Reddy, Alexander & Oceans Umhlanga vs Daily Maverick

SUMMARY

The story in dispute was headlined, Oceans Umhlanga complex makes waves – with space for supercars but not taxis. It was published on 30 September 2023 (print) and online, the next day.

This ruling by Deputy Press Ombud Franz Krüger was based on the Press Code that became effective on 30 September 2022.

 

The article dealt with a controversy about the availability of public transport facilities, specifically a taxi rank, in Umhlanga Rocks, after a protest by taxi operators. The story said that a large new luxury development, Oceans Umhlanga, had been accused of making insufficient provision for taxi facilities.

The complainants said they were not given adequate opportunity to respond to the claims being reported, and that they were not given sight of the article for comment before publication. These were dismissed, but Krüger found the publication did not address all the key issues, as it should have done.

He also opined that the headline fairly reflected someone’s statement, but the publication erred because it presented an allegation as a fact.

Much of the discussion focused on the complaint that comments attributed to Councillor Nicole Bollman were not made by her. Krüger dismissed the complaint, as neither side provided any evidence to support their claims on whether she was correctly quoted or not.

Daily Maverick was directed to revise the headline to indicate the accusation against the developer was an allegation, to apologise for that mistake, and to allow the complainants a brief reply.

 

THE RULING ITSELF

Dates of publication:

30 September (print) & 1 October 2023 (online)

Headline of publication:

Oceans Umhlanga complex makes waves – with space for supercars but not taxis

Author: Greg Ardé

Particulars

1. The complainants are Vivian Reddy, Rob Alexander and Oceans Umhlanga.
2. The complainants lodged a complaint against Daily Maverick on 12 October 2023.  The complaint was filed on their behalf by attorney Nike Pillay.
3. A response was received from Daily Maverick on December 12.  It was drafted by the report’s author, Greg Ardé, and submitted through the office of deputy editor Jillian Green. It included screenshots of an exchange with Oceans CEO Brian Mpono.
4. The complainants supplied a rejoinder on 31 January 2024, which included an appendix that addressed various factual disputes.
5. I considered the following documents:

5.1 The complaint;

5.2 The original report;

5.3 The newspaper’s response to the complaints;

5.4 The complainant’s rejoinder; and

5.5 Some supporting documentation. I took account of the appendix to the rejoinder where it clarified points that Daily Maverick had had an opportunity to deal with. Where new issues were introduced, it would have been unfair to consider them.

1. I note that there have been substantial delays in dealing with this matter.  First, Daily Maverick took two months to respond to the complaint, having apparently missed the Public Advocate’s initial request for a response.  Then, the complainant requested extra time to formulate a response because of the festive season break, which was then filed on the last day of January 2024.
2. The complainant argues that the delays by Daily Maverick shows disregard of the Press Council system and that their submissions should therefore be ignored.  Though the delays are indeed regrettable, I note that the complainants were also responsible for some of them, though they did take care to request approval beforehand. I do not feel that the delays are enough reason to ignore Daily Maverick’s arguments, as it would prevent consideration of the substantive issues.

The report

8. The report deals with a controversy around the availability of public transport facilities, specifically a taxi rank, in Umhlanga Rocks, after a protest by taxi operators about the issue. The report says that a large new luxury development, Oceans Umhlanga, has been accused of making insufficient provision for taxi facilities. The report also outlines differences between the developers and the municipality about responsibility for and shape of the taxi facilities.

The complaint

9. The first element of the complaint is that the complainants were not given adequate opportunity to respond to the claims being reported, which would be a breach of section 1.8 of the Press Code.
10. The second element of the complaint is that the publication is guilty of sensationalist and alarmist reporting, which is linked to clause 1.2 of the Press Code.
11. The third element of the complaint is that the publication is guilty of inaccurate reporting, which the complaint links to 1.1, 1.2, 1.3, 1.7 and 1.8 of the Press Code.

Complaint 1: Insufficient opportunity to respond

Arguments

12. The complainants argue that they were not given a reasonable opportunity to respond, and were not given sight of the article for comment before publication. Later in the complaint, they say that the quote attributed to CEO Brian Mpono comes from a separate statement and was taken out of context.
13. The claim refers to section 1.8 of the Press Code.
14. Daily Maverick supplies details of an exchange with Brian Mpono, CEO of Oceans Umhlanga, and argues that he did not say he needed more time. The publication argues he was asked detailed, specific questions and that there is no requirement to provide a copy of the article before publication.
15. In their rejoinder, the complainants say that the inquiry differed markedly from the published report.

Discussion

16. Daily Maverick is correct to say that they are under no obligation to show the complainants the report before publication.
17. They do have the obligation to provide an opportunity to the complainants to respond to the key elements of the intended article.
18. Their inquiry to Mpono focuses on details of the developers’ plans for public transport facilities and about their understanding of a reported dispute with the municipality about funding a public transport facility.
19. Mpono’s response deals mainly with plans for an interim solution, offered in response to the taxi drivers’ protest. He does not deal with long-term plans as part of the development. In their response, the complainants refer to the expansion of facilities for taxis from 42 to 91 bays.  It is striking that this information was not provided in answer to the publication’s question to Mpono.  The blame for the omission of this important detail from the report lies with the complainants: it would have been directly relevant to the question as asked and Mpono could have mentioned it.
20. However, that does not settle the question of whether the publication gave the complainants an opportunity to respond to all aspects of the claims against them. Adequacy in this context refers not only to having enough time, but also to being asked to respond to all key issues.  The fact that accusations are made by other parties does not reduce the Daily Maverick’s obligation.
21. The inquiry does not refer to various accusations from various parties, including that

21.1 the developers are not complying with statutory requirements;

21.2 they are prioritising luxury over public transport, which they do not care about;

21.3 the municipality’s accusation that the centre shut out taxi operators without consultation.

22. In addition, claims made about the original acquisition of the land could only be stated as fact if beyond dispute. Otherwise, the complainants deserved to have their version of events reflected, even if only by noting previously reported denials, assuming that such exist..
23. According to the screenshots of the WhatsApp exchange with Mpono, the quote attributed to him does seem to have been supplied by him in specific response to the inquiry by Ardé, rather than having been extracted from an unrelated statement by the publication, as the complainants say.

Ruling

24. This element of the complaint is upheld, to the extent discussed above.

Complaint 2: Sensationalist/alarmist reporting

Arguments

25. The complainants say that the headline is sensationalist in that there is no basis for the claim that luxury, in the form of provision for supercars, is being prioritised over the provision of public transport facilities. In fact, there is no disagreement about how it should meet its obligation with regard to public transport, they say.
26. This would be in breach of clause 1.2 of the Press Code.
27. The respondents argue that the headline derives from a statement from a lawyer acting for property owners in the area, cited in the article.
28. In their rejoinder, the complainants say that the claim made by the lawyer is false and that they should have been given a chance to respond.

Discussion

29. The Press Code does not talk about alarmist or sensationalist reporting. These terms are the complainant’s own interpretation of clause 1.2.  That clause calls for reporting in context and in a balanced manner, “without intentional or negligent departure from the facts”. The question is whether the headline, and the claim made by the lawyer, represent a breach of that kind.
30. The question of whether the claim should have been put to the complainants was dealt with above.
31. The headline does represent the statement by the lawyer fairly.  It is therefore not in breach of section 10, which requires headlines to reflect the content of an article.
32. However, it should have been made clear that this is an accusation rather than a matter of fact. At least, readers should have been given to understand that the claim is contested, through the use of a word like allegedly or one of the other mechanisms usually used under these circumstances.
33. The complainants say there are no disagreements about how they should meet their obligations towards public transport. This is surprising and seems to be contradicted by various claims that were not contested, including a court case, public critical comments and extracts from correspondence between themselves and the municipality.

Ruling

34. This element of the complaint is upheld.

Complaint 3 – Incorrect /inaccurate reporting

Arguments

35. The complainants say that the report fails to meet the requirements of accurate reporting in several respects

35.1 that comments are attributed to Councillor Nicole Bollman that she has denied making;

35.2 that the article sets up a false opposition between them and public transport; and

35.3 that the original transaction in which the land was acquired is falsely characterised as a “sweetheart deal”.

36. These issues place the publication in breach of 1.1, 1.2, 1.3, 1.7 and 1.8 of the Press Code.
37.  The respondents say

37.1 they have WhatsApp messages from Bollman confirming the points attributed to her.

37.2 they are reporting sentiments expressed by a number of different parties that there is insufficient provision for public transport at the development;

37.3 that allegations about the original property deal were widely reported at the time.

38. In their rejoinder, the complainants do not deal again with the issue of councillor Bollman; say the claim that stakeholders are being quoted is not substantiated (and notes they should have been asked for comment); and say their points about the original land deal are not refuted.

Discussion

39. Much of the argument here amounts to a “he said, she said” dilemma.
40. Neither side provides any evidence to support their claims on whether Bollman was correctly quoted or not.  I cannot resolve this one way or another.
41. The fact that there is criticism of the developers around arrangements for public transport seems incontrovertible, as noted above, and the complainants do not seem to have a basis for complaint on this score.
42. Though the complainants say there was nothing strange about the original land deal, they do not respond to Daily Maverick’s statement that questions were asked some 20 years ago.  The report says “many have called (it) a sweetheart deal”. This cannot be disproved simply by the complainants’ say so.
43. However, the question arises whether they deserved to have their denial reflected.   I have dealt with this question above.

Ruling

44. This element of the complaint is dismissed.

Rulings

45. I uphold the complaint against Daily Maverick in respect of their failure to reflect the complainant’s position fully.  Specifically, the report should have given the complainants the opportunity to respond to the claims listed under paragraph 21 above.
46. I uphold the complaint that the headline was misleading in that it presented as fact a claim that was contested by the complainants.
47. I dismiss the rest of the complaint.
48. Accordingly, Daily Maverick is directed to:

48.1 Revise the online headline to indicate the accusation against the developer is a claim.

48.2 Publish an apology, both online and in print.  The apology should reference the change of headline, and link to a right of reply.

48.3 Publish a brief reply from the complainants, in both print and online. The reply should be restricted to the points identified as problematic in this ruling, and should not be longer than 100 words. If there is a dispute between the parties about the content of the reply, this should be referred to the deputy ombudsman for settlement.

48.4  A line should be inserted below the revised online headline, reading: Apology and Right of Reply: see bottom of report.

48.5 The apology and right of reply should appear in the next available edition.

48.6 In both cases, the headline should include the words: “Apology” and “Oceans Umhlanga”.

49. The note should make it clear it is in line with a ruling by the Deputy Press Ombud, Franz Krüger, and link to the full text of this ruling on the PCSA website. It should be published with the Press Council’s logo.
50. The publication is to provide a draft note for approval by the Deputy Press Ombud before publication.

Appeal

51. 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]

Franz Krüger
Deputy Press Ombud
15 February 2024