Patricia de Lille vs. TimesLIVE, SowetanLIVE, Sunday Times


Thu, May 31, 2018

Ruling by the Press Ombud

30 May 2018

PARTICULARS

 

Complainant

 

 

Ms Patricia de Lille, executive mayor of Cape Town

 

 

Lodged by

 

 

Ms Zara Nicholson, de Lille’s spokesperson

 

Date of article

 

 

16 March 2018

 

Headline

 

 

De Lille faces fresh nepotism claim after arbitrator slams council

 

 

Author of article

 

 

Aron Hyman

 

Respondent

 

 

Susan Smuts, internal ombud of Tiso Blackstar

Complaint

De Lille complains that the journalist:

·         did not give her reasonable time to comment, and that the article did not reflect this fact;

·         took his source’s version of events (allegations) as fact, resulting in untruthful, inaccurate, unfair, unbalanced, out of context, misleading and exaggerated reportage;

·         omitted material information;

·         did not amend his first article after he had received her comment and link it to the follow-up story; and

·         has caused her reputational damage.

The text

The story is about the following issues:

·         A “scathing” arbitration judgment by the SA Local Government Bargaining Council arbitrator Ms Arthi Singh-Bhoopchand regarding “unfair” appointment of four City of Cape Town’s area-based directors – which reportedly has revealed how de Lille had allegedly influenced the process to secure jobs for her “circle of friends”;

·         Mr Manuel Davids, an applicant for a director’s vacancy and in the arbitration matter, inter alia reportedly alleged in a letter to council speaker Dirk Smit that the four people appointed were “known to be in the mayor’s circle of friends”; and

·         An investigation against de Lille by the DA federal legal commission for‚ among other things‚ allegedly manipulating the reappointment of former city manager Achmat Ebrahim and for inserting Ms Limia Essop‚ a friend’s daughter‚ as one of the board members for the Cape Town Stadium.

The arguments

Elaborating on her complaint, de Lille says Hyman has:

·         approached Nicholson for comment at 13:41 on 16 March 2018, without stipulating what his deadline was – he merely asked her to respond “soonest” as the publication of the story was “imminent”. He then published the article without her comment at 14:23, and adds that TimesLIVE also tweeted the story at 14:35;

·         neglected to include previous comments from her and Essop with regards to the latter’s appointment; and

·         presented this allegation as fact, despite the fact that this claim has been widely refuted in the media and no finding to this allegation has been made.

She adds that, subsequent to receiving comment from her office (at 16:56 and 17:21 on March 16), the journalist published a second article in TimesLIVE at 18:42 – but without amending the first one, or linking it to the second one, making it likely that a reader will only come across the first article (the one without her comment).

De Lille says Sunday Times and SowetanLIVE posted the initial story on their Twitter feeds at 19:00 on 16 March and at 11:00 the next day respectively. “At this stage, hours had passed in which I had submitted my comment and the second article with my comment was already posted online yet the sister publications to TimesLIVE were still posting the first unbalanced version on their Twitter accounts,” she says.

In conclusion, de Lille:

·         asks for an immediate apology on the relevant websites and on all the Twitter accounts which carried the unbalanced story within 24 hours of such a ruling; and

·         seeks public assurance from the respective editors that, in future, she be given reasonable time to respond to requests for comment and that deadlines are always clearly stated.

Smuts replies that the journalist was entitled to report on the proceedings and the outcomes of the arbitration process without seeking comment from any of the parties involved, since:

·         an arbitrator has heard evidence and submissions from the relevant parties;

·         bargaining councils are subject to the same constitutional principles as courts; and

·         the arbitration hearing was a formal process that resulted in a decision that was binding, unless overturned on appeal.

She submits that the article did not mention that comment had been sought, because there was no obligation on TimesLIVE to do so in the first place. However, she adds, the journalist approached de Lille as a courtesy to her and in the interests of giving readers as much information as possible.

The internal ombud also says the publication did not give de Lille a deadline because it was always its intention to write a follow-up article based on her response. “Once we had her response, we published the follow-up article,” she says.

She explains, “In the digital media landscape it is common practice to publish stories as they unfold. In this scenario, the first story would have the basic aspects of the story and each subsequent iteration would add more detail, nuance and perspective as it becomes available. We submit this is what happened in this case. It is common practice not to remove the initial story.”

She says the reference to Essop merely contextualised the information (as the DA’s federal legal commission was also investigating her alleged interference in this matter).

Smuts therefore denies that the:

·         story was one-sided; and

·         publications took Davids’s version as gospel (as the story merely reflected the outcome of the arbitrator’s award, which had been in his favour).

She adds that, contrary to de Lille’s assertion that these claims have been refuted, investigations into these matters continued.

De Lille replies that, if other accusations are added for context, as argued by Smuts, it should follow that her previous responses should also be included as additional information for context.

She adds, “It is common practise and not just courtesy for reporters to write from a range of sources and still obtain comment from the parties being mentioned for the sake of fair and balanced reporting.”

De Lille says she has been cleared by the council investigation of any wrongdoing in this matter – which the publications did not publish (resulting, once again, in one-sided reportage).

She also submits that, even if it were a courtesy, the journalist did not indicate his deadline, or that he would only use her responses in later versions of the story. “This can also not be deemed as fair as many readers may only have seen the initial story and not the follow ups which contain the Mayor’s comments,” de Lille argues.  

She adds that, if the article at least referred to efforts to obtain comment from the parties involved, this would have demonstrated a greater level of objectivity and fairness. “This [is] what many publications do when they are not able to obtain comment at the time of going to print or publishing online. Online media isn’t exempt from following basic Press Council rules and writing for online platforms cannot be seen as sufficient reason for not abiding by the rules and not running a balanced story in the first place,” she asserts.

De Lille concludes that, to the best of her knowledge, the publication has made no effort to follow up on the council’s investigation and outcome of such an investigation.

Analysis

The first, and quite central, question is if the journalist was duty-bound to ask de Lille for comment. This is an easy question – but the answers (note the plural) to this question are far from simple.

The arbitration award

As far as the outcome of the arbitration award is concerned, Smuts is clearly correct: The journalist was under no obligation to give de Lille a right of response. She has rightly pointed out that Singh-Bhoopchand had heard evidence and submissions from the relevant parties, and that the journalist was therefore entitled to report on the proceedings and outcomes without seeking comment from any of the parties involved (as is the case with court reporting).

I shall therefore be dismissing the complaint regarding all matters relating to the reportage on the arbitration award.

However, while the story was mainly about that award, it was not exclusively the case.

More than just the arbitration award

In addition to reporting on the outcome of an arbitration award, the article also included:

·         Davids’s comments; and

·         reportage on an ongoing investigation against de Lille by the DA federal legal commission, which included the allegation that she had manipulated Ebrahim’s appointment and that she had inserted Essop as one of the board members for the Cape Town Stadium.

From a media ethical perspective, these matters are qualitatively different from the reportage on the arbitration award. The reasons for this statement should become clear as the adjudication is unfolding.

Davids’s comments

The first sentence

The introductory sentence to the story mixes the reportage on the arbitration award with comments by Davids – which could only have been confusing to the average reader, if not misleading.

This sentence reads as follows: “A scathing arbitration judgment into the ‘unfair’ appointment of the City of Cape Town’s area-based directors (read: the award by the arbitrator) reveals how mayor Patricia de Lille allegedly employed her ‘circle of friends’ (read: Davids’s view, and not that of Singh-Bhoopchand).”

I believe that readers could not reasonably have been expected to understand that the statement about the newly appointed directors being in de Lille’s “circle of friends” did not come from the arbitrator. In fact, intelligent readers could only have deduced from the sixth sentence that the reference to a “circle of friends” could be ascribed to Davids.

The use of the word “allegedly” did not do enough to explain this fact or to mitigate the possibility of a serious misunderstanding.

In short: Singh-Bhoopchand never attributed her finding of unfair appointments to nepotism on anybody’s part, let alone on that of de Lille – and if the story did suggest that that was the case, which is my contention (at least as far as the average reader is concerned), it was simply misleading.

The second sentence

The difficulty with the second sentence is even more subtle – but not less serious. It reads, “The judgment by a South African Local Government Bargaining Council arbitrator found that De Lille told the executive director for area-based delivery‚ Louis Scheepers‚ that the requirements for the posts should not include a minimum number of years’ experience.”

The problem with this sentence is twofold:

It is not accurate: Singh-Bhoopchand’s “judgment” did not “find” that de Lille had told Scheepers anything about requirements for posts (even if it was true that she did) – the arbitrator, in her award, merely mentioned that this was Davids’s testimony. She never even mentioned this issue in her analysis of the issue. The statement in question should therefore have read: “[The arbitrator] heard that de Lille told … Scheepers…”

It is out of context: The context in which this statement was placed surely raised eyebrows concerning her alleged interference in appointment to posts.

This is why:

·         The first sentence reports the allegation that the mayor had employed her “circle of friends”;

·         The third one states that the DA was investigating her for allegedly manipulating Ebrahim’s reappointment; and

·         The fourth sentence was also about alleged nepotism (it mentioned the insertion of Essop, a “friend’s daughter”, as a board member for Cape Town Stadium).

The reasonable reader could be forgiven for interpreting the second sentence as referring to nepotism as well. This created the impression that the mayor had been favouring some applicants above others, while she merely suggested that quality instead of quantity experience should be taken into account.

In fact, it was a general statement that could have favoured people outside of her circle of friends as well or, vice versa, could have thwarted some of her own friends’ chances of being appointed.

Though Singh-Bhoopchand stated it seemed that the respective positions had been earmarked for sub-council managers, the arbitrator never explicitly ascribed this to de Lille’s input regarding “quality above quantity”. In fact, the arbitrator never even mentioned the mayor’s name or designation in her analysis. There was indeed no evidence at Hyman’s disposal to suggest nepotism on de Lille’s part.

Did Davids’s comments fairly represent the award?

The next question is if Davids’s comments fairly represented Singh-Bhoopchand’s award – for it they did not, surely that has added a dimension to the story to which de Lille should have had an opportunity to respond to.

I have already pointed out that the allegation of nepotism came from Davids and not from Singh-Bhoopchand. That, in itself, necessitated comment from the mayor.

In addition to that, the story also reflected some of the contents of a letter by Davids to Smit, which he wrote after Singh-Bhoopchand had made her judgment.

In this regard, Hyman reported Davids inter alia stated in his letter that:

·         his case resembled complaints laid by various councillors about de Lille’s management style;

·         the mayor did not show and treat people with dignity and respect;

·         several colleagues bore the brunt of her autocratic and aggressive style of management; and

·         the four appointees were “known to be in the mayor’s circle of friends with rapid promotions over the past three years”

While Davids certainly had the right to his opinion, and Hyman to report such, these statements went way beyond what Singh-Bhoopchand had found, and were critical of de Lille – and therefore necessitated comment from her. And yes, in the same story in which the allegations against her were made – or at least with an indication that she could not respond in time for publication, and that a follow-up story would incorporate her response.

DA’s federal legal commission

The second issue addressed in the story, other than the arbitration award, is the investigation against de Lille by the DA federal legal commission, which reportedly included the allegations that she had manipulated the appointment of former city manager Achmat Ebrahim, and had inserted Essop as one of the board members for the Cape Town Stadium.

Unlike Singh-Bhoopchand’s arbitration, this investigation was still underway, and therefore should not be treated in the same way as the outcome of her judgment.

The relevant part of the story says:

“De Lille is being investigated by the DA federal legal commission for‚ among other things‚ allegedly manipulating the reappointment of former city manager Achmat Ebrahim by telling the selection panel via SMS to give him a higher score. She is also alleged to have inserted Limia Essop‚ a friend’s daughter‚ as one of the board members for Cape Town Stadium.”

Again, the publications were justified to report these allegations. Having done so, though, it presented de Lille as a subject of critical reportage, and therefore the journalist should have asked her for comment on those scores. The reporter had a choice in this regard – either he report the allegations, together with comment from de Lille, or he does not report it at all. The story was asking for this balance, which was not forthcoming.

It is noticeable that, while Hyman did ask de Lille about the appointment of the four directors, he never mentioned Ebrahim’s or Essop’s names.

I therefore agree with de Lille that the neglect to report either her former or her new comments on these matters constituted a material omission in this regard.

Not amending first article

It is true that Hyman did not amend the first article after he had received her comments, and that he did not link the story to its follow-up, as de Lille complains.

The question is if this was in breach of the Press Code.

In response to a question, Smuts explained: “We link backwards but do not go into the archive to link forwards. The reason is that people may wish to unearth previous reports for more insight into a story. But hardly anyone would go [to] the old story seeking a link to a fresh story when the fresh story is more easily accessible… [There] is no obligation for us to ensure that such follow-up comments are published in conjunction with reports of the original events, when such reports can stand on their own.”

Smuts’s explanation makes sense. I am therefore not convinced that this office should “force” the media to go back to its archives to insert links to new stories – that would make life difficult, if not impossible, for editors.

I am also satisfied that the second story did carry a link to the previous one, which took away the need to amend the original article.

Unnecessarily causing reputational damage

Let me first summarise the problems that I have already identified:

·         The story mixed the reportage on the arbitration award with a comment by Davids about the newly appointed directors being in de Lille’s “circle of friends” – which could only have been confusing to the average reader, if not misleading, as it created the (wrong) impression that that allegation came from Singh-Bhoopchand;

·         The reportage misleadingly suggested that the arbitrator had attributed her finding of unfair appointments to nepotism on de Lille’s part;

·         The statement that Singh-Bhoopchand “found” that de Lille had instructed Scheepers about requirements for posts was inaccurate, as well as out of context (as it unfairly raised eyebrows concerning her alleged interference in the appointment to posts);

·         The journalist did not give de Lille a fair opportunity to respond to allegations made by Davids about the appointment of the directors;

·         The reporter did not ask the mayor about either Ebrahim or Essop, and neglected to report her earlier comments in this regard (while repeating the allegation); and

·         Hyman reported various negating allegations by Davids (in his letter to Smit) about de Lille’s suspect management style – but again, without including the necessary comment from the mayor in order to balance the reporting.

Given all of the above, I have little hesitation in agreeing with de Lille that the reportage has unnecessarily tarnished her dignity and reputation.

Sunday Times; SowetanLIVE

The information at my disposal points to the fact that Sunday Times and SowetanLIVE posted the initial story on their Twitter feeds at 19:00 on 16 March and at 11:00 the next day respectively. This did not include de Lille’s comments, even though she had already responded at 16:56 and 17:21.

In this process, the publications have fallen into the same trap as TimesLIVE did.

Finding

All three publications

Reportage on the arbitration award

 The complaint that the story was published without having given de Lille adequate time to respond to the outcome of the arbitration award, for not reporting that the publication had tried to obtain comment from her in this regard, and for not giving her a deadline by which she should reply, is dismissed.

The rest of the story

The story misleadingly suggests that Singh-Bhoopchand attributed her finding of unfair appointments to nepotism on de Lille’s part, while this allegation had come from Davids. This was both inaccurate and unfair, and in breach of Section 1.1 of the Press Code that states, “The media shall take care to report news truthfully, accurately and fairly.”

The statement that Singh-Bhoopchand “found” that de Lille had instructed Scheepers about requirements for posts was inaccurate as well as out of context. This was in breach of the following sections of the Code:

·         1.1; and

·         1.2: “News shall be presented in context and in a balanced manner…”

De Lille was not given adequate time to respond to Davids’s allegations regarding the appointment of the directors (note: not on the award itself, but on the latter’s comments on that award), and did not report that the journalist did ask for comment but did not receive such comments in time. This was in breach of Section 1.8 of the Press Code that states: “… Reasonable time should be afforded the subject for a response. If the media are unable to obtain such comment, this shall be reported.”

The journalist did not ask de Lille for comment on allegations about Ebrahim and Essop, as well as about Davids’s allegations regarding her suspect management style and treatment of people without dignity and respect. This was in breach of Section 1.8 of the Press Code that states, “The media shall seek the views of the subject of critical reportage in advance of publication…”

Given that the reporter did not ask de Lille about the allegations about Essop, he should have included the mayor’s earlier responses about this matter. His neglect to do so was in breach of Section 1.2 of the Code that states, “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions …”

The complaint about not amending the first article, or linking it to the second one, is dismissed.

The reportage unnecessarily caused harm to de Lille’s dignity and reputation. This was in breach of Section 3.3 of the Press Code which states, “The media shall exercise care and consideration in matters involving dignity and reputation…”

Sunday Times; SowetanLIVE

In addition, these publications published the story without de Lille’s comments, while those were available at the time of publication. This was in breach of Section 1.8 of the Press Code.

General comment

Please note that I have not found that de Lille was innocent with regards to the allegations of nepotism – that would in any case be beyond my mandate. I have pronounced on the reporting of this matter, and not on the issue itself.

Seriousness of breaches                                              

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).                                            

The breaches of the Press Code as indicated above are all Tier 2 offences.

Sanction

The publications are directed to apologise to de Lille for:

·         misleadingly, inaccurately and unfairly suggesting that Singh-Bhoopchand had attributed her finding of unfair appointments to nepotism on de Lille’s part, while the allegation came from Davids;

·         inaccurately, and out of context, stating that Singh-Bhoopchand has “found” that she had instructed Scheepers about requirements for posts – which brought the suggestion of nepotism to the fore for which there was no evidence;

·         not giving her adequate time to respond to allegations about the appointment of the directors, and for not reporting that the journalist did ask for comment but did not receive such comments in time;

·         not asking her for comment on allegations about Ebrahim and Essop, and about Davids’s allegations regarding her suspect management style and treatment of people without dignity and respect;

·         omitting to report her earlier responses on the Essop matter (given that the reporter did not ask her about the allegations regarding Essop); and

·         unnecessarily causing harm to her dignity and reputation.

In addition, Sunday Times and SowetanLIVE are directed to apologise to de Lille for publishing the story without de Lille’s comments, while those were available at the time of publication.

The publications are directed to prominently publish the apology in the same space as was the case with the offending story, with a headline containing the words “apology” or “apologises”, and “de Lille”, and to link the apology to the story in dispute.

The text should:

·         be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;

·     refer to the complaint that was lodged with this office;

·     end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and

·     be prepared by the publication and be approved by me.

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.

Johan Retief

Press Ombud