City of Tshwane vs. Pretoria News

This ruling is based on the written submissions by the office of the Mayor of the City Of Tshwane (Mr Kgosientso Ramokgopa) and those of Jos Charle, deputy editor of the Pretoria News newspaper.

Complaint

The City of Tshwane (“Tshwane”) is complaining about a front-page lead in Pretoria News of 27 January 2016, headlined ‘City misused R4bn’ – DA cites leaked A-G letter; says graft rife in capital.

It complains that the following (untrue) statements are reported as facts:

·         Tshwane’s budget was spent on illegal contracts;

·         The “allegeded” report showed irregular spending of R4-billion by the municipality;

·         Graft was rife in Tshwane – there was “pervacive corruption and a lack of control in the supply chain management, as well as ineffective leadership”;

·         The release of the Auditor General’s (AG’s) report was delayed; and

·         The AG review of a PEU contract (the city appointed the company PEU Capital Partners to install and manage more than 800 000 smart electricity meters and related systems) found that “this R27 billion contract” was illegally undertaken.

The City also complains that the newspaper did not verify its information and ignored its request to treat the alleged leaked report with caution.

It complains that this reportage, valuing the scoop over the truth, has caused its reputation unnecessary harm. The City adds that the newspaper did not follow up this story with a report on the actual findings of the AG, as stipulated by Section 1.10 of the Code of Ethics and Conduct.

Tshwane says the newspaper reported that the DA had provided it with a copy of what was alleged to be a leaked AG audit report – and complains that it was “littered” with findings that the Auditor General (AG) did not in fact make.

The text

The first few sentences of the story, written by Rapula Moatshe, read as follows: “A leaked audit report of the City of Tshwane for the past financial year is at the centre of yet another public spat between the DA and ANC. The official annual report from the office of the auditor-general is expected to be submitted to the council at its first sitting of the year tomorrow. It will become a public document at the end of the month. But the DA released what it said was a copy, and held a media briefing about it yesterday.”

Moatshe wrote the alleged report showed irregular spending of R4 billion in the Tshwane municipality.

Both Tshwane and the AG’s office reportedly spoke out strongly against the leaked report, saying it had no status and standing, nor was it credible.

The arguments

Tshwane argues the article was “littered” with findings that the AG did not in fact make.

The City says it told Pretoria News that it could not confirm the authenticity of the DA-leaked document, and “urged that the final AG report be awaited before any public comments could be made”. It adds that the newspaper did not ask the AG to authenticate the document as its final audit report.

As background, Charle explains the reporter responded to an invitation to attend an open DA media briefing, which was attended by a variety of media houses, all reporting on the matter. He says nowhere in the story was it stated that this was the official AG report; instead, the story indicates that the AG would present his official report to council on (the following) Thursday.

He also argues that the:

·         information was based on a public statement released by the DA, which the newspaper reported as such;

·         article did not refer to the report as the AG’s findings;

·         figure of R4-billion was reflected in the leaked report (the newspaper reported what the DA said, not the AG);

·         statement of “pervasive corruption” was attributed to the DA’s mayoral candidate, Solly Msimanga (who made the announcement at the briefing), and not to the AG;

·         newspaper merely reported what Msimanga told the media conference about the “delayed” report;

·         reference to the PEU contract was also attributed to Msimanga.

The deputy editor adds that:

·         when the reporter submitted the story, it went through “the usual rigorous process of verification” by the news editor;

·         he (Charle) then further interrogated the contents of the story and it was again verified that:

o   the statements reflected in the article had been made at the public briefing;

o   there was no question of the Pretoria News “scooping” anyone – some of the media representatives present tweeted and sent Facebook updates on what was announced; and

o   the reporter did not take the DA’s statement at face value.

He says that the newspaper contacted the City for comment in writing, and also sought clarity from the AG’s office – but, as reported in the story, a spokesman said management reports were not public documents. “[It] is [therefore] apparent that the Pretoria News did not just take at face value what the DA had to say, but in fact did seek the [City]’s and AG’s sides of the story.”

Charle argues that this office should also take the heightened political rivalry between the ANC and the DA in the area into account. “But even with this in mind, the media has a responsibility to report on allegations being made fairly and correctly and must put such allegations to those that they are made against in the interest of balance and fairness. And that is what Pretoria News did.”

He adds, “Reporting on free and fair political activity receives protection in the South African law. The current position, as expressed by the Supreme Court of Appeal is that, where publication takes place about political activity, even if the allegations are untrue, it is not unlawful if the publication was reasonable. Moreover the press has a right and duty to advance communication between the governed and those who govern.”

The deputy editor also states that the reporting of an official allegation of suspicion does not mean that the publisher is required to prove the truth of the suspicion, referring to Independent Newspapers Holdings Ltd and Others vs. Suliman.

Pretoria News denies that its reporting:

·         was malicious – it argues that if the media were to be prevented from reporting on what public figures say, on matters concerning governing structures like Tshwane, and on other matters from offices such as those of the AG, the media would be failing in its key task to inform the public of the political, administrative and financial discourse;

·         has caused Tshwane any harm – it was in the public’s interest to know what politicians were saying and doing;

·         amounted to a scoop, as the matter had been raised in a public media briefing and was then widely reported and re-circulated on social and other media; and

·         has shown a “lack of independence as no articles were later run … to confirm the actual findings of the AG when the report was released” – two days after the story in question had been published, Pretoria News carried on its front page the report of the AG to the Council meeting under the heading, ‘Only’ R1.5bn wasted. This report was accompanied by a 5-column picture of Ramokgopa, and the report extensively quoted the mayor on the AG’s report. It also ran an editorial comment in which the newspaper praised Tshwane for obtaining an unqualified report from the AG and asked why the DA rushed to release details of the draft report on the eve of the official one.

Charle concludes, “The Pretoria News would derive no benefit from ‘harming the Council’; in fact, the newspaper has striven for cordial, friendly and professional relations between its staff and the operatives of the CoT, including [the] mayor…”

Analysis

The crux of the matter is how the story portrayed the document in question.

The gist of Charle’s argument is that the information in the story was released by the DA, that the story did not claim the document to be the official AG report, and that it did not refer to that manuscript as the AG’s findings.

Let me quote again the first few sentences (with my emphases):

“A leaked audit report of the City of Tshwane for the past financial year is at the centre of yet another public spat between the DA and ANC. The official annual report from the office of the auditor-general is expected to be submitted to the council at its first sitting of the year tomorrow. It will become a public document at the end of the month. But the DA released what it said was a copy, and held a media briefing about it yesterday.”

Charle’s arguments do not hold water, as the story:

·         did not refer to the document as a “draft” report – on the contrary, it started off with the words “A leaked audit report…”; and

·         stated that the “official” annual AG report was expected to be submitted to the council at its first sitting of the year the following day. True, this implied that the leaked report was not yet official – but it also suggested that it was most likely going to be the official one as it was due to be tabled the very next day (leaving the impression that the document was not likely to change).

These first sentences, together with the headline, left the reader with only one reasonable conclusion – the leaked report was the real one, and the story was indeed about the AG’s report.

However, in reality it was not the final AG report, which means that all the references to this document and to its contents were out of context, and therefore unfair (as the allegations concerned are quite serious).

I refer specifically in this regard to the statement that the allegeded report showed irregular spending of R4-billion by the municipality, and that graft was rife in Pretoria (references were made to “pervacive corruption and a lack of control in the supply chain management, as well as ineffective leadership”).

The statements that the release of the AG’s report was delayed and that the AG review of the PEU contract found that “this R27 billion contract” was illegally undertaken were properly attributed (as argued by Charle).

Let me be very clear on this issue: It is not in dispute that Pretoria News has a duty to report on such public matters, as they are in the public interest. This goes for the leaked document as well. The newspaper was completely justified to report on each and every statement in that document that it found newsworthy.

It is also correct, as Charle argues, that it was not the newspaper’s duty to prove the veracity of the allegations (as confirmed by the court case referred to by Charle).

The question, therefore, is not whether the newspaper should have published the contents of the document (within or without the political climate at the time), but rather how it should have been done.

The “how” suggests the story should have made it clear that the document was a draft document, and that it was alleged to be a draft of the AG’s report. Even though the article did state that the official report was still to be tabled, the likely impression of the reasonable reader from this reportage would have been that the document in question was The Real McCoy.

Charle’s argument that some of the statements in the story were attributed to Msimanga, such as that about the “delayed report” (and not to the leaked document) is convincing.

I commend the newspaper for asking the City and the AG for comment.

The complaint that the newspaper did not publish a follow-up article on the real AG report is rather baffling, as it did do exactly that (as Charle correctly pointed out). The newspaper needs to be commended for that as well.

The question about harm (in this case, to Tshwane’s reputation) is an important one on which I also have to be very clear.

In a certain sense it is the media’s job to harm people and institutions – if they deserve it (and if it is in the public interest to do so). I am therefore not concerned about the question of whether the reporting has caused Tshwane harm – my only concern is if it has done so unnecessarily.

That is why the Preamble to the Code of Ethics and Conduct says, “As journalists we commit ourselves to the highest standards, to maintain credibility and keep the trust of the public. This means … avoiding unnecessary harm…” (Emphasis added.)

I believe that the reporting has unnecessarily harmed Tshwane’s reputation. Section 3.3 of the Code of Ethics and Conduct provides for the following exceptions:

The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances:

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

3.3.2. The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially 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 and in the public interest.

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

Neither of the above-mentioned exceptions are applicable in this case.

The deputy editor’s argument that the newspaper would have derived no benefit from harming Tshwane is convincing and forms the basis on which I do not buy the City’s argument of malice.

Finding

The impression created by both the article and the headline, that the leaked report was that of the AG, was in breach of the following sections of the Code of Ethics and Conduct:

·         1.1: “The media shall take care to report news … fairly”;

·         1.2: “News shall be presented 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”; and

·         3.3: “The media shall exercise care and consideration in matters involving … reputation…”

The rest of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breaches of the Code of Ethics and Conduct as indicated above are Tier 2 offences.

Sanction

Pretoria News is directed to apologise to Tshwane, in general, for creating the incorrect and unfair impression that the leaked document was the real AG report; and in particular for the statements derived from that document to the effect that the municipality has irregularly spent R4-billion and that graft was rife in Pretoria (“pervacive corruption and a lack of control in the supply chain management, as well as ineffective leadership”).

It should also apologise for the unfair and unnecessary damage this has done to the municipality’s reputation.

The text, which should be approved by me and which should be published in full on its front page, should:

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

The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.

If the offending article appeared on the newspaper’s website, the correction should appear there as well.

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

Johan Retief

Press Ombud