Julie-May Ellingson vs. Sunday Times (Zulu edition)

This ruling is based on the written submissions of Mr Willie Coetzee, for Ms Julie-May Ellingson, and Mr Bill Dewar, for the Sunday Times newspaper.

Complaint

The CEO of the ICC in Durban, Ms July-May Ellingson, complains about two stories in the Sunday Times that were published on 15 and 22 April 2012 respectively. The stories were headlined Sutcliffe suspected in another corruption, and ICC dismisses allegations of discrimination. The first story was published on the front page.

Ellingson complains that the:

·         allegations of corruption and racial discrimination against her were biased, untruthful, inaccurate and unfair; and

·         stories contained misrepresentations of the factual situation and that they omitted certain information of material importance.

The communication between Ellingson and the journalist, Mandla Zulu, is relevant regarding both complaints, and I have decided to handle this aspect separately. This also goes for the source that Zulu used to base his story on.

Analysis

The first story alleged that Ellingson was involved in improper procedures in relation to tenders, corruption and favouritism. The follow-up story repeated some of these allegations, and added allegations of racism on her part.

Unfair allegations

Regarding corruption: The first story stated that a tender had been awarded to four companies, including her husband’s company, and that this tender had not been advertised (as it should have been). The story also mentioned that she had organised a secret meeting and that she made the companies sign a letter of confidentiality.

The second story repeated these allegations.

This story added that there were allegations that Ellingson had been victimising black employees. Some of them allegedly were dismissed and others have been forced to resign.

Firstly, there is no doubt in my mind that the stories allege corruption on Ellingson’s part. In fact, they were permeated by this underlying suggestion. Even though the stories never stated it as fact that she had been corrupt, the implication was there, from start to finish.

Secondly, allegations of racism should not be published without proper inquiry. The allegations relating to the dismissal of black employees and black students were a distortion of the information at the disposal of the Sunday Times.

I’ll return to this issue.

Misrepresentations, omissions

Although Ellingson does not specify what these “distorted misrepresentations of the factual situation” were and what information was omitted, the newspaper provides me with such a list (which is rather commendable).

Dewar namely states that the stories inaccurately reported that:

·         a tender to the value of R30 million was awarded – it should have been R15.2 million, including VAT;

·         Ellingson’s husband was a director of a certain company and that that company belonged to him; and

·         the tender was not advertised – the tender was awarded through an invited tender process which was approved by the Bid Adjudication Committee.

He adds that the stories omitted to report:

·         Ellingson’s  reasons why some of the work had to be redone and that the manufacturer took ultimate responsibility for the defective material;

·         Ellingson’s reasons why the employees were no longer employed by the ICC; and

·         why an external company had been appointed to perform the human resource department’s duties and that there had been some human resource matters that were still dealt with internally.

Dewar then argues that, save for the above-mentioned inaccuracies and omissions, the stories were in compliance with the Press Code. He asks this office to direct the publication to publish a story in respect of the omissions and incorrect information, and to dismiss the balance of the complaint.

I shall return to this in the last section hereunder.

In her reply, Ellingson rejects the Sunday Times’ submission that the balance of the stories was accurate, fair and truthful, adding that:

·         little or no effort was made to report the factual situation in a truthful, accurate and fair manner;

·         the factual situation was distorted and misrepresented; and

·         the incorrect information and omissions contained in the stories were material.

She adds:

·         The first story stated four times that a major contract had been awarded to her husband’s company, thereby insinuating a corrupt relationship despite the fact that she had made it clear that her husband was not a director of Stefannuti Stocks Building KZN (Pty) Ltd and that the contract was not awarded by her;

·         The value of the contract was not R30 million but R15,2 million;

·         She also did not make an admission that a company was paid R60 million prior to commencing work; and

·         The story alluded to major corruption “without offering a shred of evidence other than unsubstantiated allegations by unnamed sources”.

In respect of the second story, Ellingson states that:

·         the thrust of the story was an attempt to suggest that the ICC and Ellingson had been guilty of racist practices;

·         she was alleged to have victimised certain black employees;

·         the allegations about the HR consultant are unsubstantiated and her responses were ignored;

·         reference was made to her husband in respect of tender procedures;

·         certain allegations that were published were not put to her; and

·         her bald denial that she was not a racist created the impression that she was not able to substantiate the denial and that her denial had no merit.

Correspondence

It is now relevant what information Zulu asked from Ellingson and how he made use of that information.

On 13 April, two days before publication of the first story, Zulu posed 11 questions to Ellingson. She responded the next day to all the questions – in time for publication. At no stage did she give the impression that she was reluctant to provide information or that she was avoiding the questions.

Amongst other things, she:

·         explained that the tender was awarded through an invited tender process which was approved by the Bid Adjudication Committee and which was in line with the relevant act (which explains why it was not advertised);

·         told Zulu that the amount of R30 million should be R15.2 million; and

·         denied that she had expelled some black members of staff, black students, or any HR people.

Zulu omitted all of these responses (this should be read in conjunction with Dewar’s list above).

Source

Zulu based his first story on one – anonymous – source. This is probably one of the most dangerous journalistic practices thinkable. The Press Code warns against it, as such a source may have ulterior motives and may purposefully try to mislead a journalist. Clearly, Zulu has done little or nothing to corroborate his information (as required by the Code).

This source’s information was unsatisfactory and unreliable when interpreted in the light of Ellingson’s explanations.

In conclusion

The stories were appallingly unethical.

Firstly, Zulu created an impression, probably utterly unfairly, that Ellingson had been corrupt. The fact that the stories did not state as fact that she was corrupt was no mitigation – that impression was nevertheless created and maintained. The unnecessary damage that this has undoubtedly caused her can be severe.

Secondly, most of the second story was about serious allegations of racism against Ellingson. She denied all of that in quite some detail – but the only sentence that Zulu could muster was the last one: “Julie-May has denied that she is racist”. He conveniently left out her specific denials and explanations to this effect. This does not smack of inexperience or incompetence, but rather of bias.

As if this was not enough, there was a long list of inaccuracies (of which Zulu was informed that they were inaccurate, en yet he went ahead to publish them) and material omissions – which begs the questions why the reporter knowingly printed inaccuracies and why he left out so much material information.

Again, I can think of only one reason: bias. Why ask specific questions, get responses and then ignore them? This is just inexcusable.

On top of all of this, Zulu relied on unsubstantiated allegations from one anonymous source (in the first story), without any apparent attempt to corroborate his information. Besides, Ellingson’s information was undisputed, yet Zulu treated it with some suspicion. If he disbelieved her he should have explained why her information was untrue, which he did not do.

The reporter indeed made sure that facts did not stand in the way of a good story.

This is the first time in my career as deputy press ombudsman (nearly three years now) that I am suspecting that a journalist intended to cause harm (malice).

Let me put it this way: If Zulu was not biased and malicious, then the incorrect information that he published and the correct facts that he omitted certainly came across as exactly that.

Also: Newspapers should be vigilant in safeguarding the rights of the public, because in doing so it also protects its own freedom. Freedom of expression is not a weapon to attack the innocent; it is a shield to protect the public interest – which is based on truth, accuracy and fairness (the core values that underpin the Press Code).

This reporting undermined press freedom.

Finding

The stories are in breach of the following articles of the Press Code:

·         Art. 1.1: “The press shall be obliged to report news truthfully, accurately and fairly”;

·         Art. 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 summarisation”;

·         Art. 1.4: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report”;

·         Art. 5: “The press shall exercise exceptional care and consideration in matters involving dignity and reputation…”; and

·         Art. 12.2: “The press shall avoid the use of anonymous sources unless there is no other way to handle a story. Care should be taken to corroborate the information.”

Sanction

Sunday Times is severely reprimanded and directed to unreservedly apologise to Ellingson for inaccurately and unfairly creating the impression that she was corrupt and racist.

If Ellingson agrees to this, the newspaper is directed to interview her with a view to do a follow-up story, setting out the facts in relation to the two stories in question. This story may be published inside the newspaper and only after it has been approved by both this office and Ellingson.

In addition to this possible story, the newspaper is directed to publish the following text in full on its front page, fully or partly above the fold. The headline should include the words “apology” or “apologises”, and “Ellingson”.

Beginning of text:

Sunday Times unreservedly apologises to CEO of the ICC in Durban, Ms July-May Ellingson, for inaccurately and unfairly creating the impression that she was corrupt and racist.

This comes after she lodged a complaint with the Press Ombudsman about two stories that we published on 15 and 22 April 2012 respectively. The stories were headlined Sutcliffe suspected in another corruption, and ICC dismisses allegations of discrimination. The first story was published on the front page.

The first story alleged that Ellingson was involved in improper procedures in relation to tenders, corruption and favouritism. The follow-up story repeated some of these allegations, and added allegations of racism on her part.

Ellingson complained that the allegations of corruption and racial discrimination against her had been biased, untruthful, inaccurate and unfair, that the stories had contained misrepresentations of the factual situation, and that some material information had been omitted.

Deputy Press Ombudsman Johan Retief called the stories “appallingly unethical”. He said that Zulu created an impression, probably utterly unfairly, that Ellingson had been corrupt and racist. The unnecessary damage that this has undoubtedly caused her can be severe, he said.

He stated that there was a long list of inaccuracies (of which Zulu was informed that they were inaccurate, en yet he went ahead to publish them) and material omissions – which begs the question why the reporter published inaccurate information and why he left out so much information. Retief said that he could only think of one reason: bias.

“The reporter indeed made sure that facts did not stand in the way of a good story,” he commented.

Retief added: “This is the first time in my career as deputy press ombudsman (nearly three years now) that I am suspecting that a journalist intended to cause harm (malice). Let me put it this way: If Zulu was not biased and malicious, then the incorrect information that he published and the correct facts that he omitted certainly came across as exactly that.”

He directed us to “unreservedly apologise” to Ellingson, and also “severely reprimanded” us for unethical reporting.

Visit www.presscouncil.org.za (rulings, 2012) for the full finding.

End of text

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Deputy Press Ombudsman