although the business was closed and notwithstanding that there was a deposit worth four months rental held by him.
“Given the outlook for the restaurant industry and the steps taken by the building owner, we could not meet further unreasonable demands.”
2.73 On the treatment of her employees: Ms Bezuidenhout’s lawyers say the publications’ answer that they reported her comment that she was doing everything to accommodate her employees misses the point. The issue is whether she failed to keep staff “abreast with developments.” (op hoogte gehou word met verwikkelinge)
This was not put to Ms Bezuidenhout and she did not have an opportunity to respond.
In fact she says she communicated on 14 occasions through WhatsApp messages with staff members and also had personal discussions “with several of them”.
“In absence of the question having been asked, the Complainants cannot be expected to guess what Mr Keet was going to write.”
2.74 On whether workers were treated harshly: this was not truthful or accurate. No questions were posed to Ms Bezuidenhout in this regard. The “opinion” of “stief behandel” was “without merit”.
Mr Keet failed to verify whether, as he reported, that each worker got only a bag of groceries on the day of the closure “and that was that.” Questions were never put to Ms Bezuidenhout in this regard.
In fact, the food parcels were not delivered on the day Meraki closed.
Affidavits from two women whose photographs appeared in the first article say they were not employd at Meraki, but at another restaurant owned by Ms Bezuidenhout.
They also say they did not receive a single bag of groceries, but several.
This accusation, moreover, was never put to Ms Bezuidenhout so she could not respond to it. This has caused her “significant harm.”
Mr Keet should have requested “documentary proof” of this.
2.75 Insofar as the allegation made by the waitress, identified as “Carly”. and that her UIF documents referred to only four months service, and that only three employees had received payment from the UIF, these questions were not put to Ms Bezuidenhout.
Had Mr Keet asked the questions he would have learned that Carlyn (her proper name) had expressed her appreciation for the food parcel in a WhatsApp. With regard to the incorrect UIF forms, Ms Bezuidenhout asked for copies, but none were provided.
The “sting” with which he treated her is evident by Mr Pienaar’s statement: “The fact that she distributed food parcels worth in her words R38 000 to employees is a separate issue which she uses to balance this non-payment.”
2.76 Six paragraphs of the article related to Mr Paulo Sandri and it was a “one-sided version” that was never communicated to Ms Bezuidenhout.
The publication’s answer to this was that she knew about the original article, but this had not been “shown…at all. There is a total absence of evidence..”
2.77 The lawyers again emphasize that there is absolutely no evidence of “numerous enquiries” to Ms Bezuidenhout.”
2.78 The questions put to her were general. Specifically, they avoided the “real issue” which the article conveyed: “that Paulo Sandri, one of the largest landlords in Stellenbosch, accommodated his tenants during the Covid-19 period and that all his efforts with [Ms Bezuidenhout] came to nothing as there was a legal dispute about arrear rentals for three months amounting to more than R100 000, and that the staff of Meraki were treated harshly.”
She was never asked about the detailed allegations of Mr Sandri
She was never given the opportunity to respond to specifics of allegations made by “alleged staff members” of Meraki. The “true facts” now show that Mr Keet published the original article “without verifying the accuracy of the information” and failed to ask Ms Bezuidenhout to respond to the specifics.
2.79 The publication’s response also contained a “startling disclosure” that Ms Bezuidenhout’s social media post was “the subject matter of a defamation claim.” This should have alerted him to be “more cautious” He also did not include this allegation in the questions be put to Ms Bezuidenhout.
The “one-sided” version of Mr Sandri was published “chapter and verse” without affording Ms Bezuidenhout a right to respond while “on his own admission”, Mr Keet “knew there was a defamation claim pending by Mr Sandri.”
2.80 Ms Bezuidenhout’s representatives recap her complaints against the landlord contained in her original complaint, which are noted above in points 2.14, 2.16 and 2.17.
2.81 On the publication’s averment that there is “ample evidence” – by her own statements – that there was a legal dispute on outstanding monies between Mr Sandri and Ms Bezuidenhout, her lawyers respond that Mr Keet reported “extensively” on the responses of Mr Sandri towards her. “He amplified this by reporting that influential persons in Stellenbosch criticized persons who resort to social media platforms (the reasonable reader would have understood this as a reference to the First Complainant) and added thereto that the staff of Meraki were treated harshly.”
2.82 The publication also did not respond to the complaint concerning the R37 000 apparently collected through “crowd-funding”. The “slant” was that she had conducted a crowd-funding exercise but that no payments were made to her workers and that she had thus misappropriated it.
2.83 The answer to the complaint about the second and third paragraphs in the article – which say that “most” restaurants had come to agreements with “sympathetic” landlords but that unfortunately “defective management and communication” between (some) restaurant owners and employees had left a “bitter taste” – is not answered. The publication said it was a general statement that referred to all restaurants and owners in Stellenbosch.
2.84 On the publication’s denial that Ms Bezuidenhout was not provided a reasonable time to reply, her representatives say they do not provide reasons for their denial. “The verification of facts could easily have taken place” had Mr Keet engaged Ms Bezuidenhout properly and afforded her a right of reply.
2.85 The article was “context and time-bound”. It focused on the town of Stellenbosch in the midst of the Covid-19 pandemic, on engagements between landlords and tenants, on the plight of employees “and the impact when a restaurant owner [Ms Bezuidenhout] fails to communicate with staff members”; and it quoted prominent businesspersons in Stellenbosch that tenants should not resort to social media.
The article created a “reasonable perception” that the publication either engineered “or at least were used as a media platform to address negative articles of News24 and Maroela Media against Paulo Sandri.”
2.86 They ask again for the removal of the article from the publication’s website and an apology. The lawyers say an apology will not address the “essence of the complaint”.
2.87 They argue that it is incorrect that the dispute with Mr Sandri was “put in the public domain” by Ms Bezuidenhout on the basis that it does not identify him and that it “bemoans ‘unreasonable rental rates’.”
2.88 In the original article, introduced in the publication’s arguments, Paulo Sandri is identified and “quoted extensively”. But issues of rental rates were never canvassed in the original article as no questions were asked of him in this regard.
Mr Keet should have put claims by Mr Sandri to Ms Bezuidenhout to respond.
When he did contact her – on June 11 – he gave her an “unreasonable” time to respond to questions, just three hours.
His questions did not “sufficiently” cover the issues ultimately reported on in the second article (the subject of complaint). The six questions that were asked were answered.
Although Mr Sandri’s version was reflected in the first article, no question about this was put to Ms Bezuidenhout, and the publication’s “peculiar response” was that Ms Bezuidenhout knew about the first article and that they approached her for comment on numerous occasions.
2.89 In conclusion, Ms Bezuidenhout’s representatives argue that the key issue is not what the newspaper quoted her saying but on whether the reporter, “knowing” what he was going to report on, asked her the relevant questions to get responses to those issues.
In particular they mention the allegations concerning the failure to communicate with employees and the disputes with the landlord particularly whether she was in arrears with three months’ rental.
2.90 There is also the issue of the lack of verification of who the employees were (the pictures published are disputed), and whether only one bag of groceries was handed out to them on the day Meraki closed,
2.91 The article “created an adverse narrative” against Ms Bezuidenhout and her restaurant that she treated employees “unfairly”, failed to communicate with them, handed them a single bag of groceries when Meraki closed, and largely failed to get payments for them from the UIF, and that she owed more than R100 000 in rental and “was a delinquent tenant”.
She was not given an opportunity to respond to Mr Sandri’s allegations.
A further response
2.92 It is unusual that a publication responds to the response of the complainant to its defence. However, after receiving the 30-page response from the complainants’ lawyers, the acting Public Advocate requested the respondent to submit a further response, specifically to clarify the issue of the use of the photographs of the two employees and also to comment on their affidavits, as well as to the submission by the complainants that they had not been aware of the 15 May article.
2.93 In its response, the publication says: “We were called to answer the complaint that we did not allow Ms Bezuidenhout enough time to respond. We have proved this is false. Not only did we provide an article which shows that weeks before we wrote [the article complained of] we already tried to contact her but her complaint that we did not publish the article the next day as planned shows that she had additional time to set the record straight.”
2.94 The publication had agreed to “most of the relief” sought by her but not the apology (I assume this means a right of reply to those questions not put to her). “The complainant had ample time to avail herself of this relief”.
Thus it asks that the “response” from the complainant be “separated” and regarded as a new complaint.
2.95 Mr Pienaar, for Stellenbosch News refers to the ruling in Plascon-Evans Paints Ltd vs Van Riebeek Paints, saying if the case is decided “in limine, such factual disputes will fall to the version provided by the respondent in this case the publication” .[1]
The “new complaint” as the publication calls it, amounts to one of “false reporting”. It also falls “substantially outside the seven-day window” for making complaints to the Ombud (in fact this window is 20 days). But, says Mr Pienaar, “we can’t be expected to respond to continuous shifting verbose complaints ad infinitum.”
2.96 He opposes the request that the article complained of be removed from the website as it would “create a lack of context”
3. Analysis
3.1 This complaint was made overly complicated by the sheer volume of paper filed, especially by the complaining party. In total, over 120 pages of documents were filed.
Much of the documentation from the complainants’ side had to do with the long-standing dispute between Ms Bezuidenhout and her landlord. These involved the lease agreement, an addendum to the lease agreement, and pages of photographs showing how she had improved the premises.
3.2 This was concerning because it seemed that the Ombud’s office was being used to deal with other disputes that are outside of our ambit. However, that said, it may also be that her legal representatives wanted to illustrate that the publication, in their view, had not reflected her position fairly.
3.3 The complaint was also complicated by a new article being introduced (the first article, published 15/5/20) by the publication as “context”.
The complainants then reacted to this and this evoked another response from Stellenbosch News.
The publication complained that “we can’t be expected to respond to continuous shifting verbose complaints ad infinitum.” But it was the publication that introduced the second article into its arguments, so it was to be expected that the complainant would respond to it.
3.4 There is another point to make, and that is of context. The article appeared at a stressful time – the beginning of a lockdown declared in response to the Covid19 pandemic. All the parties involved were particularly adversely affected.
The restaurant industry, as is well documented, suffered severe consequences as a result of the lockdown. This affected owners, managers and staff members. It also affected building owners, as well as the media industry.
Thus it is understandable that tensions were high in this environment.
3.5 In any event, the key issues are whether the article was truthful and accurate, whether the reporting was in context and verified, and whether Ms Bezuidenhout was afforded a proper right of reply.
3.6 The arguments around truthfulness, accuracy and verification centre around the reporting of the way Meraki’s workers were treated (“harshly”), that they received only one bag of groceries each, that their unemployment forms were not properly completed, that money from a crowd-funding effort raising R37 000 had not materialized, and that Mr Sandri, her landlord, had been in a legal dispute with her over R100 000 worth of rental owed.
3.7 Her other complaint is that not all of these points, which she says painted her in a negative light, were put to her for comment.
3.8 Truthfulness, accuracy and verification: these complaints emanate from the statements in the article that say:
3.9 In his response, Mr Pienaar says the complaints of “harsh treatment” were made by the workers interviewed by the reporter.
These were allegations. The article makes this clear: “Werknemers..het gekla..”
It was also reported as an allegation – by five of them – that they “had not heard” from Ms Bezuidenhout since the lockdown, and that they had only received one bag of groceries, as was the claim of the unemployment forms being incorrectly filled in.
3.10 The workers were not named although pictures of them were included in the May 15 article, with captions that simply identified them as “workers from the coffee shop in Ryneveld Street.”
It is not surprising that the workers may not want to be named – although this makes the inclusion of their pictures in the first article rather surprising.
As a result, the lawyers for Ms Bezuidenhout obtained affidavits from the two women whose photographs appeared in the first article which declared that they had not worked for Meraki.
However, the affidavits did confirm they were employed by her (at another restaurant).
It is not clear whether these were the workers Mr Keet was referring to in his second article (the subject of complaint) but there is nothing to suggest otherwise.
But while it may be true they were not employed at Meraki, they were nonetheless employed by Ms Bezuidenhout. The mistake is a careless one, but a minor one.
3.11 On the matter of the UIF forms incorrectly filled in: Ms Bezuidenhout offered to send Mr Keet the forms with the workers’ permission, and in fact urged him to follow it up with the UIF. Had he had done so, it may have been a step towards verifying the apparent incongruity between the claim that some workers’ service terms specified only four months, and the fact that although all of them had filed for unemployment, only some had received the funds.
On the right to reply
3.12 Mr Keet did not specifically put the suggestion to Ms Bezuidenhout that the workers were “harshly treated” but he did ask: “What did Meraki do to relieve the lockdown and the resultant unemployment of the staff - what help was offered to them?”
In response she told him about her efforts to ensure they were paid unemployment insurance, and about her personally funding 38 food parcels at a cost of R1 000 each. This was fairly reflected in the article.
3.13 He also asked her on two occasions for details about the hold-up in the payment of UIF and her responses were reflected.
3.14 However, a major omission in his questions was about the legal dispute with her landlord. In the first article, Mr Sandri, the landlord, is quoted as saying that there was a legal dispute over the approximately R100 000 owed by her.
Nonetheless, in the questions sent for the second article, this point was never put to Ms Bezuidenhout.
3.15 It is, with respect, somewhat specious to argue that Ms Bezuidenhout should have “known” about the first article that appeared on May 15.
While it is true that she prompted publicity by posting on her Facebook page adverse comments about the landlord (whom she did not name), a publication is still obliged to put to her the allegations it had previously published.
3.16 In fact in the May 15 article, it quotes Mr Sandri as saying the “specific business owner” – who is identified as owning a “coffee shop in Ryneveld Street - has “a history of late payments and wants to try get out of the contract. ‘What breaks my heart (wat my hartseer maak) about this lessee is that she is now using social media to make out her lessor as a bully, despite the fact that we are doing everything we can to help her.’”
3.17 There is also a problem in the vagueness of the timeline outlined by Mr Pienaar and Mr Keet when they say they had tried several times to contact her between the first and second article, and she did not respond.
Mr Keet says he had wiped his cellphone to save memory so he had no record of calls or WhatsApp messages. I have no reason to believe this is not the truth.
However, he also refers to emails to her. I asked for a record of these emails – which should reasonably still be on the server. These were not forthcoming.
So the complainant is correct that there is no evidence of previous attempts to contact her in relation to the allegations about her by the landlord.
3.18 It is also irrelevant to this complaint that two other publications quoted Ms Bezuidenhout’s post on Facebook without allowing Mr Sandri a right of reply. He was at liberty to complain about those articles.
In any event, the transgressions of one or two other publications does not bequeath a right to ignore the basic rules of journalism to another
3.19 That said, I think it is far-fetched of the complainants’ lawyers to suggest that Stellenbosch News is his “custodian” and advocate. It may be that because he is a major property owner in a small town, he is known to local journalists. It is a reason to be cautious with respect to disputes that involve him – but it is not sinister.
3.20 There is also the publication’s argument that the article was delayed precisely because “out of an abundance of caution”, it wanted to give Ms Bezuidenhout a chance to respond. She had responded on the evening she received the questions, but it was nonetheless too late to make the deadline.
This is commendable. However, once the reporter had a second shot, as it were, of putting the questions to her, there was little excuse for not including the landlord’s allegations about her owing R100 000 rental.
3.21 It should be clear that the first article (May 15) is not the subject of the complaint. Although Ms Bezuidenhout was not named, she was nonetheless probably identifiable in a small town from reference to her Facebook post and from the “coffee-shop in Ryneveld Street”.
Ordinarily, it should not come into arguments on another case, except for the fact that the publication mentioned it in its defence.
In fact, it would only have been a defence had the specific questions arising out of that article about her fractured relationship with the landlord been put to Ms Bezuidenhout. They were not.
Finding
Although the complaints by the workers were reported as allegations, it was nonetheless concerning that two – who had been photographed in the previous piece with grocery parcels – provided affidavits to say they had not worked at Meraki, but at another restaurant owned by Ms Bezuidenhout.
However, this is an error of detail, and relatively minor.
There was also the problem of the woman identified as “Carley” in the article (and Carlyn by Ms Bezuidenhout) saying the UIF forms had reflected only four months instead of five years’ service. There was no apparent verification of this fact – such as a form being perused or taking up Ms Bezuidenhout’s offer to send the reporter the forms. But more importantly it was not specifically put to Ms Bezuidenhout for comment.
The allegation that workers were “stief behandel” was just that – an allegation and presented as such.
However, none of the specific allegations of the landlord were put to her for comment. The question put to her was in very general terms. She was not asked to comment on the “legal dispute” or on his claim that she owed him R100 000.
Stellenbosch News should apologise to Ms Bezuidenhout for not giving her the right of reply on the landlord’s comments about her.
It should also apologise for not verifying the allegation that the workers’ UIF forms were not correctly filled in and for not giving Ms Bezuidenhout a chance to check these allegedly incorrect forms specifying the wrong service period.
These are Tier 2 offences.
The fact that the workers interviewed about the food parcels were employed, not at Meraki, but at another restaurant owned by Ms Bezuidenhout, is a Tier 1 offence for which there is no sanction.
Stellenbosch News is to apologise for these transgressions of the Press Code in a link to the original article, in manner that is prominent for anyone accessing the article online.
I cannot find that the article should be retracted as many of the details were put to Ms Bezuidenhout for comment, which was fairly reflected. Moreover, it covered a topical and pressing issue that arose from the effects of the lockdown.
Thus the rest of the complaint is dismissed.
The apology should:
Appeal
The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Pippa Green
Press Ombudsman
November 9, 2020
[1] http://www.saflii.org/za/cases/ZASCA/1984/51.html The case is about a trademark dispute.