Finding: Complaint 7805
Date of article: 13 February 2020
Headline: Intukuthelo Ngemindeni ‘Ezitika Ngocansi Esikoleni’
Author: Mthobisi Sithole
Page: 5 (with a page 1 banner)
Online: Yes
Particulars
This finding is based on a written complaint from Zakhele Khumalo, responses from Ilanga editor Philani Mgwaba and MD, Arthur Koningkramer, and other documents provided to the Ombudsman, including court documents. There is also a supplementary story headlined: “Basola itulo "abagweve nesikole", (17-19 February 2020) which is relevant.
Complaint
Mr Zakhele Khumalo, who resided in a public building in Durban located at 247 Sarnia Road, complains about an article in Ilanga headlined ‘Intukuthelo Ngemindeni ‘ezitika ngocansi esikoleni’ (‘Anger about families ‘indulging in sexual intercourse at school’. with a strap that reads: ‘Isigungu sithi mabaphume baphele abahlala kulesi sikole’ (“The governing body says those living in school buildings must leave”)
He complains that the headline of the article injured the reputation and invaded on the privacy of people occupying a building at 247 Sarnia Road in Durban, that the article mentioned the building was part of a “school” when in fact this is disputed, and that a sentence that says (translated:) “It is said or rumoured that this was a school for Whites, who left it after the democratically elected government”, was not verified and based on rumours.
Specifically, he complains about the following clauses of the Press Code being transgressed:
The media shall:
1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such;
1.7 verify the accuracy of doubtful information, if practicable; if not, this shall be stated;
3.3 exercise care and consideration in matters involving dignity and reputation
10.1 Headlines, captions to pictures and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.
1.1 The article, which is in isiZulu, concerns a dispute between people who have been living in a building located at 247 Sarnia Road, Sea View, Durban, for several years. The Phambili High School across the road at 244 Sarnia Road, claims the building is part of the school and has been trying to evict five families who were among a group of people who claim they were given permission to use it by the department of public works more than 20 years ago.
1.2 It reports that parents have complained about “sex which they allege disturbs learning and teaching” at the school. As a result, the local community has tried to chase out several families who stay in the building, “which is part of the school.”
1.3 The school was reportedly a whites-only school before 1994 but was abandoned by whites after the democratic government came to power. (“uhulumeni wentando yeningi.”)
1.4 It quotes a member of the school governing body, Mr Lebohang Makhetha, saying improvements at the school cannot go ahead “because some members of the families who occupy the school smoke dagga in full view of the learners, some engage in sexual activity on the premises, and at times the women walk outside wearing towels only.
"Children are being exposed to nefarious activities; what lesson are they getting? These people are staying [here] illegally.
“Teachers are complaining, sometimes there is the smell of dagga in the air, teaching cannot be conducted, they (these people) even invite their friends who come over here and in the end the learners are disturbed.
“Children hear acts of sexual activity they are not supposed to hear."
1.5 He said they had been to courts trying to resolve the matter, adding that the school was officially registered with the department of education in 1997.
1.6 It quotes a tenant occupying the building saying the property was given to her by the government in 1995.
“She said (at the time) the place was overrun by bushes after having been deserted by the whites (who were Afrikaners).”
"I was given this place officially and even invited other families to come over and stay with us because I was afraid to stay alone. I got this place for my children, and even my husband passed away living here.
"If they say I must vacate the place, where do they expect me to stay?" she asked.
The newspaper established that more than 10 families used to live in a section of the school “which had been used as a nursery.”
1.7 The paper recounts an incident in 2018 where learners “beat up everyone on the school premises”. As a result some families “ran away”. Today only five families remain in the building, saying they would only vacate the property “once they had been provided with RDP houses.”
1.8 The article explains that the school is divided into two sections: the main building (at 244 Sarnia Road) accommodates Grades 10, 11 and 12; the building occupied by the families (247 Sarnia Rd) accommodates Grades 8 and 9.
1.9 These families said they were shocked to see, in 2018, a board erected on the building they occupied, with the name of the school “when all along the building that was being used (as a school) was the one across the road.”
1.9 The families showed Ilanga a document from the High Court in Pietermaritzburg which they said granted them permission to stay on the premises until the dispute was settled.
1.10 A resident, Mr Sizwe Lombo, is quoted as saying it was not true that residents have sexual intercourse during school hours “in full view of the learners. “
“He said that during the day he was at work and even if there was smoking happening there, the doors would be closed.”
1.11 A spokesperson of the KwaZulu Natal Department of Education, Mr Kwazi Mthethwa, described what was happening at the school as an abuse of learners.
"We are going to intervene in this matter to establish what the arrangement was about these families," he is quoted as saying.
1.12 A spokesperson of the KwaZulu Natal Department of Public Works, Mr Mbulelo Baloyi said they (the department) are no longer involved in the matter, as it was now being handled by the department of education and the courts.
“He denied that the families were waiting for the department to decide on their future.”
Mr Zakhele Khumalo
2.1 Mr Khumalo is not named in the story, but says he is one of the tenants.
2.2 He provided the Ombudsman with a letter signed by some of the other tenants who gave him permission to lay this complaint on their behalf.
2.3 He complains that the headline portrays the tenants as “people who indulge in sexual intercourse at the school”. This is a contravention of section 3.3 of the Press Code because “our dignity and reputation was brought into disrepute.”
2.4 He also objects to a sub-head on the page 1 banner, which reads: “Kuxoshwa asebephendule amagumbi okufunda imizi yabo”(“Those who have turned classrooms into their homes are being chased away”).
He argues the newspaper violated section 10.1 of the Code “because the headlines together with its sub-headline are misleading and they don’t give a reasonable reflection of the content of the report. There is nowhere in the report where it is stated as fact or as an opinion that we were being chased away from the building. We were evicted or chased away a couple of days after the publication of this story.
2.5 “The sub-headline also states as a fact that we have turned classrooms into our homes, which is untrue.”
2.6 He also complains that the headline of the main article on page 5: Bakhala ngocansi “oluphazamisa abafundi” (“They complain about sexual intercourse ‘disturbing learners’”) is not true. The reporter, Mr Sithole, “found no evidence that learners are being disturbed by sexual intercourse in this building. The fourth paragraph quotes school governing body member, Mr Lebohang Makhetha, saying that there is dagga-smoking in front of learners, sex during the day, and that some women walk around in towels. However, further down in the story, the reporter quotes an occupant of the building, Mr Sizwe Lombo, saying this is not true. He argues that the headline of the article reflects only the “opinion” of Mr Makhetha, even though this is disputed.
2.7 He also complains about the sentence: “Kuthiwa kwakuyisikole saba-mhlophe abasishiya emuva kokuba kuthathe uhulumeni wentando yeningi. (“It is said or rumoured that this was a school for Whites, who left it after the democratically elected government [came to power]”) He says part of the article is based on rumours, “meaning that the information is doubtful” and in violation of Section 1.7 of the Press Code that states that “the press shall verify the accuracy of the doubtful information, if practicable; if not, this shall be stated”.
2.8 He complains that three paragraphs of the story report “as fact” that the building is part of Phambili High School. He argues this is not true “because we have got documentary evidence proving that this building is not part of the school, and it is neither owned by the school nor the Department of Education.” This was not truthful or accurate reporting.
“We have been staying in this building for more than 20 years and some of our children refer to it as their home because they were born there. In 2018, the school’s principal used parents and learners to illegally evict some of the families who were staying in this building. And as a result of this article, the principal again used the same tactics that he used in 2018 to evict the remaining families.”
2.9 He says after the publication of this article, the principal invited the parents to an urgent meeting. The article was one of the agenda items. “On 23 February 2020, after the parent’s meeting at Phambili High School, the five families were evicted by parents and some of our belongings were dumped somewhere around Durban. Here we are talking about families who have children attending schools around Durban, who are homeless now.”
2.10 He believes the article, including the headlines and sub-head, contributed to this situation by “inciting imminent violence.” This was avoided because the tenants did not resist the “illegal eviction”. However, it was clear the parents believed the building was “part of Phambili High School.”
“I have a clip of footage of parents shouting at one of the occupants who was shooting a video. “
2.11 He says the headline “Mr Sithole chose” was “morally wrong because this is not the way of using language when one is writing, taking into consideration that this is a national newspaper and it is read by everyone.”
2.12 He cites two previous apologies by newspapers who have reported on this story: one by the Saturday Independent for “incorrectly mentioning” this building as part of Phambili High School, in 2016. And in 2018, the local newspaper, Queensburgh News, was ordered by the press ombudsman to apologize “for incorrectly stating that this building is owned by the school. “
Mr Philani Mgwaba and Mr Arthur Koningkramer for Ilanga
2.13 On the headline: Mr Koningkramer, the MD of Ilanga, responded initially to say that as it was in inverted commas, it was clear that this was an allegation, attributed to someone. Also, he argues, “our staff were convinced that there was truth in the allegations being made and, in our view, publication was in the public interest.”
2.14 Mr Mgwaba, who kindly arranged for this article to be translated into English – and a follow-up article that we will refer to in the analysis – pointed out that the complainant was not mentioned in the story and thus the newspaper had no obligation to speak to him. (The Press Council’s Millicent Gumede also provided a translation)
However Ilanga spoke with various other tenants, who gave “an adequate account” of their side of the story.
2.15 The newspaper also published comments from two provincial government departments “who are a party to this dispute over the ownership of the school.”
2.16 He argues there was no transgression of the Press Code.
2.17 Mr Magwaba sent the Ombudsman a copy of the title deed, “supporting the school’s contention that the property in question belongs to the provincial government.”
2.18 He also provided a statement from the school governing body “to support the allegations they made against the families.”
2.19 He says that since the story was published the families in question have “been persuaded to vacate the school after an agreement was reached between the parties.”
3.1 This is a sad and intriguing story about a conflict between two groups, neither well off, over a public good. On the one hand, some families claimed a public building as their home; on the other a public school serving members of the community says it is running out of space.
3.2 The dispute has been brewing for several years; it has resulted in court cases and in some cases violence.
3.3 It is intriguing because clearly someone – almost 20 years ago – believes they were “given” a government building to sub-let. This in itself is an important reflection on our society.
3.4 Initially, the acting public advocate declined the complaint as he argued there was no obvious transgression of the Press Code. The complainant, Mr Khumalo, referred it to me asking me to adjudicate.
It is precisely because the story covers a fraught and difficult relationship over the use of a public good that I thought it was important to be as fair as possible to both the complainant and the newspaper. Thus I agreed to adjudicate the complaint.
3.5 Mr Khumalo’s complaint is on two main grounds: one is the headline that he says infringed the dignity and privacy of tenants, did not reflect the contents of the report adequately, and also “incited imminent violence”.
3.6 The other is on the truthfulness and accuracy of the reporting: he argues the building is owned by the provincial government and was not designated as a school.
He cites a previous finding by the Ombudsman in 2018 against the Queensburgh News for a story headlined “Seaview’s Phambili High reclaims stolen school property – The school will use the premises as its GET section for Grade 8 and 9.” The complainant in that case was also Mr Khumalo.
The Ombudsman ordered the newspaper to apologise for not seeking the views of the affected tenants and cautioned it “for technically incorrectly stating that the premises belonged to the school .”
3.7 He also complains about parts of the report being based on “rumours” and that it may have incited violence.
3.8 On the headline: I was concerned about the headline as it painted an undignified picture of the tenants without any balance in either the head or the strap. But I should point out that it is unlikely that the reporter, Mr Sithole, “chose” it, as reporters do not usually write headlines.
3.9 Mr Magwaba provided me with a document from the school, which singled out one particular young man, the son of a longstanding tenant. The document was entitled “247 Sarnia Road Building Hijackers Eviction Agreement Report” and is dated 18/06/20. It accuses the young man of disrupting “teaching and learning by smoking dagga, doing sex, beating his girlfriend during school hours on the 2nd October 2019 and the 3rd February 2020.” It says this was reported at the Bellaire Police station.
3.10 It was clear from the inverted commas in the headline that this statement was attributable to someone – it was not the newspaper’s view. Nonetheless, there was no balance captured in either the headline or the strap that indicated that the accusation was contested, nor that it was in respect of one person only.
3.11 However, I must note that Ilanga did an extensive follow up story, published the following week, (February 17-19) under the headline “Basola itulo "abagweve nesikole", with a strap that read: “Bakhala ngothishanhloko abathi uphehla udweshu”. (“They suspect a plot “against those who occupy the school”; “They complain about the principal saying he is causing trouble.”)
3.12 The story spells out the views of the five families residing in the building.
They told the reporters (Mr Sithole and Pamela Zungu) how they were allegedly attacked by learners two years ago over the disputed rights to the building. “Some members of these families visited ILANGA offices on Friday and showed us video clips of the learners allegedly attacking them. Among the attackers was a young man who they said was a member of the school governing body, but who appeared to be the same age group as the learners of the school.
“ILANGA was also shown a photograph of ’’the son’’ of a member of one of the families who they claimed had been struck with a stone on the forehead. They produced a document they claimed was a lease, according to which the school had been given to a woman who allegedly was given the 'right to stay' on the school premises.
“They also produced what they said was a court order granted by Judge Jappie Achmat, issued at the Durban High Court, which they said allowed them to stay in a section of the school premises until they were moved out legally or on their own volition in agreement with those who wanted them to vacate the school. “
3.13 This second story quotes the families as saying the allegations about “dagga smoking” and sex were “defamatory and false.”
“The families claimed the whole thing was a plot by the principal who was trying to get them to leave the school.”
3.14 The article recounts the history of tenants in the building ; it quotes the families saying there used to be more than 10 families but some had left after they were “attacked by the learners”.
“They claimed the school was originally “given to a woman” who had found it overgrown with bush, cleared it and invited other families to stay with her.”
3.15 It quotes a tenant, Mr Thabani Mpungose, saying the principal “was stirring discord between the families and the community because he wanted them to leave so he could increase the enrolment of learners.”
3.16 They also quote women tenants “emphatically” denying they walked around wearing only towels, saying they were of “advanced age.”
3.17 So as much as the tenants were accused of “sex” or “dagga smoking”, equally the principal and members of the school governing body were accused in the second story of violent reaction against the tenants.
3.18 Ilanga should be commended for the follow-up story which covered the tenants’ views in some detail.
Although this story is not part of the complaint, it nonetheless provides important balance and the opportunity for tenants to reclaim the dignity they feel may have been impugned by the first story (in which their views are also recorded).
3.19 I am satisfied that even though the headline of the first article may have been hurtful to families living in the building who were not implicated in untoward behaviour, the second article, published just a week later, gives them adequate opportunity to respond to the allegations.
3.20 On the second complaint that the story inaccurately reported that the building was a school: it is true that in 2018, the Queensburgh News was admonished by the Ombudsman for this.[1] It is also true that the owner of the building is registered as the provincial government.
3.21 However, there have been developments – notably through court findings – since then.
3.22 In 2018, the MEC for Education in KZN brought a High Court application against tenants in the building. The stories of the tenants, recorded in an affidavit by one, Nontshikelelo Fudumele, is poignant. She claimed the property was owned by the Department of Public Works. Since 2006 she had resided in a room in the building with 10 members of her family, some of whom are ill or unemployed, while others are students.
3.23 In February, 2018, she was “forcefully removed” to a “small, congested storeroom”. She approached the Durban Magistrate’s Court, and her occupation rights were restored on an interim basis. However, “immediately thereafter”, they were “forcefully” removed by pupils whom she believed to be acting under the instructions of the principal, Mr Londa Luthuli.
3.24 She refers to “rioting, violent students” who removed them and said the son of one tenant was injured when a stone was thrown at his head. On three occasions, students or people purporting to be students, came to their residence, attacked them and destroyed their belongings.
3.25 She names other tenants, one of whom had lived there since 2002, who were also moved to “storerooms”.
3.26 In the same case, the principal, Mr Luthuli alleged that members of the EFF had been brought in to “defend” the tenants and that this has escalated the violence,
3.27 However, importantly, in its ruling, which allowed the tenants to remain in two rooms and two storerooms, the Durban High Court explicitly refers to the rooms “situated at the premises of the Phambili High School at 247 Sarnia Road, Seaview, Rossburgh.” [2]
3.28 That the High Court accepted that the premises were part of the school makes it reasonable for the newspaper to refer to them as such.
3.29 Moreover, the newspaper spoke to the provincial departments of public works and education, both of whom made it clear that the education department was responsible for the building.
3.30 On Mr Khumalo’s other two complaints that the newspaper was reporting rumours that were not verified when it referred to the school having been for whites before the 1994 elections, the word used in the article is “kuthiwa”, which could be translated as “it is rumoured” but equally as “it is said”. A better English translation is probably “reportedly”. It reported a part of history that was of background interest and has no bearing on the dispute.
3.31 On the question of the article provoking “imminent violence”, there is no evidence of this: in fact the dispute over the building has been punctuated by violent acts for at least two years before the article was published.
3.32 The Ombudsman cannot rule on the justice or injustice that may have prevailed in this case, but only on whether the newspaper’s reporting was reasonable and within the parameters of the Press Code.
3.33 Although the headline of the first story was a little close to the bone, it was clear it was an allegation and it was clearly balanced by the tenants’ views both in that story and in its follow-up a week later. I cannot rule that the paper do anything further in this respect.
3.34 The reporting of the building being part of the Phambili High School is likewise reasonable, as the High Court itself has referred to it as such.
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.
Pippa Green
Press Ombudsman
August 18, 2020
[1] See: http://www.presscouncil.org.za/Ruling/View/zakhele-khumalo-vs-queensburgh-news-4260
[2] Durban High Court: Case D5570/18