Mathibedi OTN Holdings vs. Kormorant

SUMMARY

The headline to the story in dispute read, ‘African Island’ resort for Schoemansville (published on 9 March 2018); and, DWS did not approve foreshore development (15 March 2018); and, Land grab skulduggery (4 April 2018).

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

 

The issue was about a proposed development by Mathibedi OTN Holdings, represented by Thabiso and Onnica Mathibedi, in a dominantly white area In Hartebeespoort.

The stories were about the approval by the Department of Water and Sanitation (DWS) of a resort similar to African Island on the Schoemansville foreshore at Hartebeespoortdam. (African Island was a beach-like development where day visitors could spend the day at a fee, with all sorts of entertainment for young and old. Visitors to this resort were reportedly all black.)

After a meeting with the relevant parties, Retief said his first and overriding concern was that this matter had the potential to fuel tension among people of different races, which in turn could escalate into further violence.

He directed the Kormorant to unconditionally apologise to the Mathibedis for:

• wrongly assuming that the Wellness Resort was going to be similar to African Island, and for not promptly correcting that statement;
• strongly suggesting in the second article that the would-be developers were occupying the land illegally, even though they did get the green light from the DWS to prepare the land in order to later apply for development;
• evoking racist interpretations;
• exacerbating the situation by driving the cause against the proposed development;
• neglecting to:
  • ask them for comment regarding the first article; and
  • state in the second text that they could not be reached for comment; and
• causing them some serious, unnecessary harm.

The newspaper was also asked to apologise to its readers for:

• feeding them with misleading information about the suggested parallel with African Island, and that had unnecessarily led to vandalism and confrontational behaviour towards the Mathibedis;
• mixing up news with opinion, which must have left at least some of them confounded; and
• leading at least some of them to doubt its professionalism and credibility.

 

THE RULING ITSELF

PARTICULARS

Complainant	Mathibedi OTN Holdings, represented Mr Thabiso and Ms Onnica Mathibedi
Lodged by	Ms Nontobeko Mzilethi, MD of Solitaire Communications
Meeting at Hartbeespoort attended by	The Mathibedis, Mzilethi, and two others; Two representatives of the Department of Water and Sanitation; Deon van Huizen (editor)
Headlines	‘African Island’ resort for Schoemansville; DWS did not approve foreshore development) and Land grab skulduggery (see note below under the sub-heading, Texts)
Dates of articles	9, 15 March 2018; 4 April 2018
Author of articles	van Huizen
Respondents	Helene Eloff; van Huizen

Complaint

The crux of Mathibedi OTN Holdings’s (“Mathibedi”) complaint is that the reportage was inaccurate, unsubstantiated, uncorroborated, unfair, unbalanced, defamatory, malicious, biased, and racist.

The Mathibedis also complain that the newspaper:

·         did not correct its initial false reporting, despite having properly been informed at a public meeting;

·         presented the texts in question as opinion pieces, while in fact they were news reports; and

·         did not pay any regard to the legal and legitimate route that the Department of Water and Sanitation (DWS) had followed in allocating and approving the use of the piece of state land for the intended resort.

The company adds that the newspaper has not given it a right of reply, and that the editor was conflicted in the matter.

The Mathibedis also say that the reportage has caused:

·         alarm, despondency, and fear that gripped the local community, as was evidenced by the loud outcry, protest and anger that emanated from the largely white community of Schoemansville – escalating tension in the area with regard to the current national debate about expropriation of land without compensation;

·         them severe trauma as they have become the subject of harassment, verbal abuse, racial slurs, unnecessary negative attention, and even death threats;

·         them to spend time, money and resources to undo the “chaos and confusion” caused by the reportage; and

·         damage to the “legitimate working relationship” they have established with the DWS and its relevant employees.

Issues not adjudicated

The complaint included other issues which I am not in a position to adjudicate. This involves the complaint that the reportage has:

·         violated certain sections of the Constitution of this country, as my office is not a court of law (I am mandated to use the Press Code as a yardstick, not anything else);

·         reflected “a pattern of persecutorial and prejudicial misconduct in which inflammatory reporting, incorrect quoting of sources and false and misleading statements are often used to prejudice the rights of Hartbeespoort town individuals and groups in favour of others”, as two articles are hardly enough to establish any kind of a pattern, and there was no complaint about other articles that might have supported this part of the complaint;

·         reflected negatively on African Island, as the Mathibedis have no standing to complain about that venture (unless they have permission from that company to do so); and

·         singled out the Mathibedis, as black persons, while it has not addressed the matter of other people (all whites) who operate without proper licenses – I am only mandated to adjudicate what has been published and besides, I do not have the full background to all the other lessees’ history.

For obvious reasons, I am also not going to comment on the merits or demerits of the DWS’s role in this matter, as that falls outside my mandate as well – save to say that the Department’s officials who attended the meeting were helpful and accommodating.

Litigation

The Mathibedis have indicated that they have not laid a charge of defamation against the newspaper, and neither did they intend to do so. I proceed with this adjudication with this assurance in mind.

The texts

The first text

This text, which was published online only, is about the approval by the DWS of a resort similar to African Island on the Schoemansville foreshore, of which the Mathibedis are the would-be developers. (African Island is a beach-like development where day visitors may spend the day at a fee, with all sorts of entertainment for young and old.)

However, the management of the Schoemansville Resort was reportedly only made aware of the Department’s intentions when two entrepreneurs turned up at the resort to claim parts of the foreshore (which have been allocated to them by Ms Joey van Rooyen of that Department).

According to the manager of the resort, van Rooyen said if they were not prepared to share that part of the foreshore, their lease, which was up for renewal, could be in jeopardy. She allegedly added, “the allocation of that part of the foreshore for recreational development was necessitated by workers of the DWS striking in support of a demand for ‘ready access’ to Hartbeespoort Dam”.

Van Huizen wrote that the public had no access to the process in terms of which the allocation had been made, that no open tenders had been invited, and that no environmental or social impact study had been conducted. The journalist added that the allocated part of the foreshore was in the centre of Schoemansville, “and [it] is feared that this development would have a devastating effect on property values, as was demonstrated by the reaction to the unbridled promotion of tourism at the expense of residents some years ago”.

The editor also stated that, as no study had been done to determine the effect on the already stressed birdlife at the dam, Birdlife Harties has decided to join the protest against DWS’s action on the foreshore, as did the Bravo November neighbourhood watch network. The Schoemansville Home Owners Association was also considering joining the action. “As none of these bodies are financially very strong, the support of as many residents as possible will be needed for any future action. Anybody interested in pledging their support, either in kind or in financing any future legal action, can contact Kormorant at [email protected],” he stated.

At the end, the following bulleted paragraph was published: “Kormorant previously categorised this opinion piece as ‘latest news.’ This was the result of an error and has been fixed. The publication apologises for any inconvenience caused.”

The second text

This text says that the DWS’s deputy director responsible for the administration of the foreshore, Ms Patience Mangotlo, asserted that the Department had not approved any application for development on the foreshore – and that that would only happen when all legal issues were cleared.

She reportedly said a junior official at her department gave the go-ahead for the venture, apparently using a strike by DWS employees as an excuse to force through the development.

Mathibedi reportedly “bitterly complained” that the newspaper did not consult with him prior to publication, and called the first article “a bunch of lies”.

The editor added, “The attitude of the developer is similar to that of a highwayman who complains that the victim he ambushed accuses him of assault while he was merely going to rob him”.

The issue allegedly took a nasty turn when, according to Mathibedi, a resident in Waterfront Street had used racially abusive language to register his disapproval. “If this was the case, it should be condemned in the strongest possible terms. The protest was not against the developer or his race, but against the development and the way it was being forced upon the residents”, the text says.

However, the text continues, the developer himself was playing the race card by accusing residents of opposing the development because of his race.

A third text

(This text falls outside the ambit of this adjudication as it was published after the Mathibedis have lodged their complaint. However, it does shed some light on how the texts in question should be understood. I therefore merely use it as background to help to interpret the relevant material.)

The article says that:

·         certain junior officials in the DWS and the “so-called Wellness Centre” were involved in the “illegal occupation” of the Schoemansville foreshore;

·         the parties concerned seemed to be cutting each other’s throats as they were “outmanoeuvring” the residents of Schoemansville;

·         Mathibedi “falsely claimed” that he had permission to start occupying the site; and

·         when Mathibedi had been confronted with the fact that he could not produce a valid contract or any form of written permission to occupy, he laid “bogus charges” of malicious damage to property, racism and intimidation against several local residents.

Correspondence prior to the meeting

The complaint in greater detail Mathibedi says the unfounded and untruthful reference in the first text to his intended plan as a resort “similar” to African Island served to show that his enterprise would be as unfit for the (majority of white) residents of Schoemansville as that venture was perceived to be. This statement, he argues, has unsettled the community and heightened racial tensions, as it has conjured up thoughts of a busy and noisy resort, frequented by black people who use taxis and buses to get to the resort. He says that, in stark contrast to African Island, he intends the Wellness Resort to have a quiet, peaceful and relaxed atmosphere, with no rides, slides or waterparks. Mathibedi also states that: ·         no white person who occupies state land does so with a valid lease – and asks why the newspaper singles out his particular case; ·         contrary to what has been mentioned in the publication, no “tender” was issued to him – and again, he was singled out; ·         the newspaper was exploiting the current national discourse pertaining to the expropriation of land without compensation to give the impression that he had “helped himself” to property, heightening fears and tensions in that process, while instead, the newspaper should report that he occupied the land with the DWS’s permission; ·         the editor has called on the community to mobilise into residential groupings in “what appears to be an attempt to fight any further [such] potential developers” – which was segregationist conduct, and therefore destructive, divisive and inappropriate; and ·         the editor has solicited funds and pledges in order to fund future legal action – “an unethical practice by a community publication that is blatantly and unashamedly partial and one-sided…” – in that process violating the newspaper’s role as a community builder. The newspaper’s response Admitting to mistakes The newspaper admits it did not initially indicate that the first text was an opinion piece, as it should have – a mistake the editor has corrected as soon as he became aware of it. It also concedes that the reference to African Island was wrong. Explaining the reasons behind his assumption, Eloff submits that van Huizen at the time of publication did not know the nature and extent of Mathibedi’s planned development. What he did know, was that Mathibedi was a businessman (an established pleasure boat operator), and that the latter had stated that he had wanted to develop a picnic spot for residents. She says the editor therefore considered it unlikely that Mathibedi’s venture lacked commercial motivation – hence his assumption. However, Eloff acknowledges that this parallel was not based on fact – which means that it was not protected by Section 7.2.4 of the Press Code that stipulates that comment or criticism is protected if it has taken fair account of all material facts that are “substantially true”. She argues, though, that although van Huizen’s assumption was wrong, the advocacy of litigation against the DWS acts was not based on this assumption – she says it rather related to the DWS having awarding leases without due public participation, tender procedures and required impact studies. Denying mistakes Eloff denies that the remaining content of the reportage was in breach of the Press Code as it merely reflected van Huizen’s honestly held, malice-free opinion on material facts related to a matter of public interest. She says that on March 4, van Huizen and Mathibedi both attended a community meeting during which the editor presented the would-be developer with the allegation that: ·         the public was in the dark regarding the nature and extent of the planned development; ·         the community should have been given the opportunity to engage in public participation prior to the development having been approved; ·         no environmental or social impact study was conducted, nor were tenders invited prior to the land being leased for development; and ·         residents feared that the development could negatively affect their property values, as has happened before. She says Mathibedi did not refute any of the allegations; however, she says, the editor did reflect comments he had made during that meeting (in his second text). She adds that van Huizen arranged to meet Mathibedi on March 5, but the latter did not pitch; the editor then phoned him, but again without success. Eloff submits that the editor was within his rights to advocate the cause (read: to support the opposition against actions by the DWS that interfered with the rights of landowners and occupiers of property), arguing that it was in line with Clause 6 of the Press Code. She stresses that, “… van Huizen was not soliciting funds for himself or for the publication, but … was merely acting as a point of contact between the public and those who wished to join movements acting against the DWS’ behaviour.” She also denies that the inference that an African Island resort was not fit for the people of Schoemansville was a reasonable one to make, and suggests the allegation that locals associated that venture with a majority of black patronage was an assumption and not factual. In fact, she continues, van Huizen condemned an alleged incident of racism in his second opinion piece. She says the editor also made it clear that this matter was not a racially based one, as his opinion pieces related to residents’ complaints about being kept in the dark regarding the proposed development. Besides, she continues, it also bothered residents that a development had been “approved” without due public participation and openness – and by an unauthorised person at that. The issue, she maintains, was not race, but alleged irregularities by the DWS. Eloff says a Member of Parliament has questioned the legality of the matter, and the issue was still under investigation. The newspaper also denies that its reportage was: ·         unresearched, as Mathibedi has been presented with the crux of the community’s concerns and has to this day not addressed these issues; ·         inciting anybody; ·         malicious; ·         giving the impression that Mathibedi had “helped himself” to white-owned property; ·         segregationist in its approach; and ·         conflicted. Mathibedi’s reply to the newspaper’s response Mathibedi says van Huizen is completely unfazed by the magnitude and severity of the damage that he and his publication have done, and including heightening racial tensions in the community. He says the Kormorant was quick to publish a picture of a derisory protest march in its 19th April 2018 edition, as it has “indeed engaged on a well-orchestrated, sensationalist, and obsessive agenda geared at getting the white community to rise up against Mathibedi OTN Holdings by all means necessary”. Mathibedi adds that the newspaper has positioned itself as a mouthpiece for the mobilisation of racially fuelled activities aimed at blocking black people from occupying state land through lawfully acquired leases. He alleges that the white community acting in tandem with the newspaper desires to maintain a separate Hartbeespoort, one for whites and the other for blacks. He denies that a follow-up meeting with van Huizen was agreed upon and remarks that, if the editor indeed attempted to call him, he should have mentioned that in his article. Mathibedi also asks van Huizen to note that his project is a wellness “resort” and not a wellness “centre”, as the newspaper continuously refers to his proposed development in its reportage.

Analysis

My first and overriding reason for calling for a meeting with the parties was my very real concern that this matter had the potential to fuel tension amongst people of different races that, in turn, could escalate into violence. Property has already been vandalised, and Mathibedi has continuously been experiencing confrontational behaviour, even including death threats.

Remember: Part of a newly erected fence at the proposed development has been vandalised, newly planted shrubs were uprooted, empty liquor bottles were left at and inside the premises, and some members of the public have confronted and even threatened Mathibedi in different ways.

Violence done to property can easily spill over into violence against people.

Therefore, while I do not believe for one moment that the newspaper has ever intended or even envisaged vandalism and confrontational behaviour to follow its reportage, I am proceeding with caution – and if I err in this process, I am happily doing so on the side of caution.

But let me first be clear on the following: If accurate and balanced reporting lead to violence, there is little or nothing this office can do about it. However, unfair, unbalanced and inaccurate reporting which (may) lead to violence is a different kettle of fish – and this office should do everything in its power to prevent it.

Which is exactly what my intention is.

Unfair, racist, etc.

The salient issues in this part of the complaint are about the allegation that the:

·         proposed Wellness Resort was similar to that of African Island;

·         reporting was racist because it singled out black people; and

·         would-be developer has occupied land illegally, fuelling the national debate on the expropriation of land without compensation.

African Island

In a sense, the parallel drawn between African Island (which is associated with black people who arrive in taxis and buses, have fun, and make noise while doing so) and the proposed Wellness Resort is the heart of the complaint, or at least part of it. It was arguably the main reason for the unfortunate reaction that followed the publication of that statement.

Let me say in passing: It seems not to be true that people other than blacks visit African Island, as argued by Eloff – at the meeting, the editor indicated the opposite.

Be that as it may, I find it difficult to understand how the editor, who by his own admission did not have adequate information, could come to any conclusion, let alone to the one in question.

The problem is not only that his assumption was blatantly wrong (again by his own admission), but especially that it has evoked anger reaction from some readers – causing huge harm in the process (a matter to which I shall come shortly).

I welcome van Huizen’s acknowledgement that this parallel was wrong, as well as his willingness to apologise for that mistake. However, a sentence or two to this effect is not going to rectify matters. For instance, a proper description of what the Mathibedis have in mind with the development should go a far way in correcting matters.

Racism

At the meeting, Mathibedi was adamant that the reporting was racist.

I have already motivated why I am not in a position to adjudicate the complaint that the newspaper was singling out black people.

But that does not mean I have nothing to say on this issue. After I have listened intently to van Huizen, I became convinced that I did not have any reason to call him a racist, or to assert that he had a racist agenda with his reporting.

On the other hand, neither he nor this office can afford to ignore the fact that:

·         at least part of Kormorant’s readership is deeply racist (I am taking my cue here from the editor himself) – which makes it all the more important for him not to unnecessarily incite racist reactions with his reporting; and

·         the perception that his reportage was racist was very real – not only for black readers such as the Mathibedis, but also for white readers who have allowed the reportage to influence their behaviour.

Kudos to van Huizen for already having condemned alleged racially abusive language “in the strongest possible terms”, and for pointing out that race was not the issue.

But again, because of the very real perceptions out there, these points should be elaborated on and not only be mentioned in passing.

Illegal occupation

The first text gave no indication that the Mathibedis have illegally occupied the site – it merely said that the DWS had approved the development of the resort, and hat the management of the Schoemansville Resort was not accordingly informed.

However, the second text stated that the DWS had not approved any application for development in the area and that approval would only be granted once all legal issues have been cleared – and yet the would-be developer (Mathibedi) had already begun chopping down trees and clearing the area.

If words have meanings, that smacks of illegal occupation.

This trend intensified in the follow-up article (the one that falls outside my mandate to adjudicate on), in which the newspaper explicitly stated that the “occupation” of the Schoemansville foreshore was “illegal” (and that Mathibedi had “falsely claimed” that he had permission to start occupying the site). Hence also the headline, that used the word “skulduggery” (read: dishonesty, cheating) in connection with “land grab”.

Constitutional Court Judge Edwin Cameron has recently declared that articles published within a reasonable space of time of each other may be interpreted within the same context. In this case, the statement regarding the occupation of land without approval (in the second text) should be read in conjunction with the explicit statements of “illegal occupation” and “land grab” in the next one.

The reportage therefore left no room for doubt: The Mathibedis have illegally occupied the site.

It is important to note that the question if the DWS acted wrongly or illegally by giving such permission is not for me to decide as it falls outside of my mandate.

However, it was important to establish the exact position, coming from the horse’s (the DWS’s) mouth. At the meeting, the Department informed me that it has not approved the development of the site, but that it has granted the Mathibedis permission to prepare the land in order for them to lodge a proper application for the proposed development.

Based on this testimony, which I need to take seriously, it was misleading to either suggest or to state that the Mathibedis have already begun work on the site without approval. While they did not have approval to develop the land, they had permission to prepare it in order to apply for development.

Given the headline of the third article, and using that to interpret the second one, I can well understand the Mathibedis’s concern about the debate on expropriation of land without compensation.

Initial reporting not corrected

The complaint is that the newspaper did not correct the wrong impression regarding the parallel between the Wellness Resort and African Island.

At the meeting it became clear that the issue was wider than that, as the newspaper also did not report on the vandalism, or on the charges that Mathibedi had laid against certain members of the local society.

The editor’s explanation at the meeting was not convincing. He inter alia said that he did not further report on the matter as it was an emotional issue and that the incidents of vandalism was not newsworthy (despite the fact that it had happened in the place where he reported on).

He also indicated that the charges against the accused had no chance of succeeding (and it was therefore not worth reporting on). I find it rather odd that the editor has already made up his mind what the court was going to decide.

While van Huizen did well to correct the mistake about “latest news” which he has changed to read “opinion piece”, he neglected to do the same with the unfounded parallel between Wellness Resort and African Island. He should have corrected this mistake as well – and “promptly” at that, as required by Section 1.10 of the Press Code.

Opinion presented as news

My first impression when reading both texts was that I was dealing with news items, even though the editor switched to comment in the latter parts of those texts – which was confusing.

At the meeting, I have indicated that I am not buying the newspaper’s argument – if something is “A”, it does not become “B” by simply calling it “B”. The fact that van Huizen replaced the words “latest news” with “opinion” with regard to the first text did not change the fact that he presented by far the largest part of the text as news.

The editor published the second article under the headline “opinion” – but again, the text itself started with statements of fact that he had presented as news.

No regard for DWS’s legal, legitimate route

At the meeting, the editor said he did contact the DWS’s spokesperson for comment, which was unfortunately not forthcoming.

I have no reason to disbelieve the editor on this issue, and therefore I cannot blame him for the lack of information that the Department could have shed on the matter prior to publication.

No right of reply

Section 1.8 of the Press Code is clear about the fact that the media should seek the views of the subject of critical reportage ahead of publication and that, if that was not possible, it should be stated.

Van Huizen says he did organise a meeting with Mathibedi for the day after the public meeting; the latter denies this. I have no way of knowing who is correct on this matter.

However, I note that the editor did not:

·         ask Mathibedi for comment prior to his first text (as he should have, as the largest part of that text was presented as news); and

·         report that he was unable to contact him for comment in his second text (even though he did report some of Mathibedi’s remarks that he had made at the public meeting).

I appreciate van Huizen’s repeated offer at the meeting that his door is open, but I also need to remind him that the onus is not on the complainant to come knocking at his door; it is rather his task to do everything in his power to seek comment from Mathibedi.

Conflicted

The first text ended by stating, “As none of these bodies are financially very strong, the support of as many residents as possible will be needed for any future action. Anybody interested in pledging their support, either in kind or in financing any future legal action, can contact Kormorant at [email protected].”

I need to be 100% clear on the following: The Press Code guarantees freedom to editors to advocate a cause. That should go without saying. Van Huizen was therefore free to voice his opinion about the proposed development (whether he was right or wrong is not for me to say, and it is anyway not the point either).

However, there is a difference between “advocating” a cause and “driving” one. If van Huizen wrote that Mr or Ms X has indicated that people who were interested in supporting the resistance against the proposed development could contact them, it would have been a different matter. However, the editor himself, together with the Kormorant, became part of the news by asking interested readers to contact the newspaper.

It is possible that the editor has become so absorbed in the community that it is difficult for him to see that, by becoming part of the story, he has actually sacrificed the newspaper’s independence regarding this specific matter?

If the Kormorant is driving the initiative to sink Mathibedi’s proposed development, instead of merely advocating the matter, it should not be surprised if people accuse it of bias and if the paper loses credibility in that process.

Harm done

The reportage has caused some serious and unnecessary harm to both the Mathibedis and local society.

Firstly, I accept that some readers’ reactions have caused the Mathibedis severe trauma as they have become the subject of harassment, verbal abuse, racial slurs, unnecessary negative attention, and even death threats, and that this has led to them spending time, money and resources to undo the harm.

Section 3.3 of the Press Code inter alia says that matters involving dignity and reputation can be overridden if:

·         the facts reported were true or substantially true; or

·         the reportage amounted to fair comment based on facts that were adequately referred to and that were true or substantially true; or

·         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.

The reportage did not meet any of these requirements.

In addition, I also believe that the reportage has misled readers by the statement that the proposed development was similar to that of African Island. Some of these readers have reacted in ways described above – which has caused them harm are as well, whether they know it or not.

Finding

Unfair, racist, etc.

African Island

The parallel drawn between African Island and the proposed Wellness Resort was unfounded, wrong, and misleading. That was in breach of the following sections of the Press Code:

·         1.1: “The media shall take care to report news truthfully, accurately and fairly”;

·         6.1.3: “Members are justified in strongly advocating their own views on controversial topics, provided that they treat their constituencies fairly by … not distorting the facts,” and

·         7.2.4: “Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it … has taken fair account of all material facts that are substantially true…”

Racism

The complaint about racist reporting is dismissed.

Illegal occupation

The statement in the second text that the Mathibedis have already started to chop down trees on the site without approval was in breach of Section 1.1 of the Code.

Initial reporting not corrected

The newspaper did not correct the wrong impression regarding the parallel with African Island in the first text. This was in breach of Section 1.10 of the Code: “The media shall make amends for presenting information or comment that is found to be inaccurate by communicating, promptly and with appropriate prominence so as to readily attract attention, a retraction, correction or explanation”.

Opinion presented as news

Even though the first article was intended as an opinion piece, it was initially presented as the “latest news”. This was in breach of the following sections of the Code:

·         6: “Members are justified in strongly advocating their own views on controversial topics, provided that they treat their constituencies fairly by making fact and opinion clearly distinguishable; not misrepresenting or suppressing relevant facts; and not distorting the facts”; and

·         7.4 and 7.5: “… Comment or criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it…has taken fair account of all material facts that are substantially true, and is presented in such manner that it appears clearly to be comment.”

The second text was presented as an opinion piece (even though it also contained strong elements of “latest news”), and this part of the complaint is therefore dismissed.

No regard for DWS’s legal, legitimate route

This part of the complaint is dismissed.

No right of reply

Because the largest part of the first article was in fact “latest news”, despite the fact that it was later changed to “opinion piece”, the newspaper should have asked Mathibedi for comment. The neglect to do so was in breach of Section 1.8 of the Code that states, “The media shall seek the views of the subject of critical reportage in advance of publication…”

In the same vein, the second article should have stated that the newspaper was unable to contact Mathibedi for comment. That was in breach of Section 1.8 of the Code that says, “The media shall seek the views of the subject of critical reportage in advance of publication… If the media are unable to obtain such comment, this shall be reported.”

Conflicted

Having gone further than merely advocating a cause and, in fact, driving it, the newspaper was in breach of Section 2.1 of the Press Code that says, “The media shall not allow commercial, political, personal or other non-professional considerations to influence or slant reporting. Conflicts of interest must be avoided, as well as arrangements or practices that could lead audiences to doubt the media’s independence and professionalism”.

Harm done

Having caused some serious and unnecessary harm to the Mathibedis, the newspaper was in breach of Section 3.3 of the Code that stipulates, “The media shall exercise care and consideration in matters involving dignity and reputation…”

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors that do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

Given South Africa’s racial past, as well as tensions that may have been building up regarding the debate on expropriation of land without compensation, I have little hesitation to describe the breaches of the Code as indicated above as Tier 3 offences.

Sanction

Apology requested

The Kormorant is directed to unconditionally apologise to the Mathibedis for:

·         wrongly assuming that the Wellness Resort is going to be similar to African Island, and for not promptly correcting that statement;

·         strongly suggesting in the second article that they were occupying the land illegally, even though they did get the green light from the DWS to prepare the land in order to later apply for development;

·         evoking racist interpretations to the reporting, even though that was not its intention;

·         exacerbating the situation by driving the cause against the proposed development, instead of merely advocating it;

·         neglecting to:

o    ask them for comment regarding the first article; and

o   state in the second text that they could not be reached for comment; and

·         causing them some serious, unnecessary harm.

The newspaper is also asked to apologise to its readers for:

·         feeding them with misleading information about the suggested parallel with African Island, and that has unnecessarily lead to vandalism and confrontational behaviour towards the Mathibedis;

·         mixing up news with opinion, which must have left at least some of them confounded; and

·         leading at least some of them to doubt its professionalism and credibility.

The editor is requested to write this apology, which I shall forward to the Mathibedis, after which I shall make a ruling on the final wording.

Rest of the sanction: Inside page

This extraordinary serious situation calls for extraordinary measures.

It is vitally important that readers are enabled to judge this matter on its merits. This means that:

·          wrong perceptions should be corrected urgently and prominently; and

·         the public should be duly informed as to the exact nature and status of the proposed development.

This should be done for the sake of fairness and justice, in the hope that it will diminish or even eradicate the potential for further vandalism, racial threats, and other forms of violence.

With this in mind, I am asking for a whole page, which has to be on the right-hand side and which can take colour (preferably on the page opposite to the editorial one).

The top half of that page should be covered by editorial and the bottom half by an advertisement.

The top half

The top half should be utilised as follows:

·         Covering the whole width of that page, the headline should include the word “apology” or “apologises”, as well as “Mathibedi”;

·         Text in a box should prominently announce what that page is about. This text should read, “Thabiso and Onnica Mathibedi have lodged a complaint with the Press Ombudsman regarding two texts that we published in March this year (‘African Island’ resort for Schoemansville, and DWS did not approve foreshore development). This page contains the gist of the outcome of that complaint, together with some additional information, following a meeting between the ombud and the parties. His full ruling can be found on www.presscouncil.org.za”; and

·         Three texts (see below) should be published.

These texts should be:

·         The editor’s apology;

·         A statement by the DWS as to what the Department has already approved, and what still needs to happen. The newspaper should obtain this comment – ideally from the people who attended the meeting; and

·         My contribution (which is presented in the box, in italics, directly below).

A word by the ombudsman His first and overriding reason for calling a meeting with the parties was his very real concern that this matter had the potential to fuel tension amongst people of different races, which in turn could escalate into violence, Press Ombudsman Johan Retief said. Property has already been vandalised, and Mathibedi has continuously been experiencing confrontational behaviour, even including death threats. “While I do not believe for one moment that the newspaper has intended or even envisaged vandalism and confrontational behaviour to follow its reportage, I am proceeding with caution – and if I err in this process, I am happily doing so on the side of caution,” he said. The ombud emphasised that, if accurate and balanced reporting leads to violence, there is little or nothing his office can do about it. “However, if reporting is unfair, unbalanced and inaccurate, and that leads to violence, whether intended or not, this office should do everything in its power to prevent such a situation.” He said the public should be duly informed as to the exact nature of the proposed development, as well as the status of the proposed development, so that readers are enabled to form a proper opinion on this matter. Retief said the gist of the problem was that the reporting was based on the wrong assumption that Mathibedi’s proposed development was similar to that of African Island – which has permeated the rest of the reportage. This has stirred up at least some readers, he said, and has conversely landed the Mathibedis in a precarious position as it was the catalyst for the continued barrage of racial slurs, verbal insults, death threats, intimidation and victimisation against them. The fact that the editor has not withdrawn this statement, and the suggestion that the Mathibedis had illegally occupied the land, did not help matters either. In a later article, the term “land grab” was used, which has put the previous text in the light of the debate on the expropriation of land without compensation. “This has added more fuel to the fire,” he added. The ombud said he was satisfied that the articles themselves were not racist, but found that the perception was created in the minds of some readers that black people should be kept out of the area. The consequence of the reporting was unnecessarily damaging not only to the Mathibedis, but also to the community (who partly reacted to misleading information). He also expressed concern that the Kormorant was driving the initiative to sink Mathibedi’s proposed development, instead of merely advocating the matter. “In all of this,” he continued, “I am concerned that the newspaper has lost its independence in this particular matter, and that this could lead audiences to doubt its professionalism and credibility.” The editor’s  neglect to report on the vandalism that took place at the premises, as well as on the charges that Mathibedi has laid against some residents (which he has elsewhere described as a “bogus charge”) did not help matters either, Retief added.

If the editor has some space left in the top half of the page, he can publish the clauses of the Press Code which have been breached in a separate box.

The bottom half

Section 7.2.4 of the Complaints Procedures provides for “[any] any supplementary or ancillary orders or issue directives that are considered necessary for carrying into effect the orders or directives made in terms of this clause and, more particularly, issue directives as to the publication of [my] findings…”

In line with this, the Kormorant is directed to publish an advertisement, in colour, covering half a page, which the Mathibedis will supply it with.

Rest of the sanction: Front page

The newspaper should carry a kicker on its front page, which should refer to the relevant page.

Website

The whole reportage on the inside page should also be published on the newspaper’s website, in close proximity to the texts that the Mathibedis have complained about.

Earliest opportunity

The texts 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.

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 [email protected].

Johan Retief

Press Ombud