Ministry of Transport and Public Works (Western Cape) vs. Cape Times

Tue, Jul 24, 2012

Ruling by the Deputy Press Ombudsman and two members of the Adjudication Pane

24 July 2012

This ruling is based on the written submissions of Mr Hector Eliott, for MEC Robin Carlisle, and the Cape Times newspaper, as well as on a hearing that was held on 10 July 2012 in Cape Town. Mr Alan Maher and Ms Barbara Steyn represented the Ministry, with Eliott as their witness; Alide Dasnois and Melanie Gosling represented the newspaper, with Mr Keith Fawcett as their witness. The two members of the Press Appeals Panel were Gerda Kruger (press representative) and Peter Coetzee (public representative).

COMPLAINT

Mr Robin Carlisle, the Minister of Transport and Public Works (Western Cape Provincial Government), complains about three stories in the Cape Times.

They are:

Chapman’s peak row – Taking a drive through the saga (30 January 2012);
Groups plead for sanity in Chapman’s peak toll saga (31 January); and
Chappies: New Legal Battle looms (1 February).

The first story – Carlisle complains that the following statements are false, inaccurate, misleading and/or unfair:

The last fatality was in January 2000;
The authorities apparently feared further litigation;
The projected cost of the building project was R350 million;
The Western Cape government had to create legislation to enable it to run a toll road;
Mr Geoff Tinker found that the road could be repaired for between R25 million and R30 million;
The provincial government never released figures and had something to hide;
Free day passes for people using picnic and hiking sites would be scrapped once the toll plaza has been built;
SANParks was giving the land away;
The public was never told that the toll office was to be built on national park land, or was given detailed plans of the office;
The public would have to pay R25 million of the R54 million that the office and the plaza would cost; and
He avoided dealing with those who were opposed to the project.

The third story – Carlisle complains that:

the first sentence is misleading and false; and
there was nothing in the story that necessitated its publication.

He also complains with regards to all three stories that the newspaper failed to establish the accuracy of the facts and/or ask him for comment (that is his only complaint regarding the second story, which is about the same issue).

ANALYSIS

The first story

The story, written by Melanie Gosling, was about “thousands of Capetonians” objecting to the development of a toll plaza and office in Table Mountain National Park (Chapman’s Peak). The controversial development reportedly had government approval and SANParks was in the process of de-proclaiming park land. Orders were reportedly already given for construction to begin.

Last fatality in January 2000

The sentence in dispute says that “after the devastating fire in January 2000, which loosened rocks, a motorist was killed by a rockfall”.

Carlisle says that the last fatality on Chapman’s Peak occurred on 29 December 1999.

At the hearing, Maher conceded that it was near impossible to establish the right date and therefore did not insist to continue with this part of the complaint.

Fearing further litigation

Carlisle complains the statement that “it appears the authorities feared further litigation” falsely implies that the then Premier closed the road for that reason, which further implies that the authorities were motivated by self-interest, were callously indifferent to human life and limb and were only concerned over the risks of litigation rather than the loss of life. Instead, he says that the road was closed to avoid any further fatalities or injuries to road users. “This is a significantly different rationale to the motivation attributed to the authorities…”

The Cape Times says that a story in Independent Newspaper’s archives on 6 April 2002 states that the then Cape Metropolitan Council awarded quadriplegic Noel Graham R5 million in damages after he had been paralysed in a rock fall in 1994. It says: “The court found the authorities had been negligent in leaving the road open in dangerous conditions.”

The newspaper argues that it was fair comment to cite apparent fear of litigation as a reason for road closure, particularly in light of the previous litigation and the fact that there had been another death prior to the closure of the road. It denies that this statement implies that the provincial government was “callously indifferent to human life and limb”.

Carlise responds that the:

comment about fear of further litigation is not fair – he says that the adverb “apparently” is most commonly used to mean “obviously” as in “it seems or appears that”. He states: “In any event, it is not tantamount to ‘comment’: it is the drawing of a conclusion or a presumption”; and
story’s clear (unfair) intent was to portray the motive for the closure of the road as financial and not humanitarian.

At the hearing the Cape Times said that they were not accusing the authorities of any wrongdoing, and that the use of the word “appears” was not the same as saying that fearing legislation had been the only reason. The newspaper also stated that the complaint related to a decision made by Carlisle’s predecessor and that he therefore took issue with something that did not reflect on him. It argued that assuming that the reader would jump to a conclusion that the department did not care for live and limb is a stretch too far.

Maher said that the reasoning for closing the road was that there was an ongoing risk to motorists, and that the road needed a sustainable plan of upkeep – yet the story only mentioned the fear of litigation as a reason for closing the road. He argued that Gosling consistently opted to reflect only the most negative aspect available each time when it comes to Carlisle.

The panel found that there was nothing wrong with sentence in dispute – the fear for further litigation was most probably at least part of the Department’s motivation for its decision to close the road. The interpretation of the word “appears” is therefore not relevant here. The statement in dispute is at the very least reasonably true.

However, even though the story does not say that this is the only reason for the decision, the story does present it as the only reason. This promotes “fear” and “self-interest” as the only reasons for the decision, to the exclusion of also caring for human life and limb.

The panel accepted Gosling’s testimony that she did not mean to portray the Ministry as being indifferent to human life. However, this is how ordinary readers easily could have interpreted the text.

The statement may therefore have been misleading, albeit not intentionally.

Projected cost of R350 million

The story suggests that the cost of the project would be R350 million and reports that Mr Geoff Tinker of Martin & East engineering company said that that amount “made no sense and was a waste of money”.

Carlisle says that the estimated cost was R160 million; he adds that this opinion was tantamount to serious critical reportage of the provincial government.

The Cape Times says the reporter made use of Independent Newspaper’s archives when researching the facts. The amount of R350 million was published on 4 February 2009 in a story authored by John Yeld – “a veteran, award-winning journalist” who has reported frequently and in detail on this issue since it began in the early 2000s. It adds that this reference was not the only one and argues: “There was no reason to doubt the accuracy of his story, nor did the Cape Times find any correction on this matter in our archives.”

Carlisle replies that the newspaper relied on hearsay and that it made no attempt to ascertain the correct facts or confirm the correctness of the amount of R350 million. He argues that the only source relied upon is dated, and adds that Yeld’s article cites no references for the cost of the project. He says: “Mere repetition cannot in any way enhance either the reliability or correctness of a source and merely repeats the error.” He also says that the newspaper only relied on sources critical of the government.

At the hearing Maher argued that the amount of R350 million was baseless and had never been confirmed in any way. He said that it was simply a figure mentioned by the journalist who had written the original story, which Gosling merely repeated – without checking or confirming the veracity thereof. He added that the journalist consistently used the most negative or highest figure to portray Carlisle in a negative light. He said that it was incumbent on her to ensure the accuracy of the figures that she used.

The Cape Times conceded that it had used a previous story as its source, and that it did so without checking the amount. However, the newspaper argued that the reason Gosling trusted the amount was because the journalist who wrote the first story was a reliable, professional reporter. It further argued that it was established practice, when writing about historic events, to use newspaper archives – especially when the journalist’s reliability was well-known.

It is clear that Gosling’s only sources were two newspaper reports. However, she did not verify the information about the R350 million with primary sources. This is a dangerous journalistic practice, as it can easily lead to a mere repetition of a lie or a misunderstanding. It does not matter how senior and reliable another journalist may be – independent verification is still necessary. The Press Code is clear about the need for proper verification.

This does not mean that a reporter may not quote from another story – but then s/he needs to indicate it as such.

It may very well be that the amount of R350 million is exaggerated.

Legislation to be created

Carlisle complains that the statement that the Western Cape government “had to create legislation” to run a toll road is inaccurate. He says it implies that the toll road was first declared, and then province created the legislation to enable it to do so, and adds that such legislation was already promulgated in 1999.

The newspaper says that it does not believe that many readers would misunderstand the reference in dispute.

Carlisle replies that the newspaper’s comment is an implicit concession that at least some readers would have been, and were, misled.

Nothing substantive was added at the hearing on this matter.

The panel felt that there was factually nothing wrong with the sentence – it is true that legislation had to be created to run a toll road. Carlisle’s interpretation (the sentence implies that the toll road was first declared, and then province created the legislation to enable it to do so) is not implicit in the text, but rather enforced on the sentence.

Repair cost between R25 million and R30 million

The story says that Mr Geoff Tinker of Martin & East engineering company found that the road could be repaired for between R25 million and R30 million (as an alternative option to the plaza).

Carlisle complains that these amounts were inaccurate, an exaggeration and a factual misrepresentation. He says that this created the impression that a viable and substantially cheaper option was available and that the authorities opted for a much more expensive alternative – especially when seen against the background of the erroneous amount of R350 million.

The Cape Times says that it used information from two sources – a story by Yard on 6 February 2009 (which was neither corrected nor disputed) and a document compiled by Tinker (which contains details to substantiate his company’s lower bid).

At the hearing Maher reiterated that he believed the journalist had been sloppy in checking facts and often used the most “negative” figures when writing about Carlisle and the “most positive/lowest” figures when writing about the views or plans of those who opposed the Ministry’s plan.

The reference to R25 million and R30 million is factually incorrect. The amounts should have been R20 million and R35 million.

Never releasing figures; something to hide

The section in dispute reads: “Local residents have been battling for years to get traffic figures for the entire period to date, but Entilini (the concessionaire) has refused to release them. The public believes it is because they will show that the gap has widened even more and that the financial base of the contract was built on a myth”.

Carlisle complains that this created the false impression that both the provincial government and Entilini had something to hide. He adds that Gosling did not make any attempt to obtain an explanation as to why the figures were not released, and proceeded to speculate about the matter. She also did not try to get the latest traffic figures from either Entilini or the provincial government, or to convey on what basis future traffic volumes were calculated at the time that the contract was concluded.

The Cape Times says that Entilini and the provincial government did indeed try to hide the figures. It states that this has been covered in the media over the years and refers to a story by Yeld on 4 February 2009 (as an example) where he wrote: “Entilini refused an application to allow the association’s own forensic auditor…to have direct access to the data.”

The newspaper adds that Hout Bay resident Keith Fawcett was given traffic data some years ago after he argued that he needed them to lodge an appeal against the authorization of the toll plaza - but then he:

discovered that the concessionaire had inflated the traffic figures considerably; and
was threatened with legal action if he went public with the figures (in an email, dated 5 September 2005).

It also states that residents still have not got the raw data they requested (quoting Fawcett in an email to Gosling, dated 8 March 2012), and Mr Rob Pomario of Murray & Roberts and a director of Entilini told Fawcett that he would not provide him with the detailed traffic information he had asked for (in an email, dated 23 September 2010).

The Cape Times denies that it made no attempt to obtain updated traffic figures prior to publication. It says that Gosling telephonically asked Carlisle for the figures on January 26. She followed this up with an email, dated January 27, in which she asks him for “the actual traffic figures”. The newspaper states that to date it has not received any traffic figures from him, or any response to the email.

Carlisle responds that there was no factual basis for reporting that the traffic figures were “hidden”. He says that the newspaper drew a conclusion that was not only conjecture, but also flew in the face of the facts – there may be differences of opinion as to the accuracy of those figures, “but nothing relied upon by the Cape Times justifies a conclusion of figures being ‘hidden’, a most pejorative conclusion.”

At the hearing Maher argued that traffic figures had been made available (albeit not the raw figures) – which left the reader with the wrong and misleading impression that no data had ever been released.

He also said that the request was made on two or three days before publication – which did not constitute giving Carlisle reasonable time to comment.

The Cape Times maintained that the raw figures remained unreleased despite various attempts to get it. The newspaper said that some members of the public believed this was intentional as the raw figures would show the extent of the problem with inflated traffic figures which would prove that the whole plan was flawed.

The panel is convinced that the intention of the sentence in dispute is to state that residents have been battling for years to obtain the raw traffic data – which would have been an accurate statement. However, that is not what the sentence in dispute says. It merely mentions “traffic figures”, in which case it is incorrect. The statement, as it stands, suggest that the Ministry never or hardly ever releases any kind of traffic information – which is not true.

Scrapping free passes, hiking sites

Carlisle complains that the following sentence is incorrect: “On the downside, the free day passes for people using picnic and hiking sites will be scrapped once the toll plaza has been built.”

He says that he:

issued in January 2012 a statement indicating that:
- in 2008 the then ANC minister agreed to discontinue the day pass system – but stated that this decision had not been implemented;
- day passes would continue to be issued unhindered for at least the next year;
- the plaza site was over a kilometer higher up the mountain, and many picnic sites and hiking routes would fall outside of the toll section;
- he was not in favour of the removal of day passes, which can only be implemented with my concurrence”; and
published an online brochure which stated:
- “Day passes can continue provided permanent tolling facilities are introduced”; and
- “Once a permanent operation centre is in place, the cost savings may be sufficient to allow the Day Pass system to stay in place.”

The Cape Times provided me with a “legally binding” document titled Third Addendum to Concession Agreement between the Government of the Province of the Western Cape and Entilini Concession (Propriety) Limited, dated 8 March 2011. This document is signed, amongst others, by Carlisle himself.

This document states: “…the Parties have agreed to discontinue the day-pass system simultaneously with the commissioning of the Hout Bay Toll Plaza. Upon the request of the Concessionaire to the Province that the Province obtain approval from the Minister of Transport for the removal of the day-pass system, the Province shall obtain such approval.”

The newspaper also says that it did publish Carlisle’s reason for the scrapping of the free day-passes on 9 January 2012. The story quoted him as saying that the free day-passes was only an “informal agreement” with Entilini which had never been in the original agreement. It says: “He did not contradict the provisions in the concession agreement or say they had changed.”

The Cape Times argues that there is a discrepancy between Carlisle’s saying that he was not in favour of the scrapping of the free passes and his singing an agreement to do just that. Gosling therefore asked the authorities if a new agreement had been signed that rescinded the scrapping of the free passes. The answer she got was that Carlisle “has continued negotiating over the day passes”, and that there was no provision for the system (that was based on an informal agreement).

The newspaper concludes that the legally-binding agreement still applies, which states that the free day-passes will be scrapped.

Carlisle replies that the newspaper relied exclusively on the document mentioned above – “notwithstanding its full knowledge that the original agreement itself did not make provision for a day pass, but that an ‘informal agreement’ had nonetheless been entered into with the concessionaire.” He concludes that the position is therefore very similar to what applied on 8 March 2011 when the current agreement was signed. He also refers to the media statement (11 January 2012) which states that, notwithstanding the contractual terms, day passes will continue to be issued for at least the next year.

Maher said that Gosling should have mentioned the emails from Carlisle her (which was presented at the hearing), which firstly stated that negotiations were underway regarding day passes, and afterwards that an agreement had been reached (the content of which was not spelt out). He argued that despite the fact that the legal document stated that day passes would be discontinued, the contract had been overtaken by public statements about the fact that the passes would continue at least until the plaza was built and that the matter was under discussion. These matters, he said, were raised by Carlisle in an op-ed piece, and it was on the department’s website, in the brochure and in press releases. Gosling ignored this, which resulted in an unbalanced report.

The newspaper argued that the contract stated that passes would be withdrawn when the plaza became a reality – which was not undone by the response from Carlisle to Gosling.

The reporter clearly relied on the (valid) contract mentioned above. That is standard journalistic practice. However, that is only part of the story. She was firstly notified by the Ministry that negotiations were underway regarding the day passes, and then that an agreement had been reached (the content of which was not spelt out).

This agreement may or may not have changed the contract – yet Gosling chose not to mention this fact. The Press Code is clear about context, fairness and balance. She should have reported it and left it to the public to decide for itself.

Giving land away

Carlisle complains that the implication in the story that SANParks was giving away land is incorrect. He says that the brochure mentioned above specifically states the following: “No land whether belonging to SANParks or the Provincial government will be given to the concessionaire.”

The newspaper provided me with a copy of an email by SANParks CEO David Mabunda, dated 11 January 2012, which stated that the land was of no biodiversity value. He added: “The deproclamation process of this piece of land…in question is now underway in terms of the Protected Areas Act 57 of 2003 as amended.”

It says that while it may be true that the land will not become Entilini’s property in law, it will become its property in effect – as it will be used solely by this private company. It argues: “Thus it is a fact that the land will be carved out of the national park…To all extents and purposes, this national park land is being given away, as the public will no longer have access to it nor any rights over it.”

Carlisle responds that the newspaper has conceded that no national parks land will become Entilini’s property. He argues that “deproclamation” and “handing over land” is not the same thing.

At the hearing Maher said that it was fact that the land had not been and would not be given away. He conceded that SANParks would lose the use of the land, though. He argued that Gosling knew this – and yet she created the impression that made it seemed that the land had carelessly and irresponsibly been given away.

The Cape Times argued that the land had in essence been given away in that SANParks and the public would not be able to use it again. The words “given away” did not reflect that something illegal had been done. The paper conceded that the land was not technically given away.

The panel noted that the land still belonged to SANParks, so the statement that it had been “given away” is technically incorrect. However, the other side of this coin is that, in practice, this piece of land is out of bounds for the public. We therefore took the newspaper’s argument (while the land was not Entilini’s property in law, it will become its property in effect) seriously.

While technically incorrect, the panel found that the statement in dispute was essentially true.

Public not informed

The sentence in dispute reads: “The public says two things were never made clear: they were not told that the toll office was to be built on national park land, nor were they given the detailed plans of the office.”

Carlisle says that:

the decision to construct the plaza and office was published on the Government Information website in June 2009;
opposition by the Hout Bay Residents’ Association (HBRA) is well-known and goes back at least to the first public participation process in 2003;
the HBRA had access to the website and therefore knew that the project had been approved and would proceed;
the HBRA was part of public participation processes from 2003 to 2008 and had sight of the preliminary plans;
these plans were displayed at public meetings; and
the project was advertised in the Cape Times in June 2003.

He concludes that it is impossible that the HBRA only came by this information by chance in recent months or that they were unaware of the detailed plans of the proposed office.

The Cape Times replies that the environmental impact assessment (EIA) documents (2003) did not contain specifications that the plaza would be built on national park land or detailed drawings of the office. It states that the first time it can find this information to be public, was in 2008 when former Minister Marthinus van Schalkwyk authorized the project.

The newspaper says that Van Schalkwyk mentioned that the plaza would “encroach slightly” on Table Mountain National Park, and concludes: “But by that stage it was too late, as the public participation process and the EIA had been completed.”

It also states that the advertisement that Carlisle refers to says nothing about the location of the buildings at all, save that they would be “along Chapman’s Peak Drive” between Hout Bay and Noordhoek.

Regarding Carlisle’s statement that it was “impossible” that the public has been unaware of the detailed plans, the Cape Times says that the plans were approved on 9 May 2011 – “…many years after the public participation process and the EIA had been completed.” The newspaper says that it first saw detailed building plans in January this year, and states: “The Cape Times, which had reported on the EIA years earlier, had never seen detailed plans when reporting on the EIA process.”

It also refers to a sworn affidavit by Fawcett, stating that the EIA documents did not ever contain an architectural plan of the building, or a site development plan showing its exact location. He said: “All that was ever present to the public were dimensionless perspective drawings of the building seen from a distance.”

Carlisle disputes this, saying that various plans clearly indicated where the building was to be located, and they show a slight encroachment onto national parks land. He says: “These plans were distributed during the public participation progress from the outset.”

He adds that:

Fawcett himself confirmed that these plans were used in the public participation process and that they were available for public viewing at meetings and at various libraries during the EIA process;
the newspaper could easily have ascertained that the proposed building would encroach on national parks land and refers to the sentence in dispute that says the public was “never” told that the buildings would be on parks land;
copies of the approved plans (on 9 May, 2011) were sent to the Cape Times;
Fawcett’s affidavit is “irrelevant” as it refers to historical facts and events that were overtaken by subsequent developments; and
the newspaper did not deny that the HBRA had access to the plans and therefore knew that the buildings had been approved and that the project would proceed.

The panel listened for a long time to exhaustive details from both sides about what was known and not known, what was part of the public participation process and what not, what was publicly known regarding available maps and drawings, what was said and what was not said and what was carried on the websites and in brochures and press releases over the years related to the Sanpark land and the size of the structure.

The panel was convinced that the questions mentioned above were in fact irrelevant as the story did not state these allegations as fact, but merely said that the public alleges them – which is true, based on Gosling’s extended research, as well as on the recent public outcry.

Public to pay R25 million

The sentence in dispute states: “The public will have to pay R25 million of the R54 million the office and toll plaza will cost.”

Carlisle says that the cost is likely to be less than R25 million, and that the concessionaire is obliged to pay back that amount to the province. This means that the money will be effectively loaned to the company – an important fact that Gosling fails to state.

He argues that his media statement of 11 January this year clearly states that the province’s share of the cost “will be recovered in full over time”.

The newspaper says that this is unlikely to happen as the traffic volumes are way below what Entilini forecast, which will influence its income. It states: “It will be paid back only if economically viable, and at this stage it appears it is not.”

It also refers to an email by Carlisle himself, dated 23 June 2008, in which he says:

“The Toll is unviable, and after all these years I still don’t understand what the private partner expects to gain from it”; and
“Any SA company which banks on end of 30 year term returns in respect of roads either has very large testicles or a very small brain.”

The newspaper adds that the concession agreement states that the Province shall contribute R25 million – but notes that nowhere in this agreement does it state that it is likely to be less than R25 million.

Carlisle questions the allegation that traffic volumes were “way below” what Entilini forecasted and asks what the newspaper’s factual basis was for this assertion. He attests: “The Cape Times has again relied exclusively on the written contract to the exclusion of all other readily available information. The fact remains that on the Province’s version the likely contribution by the public is likely to be less that R25 million. This was simply never conveyed in (the) article.”

At the hearing Maher said that Public Works was to contribute R21 million and that that amount was to be recovered. He argued that this fact was in the public domain.

Gosling replied that she did not know that it was a loan, but also stated that she doubted that the money would ever be refunded.

The panel thought that the statement in dispute was factually correct – the concession agreement indeed stated that the government would pay R25 million. There was no mention of an estimated amount, and nowhere was it stated that it might be less than R25 million. Gosling’s reportage was therefore justified on this matter.

However, again it was not what Gosling wrote, but rather what she omitted which was problematical. The newspaper did not dispute the Ministry’s statement that the R25 million was to be paid back – it merely argued that the money would be refunded only if economically viable, which at that stage it appeared that it was not.

Even if this argument was correct, the fact still remained that there was at least a possibility of a repayment – which did put this matter in a different light. Context, fairness and balance were lacking.

Avoiding the issue

The story ends off by stating: “Lawyers appointed by the residents wrote to SANParks and the provincial government months ago to say it is unlawful to build on national parks land. They wrote back to say they were taking legal advice...Carlisle gave the order for construction to begin…”

Carlisle says that Gosling was aware of the fact that he had sought legal advice some months before – yet she never established if he had obtained this advice. He argues: “The article deliberately concludes with a pejorative gloss, apparent to any reasonable reader, to the effect that the MEC avoided dealing with, or answering, the question…”

At the hearing Maher argued that the Cape Times knew that Carlisle was seeking legal advice about the claim that it was “illegal” to build on SANParks land. However, the sentence created the impression that the MEC was nevertheless proceeding without such advice.

The newspaper said that it was fact that members of the public questioned the legality of building on SANParks land and that Carlisle responded by saying he would seek legal advice on the matter, and argued that the story reflected that. It was also fact that construction had begun.

The panel was concerned that, yet again, there was a gap in the reporting. The public was informed about the alleged illegality of the building and of the legal advice that Carlisle was seeking. So what was this advice? Had it been obtained? Was it legal? Or did the MEC give an illegal order?

These questions hang in the air – and contribute to Gosling’s negative slant to the story.

Again.

The third story

This front page story, written by Zara Nicholson, reports that civil society groups were on the verge of filing for an interdict to halt the construction of an office block and toll plaza on Chapman’s Peak.

Legal action imminent

The sentence in dispute reads: “Civil society groups are on the verge of filing for an

interdict to halt the construction of an office block on Chapman’s Peak Drive.” (emphasis added)

Carlisle complains that this statement is misleading and false as it suggests that a court application was imminent. He says that Nicholson wrote on 10 February 2012 that the HBRA was “still expected to file for an urgent interdict to stop construction…” He argues that it was common knowledge at the newspaper that not only was litigation not imminent, but it was also not inevitable. He adds that two days before the publication of this story, the same newspaper concluded that unless the residents can raise R150 000 to take the matter to court, the toll plaza and office would soon be a permanent feature in the park.

The Cape Times says it was told by members of the public and their lawyers “that they were working on a legal challenge”. The newspaper adds that court papers have been lodged with the Western Cape High Court and that the date of the hearing was scheduled for March 9.

It submitted a copy of the filing document to this office.

At the hearing much was made on what the expression “on the verge” meant.

Maher conceded that an urgent application was indeed launched some weeks after publication and that this legal action did finally conclude in a judgment on 6 June 2012. He nevertheless still believed that the journalist had erred in that weeks had passed between the story and the actual launch of the application.

The Cape Times argued that its sources said that they were in the process of preparing a legal challenge. The expression in dispute was therefore factually correct and irrelevant how many weeks passed before the actual case was indeed launched at court.

The urgent application was filed less than five weeks after Gosling reported that groups were on the verge of filing for an interdict. The panel took into account that the finalizing of such a legal document may have taken longer than expected (it often does), and concluded that the expression in dispute was therefore justified. In legal terms, five weeks may be relatively short. The statement may have been slightly over-stated, but it still was essentially true.

Nothing necessitated publication

Carlisle complains that “there is nothing contained in the article that necessitated its immediate publication” – he argues that the issues have repeatedly been raised in the media over a long period of time. He adds that the launching of a court application was neither imminent, nor had such an application been launched to date. He therefore implies that, while the newspaper had difficulty in reaching him for comment, it should have postponed publication.

The Cape Times says the Chapman’s Peak issue was a breaking story and that it was covered daily in several media. It says that this story presented a new angle based on information from UCT academic and environmental law expert Jan Glazewski – an important new voice in the debate on the legality of the proposed buildings.

The newspaper states that Glazewski had inside information about the deproclamation of land by SANParks and argues that, had it not published the story, one of its competitors might well have done so.

At the hearing Maher argued that there was nothing urgent about the matter and the newspaper therefore should have waited for proper comment from Carlisle.

The Cape Times countered that the matter had been important to readers, that it did not want to be scooped and that ultimately it had been its decision when to publish.

The panel felt that it was for the newspaper to decide what was newsworthy and what necessitated early publication.

All three stories: Not asked for comment

Throughout his complaint and with regard to all three stories, Carlisle says that the reporters did not ask him for comment and that they did not verify their information.

In general, the Cape Times says that it published Carlisle’s views several times in stories and articles since it broke the story on January 9 and also after the publication of the three stories in question. It also carried Premier Helen Zille’s views on its front page on January 30 and published a letter from the head of Carlisle’s Ministry on this issue (on February 29).

The newspaper says that Carlisle has selected three stories on the issue and argues that “this is not an accurate reflection of our coverage of the matter, nor is it an accurate reflection of the Cape Times’ inclusion of MEC Carlisle comments, statements and opinions on the issue”.

First story

The newspaper says that the point of the story was to pull together ten years of information in order to clarify the important issues. “For this reason, we did not go to anyone for comment, as this was not a ‘he said, she said’ article.” It adds that the story was not a straight news piece, but argues that it included some interpretation as well as comment that it has gathered over the years. It concludes: “Most of what the Cape Times wrote about in this article occurred years before MEC Carlisle’s term of office.”

Carlisle disputes this, saying that the story was published on page 7 under the heading “news”; it was therefore identified as a news item by the newspaper itself. He also argues that, because the story was a pull-together, this fact “renders it particularly apposite to seek comment as the whole process was protracted and dynamic” and states that it is irrelevant that most of what the story was about was before his term of office.

At the hearing Maher stated that Gosling should have, but did not secure and reflect Carlisle’s comment on this emotional topic.

The Cape Times argued that the story (a pull-together) was based on historic facts and therefore did not require additional comment from Carlisle’s office. It added that there had been other stories in the same publication in which Carlisle commented.

Firstly, the article was written in an interview form (question and answer). At first glance, it looked as if Gosling was interviewing someone. However, she merely relied on all the information that she has gathered on the topic. Both the structure of the article and the box on top of the story show that this is not an ordinary news story – even though it was published on a news page.

Therefore, there was no need to get further comment – not from the public nor from the Ministry/Government.

But again, it was not what she wrote that presented a problem, but what she omitted. The box said that she was going to unpack the “saga” (the caption also mentioned this word). Now, a saga is a story that has been unfolding over a period of time. This specific story was about two parties – the public (and its concern over the environment) and the Ministry. The latter, however, did not feature in the article.

This omission was accentuated by one of Gosling’s questions that read: “What was the public reaction?” Fairness and balance dictated that there should have been another question, asking: “What was the Ministry’s position?”

No wonder Carlisle felt that the article was one-sided, unbalanced and unfair.

Second story

The Cape Times admits that Nicholson did not contact Carlisle for comment, but says that she did contact Zille – which is reflected in the story. A print-out of Nicholson’s telephone calls confirms that she phoned Zille prior to publication.

At the hearing Maher said that the appropriate institution to contact was the Department of Public Works.

The Cape Times argued that Zille adequately represented the Department of Public Works and that her voice had not previously been heard on this matter.

The panel felt that the newspaper’s argument was convincing.

Third story

The Cape Times denies Carlisle’s assertion. The print-out shows that the journalist phoned Carlisle six times on January 31 between 12:03 and 17:42.

At the hearing both parties agreed that the journalist tried to phone Carlisle several times.

However, Maher argued that the calls in some instances were over a short period of time and that this did not constitute a “reasonable attempt” to get comment. He said that Gosling also erred by not attempting any other available and obvious options like contacting the Media Liaison officer.

The newspaper said that the several calls made to Carlisle were adequate and he should have attempted to respond or should have passed it on for someone to respond.

The panel commended the journalist for persistently attempting to contact Carlisle on the cell phone.

However, the Ministry is correct – after realizing that her attempts were going to be unsuccessful, she should have tried another avenue. It was not as if there were none available. This was lazy journalism.

Also, the newspaper’s argument that it was incumbent on Carlisle to react is weak. For all intents and purposes, he may have been in a meeting or tied up somewhere else.

General comment: The third story

It became evident that it was not so much what Gosling wrote, but rather what she omitted to state that was problematic. The panel referred to the failure to mention:

reasons other than fearing further litigation for the road closure;
the agreement on day passes;
that the R25 million may possibly be refunded;
what legal advice Carlisle had obtained (if any); and
the Ministry’s side of the story (not meaning getting new comment).

Together, these omissions represented an unfair and unbalanced slant to the story. The panel noted that if these matters were indeed stated it would have been a more accurate, balanced and fair report. This is worrisome, especially when these omissions are viewed collectively.

The panel expressed the sincere hope that this was an isolated occurrence.

The panel also formed the opinion that the toll gate sage might correctly be described as somewhat of a public relations disaster. There can be no doubt that the issue is confusing and in fairness it must be difficult for the public, and for journalists to report on it accurately. Despite this challenge the journalist must do so and hence our findings. We also noted that the Cape Times gave Carlisle many other opportunities to reflect on the matter and we commend the paper for getting a range of stories on this confusing matter done correctly.

FINDING

The findings of the panel were unanimous:

The first story

Last fatality in January 2000

This matter was withdrawn at the hearing, and there is no need for the panel to come to a finding.

Fearing further litigation

The sentence in dispute is accurate or at the very least reasonably true; that part of the complaint is dismissed.

However, the sentence also promotes “fear” and “self-interest” as the only reasons for the decision to close the road – to the exclusion of caring for human life and limb. This is in breach of Art. 1.2 of the Press Code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions, or summarization.”

Projected cost of R350 million

The reporter did not properly verify her information, but merely repeated other news reports. This is in breach of Art. 1.4 of the Code that states: “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.”

Legislation to be created

This part of the complaint is dismissed.

Repair cost between R25 million and R30 million

The reference to R25 million and R30 million is factually incorrect. This is in breach of Art. 1.1 of the Code that reads: “The press shall be obliged to report news … accurately…”

No figures released; Something to hide

The statement that the public was not given traffic figures is inaccurate and is in breach of Art. 1.1 of the Code.

Scrapping free passes, hiking sites

The failure to mention that an agreement was reached is in breach of Art. 1.2 of the Code.

Giving land away

This part of the complaint is dismissed.

Public not informed

This part of the complaint is dismissed.

Public to pay R25 million

The complaint about the amount of R25 million is dismissed.

The neglect to mention that the money may possibly be refunded is in breach of Art. 1.2 of the Code.

Avoiding the issue

The neglect to mention what legal advice Carlisle had obtained (if any) is in breach of Art. 1.2 of the Press Code.

The third story

Legal action imminent

This part of the complaint is dismissed.

Nothing necessitated publication

This part of the complaint is dismissed.

All three stories: Not asked for comment

First story

The complaint that Carlisle was not asked for comment is dismissed.

The article only addressed the public’s side of the story and not also that of the Ministry. This is in breach of Art. 1.2 of the Code.

Second story

This part of the complaint is dismissed.

Third story

Even though the journalist did seek Carlisle’s views, these attempts were not adequate. After realizing that her attempts to contact him were going to be unsuccessful, the journalist should have – but failed – to try another avenue. This lazy journalism is in breach of Art. 1.5 of the Code that reads: “A publication should seek the views of the subject of serious critical reportage in advance of publication…”

General finding: The third story

The several omissions of important matters that would have more accurately reflected the Minister’s position are in breach of Art. 1.1 and 1.2 of the Press Code.

SANCTION

The Cape Times is directed to apologise to Carlisle for failing to mention:

that an agreement was reached regarding day passes;
that the amount of R25 million may possibly be refunded Entilini to the Ministry;
what legal advice Carlisle had obtained (if any); and
the Ministry’s side in the pull-together story.

The newspaper is also directed to apologise to Carlisle for promoting “fear” and “self-interest” as the only reasons for the decision to close Chapman’s Peak road.

The newspaper is reprimanded for:

not verifying the amount of R350 million;
inaccurately reporting that the repair cost would be between R25 million and R30 million;
inaccurately stating that no traffic figures were released; and
inadequately trying to get comment from the Ministry (third story).

The Cape Times is directed to publish the following kicker on its front page above the fold:

Heading of kicker: Toll plaza – Apology to MEC Carlisle.

Text of kicker: The Cape Times apologises to MEC of Transport and Public Works Robin Carlisle for failing to mention several material issues that may have presented the Minister’s position more accurately . Story on page…

The Cape Times is directed to publish the following text inside:

The Cape Times apologises to MEC of Transport and Public Works (Western Cape) Robin Carlisle for failing to mention several material issues that may have presented the Minister’s side more accurately regarding a story about the building of a toll plaza at Chapman’s Peak Drive.

This comes after Carlisle lodged a complaint with the Press Ombudsman about three stories that we published on 30 and 31 January, and on 1 February.

The main story in dispute was headlined Chapman’s peak row – Taking a drive through the saga (30 January 2012), written by Melanie Gosling.

The matter was heard before a panel consisting of Gerda Kruger (press representative of the Ombudsman’s panel), Peter Coetzee (public representative) and Deputy Press Ombudsman Johan Retief.

The panel found that the following omissions were material, namely:

that an agreement was reached regarding day passes at Chapman’s Peak;
that an amount of R25 million may possibly be refunded by Entilini to the Ministry;
what legal advice Carlisle had obtained (if any) regarding the legality of building on national parks land; and
Carlisle’s side in a “pull-together” (Gosling’s) story.

The panel said that, when viewed collectively, “these omissions represented an unfair and unbalanced slant to the story” and expressed the sincere hope that this was an isolated occurrence.

We also apologise to Carlisle for implying that “fear” and “self-interest” were the only reasons for the decision to close Chapman’s Peak road some time ago after somebody was killed in a rock fall.

The panel reprimanded us for not verifying the amount of R350 million as the projected cost of the building project, for inaccurately reporting that the repair cost (as an alternative to the building project) would be between R25 million and R30 million, for inaccurately stating that no traffic figures were released, and for inadequately trying to get comment from the Ministry (story written by Zara Nicholson).

However, the panel also said that the toll gate sage might correctly be described as somewhat of a public relations disaster. They said: “There can be no doubt that the issue is confusing and in fairness it must be difficult for the public, and for journalists to report on it accurately. Despite this challenge the journalist must do so and hence our findings. We also noted that the Cape Times gave Carlisle many other opportunities to reflect on the matter and we commend the paper for getting correct a range of stories on this confusing matter.”

Nine parts of the complaint were dismissed; there was no finding on one other part of the complaint as this was withdrawn at the hearing.

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 Khanyim@ombudsman.org.za.

Gerda Kruger

Peter Coetzee

Johan Retief