August 31 2021
Finding: Complaint 8840
Date of publication: February 11 2021
Headline: Minister kyk na uitsettingsbevel
Author: Liezl van Niekerk
Particulars
This finding is based on a written complaint by Ms Onica Xakaxa on behalf of the CP Nel Museum Board of Trustees, with supporting documents provided by Museum manager Mr Moses Mthethwa; a written reply by Ms Helene Viljoen, CTP Limited’s legal advisor, on behalf of Oudtshoorn Courant; and a written response to the newspaper’s reply by Ms Xakaxa on behalf of the Board of Trustees.
Complaint
The CP Nel Museum Board of Trustees submits that the article transgresses the following clauses in Section 1 of the Press Code:
“The media shall:
1.2 present news 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 summarization;
1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated.”
1. Summary of text
1.1. The article is based on a visit to Oudtshoorn by Western Cape Cultural Affairs and Sport Minister Anroux Marais.
1.2. According to the article, the purpose of the visit included an investigation into an eviction order against the Oudtshoorn and De Rust tourism bureau, Agri Klein Karoo and the Oudtshoorn business chamber.
1.3. The building which houses them is owned by the Oudtshoorn municipality, but has reportedly been rented to the CP Nel Museum for a nominal fee since 1975. The Museum, in turn, sublets part of the building to the three tenants.
1.4. According to Oudtshoorn Mayor Chris Macpherson, the Museum initially wanted to increase the rent of the three tenants, but launched an eviction process in 2019. As a result, the tenants reportedly obtained a formal eviction order from the Cape High Court last year.
1.5. Macpherson raised the matter with the provincial Minister, who was apparently not aware that the Museum wanted to evict the three tenants and undertook to resolve the matter speedily.
1.6. The Mayor reportedly also discussed the composition of the Museum’s Board of Trustees with the Minister and claimed that it was not demographically representative of Oudtshoorn. He further informed the Minister that Board members have not been informed of meetings for a long time (“’n geruime tyd”).
1.7. In addition, the Mayor requested access to the Museum’s financial statements.
2. Arguments
CP Nel Museum Board of Trustees
2.1. The Board submits that the article “lacks facts” and is misleading, in breach of clauses 1.1 and 1.2 of the Press Code.
2.1.1. Firstly, it submits that the Board did not obtain a court order to evict the three tenants.
2.1.2. According to the Board, it accepted a proposal by the tenants to settle the matter out of court.
2.2. Secondly, the Board submits that the Museum is a provincial institution, and that the Municipality is a local tier of government. However, according to the Board, the article wrongly assumes that the Museum is accountable to the Municipality.
2.2.1. It contends that the Museum accounts to the provincial Department of Cultural Affairs and Sport, and argues that the Mayor therefore had no right to request any financial statements from the Museum.
2.2.2. The Board regards this request as an attempt by the Mayor to interfere politically in another sphere of government.
2.2.3. It further questions how the provincial Minister could investigate “her own institution” without any knowledge of the matter and says that, if that was indeed the case, the Board was not aware of such an investigation.
2.3. Thirdly, the Board submits that the three tenants were tenants of the Museum, and not of the Oudtshoorn municipality. The Board therefore contends that the article required comment from the Museum and not from the Municipality.
2.3.1. However, the Board states that it was not contacted for comment, in breach of clause 1.8 of the Press Code, and despite the fact that all the other parties involved in the matter were consulted.
2.4. In conclusion, the Board contends that the inaccuracies and material omissions in the article damage the name of the Museum and mislead the public.
2.4.1. As a result, the Board requests a retraction of the article and an apology.
Oudtshoorn Courant
2.5. With regard to the alleged breaches of clauses 1.1 and 1.2 of the Press Code, the newspaper denies the Board’s allegation that no eviction order exists, and submits that it has obtained a copy of the eviction order.
2.5.1. In support of its submission, it provides an unsigned copy of a document that is purportedly a court order, and notes that the parties agreed to its contents before it was made an order of the court.[1]
2.5.2. The newspaper adds that the contents of its report were discussed with the office of the Minister of Cultural Affairs and Sport, and that the office did not raise any complaints.
2.6. With regard to an alleged breach of clause 1.8, the newspaper replies that the provincial Ministry of Cultural Affairs and Sport is responsible for the CP Nel Museum, and that the provincial Department of Cultural Affairs and Sport is in charge of the Museum.
2.6.1 The newspaper further submits that the Department informed the newspaper that all media queries must be presented to the Department for comment, and not to the Museum’s Board.
2.6.2. In addition, the newspaper notes that this injunction was confirmed by the Minister’s office.
2.6.3. During the Minister’s visit to Oudtshoorn, she reportedly “looked into” the eviction order. The newspaper contends that, in view of the fact that the Minister spoke on behalf of the Museum during her visit, it was not necessary to seek comment from the Board.
2.6.4. Over and above this, the newspaper submits that it was not allowed to seek comment from the Board (for the reasons outlined above in 2.6, 2.6.1 and 2.6.2).
2.7. The newspaper adds that it contacted Museum manager Moses Mthethwa after a Facebook post stated that the Museum was not approached for comment, and informed him that it did not contact the Board for comment as the Minister represented the Museum during her visit.
2.7.1. The newspaper also says it asked Mthethwa to provide comment for a follow-up report, but did not receive any response to this request.
2.7.2. The newspaper subsequently approached the provincial Ministry for comment, and was told it did not want to comment any further on the matter.
2.8. Regarding the Board’s complaint about the local government’s alleged interference in a sphere of provincial government, the newspaper submits that the Press Council is not the appropriate platform to deliberate this issue.
Further arguments
2.9. In its reply to the newspaper’s submission, the Board states that it is a legal entity in its own right and maintains that, as such, media questions should have been put to it directly.
2.9.1. It further questions why the newspaper states that all media questions must be sent to the Department when Oudtshoorn Courant subsequently sent questions to the Museum for a follow-up report, and not to the Department.
2.9.2. It adds that this request was made via Facebook, and that the newspaper did not contact the Board directly.
2.9.3. It also states that the Board did not respond to the newspaper’s request for comment for a follow-up report because it first wanted to deal with the article published on February 11 2021, which did not include any comment from the Board.
2.10. The Board repeats its submission that it did not obtain an eviction order. It says the tenants asked for the matter to be settled out of court, and that it accepted their proposal.
2.10.1. It further argues that this was a formal agreement, “not [a] court order to evict”, and that the court case was withdrawn by both parties as proposed by the tenants.
2.11. The Board further contends that the provincial Minister’s visit was part of an annual visit to the region, and not specifically to deal with the matter between the Museum and its tenants.
2.11.1. It adds that the Mayor unofficially raised this matter during a meeting with the Minister to discuss “cultural and sport events in the region”.
2.12. The Board subsequently again rejected the Public Advocate’s proposal of a follow-up article and reaffirmed its request for the original article to be retracted because it is “one sided and lack(s) facts”.
3.1. The introductory paragraph of the newspaper report states that the provincial Minister visited Oudtshoorn with the purpose of, among other things (“onder andere”), investigating an eviction order against the Museum’s three tenants.
3.1.1. However, the article reports further on that, according to the Mayor, the Minister was not aware that the Museum intended to evict these tenants.
3.1.2. The newspaper should have sought clarity on the purpose of the Minister’s visit, either from the Minister or her office, and not published conflicting information. This brings into question the accuracy of either the introductory paragraph or the Mayor’s comment, in breach of clause 1.1 of the Press Code.
3.2. The article also incorrectly reports that the Board obtained an eviction order last year against the three tenants, in breach of clause 1.1 of the Press Code.
3.2.1. Two of the three tenants proposed an out of court settlement in February 2021, in which they agreed to vacate the premises. (The Board is proceeding with legal action against the third tenant, the Oudtshoorn tourism bureau, who refused to vacate the premises.)
3.2.2. The newspaper itself noted in its response to the Board’s complaint that the contents of the settlement “had been agreed upon between the parties before it was made an order of court” (my emphasis).[2]
3.3. The only comment in the newspaper report is from the Mayor; the article does not include any comment from either the provincial Minister or the Department of Cultural Affairs and Sport.
3.3.1. The newspaper’s response that it was not obliged to seek comment from the Museum in view of the fact that it was represented by the Minister during her visit therefore does not hold water.
3.3.2. In the absence of any comment on behalf of the Museum by either the Minister or the Department, the newspaper is in breach of clause 1.8 of the Press Code, which requires the views of “the subject of critical reportage” to be reflected.
3.3.3. Furthermore, the newspaper fails to explain why it was prepared to request the views of the Museum for a follow-up article when initially it chose to abide by an injunction to obtain comment only from the Minister or the Department on matters relating to the Museum.
3.3.4. The newspaper could have similarly exercised its discretion before publishing the original article on February 11 2021.
3.4. The Mayor – as head of the council that runs the Oudtshoorn municipality which owns the building in question – was entitled to express his views on the matter.
3.4.1. By the same token, however, the Museum – which rents the building from the Municipality – was entitled to express its views on the matter as well, and had a legitimate expectation that the newspaper should seek its views.
3.5. The jurisdiction of the office of the Press Ombud is confined to breaches of the Press Code. As such, it is unable to make any pronouncement on the Board’s complaint regarding the jurisdiction of different tiers of government.
The Board’s complaint that the article is in breach of clause 1.2 is dismissed. The issues raised in this part of its complaint are dealt with more appropriately as breaches of the provisions of clauses 1.1 and 1.8.
The Board’s complaint that the article is in breach of clause 1.1 is upheld in two respects.
Firstly, the article provides inaccurate information on whether or not the Minister knew about the dispute between the Museum and its tenants before her visit (the accounts described in 3.1 and 3.1.1 of the Analysis cannot both be accurate).
Secondly, the article incorrectly reports that the Board obtained an eviction order against its tenants. While it did initially apply for such an order, two of the tenants proposed an out of court settlement before it was obtained.
The Board’s complaint that the article is in breach of clause 1.8 is also upheld. The article does not contain any comment from the Museum.
The newspaper is required to apologise to the Board of Trustees for these transgressions of the Press Code. The headline should contain the word “apology”, and the text should:
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 Khanyim@ombudsman.org.za
Tyrone August
Deputy Press Ombudsman
August 31 2021
[1] According to a letter sent to the Board by its attorney dated March 19 2021, “[d]ue to the uncertainty surrounding the position of the first defendant [the Oudtshoorn tourism bureau], the court order based on the settlement proposals has not yet been obtained”.
[2] This comment should be read in the context of the attorney’s letter referred to in footnote 1.