Bombela Concession Company vs. The Citizen

SUMMARY

The headline to the story in dispute read, Gautrain apologises to activist kicked off train in Ndebele outfit (published on 7 November 2018).

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

 

The story was about Ndebele cultural activist and author Thando Mahlangu who had been barred from boarding a Gautrain due to him wearing his traditional outfit. Kesagee Nayager, Gautrain operator Bombela Concession Company’s (BCC’s) marketing and communications executive, reportedly said her attempt to get to the bottom of the matter had failed because Mahlangu had “refused to speak in English”.

Nayager denied that she had uttered that statement. She added that the reportage had brought BCC into disrepute, that it had discredited her, and that it had caused Mahlangu further humiliation.

Retief said it was quite possible that the reporter had misunderstood Nayager. For that reason, he said, he was going to err on the side of caution (if indeed that was a mistake). He opted for a “light” sanction, merely cautioning the newspaper for ascribing the statement in question to Nayager, without being reasonably sure that the information indeed came from her; it was also directed to retract the statement.

 

THE RULING ITSELF

Lodged by: Ms Kesagee Nayager, Bombela Concession Company’s (BCC’s) marketing and communications executive

Date of article: 7 November 2018

Headline:  Gautrain apologises to activist kicked off train in Ndebele outfit

Online: Yes

Author of article: Sipho Mabena

Respondent: Brendan Seery, deputy editor

Complaint                                            

Nayager complains the article falsely quoted her as saying that Ndebele cultural activist and author Thando Mahlangu had “refused to speak in English”. She adds this has brought Gautrain operator BCC into disrepute, has discredited her, and has caused Mahlangu further humiliation.

The text

The story was about Mahlangu who had been barred from boarding a Gautrain due to him wearing his traditional outfit.

Gauteng transport MEC Ismail Vadi reportedly said this incident was “completely unacceptable”, and called on the BCC to review its policy and to respect the country’s diversity.

Mabena then quoted Nayager as saying her attempt to get to the bottom of the matter failed because Mahlangu “refused to speak in English”.

The arguments

NAYAGER says The Citizen acknowledged that she did not make the statement in dispute, but nevertheless refused to retract it. She says Dr Barbara Jensen from the Gautrain Management Agency (GMA) wrote this comment to Mabena in a Whattsapp message – and therefore, the journalist attributed the quote to the wrong person.

She denies having made the statement, whether to the journalist or to Jensen. She says she told the latter that the line was poor when she tried to speak to Mahlangu, and that they “couldn’t seem to understand each other well enough”.

She points out that the BCC has subsequently received a letter from Isaac Attorneys, representing Mahlangu. This document inter alia stated: “[the] indignity and humiliation suffered by our client has been further compounded by the subsequent indifferent attitude of other persons associated to the Bombela Concession Company…in that Kesagee Nayager was quoted in the Citizen newspaper of 7 November 2018 as saying the Bombela Concession Company could not get to the bottom of the issue because our client refused to speak in English.”

Nayager argues language is a contentious and rather emotive matter in the country due to its “broken” history, and stresses that she would never say such a thing to anybody – let alone to a cultural activist. She says she told Mabena via email that she respects people’s right to choose in whichever language they wish to express themselves.

In later correspondence, Jensen says her reply to the journalist was not an official response to an official request for information. She adds that she also indicated to the reporter that Nayager would be the official spokesperson on this issue.

SEERY submits it is not in dispute that Jensen did inform the reporter via WhatsApp that Mahlangu had refused to speak to Nayager in English.

He adds:

• At no stage was there any qualification that this statement was off the record;
• If a person communicating with the media is not authorized to speak on a certain subject, then she / he should not do so – a comment cannot be made and then, later, when its import becomes apparent, be withdrawn;
• In all communications with the newspaper, both Jensen and Nayager have been representing their employers. It is basic corporate communications practice that, if you are contacted by a journalist on an official communications medium, you are at all times speaking on behalf of your company. If you wish to do otherwise (which Jensen did not indicate), then it is standard practice to make that clear to a journalist; and
• The story accurately recorded the information that was conveyed to the journalist.

The deputy editor concludes that “someone” spoke out of turn, giving rise to some serious repercussions – and now there is an attempt to deflect blame on to The Citizen.

He concludes: “We did nothing wrong, either legally or ethically. The fault with this communication breakdown lies with people whose job it is to communicate. Finally, it would set a worrying precedent were people who have been approached legitimately for comment and who had given it – only to realise it was the wrong thing to do – be allowed to withdraw, qualify or amend such comments.”

NAYAGER says she disagrees with that as it is irrelevant which employer (Jensen or she) they quoted: “Mr Seery is implying that it is acceptable for the media to use Barbara and my name interchangeably irrespective of which of the two has in fact commented on a matter – a professional journalist or media house will know that it is material to ensure that the correct person is quoted. If the media could randomly decide to allocate comments made by a spokesperson to the CEO of the company, for an example, this could have consequences either for the CEO as an individual or the business as a whole.”

She argues that, even though Jensen and she both engaged the media on Gautrain-related matters, they did so from two different business perspectives. “It would be unfair and inaccurate for the media to simply allocate statements made (formally or informally) from the one party to the other and vice versa. We are separate entities (Bombela and GMA) and different persons (Barbara and I). If the Citizen felt compelled to publish the particular statement then it should have been clear that the statement was made by GMA or by Barbara and not quote me as actually making a statement which I had not,” she says.

Nayager also submits it is not true that she is trying to do some damage control (after she saw that the reportage has had some dire consequences for her) – she says she immediately contacted Mabena to ask that the statement be retracted. “At the time of my request there was no consequence to speak of – the consequence came thereafter by way of comments by social media users and the letter of demand that I referred to in previous correspondence,” she says.

Analysis

Jensen stated in her WhatsApp message to Mabena the following: “[Nayager] also called Thando – he refused to speak in English to her.”

If Jensen indicated to the journalist that her communication was off the record, I would have blamed him for breaking her trust – but she did not do that. In such circumstances, an official who communicates with the media should not be surprised if information she / he gave to a journalist is reported.

Therefore, the argument that the communication between Jensen and Mabena was “unofficial” (without telling him so) and that therefore, he should not have reported it, cannot hold water.

The next question is if the journalist was correct to ascribe the quote to Nayager.

Yes, he was – but on condition he was certain that Nayager had in fact told Jensen that Mahlangu would not speak in English to her. If that was the case, it was reasonable to report that Nayager had made that statement, even though Jensen had informed the newspaper in this regard.

However, there is no such certainty – which is why I need to keep the possibility open that Jensen might have misunderstood what Nayager said.

Let me be clear: While I cannot be sure that Nayager did not convey this message to Jensen, as she claims, by the same token Mabena could not be certain of the opposite either. In fact, the reportage on this point boils down to hearsay – the basis of the story was: “A” said that “B” had said…

For this reason, I am going to err (if indeed this is a mistake) on the side of caution.

This is how I believe Mabena should have reported the matter: “Jensen told the newspaper that Nayager had said that Mahlangu had refused to speak in English.” That would have been correct, and would not have amounted to hearsay-reportage.

On the other hand, I also need not to lose sight of the fact that the information came from a credible source – which is going to lead to a “gentle” finding and sanction.

Finding

The statement that Nayager had said that Mahlangu refused to speak English to her was in breach of Section 1.1 of the Press Code that says: “The media shall take care to report news … fairly.”

Seriousness of breaches

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

The breach of the Press Code as indicated above is a Tier 1 offence, as it did not change the thrust of the story.

Sanction

The Citizen is:

• cautioned for ascribing the statement in question to Nayager, without being reasonably sure that the information indeed came from her, and is directed to retract that statement; and
• directed to publish the caution and the retraction wherever the story appears.

The text 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;
• refer to the complaint that was lodged with this office;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
• be published with the logo of the Press Council (attached); and
• be prepared by the publication and be approved by me.

The Media Ombudsman has cautioned The Citizen for a breach of Press Code in a story it ran last month and ordered it to retract comments wrongly attributed to Kesagee Nayager, Bombela Concession Company’s (BCC’s) marketing and communications executive.

We incorrectly quoted her as saying that Ndebele cultural activist Thando Mahlangu – who was refused access to a Gautrain train because he was in appropriately dressed” –  had “refused to speak in English” to her.

Media Ombudsman Johan Retief said the reference to the refusal to speak English should have been attributed to Gautrain spokesperson Barbara Jensen, who was the one who told this newspaper Mahlangu refused to communicate in English.

“That would have been correct, and would not have amounted to hearsay-reportage,” Retief said.

Jensen made the comments in a WhatsApp message to our reporter.

Retief added: “If Jensen indicated to the journalist that her communication was off the record, I would have blamed him for breaking her trust – but she did not do that. In such circumstances, an official who communicates with the media should not be surprised if information she / he gave to a journalist is reported.”

The Ombudsman said “I also need not to lose sight of the fact that the information came from a credible source – which is going to lead to a ‘gentle’ finding and sanction.”

Retief said the breach of the Press Code was  a “Tier 1 offence, as it did not change the thrust of the story.”

BLOB: “Visit www.presscouncil.org.za for the full finding”

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