Department of Environmental Affairs vs. Cape Times

This ruling is based on the written submissions of Director of Communications Zolile Nqayi, for the Department of Environmental Affairs (DEA), and the Cape Times newspaper, as well as on a hearing that took place on November 16 in Cape Town. The panel members who assisted me were Gerda Kruger and Simon Mantell. The DEA’s delegation was led by DEA’s legal representative Radia Ranzack and the newspaper by its editor, Alide Dasnois.

The DEA complains about two stories in Cape Times, both published on July 6, 2010 and both written by Craig McKune. They are headlined Fisheries in disarray as MCM management vacuum bites and Movement of officials probed after complaint.

The first story was published on the front page, and led over to an inside page.

The following sentences/phrases are said to be untruthful and/or inaccurate and/or unfair and/or misrepresenting of the facts (on some of these, the DEA says, it was not asked for comment):

The intro to the first article tells the story: “The government’s fisheries branch, Marine and Coastal Management (MCM) – created to monitor and control fishing resources and coastline – has been paralysed by a collapse in leadership, exacerbating the host of problems plaguing the fishing industry, sources say.” The story further says that the problem is compounded by an attempt to divide the branch into two new components in which many duties and resources would be duplicated. (One component would stay within the DEA, the other would move to the Department of Agriculture, Forestry and Fisheries – the DAFF.) “Insiders” reportedly said that this move was a huge waste of taxpayers’ money and an attempt to save the jobs of incompetent officials. The story then cites “scientists and analysts” on several “key issues” that the government is allegedly failing to manage.

The second story is about an investigation into alleged irregular transfers of several senior officials from MCM to the DEA (following a complaint made to the national anti-corruption hotline).

We shall now consider the merits of the complaint:

The complaint is that this sentence untruthfully, inaccurately and unfairly suggests that the officials who decided to stay with the DEA are incompetent and that they would have lost their jobs if they had been transferred somewhere else. The DEA also says that it was not asked for comment.

The Cape Times argues that the quote in dispute is preceded by “insiders say” – the opinion is attributed to multiple sources. The on-record sources are Peter Britz, a senior fisheries biologist at Rhodes University, and Shaheen Moolla, a former chief director in MCM. The newspaper says the off-record sources include five senior members of staff at MCM and another senior marine biologist.

The newspaper adds that communication with the DEA regarding these transfers took place between June 13 and July 5 – the officials then had “ample opportunity to explain the transfers”. After publication, the newspaper says it offered the DEA another opportunity to do so – which it ignored.

Firstly, the panel takes a look at the use of the word “incompetent”. The question before us is not whether or not the officials really are incompetent or to which degree they are incompetent, but only if the newspaper’s reportage on this matter can be seen as reasonable and justifiable.

Clearly, the newspaper relied on several sources – more sources that newspapers usually rely upon. These sources also were to a large extent independent of each other. Furthermore, the sentence in dispute does not state it as a fact that the officials are incompetent – all it does, is to report what its sources told the journalist.

The newspaper’s reportage on this matter was standard journalistic practice.

The second part of the complaint is the allegation that the newspaper did not ask the DEA for comment. The newspaper admits to this.

It should have tried to get comment – the accusation in dispute is quite a serious one. As much as the newspaper had the right to report what its sources said, as much the DEA had a right to defend itself on this issue. The newspaper, over a period of many days, communicated with the DEA in an attempt to get to the bottom of this issue (and well done for doing so). However, on this specific point, it failed to do its duty.

The DEA complains that it has responded quite extensively to questions posed by the reporter – yet its response on this matter was not reported, leading to an unfair imbalance in the story. (This response includes a statement to the effect that there was no Act that required a Ministerial approval for “intra-departmental” transfers and therefore that, at least at the time, the transfers were not illegal.)

The Cape Times says the question if the transfers were irregular “is a complex matter that the reporter attempted to understand through exhaustive interviews”. It adds that:

Even though this does not form part of the complaint, the panel wants to say that the newspaper was within its rights to quote its sources on this point. Moreover, the Cape Times did try to verify the statement in dispute. It had asked the DEA if it wanted to comment on the fact that the Public Service Commission confirmed that it was investigating “the allegedly irregular transfers of several senior officials” from MCM. The fact that the DEA chose to ignore the question about this new development, making the newspaper’s reportage on this matter unnecessarily difficult, was not the newspaper’s fault.

However, it must also be noted that the DEA, in an earlier communication with the newspaper about the matter of the alleged illegality of the transfers, did deny that it was breaking the law. The newspaper neglected to report this.

The DEA complaint is threefold. It says that:

The Department adds that an independent review of the Institute for Security Studies Report found that a common theme in all of the articles reviewed is the severe criticism of Marine and Coastal Management. The review also found that the reporter’s comments are “purposely defamatory of MCM and their staff – the rationale for these comments are invariably not fully justified by the author”. The DEA says that reporter requested a copy of this report, yet he “continued to rely on the commentator’s allegations with no factual basis”.

The Cape Times argues that the sentence in dispute is attributed to an on-record source, “Rhodes University Fisheries biologist Peter Britz”. His conclusion, the newspaper adds, were supported by other sources. Citing a wide variety of problem areas, Cape Times says that the opinions of these sources are also “borne out by the facts in this story and others published by Cape Times and other publications”. It also says that Britz is by-and-large a credible, experienced and knowledgeable source. The newspaper denies that its reporter has ever read the report; the journalist can also not recall asking for a copy, nor can he find any evidence of doing so.

The panel is convinced that the newspaper was within its rights to publish this sentence – it was merely quoting a source. Secondly, the newspaper can use whatever source it likes, even if (as in this case) the DEA’s perception is that the source is biased.

This leaves us with the matter of not asking for comment. The panel thinks that it was not necessary for the newspaper to each and every time ask for comment. As this issue is materially the same as the “incompetent” (first) part of the complaint, the panel feels that it has already voiced its opinion on this issue.

There is no reference in the story to comment from the DEA at all. There also is no attempt to state that, in some cases, it had tried to get information from the DEA, but in vain. The newspaper should have done so.

The DEA complains that:

Citing a longish list of Acts, the DEA says that in fact a majority of the legislation remained with itself. The Department mentions a longish list of areas that the DEA was still responsible for, adding that the newspaper never asked its comment on this matter.

The Cape Times says Ms Sue Middleton (who is the Department of Agriculture, Forestry & Fisheries’ Chief Director: Strategic Support Management MCM and formerly from Environmental Affairs) gave the newspaper its information. The Parliamentary Monitoring Group mentioned the same figures, as well as MCM staff members (“on numerous occasions”). The newspaper says it was therefore not necessary to ask the DEA about this issue. It adds that it has several times asked the Department for details on the new branch, stating that the DEA would not comment as the new branch had not been approved at the time.

The panel notes that, at the hearing, the Cape Times conceded that the use of the word “legislation” is inaccurate – it should have read “function”. The newspaper also conceded that the cause of this inaccuracy did not lie with the DEA.

The newspaper’s explanation why it did not ask the DEA’s view on this issue is reasonable – the information was already in the public domain.

The DEA complains that this sentence is inaccurate, untruthful and unfair as “no officials at DEA…have ever motivated for such a structure”. It says the plan that the reporter is referring to is an outdated DEA plan that still included MCM and therefore does not refer to the new Oceans and Coasts (OC) unit. The DEA adds that the reporter did not ask for its comment on this matter.

The Cape Times says a document titled Department of Environmental Affairs – 01 April 2010 to 31 March 2015 Strategic Plan clearly details the new branch.

Firstly, the panel notes that, at the hearing, the:

The DEA says that the sentence in dispute is inaccurate and untruthful – it says that the staff complement mentioned in the plan refers to the former MCM branch and not to the new OC branch. It says the Department informed the reporter that the staff compliment than was 151. The DEA adds that it was never asked for comment on this issue.

The Cape Times reiterates that the Strategic Plan (referred to above) clearly refers to the new branch.

The panel is convinced that the newspaper is correct in that the Strategic Plan indeed refers to the new branch as well as to 866 members of staff. We also note that the 151 refers to the number of employees after the split, which has no bearing on the figure mentioned in the Plan. The newspaper used the Strategic Plan as a basis for this sentence and therefore was not under an obligation to ask the DEA for comment.

The panel has a realistic idea where the journalist got the “eight senior managers” from, but this certainly is not reflected in the very same Plan that the article refers to. However, this matter is not material to either the story or the complaint.

At the hearing, the complaint was scaled down to the last sentence.

The DEA complains that this sentence is inaccurate, untruthful, unfair and a gross misrepresentation. It denies that the workload of the new branch was “only 18 percent” of the previous MCM. It says the reporter confused the 18/82% split in staff complement between the DEA and the DAFF with actual legislative mandate and the corresponding workload. The DEA adds that the reporter did not ask it for comment on this issue.

The newspaper says it has already stated that senior MCM staff and the Minister clearly said that the branch split was 82-18%.

The panel feels that this issue has already been adequately addressed.

In general, the panel’s main finding is that the newspaper should be commended for:

On the other hand, it also has neglected to ask the DEA for comment on several critical issues reported on.

We now look at our finding with regards to the individual complaints:

The first part of this complaint (untruthful, inaccurate and unfair) is dismissed as the sentence in dispute is a quote that is based on information gained from several independent sources.

The newspaper should have asked the DEA for comment on this (serious) allegation. This neglect is in breach of Art. 1.5 of the Press Code that states: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication.”

The DEA ignored an invitation to comment on the fact that there was going to be an official investigation into allegedly irregular transfers of several senior officials. However, it did earlier deny that it was breaking the law. The neglect to report this denial is in breach of Art. 1.2 of the Press 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…”

This part of the complaint is dismissed as the newspaper was within its rights to publish this sentence and to use this specific source. (The issue of not asking for comment has already been dealt with.)

There is no attempt in the story to state that, in some cases, it had unsuccessfully tried to get information from the DEA. This is in breach of Art. 1.4 of the Press Code that states: “…Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.”

The use of the word “legislation” is in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news…accurately…”

The rest of the complaint is dismissed as the information was already in the public domain.

The use of the words “the officials have motivated” was justified as the newspaper based its reportage on an official Strategic Plan. This part of the complaint is dismissed.

The use of the words “more than” is inaccurate and therefore in breach of Art. 1.1. of the Press Code.

This part of the complaint is dismissed as the newspaper used the Strategic Plan as a basis for this sentence and therefore was also not under an obligation to ask the DEA for comment.

This part of the complaint has already been dealt with.

The Cape Times is reprimanded for:

The newspaper is directed to apologise to the DEA for not asking its comment on the statements that refer to the alleged:

The Cape Times is directed to publish two texts:

The newspaper is asked to furnish our office with both texts prior to publication.

Please add the following sentence at the end of the summary: “Visit www.presscouncil.org.za (rulings, 2010) for the full finding.”

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at [email protected].

Johan Retief

Deputy Press Ombudsman