Umkhonto Professional Services and two others vs The Citizen


Wed, Jun 10, 2020

Finding Complaint 4450

Umkhonto Professional Services and two others vs The Citizen

Date of Publication:  13/6/19

Headline: “Rumours of KZN hitmen terrify Rustenburg municipality.”

Online: No

Author: Sipho Mabena

Particulars

This finding is based on a written complaint by attorneys from De Wet Leitch Hands Inc on behalf of Umkhonto Professional Services, the KSP Group, and Rise Now Trading, a reply from Mr Earl Coetzee of the Citizen, and further inquiries with both parties.

Complaint 

The attorneys of Umkhonto Professional Services, the KSP Group and Rise Now Trading, three companies operating in Rustenburg,  complain about an article in The Citizen headlined “Rumours of KZN hitmen terrify Rustenburg municipality” that reported on threats of violence and intimidation after the municipality initiated a forensic investigation into certain tenders. The article reports “rumours” of hitmen from KZN whose aim is to “silence whistle-blowers.”  Three companies were named.

The companies, through their attorneys, say the allegations were of “an extremely serious nature”; they deny them “profusely” and say they were not given an opportunity to respond.

Specifically they complain about breaches in the following clauses of the Press Code:

The media shall:

  1. take care to report news truthfully, accurately and fairly;

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; and

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; and

3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:

3.3.1. the facts reported are true or substantially true; or

3.3.2. the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true; or

3.3.3. the reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or

3.3.4. it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or

3.3.5. the content was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party;

Although The Citizen offered to retract and apologise for the use of the companies names in the story, it subsequently issued only an apology, not a retraction. Thus the companies’ representative complains of the breach of another clause in the Press Code, namely:

1.10 make amends for presenting inaccurate information or comment by publishing promptly and with appropriate prominence a retraction, correction, explanation or an apology on every platform where the original content was published..”

  1. The text

1.1 The story ran under the headline, “Rumours of KZN hitmen terrify Rustenburg municipality” with a strap that read: “The municipality is concerned about threats of violence, intimidation and potential harm to municipal officials and targeted politicians.”

1.2 The intro read: “The Rustenburg municipality in the North West is said to have been gripped by fear and intimidation of whistleblowers and officials after the halting of payments amounting to more than R250 million to three contractors pending a forensic probe.”

1.3 It goes on to say the forensic probe has sparked fears, “with rumours that hitmen from KwaZulu-Natal are in the municipality to silence whistleblowers.”

1.4 It reports that the acting municipal manager, Edward Komane, had sent a letter to three companies, Rise Now Trading, KSP Group and Umkhonto Professional Services, informing them of the decision to halt payments pending the probe. The newspaper confirms it has seen the letter.

1.5 All three companies are said to be from KZN and share the same address in Rustenburg.

1.6 The article also quotes a press release from the local directorate of public safety saying the municipality was concerned about threats of violence and intimidation aimed at municipal officials and “targeted politicians”. The directorate says it has asked the SA Police Service to investigate “the source of these threats.”

1.7 The article also quotes a municipal councillor saying there was a management report “pointing to corruption” in the waste and sanitation department but that it was being “kept under wraps.”

1.8 The councillor said the report, “which surfaced on social media platforms”, showed that one contractor had been paid 30% of the total amount  (R61 million) in three months although the timeframe of the contract was 36 months – and that it was paid “days” after submitting an invoice.

1.9 It quotes municipal spokesperson David Magae saying Mr Komane was still “engaging”  lawyers and various stakeholders on the issue, and after that would address the media.

2. The arguments

DeWet Leitch Hands Inc for the three companies

2.1 The legal representatives of the three companies say that the day after the article was published, they wrote to The Citizen “advising them that the allegations were denied profusely and at no stage were our clients given an opportunity to respond to the allegations.”

2.2 The allegations against them were of “an extremely serious nature.”

2.3 In response to the lawyers, The Citizen said “the names of your clients were inadvertently included in the article …we will run an apology and retraction in tomorrow’s edition of the newspaper.”

The apology, published on 20 June, under the headline “Setting the record straight”, apologised for not affording the three companies the right of reply but did not retract the article.

2.4 In a subsequent letter to The Citizen’s Mr Earl Coetzee, dated June 24, 2019, and made available to the Ombudsman, the legal representatives of the three companies complained that the apology and retraction, as promised, had not been forthcoming, and that the story continued to appear on the newspaper’s website. It threatened to bring an urgent application if the story was not removed.

Mr Earl Coetzee for the Citizen

2.5 Mr Coetzee says the newspaper had made an error in using the word “retract” when it offered to apologise and retract the article.

2.6 He admitted the newspaper had erred in not approaching the three companies named for a right of reply.

However, he said that after consultation with the reporter concerned, “we came to the conclusion that the content of the story still stood and that we were confident in the facts reported. We do regret the publication of the complainants’ names, as this was an editorial oversight which should not have happened.

2.7 “Therefore, we decided against retraction of the article in question, and chose to issue only an apology for our failure to grant the named parties a right to reply.”

2.8 He said the reporter’s information was reliable and the information verified and the newspaper stood by the story.

Thus the paper had decided not to issue a retraction “and since we have already published an apology on the matter, we consider the matter dealt with from our side.”

Further arguments

2.9 In response, Ms Semantha Moodley of DeWet Leitch Hands said the newspaper had made a written undertaking to apologise and retract the article.

“The Citizen at no stage furnished us with correspondence ..that it was not willing to proceed with a retraction, neither did the reporter endeavour to obtain information from our clients in order to substantiate the allegations…”

2.10 The headline, ‘Rumours of KZN hitmen…’ “created the impression that our clients are involved in illegal conduct”.

These companies are “prominent businesses which play important roles in the community” and the article has resulted in “substantial damage to their reputations. At no stage did our clients engage in any unlawful conduct, nor have they any knowledge at all of KZN hitmen.”

2.11 She argues there is “no factual basis” for the allegations published” and The Citizen “did not take any steps at all, let alone reasonable steps, to verify what they were reporting.”

  1. Analysis

3.1 It should be noted that The Citizen did indeed publish an apology on the 20th June headlined “Setting the Record Straight”.

3.2 In it, it “regretted” publishing the names of the three companies and linking them to “alleged threats and other illegal activity” related to the forensic investigation in the Rustenburg municipality.

3.3 It also admits that the companies in question were not offered an opportunity to reply to the allegations.

The publication was not, however, deliberate, and the names crept in as a result of an oversight, after failure to reach the companies in question.”

The paper apologised for this “and for inconvenience caused”.

3.4 The attorneys for the three companies have indicated they are not happy with this apology, as the allegations made were of a serious nature and have caused reputational damage to the companies. They want a full retraction, which The Citizen has not made.

3.5 There are four main complaints here: one is about the truthfulness and accuracy of the reporting; the second is about the right to reply; the third is about whether the apology issued was adequate; and the fourth is about the reputational damage the companies have suffered as a result of the article.

3.6 On the truthfulness and accuracy: in a story such as this, which contains serious allegations, I have to judge whether it was reasonable for the reporter to publish what he did given the information at his disposal.

The article states some key facts, among them:

  • A forensic probe had been initiated by the municipality into various tenders.
  • As a result of this payments to certain companies were halted. The three named in the article are identified as being among those companies.
  • The article quotes the acting municipal manager, Edward Komane, who confirms this, stating he had sent a letter to the three companies.
  • On the alleged threats of violence, the reporter quotes a press release from the local directorate of public safety, saying it had asked the SA Police Services to investigate threats.
  • It also quotes an (unnamed) councillor who says a management report on corruption in the waste and sanitation department had been “kept under wraps.”
  • It quotes the municipal spokesperson David Magae saying the municipality was “engaging” with various stakeholders, including lawyers, and would comment at a later stage.

3.7 So in the reporting of the forensic probe and the halting of payments there are two official and named sources, and a third source identified as a councillor.

Thus the reporter had reasonable grounds for publishing this story, which was a matter of public interest, about a forensic probe into certain contracts.

3.8 Second, on the right to reply: it is common cause that the reporter neglected to offer any of these companies a right of reply. For this The Citizen  published an apology saying the companies’ names had “crept into” the story as a result of an “oversight.

3.9 It was a serious “oversight” as the three companies are linked to not only questionable contracts (that had been suspended pending the probe), but also to threats of violence and intimidation from alleged “hitmen” who had come from KZN (where the paper reports the three companies are based).

3.10 This is linked to the third complaint about the nature of the apology: in my view the apology should be more direct and state emphatically that the newspaper failed to contact any of these companies in breach of the Press Code.

However, this is not the same as a retraction: the story is well-sourced in other respects and relies, not in the main on anonymous sources, but on official sources. It was also not published online, according to Mr Coetzee, so cannot be removed from the site (I did a search for it and could not find it).

3.11 On the damage to reputation: this could have been ameliorated somewhat had the companies been given the right to reply. I am not in a position to say whether these companies are themselves involved in threats of intimidation or have called “hitmen” in, but neither is the reporter on the strength of his reporting. What he can (and did) say, is that there have been threats of violence in the municipality and that this has been reported to the police.

As far as the allegation about “hitmen from KZN” goes, he refers to this simply as “rumours”. There are no sources in the story to back up this particular allegation, even though the report of “rumours” (although not the fact) may be true.

However, the association of the report of rumours of “hitmen” from KZN with the names of the three companies, also identified as being from KZN, could lead a reasonable reader to believe the “hitmen” (not yet proved to exist) are associated with the three companies.

This clearly would lead to reputational damage.

Although the main focus of the article – the forensic probe - is clearly sourced and verified, the report of the “rumours”  of “hitmen” is not.

Finding

I find The Citizen has breached clauses 1.8 and 3.3 of the Press Code. These are Tier 2 offences in terms of the Press Code.

The rest of the complaint is dismissed.

The Citizen should publish a clear apology to the three companies, with the word “Apology” in its headline, for failing to afford them the right of reply to the allegations. It should also apologise for linking these companies, albeit indirectly, to rumours of “hitmen” from KZN, apparently aimed at intimidating whistle-blowers, without substantive evidence of this.

The apology 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”;
  • be published with the logo of the Press Council (attached); 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.

Pippa Green

Press Ombudsman

June 9, 2020