Ruling by the Press Ombudsman
3 July 2015
This ruling is based on the written submissions of the executive mayor of Tshwane, councilor Kgosientso Ramokgopa, and those of Mr Jacques Louw, on behalf of the Pretoria News newspaper.
Complaint
The City of Tshwane (CoT) is complaining about a story in Pretoria News of 14 May 2015, headlined R1.2 bn meter riddle – DA: exiting of deal of supply-paid power can burn a hole in city coffers.
CoT complains that the:
· story incorrectly stated as fact that it had incurred a R1.2-billion liability; and
· newspaper did not ask it for comment.
Jurisdiction
I first need to deal with an objection by the newspaper, claiming that an organ of state (in this case, a municipality) has no standing to complain to this office and that, conversely, this office does not have the jurisdiction to adjudicate complaints lodged by such an institution.
Louw argues there is a vast difference between a political party and a municipality – the first may be presented in government, but its functions are not to provide services. That is a function of government, of which a political party may or may not be a component. He argues it is an established principle in South African law that the state does not have an action against a newspaper arising out of the publication of defamatory statements about the state.
He cites several examples to this effect.
For example, in 1946 the Appeal Court said, “The normal means by which the Crown protects itself against attacks upon its management of the country's affairs is political action and not litigation, and it would, I think, be unfortunate if that practice were altered. At present certain kinds of criticism of those who manage the State's affairs may lead to criminal prosecutions, while if the criticism consists of defamatory utterances against individual servants of the State actions for defamation will be at their suit. But subject to the risk of these sanctions and to the possible further risk, to which reference will presently be made, of being sued by the Crown for injurious falsehood, any subject is free to express his opinion upon the management of the country's affairs without fear of legal consequences. I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the State, derived from the State's subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country.” (Emphasis added.)
Louw says a policy, as stated in South Africa, has been followed by the English courts in 1993 where it was said that “a municipality is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.” (Emphasis added.)
In another verdict, Louw argues, the court has “reaffirmed” the fact that the state cannot sue newspapers for defamatory publications. In this regard the court said that: “The ratio for not according an action for defamation to a sovereign against its subjects remains the same, and should apply with equal force to local authorities. Municipalities are charged with an obligation to provide basic municipal services. The central mandate of local government is to develop a service delivery capacity in order to meet the basic needs of all inhabitants of South Africa."
Louw then submits that the policy against allowing the state to sue newspapers for defamation applies equally to complaints to this office.
He argues, “Although complaints against the media to the Press Ombudsman are not strictly speaking claims for defamation, the premise is the same, namely that the:
· complainant is aggrieved by the facts that have been published;
· complainant wishes to have a sanction of a correction and apology. (He says this is akin to the so-called amende honourable that has found favour with the Constitutional Court in defamation actions);
· sanction is primarily to restore the reputation of the complainant; and
· same principles that are applied by the courts in defamation actions in judging truth, public interest and reasonableness are used in judging articles complained of in this forum.”
This is his conclusion: “The policy against allowing State actions is based on the principle that any governmental body should be open to uninhibited public criticism. It has repeatedly been said that such criticism is protected speech, even if wrong. I submit that it would be contrary to the principles of our law to allow legally protected speech to be the subject of complaints entertained by the Press Ombudsman. I accordingly submit that this complaint should not be allowed, regardless of the merits of the complaint and I ask for a ruling in that regard.”
CoT submits that the newspaper raised the same argument in a matter before the Appeals Panel of the Press Council to which both parties were a party. Paragraph 6 of the judgment stated, “[T]he Pretoria News raised a point before us which had not been raised before the ombudsman. He argued that the appeal should be dismissed on the basis that, the appellant, a local government, could not be defamed. He missed the point. The crux of the appellant’s case was not a case for defamation. As indicated above, its case was that the respondents had violated clause 2 of the Code to which they were subscribed. The argument raised had no merit because the issue is simply: had the respondents violated article 2 of the Code or not? For the reasons above, we submit that a local government has locus standi to lodge a complaint with the Ombudsman.”
My considerations
This office is not a court of law, but an institution of ethics. Of course, this does not mean that the Ombudsman can or may ignore verdicts by the courts – but it does mean that our main objective is to ensure that journalism is ethical and that the Press Code is adhered to.
This office is about good journalism.
I am not comfortable with Louw’s argument that any governmental body should be open to “uninhibited” public criticism. The last thing the Press Council wants to do, is inhibit freedom of speech. Nevertheless, the Code makes it clear that criticism can never be “uninhibited”. Section 7 of the Code incorporates ethical conditions (antithetic to “uninhibited”) into criticism by the press – it states criticism should:
· be fairly and honestly made;
· be made on facts truly stated or fairly indicated and referred to;
· be without malice or dishonest motives; and
· take fair account of all available facts which are material to the matter commented upon.
The right to freedom of speech is not absolute.
But there is more:
· The “state”, whether national, provincial or local, consists of people – the very people for whom the Press Council was established and its Code seeks to serve. Does everybody have the right to complain to this institution of ethics, but not those who are in service of organs of state (complaining on behalf of those institutions)?; and
· “Uninhibited” public criticism boils down to the press becoming untouchable and sacrosanct. It means that it can say anything it wants, without having to be accountable to anybody. It then seeks to serve itself, instead of society.
This cannot be right. I am therefore ruling that a municipality has the standing to complain to this office. I proceed to adjudicate the complaint on its merits.
The text
The story, written by Kennedy Mudzuli, said that the CoT had terminated its contract for the installation of smart prepaid meters with PEU Capital Partners with immediate effect – having already paid the service provider about R830-million for installing and operating just more than 12 000 meters.
“The city announced the cancellation of the contract yesterday, saying the decision was largely based on the negative financial and economic impact of the project on the municipality. The terms of the cancellations are not yet known.”
The reporter quoted municipal spokesman Selby Bokaba as saying, “Since the inception of the project, the city has paid the service provider just over R830 290 787 in terms of the master services agreement between the two parties. However, like a spanner in the works, a court application by AfriBusiness to interdict and review the contract had the effect of impeding the speedy roll-out of the smart prepaid meters.”
Mudzuli also quoted the DA’s financial spokesman, Lex Middelberg, quite extensively in this regard.
The arguments
The CoT says the statement as fact about a R1.2-billion liability is incorrect because the parties are in the process of finalizing negotiations. “No decision have been made yet. The negotiations are of a confidential nature and it is inconceivable how journalists can come to factual conclusions on the amount.”
It also argues that the journalist should have sought its views and “therefore the article is unbalanced and inaccurate”.
The CoT adds, “We deny the authenticity of any document insofar as it purports to convey a decision taken by the Municipality that [it] has settled the dispute with Peu in the amount of R1.2-billion or any amount at all. Had the journalist exercised due care and diligence and requested our view, he would have been informed of our view articulated in this complaint.”
In later correspondence, the CoT says its spokesman’s comments were given little prominence, whereas the DA’s allegations featured much more prominently. This resulted in an “unbalanced” report.
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Background Louw notes that from the outset there was controversy over the contract. This was widely reported in the media, including in the Pretoria News. Middelberg is one of the councilors who has been particularly outspoken against the contract. On 5 March 2015, Moneyweb reported that the CoT was looking at ways to “get out of the contract”. He adds, “On 12 May 2015, the City of Tshwane announced that they had terminated the agreement… The City did not release details of the terms of the termination.” The full text of the CoT’s announcement reads:
Louw says the article complained of is the second in a series of articles dealing with the termination of the TUMS agreement. The first article (R380m meter waste – City revokes prepaid power deal costing millions a day, 13 May 2015) dealt with CoT’s announcement of the cancellation of the agreement. It was mentioned that the DA would host a briefing on the subject on 13 May 2015. The second story (the subject of the CoT complaint) was about a briefing held by the DA on 13 May 2015. Two more stories followed. R1.2-billion liability Louw: “Nowhere in the article [the R1.2-billion liability] is stated as a fact. On the contrary, the article makes it clear in its first paragraph that it is not clear how much money will be spent on the termination. The article quotes Middelberg as saying that, if one of the options presented in March is accepted, it will cost R1.2 billion. Neither the headline nor the article goes further.” He notes that the headline called it a “riddle” – signifying a lack of certainty. With regard to CoT’s complaint that it was inconceivable that Mudzuli drew conclusions on confidential negotiations, Louw says, “Nowhere in the article does the journalist draw any conclusions. The only conclusion…is that it is not clear what the cost of the cancellation is.” He also says it is unclear what CoT refers to regarding the authenticity of documents relied on by the journalist – Mudzuli made it clear that he had reported on the DA’s briefing. “The journalist did not state that the documents he had seen were authentic, but that they were provided by the Democratic Alliance.” Louw adds, “It was not the duty of the media to verify the authenticity of documents presented to them by the Democratic Alliance. There is also no reason to believe that the Democratic Alliance would fabricate documents on such an important matter.” Not asked for comment Louw also denies that Pretoria News did not ask the CoT for comment. He quotes an e-mail (sent at 10:57 on 13 May 2015) in which the following was asked: · When was the decision to terminate the deal made? · The DA claims that the city chose option 2B of the exit plans presented by the contractor, which would mean a further R1.2 billion paid to the PEU. Is this correct? · What are the full termination terms? · Is it normal practice to ask the contractor who partly failed to implement the project to come up with exit plan options?; and · Prior to the media statement on Tuesday, was the executive mayor going to announce the termination of the contract at the Soca on Thursday? In conclusion Louw argues that large sums of public money are mentioned throughout all the reports on the TUMS tender and agreement. It is fair to call it a multi-billion rand agreement. “There is clear and overriding public interest in reporting on this matter as and when new information comes to hand.” |
My considerations
R1.2-billion liability
Louw is correct – the story was one of several, and should be interpreted in that context.
The reference to R1.2-billion was attributed to the DA spokesperson (which this particular story was about), and not stated as fact. Surely, the newspaper was justified in reporting the DA’s views.
Not contacted for comment
In its response to the newspaper’s reply to its complaint, the CoT does not contest the newspaper’s position.
Also, it is not true that the story was unbalanced in that CoT’s comments featured weakly – Mudzuli reported Bokaba’s comments extensively, from the third paragraph onwards. Given this fact, it is inconceivable that that CoT could complain that it had not been asked for comment.
Finding
The complaint is dismissed.
Appeal
Our 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 Ombudsman