The Ferreira family vs. GroundUp


Tue, Feb 5, 2019

Particulars

Complainant: The Ferreira family, owners of Endulini Fruit Farms (Patensie, near Port Elizabeth)

Lodged by: Dr J.S. Schoeman, from Schoeman Oosthuizen Inc.

Date of article: 13 November 2018

Headline: Farm workers demand dividends from black empowerment scheme

Author of article: Joseph Chirume

Respondent: Nathan Geffen, editor

Complaint                                            

The Ferreira family complains that GroundUp did not give them reasonable time to respond to the publication’s queries.

They also complain that the following statements in the article were false / misleading:

  • “[On Saturday] about 100 farm workers and their supporters protested at Endulini Fruit Farm...”;
  • Protesters were concerned with “the company’s share scheme for workers”;
  • This was conveniently done in order for the farmers to get land from government at a discount … [Mbandana] said”;
  • “Mbandana said ‘[Some] workers ... don’t even know how much their dividends are because they are not allowed to see the company’s financial statements’… He said some workers are given R2,000 a year but after they complained recently, trust members started receiving R3,000, he said”;
  • Freddy Grootboom … said he was one of the original 50 shareholders in the company”; and
  • James Pentse said: ‘… I was also a shareholder in the farm but they said my name is not in their system…’ [He] said he was forced to hire a lawyer to get the company to pay his wife’s scheme benefits after she died in 2016.”

The family also says the journalist misspelt De Fin’s surname, and incorrectly referred to him as Endulini’s “general” manager.

In conclusion, the family complains that GroundUp has not exercised the necessary care and consideration regarding its dignity and reputation.

The text

The story was about a protest demonstration called by the Kouga Farm Workers Re-union (KFWR) to the Endulini head office to hand over a petition containing a total of fourteen demands.

Approximately one hundred farm workers reportedly inter alia demanded higher hourly wages and also raised various other concerns.

The arguments

Not given sufficient opportunity to respond

The journalist reported: “GroundUp contacted Endulini on Monday and was told to call De Fin on Tuesday morning. On Tuesday, GroundUp was again told that [manager Charles] De Fin was not available and would return our call. De Fin had not responded to calls or emailed questions by the time of publication.

SCHOEMAN says Chirume phoned Endulini several times on November 13. He says the receptionist informed him that neither of the two directors were available, and neither was De Fin. Then, at 11:38 she received an email from Chirume (on that same day) in which he asked several questions, and indicated that his deadline for a response was 13:00.

However, he adds, De Fin did not have the authority to deal with the press in the first place.

He adds that both the receptionist and De Fin’s wife confirmed that Chirume did not at any stage (except in his email) indicate that he had a deadline to comply with. “In any event, any such deadline was clearly self-imposed,” he adds – and inadequate at that, given the situation.

Schoeman concludes that Chirume did not give Endulini a reasonable opportunity to respond, as neither of the directors were available at the time (of which the journalist was duly informed). He adds that the journalist then relied on junior personnel who were not in a position to respond to his queries.

GEFFEN says protests are time sensitive events that need to be reported as soon as possible. Since this protest fell on a weekend, he continues, GroundUp intended to publish on Monday morning. “That it eventually got published on Tuesday, four days after the protest, was a consequence of the fruitless effort we made to get comment from Endulini,” he says.

The editor adds that, if one side is not able to comment in time for publication, the publication is always committed to updating the article after publication.

He states: “For this story we went to great lengths to obtain comment from Endulini. Endulini simply didn’t respond to our efforts. Yet Endulini found time to write an eight-page (20 pages with annexures) complaint to the ombudsman.”

He adds:

  • At the protest itself Chirume wanted to speak directly to De Fin, because the latter accepted the memorandum and appeared to be the most senior person from the farm present;
  • However, De Fin was surrounded by security and quickly left after taking the list of demands;
  • Chirume managed to locate De Fin later in the day, and the latter told the journalist he would have to phone him on Monday; and
  • During the conversation Chirume also asked if it was possible to speak to the Ferreiras.

Geffen says the publication edited the article on Monday morning, 12 November, and decided to make further effort to get comment before publishing the story. “This is unusual for protest stories, because they are so timebound. But because the protest was in a remote area and involved a conflict we were new to, we decided it was better to delay a few hours,” he submits.

He says Chirume’s cell phone record shows the following calls and their durations:

  • November 12, at:
    • 14:11, for 4 minutes 25 seconds;
    • 16:17, for 1 minute and 4 seconds; and
  • November 13, at:
    • 9:11, for 33 seconds;
    • 9:18, for 59 seconds; and
    • 13:34, for 2 minutes and 13 seconds.

The editor says most of these calls involved Chirume trying to get hold of a Mr Ferreira and De Fin.

He submits: “No one ever told him the Ferreiras were out of town or that they were the only ones who could speak to the media… Various reasons are offered by the complainant for not responding to Mr Chirume. But these are not GroundUp’s fault. Endulini is not a small company. A protest took place against the company. It should have made a plan to respond to requests from the media.”

Geffen points out that Section 1.8 of the Press Code makes provision for publishing without comment “because it would be impracticable to do so in the circumstances of the publication” – which, he argues, “was precisely the situation here”.

He adds that the article also stated that the publication was not able to obtain comment – again in line with Section 1.8.  

Besides, he says, Section 1.9 of the Code says that, where a news item is published on the basis of limited information, this shall be stated as such and the reports should be supplemented once new information becomes available – which is exactly what GroundUp has done.

In his response to Geffen’s reply, SCHOEMAN says it is conspicuous that Chirume did not report what GroundUp has told this office, namely that De Fin told the journalist to phone him on the following Monday. He says De Fin denies ever having spoken to Chirume.

He says the protest itself was secondary in the article, which made it compelling that the real issue (the allegations against Endulini) should have been addressed. He argues there was therefore no compelling reason why the article had to be published before GroundUp obtained proper comment. “Any urgency was self-created and the deadline self-imposed,” he says.

He notes that only the first two and the penultimate paragraph of the article dealt with the protest itself – the rest of the story was about the accusation that Endulini had not:

  • complied with fair labour practices;
  • obtained land, water rights and other benefits from Government at a discount under the disguise of a black empowerment scheme (i.e. that they were guilty of fronting or fraud);
  • been transparent;
  • properly managed the black empowerment scheme; and
  • assisted employees who suffered injuries on duty.

He says these allegations were based on events that occurred in inter alia 2000, 2006, 2007, 2010 and 2016, and argues: “There was no pressing need to report on events that occurred that long ago immediately. To the contrary, time was not a factor and there is no excuse for GroundUp’s failure to obtain the views of [Endulini] and to verify the allegations.”

Furthermore, Schoeman says the article contained several allegations that the journalist did not put to Endulini. These refer to the statements reportedly made by Mbadandana, Grootboom and Pentse (paragraphs 5, 6, 7, 9 and 10 of the story).

He maintains that GroundUp did not give Endulini reasonable time to air its views, and submits that there was no valid reason why the publication could not wait until it obtained such comment.

Analysis

I am dealing here with a “yes, I did”, and “no, you did not” situation – Chirume contends that he spoke to De Fin; the latter denies it.

Clearly, somebody is lying.

Because Geffen’s response on this issue was not quite clear, I wrote him the following email:

“Mr Chirume said he spoke to Mr De Fin after the demonstration – a statement which the latter denies.

“I am therefore asking for more clarity on this issue.

“In your response to the complaint, you say that De Fin was surrounded by security and quickly left after receiving the list of demands. You add that, later in the day, Chirume managed to locate De Fin and spoke to him.

“Please ask the journalist for details regarding this meeting. For example: Where and how did he locate De Fin, at what time did this interaction take place, was anybody else present who can verify that this meeting indeed happened, did he take any notes, and did he tape the conversation?”

This is the journalist’s response:

“After Mr De Fin accepted the petition, he went back inside the perimeter fence that houses the factory. There were a number of security men around him as evidenced by my photos.

“I then boarded a bus that was transporting protesting workers to Patensie town.Unfortunately a few meters from where the protesting took place,the bus failed to turn towards the direction of Patensie as its rear towbar got stuck on the tar prompting the farm to assist with two forklifts.

“This happened a few meters from the place of petition handover and at the other gate to the company.

“Mr De Fin emerged at that gate watching what was happening. I had just asked for water from the security man who was manning the gate but he didn't have that so when De Fin arrived at that gate I was just close to him. I identified myself that I was a journalist from Groundup.

“He also told me his name. I then asked  to see the Ferreiras in order to get their comments since workers were fingering them as the owners of the farm and the people behind their disgruntlement. De Fin said I should phone on Monday.”

Unfortunately, I am not in a position to decide who is right and who is wrong in this matter.

However, the reporter cannot be blamed for pursuing his efforts to get hold of De Fin in order to get comment from Endulini.

Then, when Monday came, Chirume made several (fruitless) attempts to get hold of De Fin. Kudos to the reporter. It was not his fault that De Fin was not available.

Also, I have no evidence that either De Fin’s wife or the receptionist told Chirume that De Fin was not in a position to speak to the press. Again, the journalist cannot be blamed for that.

Well done to the editor as well for postponing publication until some more efforts were made the following day to contact Endulini.

Schoeman’s comment that Chirume’s deadline was “self-imposed” is rather puzzling. Normally deadlines are “imposed” by the editor and not by the journalist. Surely, he is not suggesting that there should not have been any deadline?

I also take into account that GroundUp has already amended the article with comments from Endulini.

‘About 100 farm workers and their supporters’

The article said: “[On Saturday] about 100 farm workers and their supporters protested at Endulini Fruit Farm...

The Ferreira family complains that:

  • the journalist overstated the number of people at the protest, saying there were approximately 60 protesters (and not 100);
  • none of the protesters were Endulini employees, as stated or implied in the article; and
  • the angle from which the photograph was taken was deliberately misleading.

GEFFEN says it is notoriously hard for reporters to estimate crowd sizes. However, he says he stands by Chirume’s estimate.

He refers to a photograph Chirume took of the march before it reached its arrival point. He says his count of the number of people in the march amounts to about 80. A colleague of his, he says, tallied 86 people – which excludes the people on the bus.

The editor says there was a bus carrying the additional protesters (in the corner of the photo, behind the procession of cars, ‘suggesting that it is part of the march”). He explains it is quite common on marches for the infirm, unfit and elderly, or simply groups of people who wish to travel together, to hop on a bus that tags along behind the walkers. They are considered part of the march, and will typically disembark at the arrival point.

He concludes it is quite possible that the number of 100 is actually an underestimate of the number of people who participated, especially if there were 60 people on the bus as claimed by the complainant.

Be that as it may, he says it is petty to argue over whether 60 or 100 or 150 people participated.

Secondly, Geffen argues the article did not say that the protesters were Endulini employees.

However, he adds that Chirume spoke to protesters who claimed to be current employees or seasonal workers on the farm – “and so we are not in breach of the press code for stating or implying that some protesters were employees of the farm”.

He also refers to a letter from the KFWR to the Ferreira family/Endulini attorneys which alleges that an employee of the farm who participated in the protest has had her working conditions worsen. He says: “We make no claim as to whether or not this allegation is true, but merely to show that the Endulini’s claims are contested by the protesters.”

Lastly, the editor says the complaint that the “angle” of the published picture was misleading is puzzling. He states: “It’s an ordinary photograph taken at an ordinary angle, and it doesn’t show much of anything. It’s certainly not misleading. If we specifically wanted to show the size of the protest we would have used [another picture]”.

SCHOEMAN replies that, while the story mentioned approximately 100 people, GroundUp has now toned that number down to 86 or 80. He also queries Geffen’s statement that the argument about how many people participated in the protest was “petty”.

He says it is significant that the organisers expected approximately 200 people to participate in the protest.

Secondly, Schoeman says any reader would understand that the demonstration, and the reportage, was about Endulini farm workers – as demonstrated inter alia by the headline, the sub-headline, as well as the caption to the picture.

He submits: “It is conspicuous that GroundUp does not deny that the persons who participated in the demonstration are not employees of Endulini; that the majority of them are unknown to Endulini; and that they seem to have some affiliation to the EFF as the majority of them were dressed in red. A political rally for political gain is a far cry from a protest action by employees of an employer and beneficiaries of employee trusts to assert their rights.”

Schoeman concludes that the article has tarnished Endulini’s dignity and reputation, and states that freedom of expression is not an absolute right.

Analysis

Schoeman’s statement that the organisers expected 200 people to participate in the demonstration is interesting, but for a variety of reasons it is not relevant.

This is why:

  • I have no evidence of such an “expectation”;
  • Even if there was an expectation to this effect, I have no way of determining just how realistic it was; and
  • Expectations do not really matter, as the only thing of relevance is what actually happened (unless, of course, the gist of the story is that the turn-out was rather disappointing – and yes, Chimure could have mentioned it in his article).

I also note that, while Schoeman is concerned about the fact that Chirume’s estimate of “about 100” demonstrators is wrong, he himself falls in the same trap by stating that “the majority” of the demonstrators wore red clothes (with the assumption that they were from the EFF). I do not know how Schoeman came to this conclusion, as from the evidence at my disposal it is not clear that there was such a “majority”.

I am also not convinced that, while many of the protesters indeed wore red, that would necessarily have expressed their alliance to the EFF.

In the meantime, my own count of the number of protesters comes to just over sixty. Unlike Geffen, I am not willing to add to the total people who were travelling by bus, as I have no evidence that there were any passengers in the vehicle, let alone that they would join the protestations.

On the other hand, I do agree that it is always difficult to estimate how many people are grouped together. I also take into account that the journalist did not state an exact total, but estimated the number of people (by using the word “about” 100).

I do think that the estimate of “about 100” was an overstatement, but I am not convinced that that figure was so far out of line as to be in breach of the Press Code.

Secondly, I am puzzled by Schoeman’s statement that “none” of the protesters were Endulini employees. Really?

The argument that the “angle” of the picture was misleading, is baffling as well. The picture in question was taken from the front, and in fact contained fewer protesters than another picture that was presented to me. If the journalist’s purpose was to mislead the public by publishing a picture that would show how many people were protesting, surely GroundUp would have used the other photograph.

How the angle of the picture could be misleading is beyond me.

Profit-sharing scheme

The article said protesters were concerned with “the company’s share scheme for workers” (which, according to one of the march organisers, Msingathi Mbandana, was one of the main issues when the farmer entered into a share scheme with certain workers in 2000).

The Ferreira family complains that Endulini does not have a “profit sharing scheme”. Schoeman adds that this also did not form a part of the demands raised by the protesters.

GEFFEN says that Mbandana, one of the protest organisers, referred to a scheme in which workers received shares and dividends. “Profit-sharing is a reasonable summation of this,” he argues.

He adds that, although the term “profit-sharing” was not mentioned in the KFWR’s list of demands annexed to the complaint, it appeared to GroundUp to be a reasonable summation of the content of several of the demands, which referred to share certificates and dividends for workers.

The editor says even though the term “profit-sharing scheme” was not pejorative, GroundUp has removed the term to avoid a possible adverse ombudsman ruling, and not because he believed that the term “profit-sharing” was inaccurate.

Schoeman calls Geffen’s response “astounding”, as GroundUp has not ensured that the article was accurate, fair and balanced.

He adds that the publication has assumed the role of judge and jury over their own conduct by deciding how it would update the article. He contends: “This is, with respect, a function of the Press Ombudsman and not GroundUp.”

Analysis

The article did not state it as fact that there was such a scheme. The journalist used the word “scheme” six times, and every time he attributed it to a source.

I am also satisfied with Geffen’s argument in this regard which, I believe, does not need any elaboration.

Schoeman says Geffen’s response is “astounding”. For me, it is rather his response that can be classified as such. If GroundUp has removed the term “profit-sharing scheme” to prevent any future problems, surely that should be applauded? Is that not a way to ensure accurate, balanced and fair reporting. Is Schoeman really suggesting a publication should not amend an article on its own?

Receiving land from government at a discount

The article stated: “This was conveniently done in order for the farmers to get land from government at a discount, purporting to be promoting black empowerment. They also got water rights and other benefits,” [Mbandana] said.

The family denies that Endulini received land from government at a discount. In fact, Schoeman says, Endulini “purchased existing farm businesses and thereafter incorporated employees’ trusts which obtained a shareholding in these companies”.

Geffen replies that this information came from Mbandana. He says the article has been updated to record Endulini’s denial.

Analysis

Again, I am satisfied that GroundUp was justified in publishing Mbandana’s view on this matter. I am also pleased to note that Endulini’e denial to this effect has also already been published.

Beneficiaries receiving no distributions, did not know what was going on

The story said: “Mbandana said ‘[Some] workers ... don’t even know how much their dividends are because they are not allowed to see the company’s financial statements’… He said some workers are given R2,000 a year but after they complained recently, trust members started receiving R3,000, he said.”

The Ferreira family complains it was not true that the beneficiaries of the trust received no distributions or that they did not know what was going on.

Schoeman says that the:

  • majority of the Endulini trustees were appointed by the beneficiaries;
  • trustees received training inter alia from the Department of Land Affairs;
  • trustees and the beneficiaries meet as least once per annum;
  • beneficiaries are accordingly fully informed; and
  • trust paid out R35 000 per beneficiary in the past year.

Analysis

I am not going into the merits of the statement that some workers did not know how much their dividends were. The fact of the matter is that the journalist has published Mbandana’s view on this issue. Just as the latter had a right to his opinion, so GroundUp had the right to publish it.

Grootboom

Chirume quoted Mr Freddy Grootboom as saying that “he was one of the original 50 shareholders in the company”.

The Ferreira family denies this, saying he was a beneficiary of one of the trusts. Schoeman adds: “The trust deeds … clearly provide what financial benefits beneficiaries would receive when they leave the employ of the companies.”

Geffen does not specifically reply to this part of the complaint.

Analysis

The statement in question was not presented as fact, but was attributed to Grootboom – which GroundUp was justified to report. Moreover, Endulini’s denial of this statement was recorded in a follow-up text.

Pentse

Chirume reported: “James Pentse said: ‘… I was also a shareholder in the farm but they said my name is not in their system…’ [He] said he was forced to hire a lawyer to get the company to pay his wife’s scheme benefits after she died in 2016.”

The Ferreira family says Pentse was never a beneficiary of the trust. Schoeman adds: “His leg was injured over a weekend whilst he was at home. He wanted Endulini to submit a fraudulent claim to the Compensation Commissioner for an injury on duty. Endulini Farm refused to do so.”

The family also denies that Pentse was forced to hire a lawyer to get Endulini to pay his wife’s scheme benefits after her death in 2016.

Geffen does not specifically reply to this part of the complaint.

Analysis

The statements in question were not presented as fact, but were attributed to Pentse – which GroundUp was justified to report. Moreover, Endulini’s denial of these statements was recorded in a follow-up text.

Charl De Fin

The family says the journalist misspelt De Fin’s surname, and incorrectly referred to him as Endulini’s “general” manager.

Geffen says GroundUp already corrected this mistake. It has also deleted the word “general” (manager) when referring to De Fin. He describes both these issues as “trivial”.

Schoeman replies it is evident from video recordings that the protestors did not even know who De Fin was and initially thought he was Ferreira. He submits: “The reason for this is that the protestors were not employees of Endulini or beneficiaries of the employee trust. It was a political rally for political gain.”

Analysis

I am satisfied that GroundUp has already corrected these mistakes.

However, I need to add that I do not agree with Geffen that these issues were “trivial”.

This is why:

  • Normally, a general manager of such a huge enterprise would have more clout than some other managers; and
  • People are normally quite adamant that their names should be spelt correctly. After all, having a name is a fundamental human right – and the media should respect that at all times by ensuring that it is spelt correctly.

In conclusion

Geffen says Groundup has gone to great effort to report this story accurately. “Our efforts were hampered solely by Endulini’s failure to provide comment,” he asserts.

He adds that Endulini:

  • also failed to contact GroundUp after publication to give its views – instead, it took what presumably was considerable time to file a lengthy complaint to the Ombud;
  • took the time and trouble to film and monitor the protest – therefore, it could certainly have organised to deal with media requests as it had the means to do so;
  • never asked GroundUp to delay publication while it organised comment – and probably simply was never interested in engaging with the media; and
  • has spurned GroundUp’s request for mediation – its demand that the publication “publish an apology and retract the article” suggests a company that is more interested in silencing any potential criticism than participating in the news media process.

He concludes: “Granting any relief to Endulini would set a precedent to other companies to behave in the same unacceptable way, and make it extremely difficult for GroundUp and other news publications to do our “bread-and-butter” work of reporting protests out of fear of adverse ombudsman rulings. It would have a numbing effect on freedom of the press.’

Analysis

Given all of my considerations above, it follows that I am not upholding this part of the complaint either.

Finding

The complaint is dismissed.

Appeal

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.

Johan Retief

Press Ombud