Ruling by the Press Ombud
27 January 2017
This ruling is based on the written submissions of Ms Tessa Graaff, on behalf of the Montebello Design Centre (MDC), and those of Susan Smuts, legal editor of the Sunday Times newspaper.
MDC is complaining about a story in Sunday Times of 13 November 2016, headlined Pain over palace of panes – Battle lines form in Cape Town over plans to flatten most of Edwardian greenhouse...
Complaint
MDC complains the article falsely stated that:
· it had been demolishing the greenhouse;
· it had been planning to build a conference centre;
· the proposed structure was a double storey;
· the greenhouse was South Africa’s oldest;
· a fee or a maintenance levy had been paid to the architect;
· she had personally received R135 000, suggesting that she had not used those sums for their intended purpose;
· there was a body called a “residents’ association”;
· MDC had not consulted with the Ratepayers’ Association; and
· “battle lines’ had been formed.
The text
The article, written by Tanya Farber, said that South Africa’s oldest greenhouse (in Cape Town) was under threat. She reported, “The historic structure forms the heart of a plant nursery run by Cape Town horticulturalist Kate Mason at Montebello Design Centre in Newlands. Now the greenhouse is at the centre of a battle between people like Mason, who view it as a national treasure, and those who wish to see a multipurpose conference centre built in its place.”
The complaint in more detail
Motivating the complaint, as outlined above, Graaff (MDC’s managing director) says:
· MDC was not demolishing the greenhouse, as alleged in the article – instead, it will be restored; she says the entire base structure will remain and MDC’s board was investing possibilities for the replacement of most of the glass structure with new glass and more durable building materials than the rotten wood that has become a danger to the public;
· the story falsely stated that MDC was planning a conference centre – the approximately 50 m2 proposed addition, plus toilets and kitchenette facilities, was in the initial concept phase of being explored as possibly an additional classroom, workshop or small exhibition space;
· the greenhouse was not South Africa’s oldest – it was one of the last remaining of its type; she adds that such greenhouses were not designed to last long, and stresses that it was only because of MDC’s care and attention that its life had been extended;
· no fee has ever been paid to the architect, let alone an amount of R135 000; to date, the architect has not even billed MDC – and she has not told the journalist that any fee had been paid to any architect;
· she has never received R135 000 (as stated in the story) – all rent and other payments made by Mason were made not to her, but to MDC (her employer); she says the suggestion that she has personally been receiving large sums of money, and has not used those sums for their intended purpose, is defamatory. She adds that levy funds have at all times been held in a special, interest-bearing account;
· if there is a “residents’ association” MDC did not know about it; she presumes that the reporter intended to refer to the Ratepayers’ Association;
· because MDC has not yet formulated a substantive proposal concerning the greenhouse, it was inappropriate to consult formally with the Ratepayers’ Association (RPA), or with any other interested or affected party. However, contrary to what the story said, MDC had already informally discussed the matter with the chairman of the RPA. It also goes without saying that Montebello would consult with and obtain permission from all parties and bodies as required by law; and
· the description of “battle lines” was inaccurate as only one tenant did not wish MDC to carry out the repair and restoration work.
Sunday Times responds
Smuts denies that the article was unfair, inaccurate and unreasonable. She says that the complaint does not accurately reflect the article, and it makes statements of fact that are at odds with information supplied to the reporter and at least one tenant prior to publication. She argues, “We submit that the complainant is attempting an exercise in damage control following publication, and that the complaint should be seen in this light.”
Demolishing the greenhouse
Smuts says the story did not say that MDC had been demolishing the entire greenhouse – it merely stated it had been demolishing most of it.
She adds that tenants at Montebello, who were concerned that the greenhouse was to be turned into a multi-purpose centre – which would result in the demolition of most of the greenhouse – approached the newspaper.
They indicated that Graaff had intimated that the plans were non-negotiable, that they had been approved by the board, and that they were to be submitted to Council shortly, Smuts continues. Two tenants, including Ms Kate Mason (the horticulturist to whom the story referred) stated that Graaff had shown them the plans – which provided for a multi-purpose structure that kept only a small part of the greenhouse.
Smuts submitted an affidavit by Mason, sworn after publication of the story, to confirm that her information was accurate.
The legal editor explains that the “basic structure” of the greenhouse meant its foundation and the pipes.
She adds the reporter told her she requested a copy of the plans, but Graaff ignored this request. Moreover, Graaff told the journalist, “We could keep restoring it but what is the point? It is an expensive folly and it is the highest maintenance building on Montebello…[Now] it is in a state of danger to the public, and we can’t restore it. It is in an immiment state of collapse.”
Conference centre
Smuts submits the reporter used the description “conference centre” because she felt it was an appropriate summary of the use of the proposed building as described to her by Graaff (read: exhibition, workshops, teaching spaces, and where people with common interests could meet).
Based on the definition of a conference centre on a website, she says it is a multi-purpose facility, generally used for meetings, conventions, and the display of merchandise by a wide variety of industrial groups, professional groups and trade organisations.
Double storey
The legal editor notes that the article did not refer to a double storey – it mentioned a “double-volume” structure, which is something entirely different.
Oldest greenhouse
Smuts says Farber has established that an older conservatory (“rather than greenhouse”) exists in Port Elizabeth; an older greenhouse in Johannesburg had been demolished. She argues, “What is not in dispute is that the greenhouse was built in the last century and it is a cherished piece of heritage for many people, including some of the tenants.”
Fees for architect
Smuts says the reporter specifically asked Graaff if the money for the architect had come from the maintenance levy account – which she duly confirmed, saying that the account was used for “structural engineers, repairs and architect’s plans”.
Moreover Mason, in her affidavit, says Graaff had told her the same thing.
When the journalist asked to see financial statements, Graaff told her they were not required to make this information public.
The legal editor argues that, if it is true that no architect’s fees had been paid, Graaff should explain why she said the maintenance levy account was used to pay for the architect’s plans.
Smuts also denies the story said that an amount of R135 000 had been paid to the architect, or that the amount would cover the costs of restoring the greenhouse. – instead, it reported that Mason had been paying a maintenance levy for almost a decade, amounting to approximately R135 000.
Funds paid to Graaff
Smuts calls this part of the complaint “frivolous”, as it was clear from the context that the money was paid to MDC, and that Graaff had been referenced “in a colloquial way” as a representative of the centre. She adds that the story did call Graaff Montebello’s managing director.
Residents’ association
Smuts says the residents’ association referred to in the story was the Newlands Residents’ Association; she also denies that the story suggested that Montebello was required to seek input from the association in this matter.
Not consulted with parties
Smuts argues that this part of the complaint is “somewhat pointless” because the story neither said nor implied that MDC would not comply with legal requirements. She adds the article mentioned that Graaff had met with officials from the City of Cape Town and the provincial government – and argues it was not necessary to list these officials by name.
Battle lines
Smuts defends the use of the term “battle lines” in the sub-headline, saying that Mason was not the only tenant who was unhappy with the intention to alter the greenhouse.
Analysis
Demolishing the greenhouse
Smuts is correct – the story did not say that MDC had been demolishing the entire greenhouse, it stated it had been demolishing most of it. A relevant sentence read, “Plans include demolition of most of the greenhouse to make way for a double-volume barn-like structure. The footprint would be some 50 m² bigger…” (Emphasis added.)
If “most of” the greenhouse was to make way for something else, it does not make sense to use the word “restore” with relation to the whole project (as Graaff does).
Conference centre
The term “multi-purpose conference centre” was an apt description of the envisaged structure, given the activities likely to take place at that venue. This part of the complaint is frivolous.
Double story
The story indeed did not mention a double storey, as alleged by Graaff – it referred to a “double-volume” structure.
Oldest greenhouse
I am not in a position to decide which greenhouse in South Africa is the oldest. I note that Graaff also does not specify a candidate.
Fees for architect
The story said, “Graaff confirmed the levy (the R135 000 from Mason) was used to pay for the architect’s plans.”
I note that the story presented this as fact, not as an allegation, and did not attribute it to anybody (Mason included).
The question is whether Farber was justified in stating this as fact.
The newspaper presented me with two pieces of evidence – Mason’s affidavit, and Farber’s notes. Mason did state in her affidavit that Graaff told her the maintenance fee she had been paying was used for architect’s plans – but this is Mason’s word against Graaff’s.
There is some reasonable doubt regarding whether Farber originally included the words “architect (plans)” in her otherwise credible notes. Her notes referred to the levy, and included the words “used for fees for structural engineers”, and possibly also “repairs”. The words “+ architect (plans)” were written not horisontally, but vertically, and it could have been added at a later stage.
I am not accusing Farber of fabricating her notes on this issue, but I do need to state that I have enough doubt – which cuts both ways (to Farber as well as to Graaff) – so as not to be able to come to a responsible decision on this matter.
Funds paid to Graaff
The story did say that Mason paid R135 000 to Graaff – but, given the context as well as the latter’s designation as MD of MDC, I have little doubt that the reasonable reader would not have thought that Graaff had received the money in her personal capacity. There really is nothing in the story to suggest such an idea.
Residents’ association
If MDC did not know about the Newlands Residents’ Association, that was its problem.
Not consulted with parties
Smuts’s argument on this issue holds water – the story indeed did not say or imply that MDC would not comply with legal requirements, and the newspaper was not duty bound to list all the officials whom Graaff had met in relation to this matter.
Battle lines
It does not matter that only one person was in conflict with MDC, or more. Battle lines (plural) can be drawn between two parties only – and clearly, Mason and MDC were at loggerheads.
Finding
The complaint is dismissed in its totality, save for the statements that the levy was used to pay the architect and that the greenhouse in question was the oldest in South Africa (I am not in a position to adjudicate on these matters).
Appeal
Our 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.
Johan Retief
Press Ombud