Newcastle Municipality vs. Ilanga

This ruling is based on the written submissions of Mr Cebo Ngubane (of the firm Cngubane & Associates), on behalf of the Newcastle Municipality, and those of Eric Ndiyane, editor of the Ilanga newspaper.

COMPLAINT

The Newcastle Municipality is complaining about an article published in Ilanga, 20-22 February 2014, headlined Inkohlakalo ngomngcwabo kaMadiba – Corruption on Madiba’s funeral (day).

Ngubane complains that the:

• municipality was not given a proper right of reply;
• journalist based his story on a flyer and on unnamed sources, and he questions whether the story was properly verified; and
• newspaper refused to respond to enquiries relating to verification.

THE TEXT

The story, written by Vusi Mkhize, said that officials of the Newcastle Municipality were bumping heads after suspicions of corruption while planning the viewing areas for Mr Nelson Mandela’s funeral in December 2013. According to official papers in the newspaper’s possession, two companies reportedly quoted for TV screens that would show live proceedings – the one asked R189 750; the other wanted R107 500.

However, a day after the closure of applications, it was stated in a memorandum that neither of these companies be given the contract. The company that was subsequently appointed, quoted R994 500. Also, the municipality reportedly paid this money into a fourth company’s account.

The story quoted the mayor, Mr Afzul Rehman, as saying that as far as he knew the contract was given to this fourth company. He added that he had heard people in the municipality were spreading wrong information.

The municipal manager, Mr Kebone Masange, reportedly confirmed the above (while he himself had nothing to do with this matter).

ANALYSIS

No proper right of reply

The municipality complains that the newspaper made no enquiry to either its Department of Communications (DC), or to the office of the municipal manager.

Ngubane writes: “Our instructions are that our client should have been appropriately afforded an opportunity to furnish their own version of the story. The journalists should have handed over specific questionnaire to our client so that our client could have responded fully to the enquiry.”

The editor responds that in all its stories about the municipality, Ilanga consistently spoke to Rehman and Masange (and every time they were told that the newspaper had official documents in its possession).

He explains that the newspaper could not speak to managers in the supply chain department as these officials did not have any authority to respond to media inquiries: “…we felt it was enough for us to speak to the mayor and the municipal manager as they are the principals of the institution”.

My considerations

I asked the editor to send me the questions posed to the mayor and the municipal manager regarding the tenders, and added: “Hopefully these were in writing? If so, please forward your questions as well as the responses to me. If not, and if the contact was telephonically or in person, I trust that your journalist made notes of these conversations. In that case, copies of those notes may be helpful.”

Ndiyane said the journalist asked Rehman the following questions:

• How many big screens were provided for public viewing?
• Which company won the tender?
• Are you aware that a different company was paid?
• Are you aware that only three venues were provided with screens, as opposed to the five that were paid for?

The editor continued: “From this point the conversation did not continue as the mayor indicated that he was in a meeting. And later the journalist received a text message from the mayor. In the message the mayor was saying that he is aware that there are people in the municipality who are spreading false information about the institution.”

The complaint suggests that the newspaper made no enquiry to either the DC or the office of the municipal manager.

I note that the municipality does not dispute the newspaper’s claim that its journalist contacted the mayor for comment – while speaking to the mayor would have sufficed, provided that Mkhize gave the mayor enough information to respond adequately (which is what the complaint is all about).

Considering the questions cited above, I have little doubt that the newspaper kept within the boundaries of the Press Code on this specific matter.

Flyer; verification

Ngubane says the municipality instructed him that the newspaper’s source of information was a flyer (which was unsigned), as well as another source or sources who were undisclosed. The municipality had previously requested documentation from Ilanga in order to establish whether it had properly verified the story. He also questions whether the story was properly verified.

Ndiyane denies any knowledge of such a flyer. In later correspondence he dismisses “with contempt” the allegation that the story was based on a flyer. “What we have are documents like invoices, memos, company profiles and other relevant documents and all of those are signed documents.”

See his response to the complaint about other source(s) below.

My considerations

I note that Ngubane, in his letter to Ndiyane (dated 17 March 2014), also mentioned the flyer. He wrote: “In the article…you refer to a flyer that was circulated in and around Newcastle Municipality or municipal area. It is common cause that the contents of the flyer had a bearing on the image, the dignity and integrity of the institution as a whole and some senior officials in particular. Our instructions are that the flyer is unsigned. It is our assertion that an unsigned document that relates to identified people cannot be relied upon unless confirmed, at least with the people whose names appear on it.”

This is somewhat baffling, as there is no reference to a flyer in the story at my disposal. Admittedly the story is in Zulu (which I unfortunately do not understand), but I have obtained two translations – none of which contains any such reference.

I therefore sent Ngubane the following request: “You keep on suggesting that the newspaper got its information from a flyer – which it fiercely contests. I take it that you have such a flyer in your possession. Please forward that to me.”

I also requested from Ndiyane copies of the documents on which he says the story was based, and added: “I am thankful that you have already indicated your willingness to provide me with such. This would help to enable me to establish if the newspaper was justified in its reportage. Please rest assured that I shall under no circumstance make these available to the complainant, or divulge the identity of any source to anybody. I shall even delete/destroy this evidence once I have perused it.”

Ngubane did not respond to my request.

The editor, on the other hand, did comply. From these documents, I can safely say that the information in the story is correct (on the issue of the tender).

However, there is more. I gather from one of these documents that the story omitted one important and indeed vital statement. In a memorandum dated 13 December 2013, the Budget & Treasury Office of the municipality namely gave a reason for not appointing the two tenderers. It said: “However, upon closing this bid it was discovered that the proposals that were received did not meet the minimum specifications of what is required.” (emphasis added) It was also stated that, due to time limitations, normal supply chain management processes could not be followed, whereby approval was summarily granted to a third company.

The story did not report these considerations, but instead chose to suggest corruption as a (or “the”?) reason for the change.

Now: I am not interested in the question of whether or not the first two tenderers did or did not meet the requirements. I do know, though, that the municipality gave a reason (rightly or wrongly). The journalist should have reported that reason – and allowed the public to make up its own mind about possible corruption. For argument’s sake, let’s assume that the first two tenderers did indeed not meet the requirements, and the third company did. That would substantially change the suggestion of corruption, not so?

I also wonder why Mkhize, having had this document at his disposal, did not ask the mayor why the first two tenderers supposedly did not meet the requirements.

As matters stand, the story could have caused the municipality some serious, unnecessary harm.

Refusing to respond to enquiries regarding verification

Ngubane says that, in order to establish whether or not the municipality’s rights had been undermined, his company requested the newspaper to provide them with the following information:

• Whether they had made enquiries regarding the allegations in the story – and if so, what the content of these enquiries had been and to whom they had been addressed; and
• the response Ilanga had received.

The editor refused to comply. He admits that a law firm contacted him, who “wanted us to furnish them with documents about the municipality and also wanted to know who our sources were”. However, he was not at liberty to disclose the identities of his sources, nor was he prepared to hand over the documents as these would expose the source – who works for the municipality.

Ngubane responds that he never enquired as to the identity of the source, nor did he request documents about the municipality. He refers me to his letter to the editor, which is mentioned above.

My considerations

I do not know why the editor says that Ngubane wanted him to disclose his source(s) or that he asked for municipal documents, as there is no such indication in the documentation at my disposal.

Be that as it may, the details of this matter are not relevant. The point is that, while it would have been good practice for the newspaper to respond to the municipality’s inquiry as soon as possible, it was under no obligation to do so and it certainly did not breach the Press Code in this process.

FINDING

No proper right of reply

This part of the complaint is dismissed.

Flyer; verification

The complaint regarding the flyer is dismissed.

The story omitted to state the municipality’s reason for not appointing the first two tenderers. This is in breach of Sect. 2,2 of the Press Code that says: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

Refusing to respond to enquiries regarding verification

This part of the complaint is dismissed.

SANCTION

Ilanga is directed to:

• apologise to Newcastle Municipality for neglecting to state the reason given by its Budget & Treasury Office for not appointing the first two tenderers;
• state the reason given by the municipality for not appointing these tenderers;
• publish a summary of this finding (not the full ruling) and the sanction in an appropriately prominent manner. The story should start with the apology and the context, after which the newspaper is free to elaborate on the parts of the complaint that were dismissed;
• furnish our office with the text prior to publication; and
• end the text with the following words: “Visit www.presscouncil.org.za for the full finding.”

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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman