Appeal Decision: National Health Laboratory Service vs TIMESLIVE

NATIONAL HEALTH LABORATORY SERVICE                                   APPLICANT

AND

[1]     National Health Laboratory Service (“applicant”) lodged a complaint with the Office of the Press Ombudsman in respect of a story published by TimesLive (“respondent”) on 20 April 2015.  The heading read: “Medical test results ‘can’t be trusted’”.  The sub-head read: “There has been an exodus of senior management and skilled staff at the National Health Laboratory Service, leading to fears of its collapse”.  The content of the story stated, amongst others, that more “than 1000 of the service’s staff, including laboratory technicians, and pathologists, have resigned in the past year.  Staff morale is said to have plummeted.”  It also said that the applicant was owed billions of rands by especially the KwaZulu-Natal and Gauteng provincial governments.  The picture painted was not a pretty one.

[2]     The applicant raised a few complaints.

2.1    That the reportage was untruthful, inaccurate, out of context, unbalanced, prejudicial etc.  For example, it took the statement of one doctor at one centre to be applicable to all centres.

2.2    That the story incorrectly stated that the results could not e trusted.

2.3    The headline was presented as a fact.

2.4    Heading not a reasonable reflection of the content.

2.5    Comment was not sought.

2.6    The story exaggerated and distorted the number of staff that resigned, despite the fact that the journalist was informed that applicant did not lose 1000 staff members as claimed in the story.

2.7    The story wrongly stated that applicant’s chairperson had been forced to resign.

2.8    Failed to mention that quality measures were in place to ensure reliable results.

Some complaints were presented in a hair-splitting manner; but the above were the crux.

[3]     The Ombudsman dismissed all the complaints.  He found that diligent effort was made to contact the applicant through its spokesperson. Regarding the quality or accuracy of the test results, the Ombudsman found that the MEC for Gauteng had alluded to this, referring to some mis-matches for example.  That Gauteng and KwaZulu-Natal owed about R4b was also confirmed.  There was clearly a problem with regard to the payments, and Treasury had to be asked to assist.  That the errors “rocketed” was not presented as a fact, but an opinion of a senior doctor.

While I hold that the bulk of complaints were correctly dismissed by the Ombudsman, there are four in respect of which I believe that the applicant has reasonable prospects of success before the Appeals Panel.

3.1    The story said that more than 1000 of the 7500 staff resigned in the past year.  In this respect, respondent had also relied on other media.  The figure furnished by Brijlal of the applicant, is far too low; only about 370; it is not even half of what is alleged. It could therefore be argued that there was some exaggeration. The Ombudsman says: “Lankalebalelo did not provide me with the figures exactly how many people resigned, so I am not in a position to make a definite finding on this issue.” The Appeals Panel may have a different approach or make a finding.

3.2    The story stated that Dr Perez had been pushed out or forced to resign; this was denied by the applicant, and the journalist could not get in touch with Dr Perez; see paragraph 4 below.

3.3    Failure by the respondent to mention that there were quality assurance measures in place.  It is arguable whether the utterances of an MEC (of just one province for that matter), cures this; again, see paragraph 4 below.

3.4    Related to 3.3 above, is the complaint that the generalized statement of inaccurate results was out of context, given the fact that applicant has over 260 laboratories.

[4]     I am aware that in some instances, the respondent says that it did not receive the information; it is for the applicant to prove that it did send the information.  In this respect, I note that Lankalebalelo says: “In our complaint, we attached proof that the journalist’s questions…..were answered.” It is a matter for argument, which can go either way. Furthermore, if each side sticks to its guns, the Appeals Panel may come up with a different finding and or remedy.

[5]     In considering this application, I have taken into account, among others, the fact that the applicant is a scientific institution, like for example the Council for Scientific and Industrial Research (CSIR) or the Medical Research Council.  While it is true that the quality of its results are a matter of public interest, it is one thing for example to allege inaccurate electricity consumption statements of account by a municipality, but a different matter to make a generalized allegation of unreliable results against a scientific institution, with several laboratories all over the country. I note, in this respect, the following: “We are more concerned about allegations pertaining to our essential and core  business and reputation, which are tests and results.” Hence the complaint that the story is “inciting unwarranted panic to the public”, and that it is “stirring unwarranted public distrust” against the institution.

[6]     The test I apply in deciding whether to grant leave to appeal, is not whether the applicant will succeed, but whether there are reasonable prospects of success; for the reasons given above, I so find. In the circumstances, I hereby grant leave to the applicant in respect of only the four complaints mentioned in 3.1, 3.2, 3.3 and 3.4 above.

Dated this 1^st day of September 2015

Judge B M Ngoepe, Chair, Appeals Panel