Delta EMD (Pty) Ltd vs.Lowvelder
This ruling is based on the written submissions of Ms Emma Nel, financial director of Delta EMD (Delta), those of Mr Collin Naicker, operations director, and those of Mireille de Villiers of the Lowvelder newspaper.
Complaint
Delta is complaining about a story in Lowvelder of 26 January 2016, headlined Group protest in vain – ‘It is not clear who is responsible for monitoring and enforcing environmental safety’.
The company complains the story falsely alleged or insinuated that:
· it was responsible for the:
o illegal dumping of steel structures (formerly belonging to that company);
o toxic residue feared to be contained in the steel structures at Cairn (Mbombela) (which might lead to the contamination of the Crocodile River); and
· there was no supervision or control during the process of decommissioning its plant.
Delta adds that the journalist:
· omitted to mention that another firm (Belrex 96 CC) was the lawful owner of the steel structures complained of, and that it was renting the site for the purpose of storing the steel it received from Delta; and
· did not afford the company an opportunity to respond to the allegations.
The text
Mireille de Villiers reported that members of the Cairn and Burnside Interest Group were opposing the illegal dumping of steel at Cairn, adding that it was not clear which government structures were responsible for environmental safety in the area.
The interest group’s committee reportedly protested “against the steel stockpiling operation being conducted by Belrex, from the premises formerly used by Forest Wire”.
The sentences in dispute (the only ones in the story mentioned by Delta) read as follows:
· Now members are opposing the illegal dumping of steel at Cairn, the criminal elements it may potentially attract and the erosion of the dirt roads by transporting the goods. In addition, since the steel structures were formerly a part of Delta EMD, a plant now being decommissioned, it is feared that the structures contain toxic residue. This could contaminate the Crocodile River 500 metres away. ‘No cover is provided for the polluted structures and with much needed rain the polluted water will find its way to the Crocodile River’, De Kock (Mr Hannes de Kock, chairman of the interest group) says; and
· Quoting De Kock: ‘Since legislation changed in 2014, the decommissioning of the Delta EMD plant has been taking place with no supervision or control.’
The arguments
The complaint in more detail
As background information, Nel explains that Delta, a manufacturing facility in Mbombela, produces electrolytic manganese dioxide (EMD), which is used for manufacturing dry-cell batteries.
She says Delta’s board decided in 2014 that, subject to approval by shareholders, it would discontinue its business during 2014 (including the plant) and realise value for its assets during that year and the next.
Once approved, the company had to apply for environmental authorisation with the Mpumalanga Department of Economic Development and Planning, and the Department of Environmental Affairs. These applications required an assessment process and public consultation. Delta was obliged to contribute 26% of the ongoing monitoring and rehabilitation costs for thirty years following the closure of the site.
Delta then prepared a detailed plan for the discontinuation of the business, the resolution of liabilities and the sale of assets. These activities included the demolishing of the plant structures, the marketing of the plant and equipment, and the addressing of environmental matters.
She submits that the company eventually undertook the necessary infrastructure demolition, conversion, transfer and environmental remediation required to reinstate a next land use, based on the following principles:
· Demolishing all structures that had contamination potential and which could adversely affect the next land use and / or the health and safety of occupants;
· Demolishing all Delta purpose-specific infrastructure that could not be readily adapted to accommodate the next land use;
· Rendering structures that would remain amenable and fit for purpose for the next land use; and
· Leaving behind a remediated site that held acceptable risks to the environment and to human health.
Nel adds that specialist studies were conducted and peer-reviewed, and that environmental management plans have been complied with – while potentially negative impacts have been assessed and benefits identified.
She says, “The equipment and assets earmarked for lawful removal were dismantled and stored and removed off-site. The sale and demolition of Delta’s plant and equipment required that all structures were high pressure washed before deconstruction. This was done and accordingly we are not aware of any contamination of the structures. Further, all infrastructure earmarked for demolition were decontaminated to meet disposal requirements. Once dismantled and decontaminated, the steel structures were sold to Belrex 96 CC and stored to be removed off-site.”
Nel argues that Delta has been transparent from the outset about its planned discontinuation of operations and the sale of assets, and complied with all regulations in that process.
She says the documents relating to that process is available at www.deltaemd.co.za; she also provided this office with a presentation prepared by Golder and Associates (dated 24 October 2014) which sets out the details of the process. “The remediation of the plant has been under constant supervision and control by both Delta and the local authorities as required by law.”
She also refers to a report by Philip Owen and Yolanda Oosthuizen of Sembcorp Silulumanzi, a waste-water services company, which shows there was no clear evidence of pollution which could be attributed to the washing down of the steel structures on the site.
Nel concludes that the allegations, as contained in the story, are false and that they were founded on the opinions and suppositions of members of interest groups in the area.
Delta asks that Lowvelder should be directed to publish the following retraction and apology prominently (slightly edited):
| Lowvelder published an article entitled Group protest in vain (26 January 2016). It reported that steel structures which were formerly part of Delta EMD (Pty) Ltd have been illegally dumped in the area; that the steel structures are feared to contain toxic residue; and that the decommissioning of the plant has been taking place with no supervision or control.
The Press Ombud found that the newspaper breached the South African Code of Ethics and Conduct in this process as it did not afford Delta any opportunity to respond to the allegations; the allegations published were also inaccurate – the steel structures were not illegally dumped in the area and did not contain any toxic residue negatively impacting the environment, as stated in the story. Says Ms Emma Nel, the company’s financial director, “Delta is fully committed to discharging its environmental obligations and the remediation of the plant has been under constant supervision and control by both Delta and the national authorities during its decommissioning.” Lowvelder apologises to Delta for these breaches of the Code and retracts the allegations in the article which referred to this company. Visit www.presscouncil.org.za for the Ombud’s full finding. |
Lowvelder’s response
De Villiers denies the story implied that Delta was responsible for:
· illegally dumping steel structures. She adds, though, that in terms of Mbombela Local Municipality’s land use policy, the area may only be used for agriculture and residential purposes. “Hence, the steel structures should not be there… This is also the responsibility of the company using the land, Belrex as well as Mbombela”; and
· any toxic material feared to be possibly contained in the structures – instead, the article reported legitimate concerns from the community that the structures at Cairn were not being monitored by anyone. She argues this does not imply that the monitoring of the material should be Delta’s responsibility.
The journalist adds that the story raised questions over which government entity was supervising and controlling the decommissioning of Delta’s plant.
De Villiers says that De Kock’s documented efforts to obtain answers from the relevant structures as to the identity of the entity responsible for ensuring environmental safety regulations, have led him to believe that no government body was in fact monitoring the decommissioning. “His comment to this effect is clearly indicated to be opinion in the article. Yet, this does not speak to what Delta is or is not doing, but to what the government’s environmental bodies know about what is happening,” she argues.
The reporter replies that she did not ask the company for its opinion “because the story is not about Delta”.
These sentiments are echoed by Nicolene Smalman, the news editor, who says Lowvelder merely mentioned that Belrex was “formerly” part of Delta EMD “and therefore, [we] deemed it unnecessary to approach Delta for comment”.
Delta’s reply to the newspaper’s response
Naicker takes issue with the newspaper’s response.
Regarding the alleged illegal dumping of steel structures, he argues that “the statement in the context of the article as a whole clearly implicates Delta”.
He adds the story omitted to mention that:
· Belrex was the lawful owner of the steel structures and that it was renting the site for the purpose of storing the steel; and
· it was the local municipality’s responsibility to enforce the land use policies, and Belrex’s duty to comply with them.
He argues, “These omissions leaves (sic) it open to the reader to conclude that Delta is responsible for the dumping of steel structures at Cairn and [that it was] doing so illegally.”
He also submits that the article indeed associated Delta with possible toxic residue – “who else could be responsible? The reasonable reader would certainly reach this conclusion. Otherwise, why mention Delta at all?”
He adds that the story did not stop at mentioning concerned people’s fears or concerns about toxic residue, it even stated the fears as fact. He quotes the following (“untrue”) sentence from the article in this regard: “No cover is provided for the polluted structures and with much needed rain the polluted water will find its way to the Crocodile River.” (His emphasis.)
Regarding De Kock’s view on the alleged absence of supervision and control over the decommissioning process, Naicker argues that the newspaper is responsible for that quote. He adds that it is factually incorrect to state that there was no supervision or control and concludes, “Delta is fully committed to discharging its environmental obligations and the remediation of the plant has been under constant supervision and control by both Delta and the national authorities during its decommissioning.”
Naicker adds that, had the newspaper asked Delta for its comments, the inaccuracies could have been avoided.
An offer; rejected
Irma Green, National Group Editor: Caxton Local Newspapers, offered Delta the opportunity to publish a reply in the form of a letter to the editor. “This is by no means an admission of guilt by us”, she added.
Delta refused this offer.
Analysis
It is not my business to determine who is responsible for the “illegal” dumping of steel structures, or for any toxic material feared to be contained in the structures, or for the supervision or control during the process of decommissioning, be it Delta or not – my concern is a journalistic one. The issue is whether the story insinuated that the company was responsible for the above, or not. Delta says “yes”, the newspaper says “no”.
It is important to note that the story began by stating that the interest group’s management was protesting against the steel stockpiling operation “being conducted by Belrex, from the premises formerly used by Forest Wire”. According to the story, Belrex “conducted” the operation – not Delta.
Let me now take a closer look at the references in the story to Delta:
Now members are opposing the illegal dumping of steel at Cairn, the criminal elements it may potentially attract and the erosion of the dirt roads by transporting the goods. In addition, since the steel structures were formerly a part of Delta EMD, a plant now being decommissioned, it is feared that the structures contain toxic residue. This could contaminate the Crocodile River 500 metres away. ‘No cover is provided for the polluted structures and with much needed rain the polluted water will find its way to the Crocodile River’, De Kock says.
I note the journalist did not state as fact that the steel structures contained toxic residue and that they contaminated the Crocodile River – she merely stated “fears” in this regard, and reported that pollution in the river “could” happen.
She was justified to do so, as clearly such fears did exist.
Also, De Kock had the right to his opinion – whether he was right or wrong is not my concern, and likewise the newspaper was justified to report his concerns.
However, even though there is no direct accusation against Delta in these sentences, the implication is there – because the steel structures used to belong to Delta, and because the process of decommissioning was still under way, the reportage probably conveyed the message that the company might have been responsible (at least partly) for the “fears” raised by the interest group.
‘Since legislation changed in 2014, the decommissioning of the Delta EMD plant has been taking place with no supervision or control’ (quoting De Kock).
This time the statement was a direct accusation or allegation aimed at Delta.
Again, De Kock had the right to his opinion, and De Villiers was justified to report it – but again, more needs to be said.
Because the first paragraph implicated Delta as a possible guilty party, and the second made an explicit remark in this regard (even though the quote was attributed), this could have been unfair to the company (whether it was or not is, again, not my concern) – and therefore the newspaper should have asked it to respond. Delta was indeed the subject of critical reportage, even though it is true that the main focus of the story was not Delta.
Delta’s argument that the story should have mentioned that Belrex was the lawful owner of the steel structures and that it was renting the site for the purpose of storing the steel it received from the company (Delta) is weak – the story explicitly stated, from the outset, that the protest was directed at the steel stockpiling operation “being conducted by Belrex”.
In conclusion: The newspaper was justified in everything it reported, whether the “fears” were founded or not, or whether De Kock was right or wrong; it is what the newspaper did not write (read: comment from Delta) which created the problem.
Finding
The story is in breach of Section 1.8 of the Code of Ethics and Conduct which reads, “The media shall seek the views of the subject of critical reportage in advance of publication…”
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 breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.
Sanction
Lowvelder is directed to apologise to Delta, on the same page number as the original article, for not including its views in the story. The newspaper should this time include those views – if indeed Delta still wants to comment on the matter. Alternatively, Delta should be allowed to write a letter to the editor (as proposed by Lowvelder in the first place) – but then, of course, with the apology accompanying it.
The text, which should be approved by me, 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