Finding
Complaint 4174
Date of article: 11 November, 2018
Headline: Choc horror!.
Page: 4 of the City Press business section
Online: Yes
Author: Matthew Hattingh
Particulars
This ruling is based on written complaint from Mr Bongani Khanyile, representing Diplomat Distributors, as well as responses from the Business Editor of City Press, Mr Justin Brown and the reporter, Mr Matthew Hattingh, interviews with both parties, as well as with Mr Shadrach Chinniah, who was quoted in the City Press story. The Ombudsman also consulted all the documentation before the Labour Court, submitted by both parties. The Ombudsman also held an informal hearing with the parties. Present were Mr Khanyile for Diplomat and legal representatives Mr Willem de Klerk and Ms Tshego Khunou for City Press, as well as City Press reporter, Matthew Hattingh.
Complaint
Diplomat Distributors, through its legal representative, Mr Bongani Khanyile, complains that a report in City Press that ran under the headline “Choc Horror”, which was about an unfair dismissal, contained “at best, inaccuracies and at worst, fabrication of evidence at court”. The court did not hear evidence of expired stock, or markdowns, but centred around whether Mr Hans van Tonder, a former employee of Diplomat, was unfairly dismissed.
The company also complained that a sidebar to the story under the headline ‘It may be old but it won’t kill you’ was misleading in that the two consumer rights and food experts did not give evidence in the Labour Court case.
Thirdly, it complained that City Press did not publish Diplomat’s response on the matter, which had been given to the reporter.
The clauses of the Press Code alleged to have been violated, although Diplomat does not state it, are 1.1. and 1.2, and 1.3 as well as 1.8.
These are:
And
1.8 The media shall seek the views of the subject of critical reportage in advance of publication…Reasonable time should be afforded the subject for a response. If the media are unable to obtain such comment, this shall be reported.
1.1.Under the headline “Choc horror!”, reporter Matthew Hattingh writes “Thousands of Cadbury chocolates have been sold to the public despite being past their best.”
The story goes on to give details of where they were sold: “at a major KwaZulu-Natal South Coast wholesalers, which supplies spaza shops and trading stores, including in rural Eastern Cape areas.”
1.2 It then hones in on where the information comes from: “These claims were made in the labour court in Durban this week. It was alleged that ambitious sales targets led to massive overstocking in wholesalers.
“Most resulted in multimillion-rand returns across KwaZulu-Natal of popular Cadbury brands, including Dairy Milk slabs and Lunch Bars.”
1.3 The following two paragraphs record the views of a “food health expert” and a “legal expert”. They state:
“A food health expert emphasized there was no risk in eating chocolates past its best-by date.
“But a legal expert questioned the ethics of selling such products without clearly informing consumers.”
1.4 He then goes into more details on the source of his story: “The matter came to light when a sacked sales representative, Hans van Tonder, took his former employer, Diplomat Distributors, to court, claiming he had been victimised and that his dismissal was ‘automatically unfair’.”
1.5 He goes on to explain that Mondalez SA, the owners of Cadbury chocolates, contracts Diplomat, described as a “logistics company” to distribute its products to wholesalers.
1.6 The story centres around the dismissal of Mr van Tonder in April 2016 for not reporting timeously that chocolate at a Port Shepstone outlet was nearing its best-by date. The company claimed that this had cost it about R21 000 due to the expired stock.
1.7 In his defence, Mr van Tonder produced emails that showed that Diplomat had been informed by the outlet that it had received stock with “mixed expiry dates”, which he said was beyond his control. He also said he had gone on leave the day he got the email about the expiry (18 December) and had actioned it as soon as he returned to work in early January.
A witness who appeared in Mr van Tonder’s defence, Mr Shadrack Chinniah, a former employee of Diplomat, told the Labour Court that the R21 000 that Mr van Tonder had been dismissed for, was like “chalk and cheese” compared with returns of hundreds of thousands of rands from other wholesalers. He is quoted as saying: “I thought it was absolutely ludicrous he was dismissed for R21 000 and my store had [old stock] worth R310 000 ..why didn’t they dismiss me?”
Mr Chinniah is also reported to have said there were cover-ups by management, there was a lack of support for markdowns to move short-dated stock, and that short-dated stock was hidden among newer stock before delivery “making it hard for merchandisers and reps to keep tabs on best-before dates.”
1.8 The reporter referred to documents and photographs “placed before the court” showing “pallet loads of chocolates” beyond their best-by date “being sold on special” at a Port Shepstone wholesaler after Mr van Tonder’s dismissal.
However, he writes that these claims were not “examined” by the court.
1.9 In terms of the labour court case, per se, Mr Hattingh writes that the Labour Court’s Judge Benita Whitcher agreed with Diplomat’s lawyer, Mr Bongani Khanyile, that Mr van Tonder had not made a case for an “automatically unfair “ dismissal case and referred it back to the Commission for Conciliation, Mediation and Arbitration (CCMA), ordering them to “expedite” the matter.
1.10 The story carries comment from Diplomat’s CEO, Yinon Ben Anat, who said: “Diplomat’s policy is clear in that we do not purchase or sell expired stock.”
He did not comment on the claims of overstocking. The report says City Press sent Mondalez a list of questions but the company declined to comment as “the matter was before the courts.”
It’s only comment was: “Mondalez SA abides by local legislation and we are focused on bringing the highest-quality products to our consumers.”
Sidebar
1.11 In what is known in newspaper parlance as a sidebar, a separate boxed report ran within the main story under the headline “IT MAY BE OLD BUT IT WON’T KILL YOU.”
The report quoted two experts : Janusz Luterek, described as a Pretoria attorney with a special interest in food law and consumer rights and Dr Lucia Anelich, described as a food safety expert, who is president of the SA Association of Food Science and Technology..
1.12 The gist of their message was that chocolates past their best-by date may not taste as good but would not harm consumers.
2.1 Mr Khanyile argued that the report contained “at best inaccuracies and at worse (sic) fabrication of evidence at court.”
2.2. He denied there was any evidence of national returned stock or a “dossier” referred to in the news story
2.3 Nor were there any pictures, specifically of “P.S. chocolates marked down”.
The report was sensational and factually incorrect and resulted in “our client” (Diplomat) being defamed in public, and compromised their service-level agreement with its client (Mondalez)
2.4 The court case had nothing to do with expired stock but about whether Mr van Tonder had been victimised in his dismissal “which the Court found was not the case.”
2.5 Mr Khanyile says Mr Hattingh “failed to publish the response by our client to his email wherein our client informed (him) that this matter was about a simple alleged unfair dismissal.”
2.6 He argued the reporting was “unethical” and could “have caused public backlash and outrage against our client for no apparent need.”
2.7 In a further clarification, Mr Khanyile said there was no mention in court of “ambitious sales target and massive overstocking”.
2.8 In response the newspaper’s Business Editor, Justin Brown explained the following:
2.9 The newspaper says there is also evidence in the applicant’s bundle from email exchanges between a Diplomat manager, staff and ‘an important client” where a wholesale manager alerts Diplomat to the possibility that about R43 000 worth of stock comprising Cadbury’s mini-bars will expire in two weeks at 45 branches.
Expiring Lunch Bars are also mentioned in the bundle, which includes an email from another wholesaler to Mr van Tonder’s line manager, Mr Abdul Sultan.
2.10 On the complaint that no food or consumer expert testified in court, City Press replies that it does not dispute this. The comments are carried in a sidebar to the story to add “useful context and (to) counter any charges by the complainant of sensationalism.”
2.11 On the mentioning of Mondalez’s name: City Press argues it is mentioned in the complainant’s own court papers. Mr Chinniah also mentions Mondalez; it is also “public knowledge” that the Cadbury brand is owned by Mondalez, but what is perhaps not widely known…is that Mondalez outsources distribution of Cadbury, its most famous brand in SA, to a third party – Diplomat.”
2.12 Since the “best-by” dates and distribution of chocolate is at the “centre” of the unfair dismissal case and story “a few sentences explaining the link and giving context are, we believe, fair and necessary…these are in no way calculated to jeopardize the complainant’s service level agreement. If Diplomat’s alleged conduct does indeed put its SLA at risk, it needs to look to itself.”
2.13 On the charge that Mr van Tonder did not produce emails stating stock was received with mixed dates, City Press refers to an email in the “applicant’s bundle”, where both he and a wholesaler flag this as a problem. Under cross-examination by Mr Khanyile, Mr van Tonder also said that short-dated stock was secreted in “the middle of other loads.”
2.14 Mr Khanyile also stated there was no “dossier” produced in court: City Press replied that the applicant’s bundle – running to 89 pages - is a collection of documents including numerous details about business practises and relationships at Diplomat. Such a collection of documents is often referred to as a “dossier”.
2.15 On the claim that the reporting of Mr Chinniah’s evidence was “utter fabrication”; also that he did not produce any photographs to corroborate his evidence. City Press replies that it stands by its reporting of Mr Chinniah’s evidence about management cover-ups, a lack of support for markdowns to move short-dated stock, and short-dated stock “hidden among newer stock”. City Press reported this as evidence before the court, not fact; even under cross-examination, Mr Chinniah did not back down. The paper did not claim that Mr Chinniah had “produced pictures in court” but rather that pictures were “put before the court.” These are in the applicant’s bundle.
2.16 On Diplomat’s claim that City Press did not publish a response from the company, the newspaper said: “[W]e did not state that Diplomat refused to respond. The essence of their response – such as it was – is carried in our story.”
The newspaper also sent the Ombudsman a list of questions sent by email by reporter Matthew Hattingh at 9.15am on November 6, 2018, to Michelle Fourie, a Diplomat executive personal assistant.
The email summarizes Mr van Tonder’s dismissal and includes the paragraph: “The testimony of Mr van Tonder, other witnesses as well as documents/emails contained in court papers provides strong evidence that Cadbury products have been sold on some scale despite being passed (sic) their best-by date.”
The reporter says he realizes the matter is still before the courts but goes on to put some general questions about:
2.17 The reply from Diplomat, in an email signed by CEO Yinon Ben Anat on Wednesday 7 November, at 4.03pm is as follows:
We reproduce this in full to compare it with the reply published in City Press:
“Diplomat’s policy is clear in that we do not purchase or sell expired stock [beyond its best-by date]”
“He did not comment on claims of overstocking and declined to give details on Diplomat’s contractual relationship with Mondalez.”
2.18 In its reply to this response by City Press, Mr Khanyile said:
3.1 As can be seen by the profusion of arguments above (on a relatively short article), this case took some time to conclude.
3.2 City Press made available to the Ombudsman the disputed “dossier”, a bundle of documents that were placed before the Court for this case.
The applicant’s bundle (Mr van Tonder’s) ran to 89 pages, while the respondent’s bundle (Diplomat’s) ran to 43.
In this bundle of documents were pictures of chocolates on palettes with mixed sell-by dates (although hard to see), numbers of emails about stock that was about to expire, emails that indicated a fraught relationship between Mr van Tonder and his line manager Abdul Sultan, the minutes of the disciplinary inquiry into Mr van Tonder that led to his dismissal, and several pages of stock lists of chocolates from various shops.
3.3 It is clear that the relationship between Mr Sultan and some of his staff was a difficult one. In a long email to Deon Morgan, a sales manager of Diplomat, dated 01/03/2016, Mr van Tonder told of how staff felt “Abdul was out to get us.” He serviced Kokstad “Matatielle” (presumably Matatiele) and Umzimkulu and was asked to take over Isipingo, an area he had not worked in and which he questioned because it was in the Durban area.
3.4 He recounts various incidents where he reported stock due to expire and where he asked for “it to be uplifted and for markdowns to be given urgently…nothing happened!”
The email recounts how he reported stock at risk of expiring in April 2015. “The risk was R200K, it took 6 or 7 weeks to get any action.”
3.5 He recounts a trip from Isipingo to Kokstad without proper working headlights. Mr Sultan, according to him, said on the phone: “Safety comes first but he doesn’t know what’s going to happen with this.”
“I got to Harding and it was pitch dark and raining, I got up behind a taxi and hooted and he pulled over and I asked if he was going to Kokstad and if I could please tail him because I had no lights, he agreed and I then drove close behind him and eventually got to the B&B at 8.42 pm, scary but true. He don’t care, Sir, really!” (Applicants bundle MM4)
3.6 There is another email too from Mr Chinniah to Mr Morgan, which mentions that reps have been treated with “utmost disrespect and hostility.” (LL in Bundle)
3.7 It is hard to judge the truth of these, but it does indicate a poor relationship between Mr van Tonder and his manager, and possibly other sales reps and the manager. It is also true that none of this was testified to in the Labour Court.
3.8 Mr van Tonder was dismissed in April 2016 for “gross dereliction of duty” because on the 18th December 2015 he received a notification that stock would expire between 12th-16th January 2016 and he failed to report it.
The stock was worth R21 835.
The “accused admitted he went on leave on the 18th December and didn’t see the email… (he then actioned the email on the 4th January,” thus failing to meet the report he needed to submit six weeks before the expiry of stock. (Respondent’s bundle, p3; outcome of Disciplinary hearing).
3.9 The Labour Court heard Mr van Tonder’s case on November 5 and 6, 2018.
Mr van Tonder asked that his dismissal be declared “automatically unfair”.
Among those who gave evidence was his erstwhile colleague, Mr Shadrack Chinniah. City Press reported him as saying: “I thought it was absolutely ludicrous he was dismissed for R21 000 and my store had old stock worth R310 000 ...why didn’t they dismiss me?”
3.10 Mr Khanyile did not dispute this. However, he did dispute that Mr Chinniah had mentioned Mondalez (the client company of Diplomat) and also disputed that he had produced any photographs of outdated stock.
3.11 The reporter, Mr Hattingh, says in response that Mr Chinniah did mention Mondalez. He sent me scanned pages of his notebook, which confirm this.
City Press also says Mr Chinniah mentioned:
3.12 The next paragraph of the story goes on to mention photographs “placed before the court” said to show “pallet-loads of chocolates” beyond their best-by dates.
The reporter says in response he did not say in the story, nor is it in his notebook, that the photographs were examined by the court, merely that they were before the court.
3.13 I spoke to Mr Chinniah myself. He confirmed to me that he had worked for Diplomat as a sales rep and had resigned in October 2015. He told me he had given evidence to show that stock far in excess of the R21 000 attributed to Mr van Tonder had expired in the past. He said he knew of about R1 million worth of expired stock that the company was aware of. “But nothing happened to me or my line manager”. Often this expired stock is sold “on the streets” to hawkers etc. His evidence was to show that the expired stock that Mr van Tonder was apparently dismissed for was less in value than his or others’. He confirms that he did mention Mondalez in his testimony: he said this division of Diplomat distributes Cadbury’s chocolates, manufactured by Mondalez. He says that at any point expired stock amounted to 8/9% of turnover, and some sales reps had expired stock worth “20 times” what Mr van Tonder’s was. He says management was “covering itself” because expired stock impacts on the company’s bottom line. He said he gave evidence under oath and added: “My experience of Diplomat and the reason I left Diplomat is because they cover up for themselves.” The reason he testified is because he believed Mr van Tonder’s dismissal was unfair given these facts.
3.14 It confirmed the nub of the claim in the Labour Court and the subsequent City Press story: Mr van Tonder was dismissed for dereliction of duty for not reporting stock worth about R21 000 that was about to expire. His defense was that it was an unfair dismissal because expiry of stock was common in the company. To this end, he compiled a bundle of emails and photographs to show:
3.16 The heart of the dispute between City Press and Diplomat appears to be this: City Press attended a Labour Court hearing but decided to focus on one aspect: that is the alleged sale of chocolates past their best-by dates at various outlets.
Mr Khanyile, representing, Diplomat, believes, on the other hand, that it was only legitimate to cover what transpired in the court itself.
3.17 There is also a dispute about the status of the “bundles” of evidence. City Press called it a “dossier”, a word Mr Khanyile objected to.
The dictionary defines “dossier”, a word of French origin, as “a collection or file of documents on the same subject.”
It seems the word itself is of no material consequence – whether we call it a “bundle” or “dossier”.
3.18 However, what is of consequence is its standing in court and whether the reporter could legitimately draw from it for his article.
Mr Khanyile argues information from the bundles have no place in the story as they were not testified to in court, nor were they subject to cross-examination.
He also argues that the case was about an alleged unfair dismissal; City Press did not focus on this but rather focused on the possibility that out-of-date chocolates may being sold.
3.19 Further, he is concerned about the inclusion of food experts in the story when neither of them testified in court. He also said they were not named. However, in the sidebar, they are both named.
3.19 At an informal hearing held on May 27, 2019, he argued that Diplomat’s right of reply was inhibited by the fact that the reporter asked for comment on the second day of the hearing when the matter was still effectively “sub-judice”.
4.1 It seems there is, at heart, a major misunderstanding on how a newspaper can cover a story and take a particular angle that it believes may be of interest to its readership. Clearly City Press decided that to focus on the dismissal of one sales rep in KZN (however just or unjust) would not be that relevant to its readership. It sought and found a broader angle – that being of the possibility that chocolates past their best-by dates might be being sold in some outlets in the region.
4.2 The paper’s use of the food and consumer experts in the sidebar is a legitimate newspaper tool but again was misunderstood. This is often done: for instance, in a court case about domestic violence, a publication may well run a general story in a "sidebar” covering statistics on domestic violence. The experts it quotes do not have to have testified in court.
4.3 The fact that the bundle of documents or “dossier/s” were not cross-examined by the court does not mean they were not before the court. As part of trying to resolve this dispute the reporter returned to the court to get a stamp on the documents to show they were official documents lodged with the Court. As it happens, the bundles of documents Mr Khanyile provided to me at a later stage in this determination were exactly the same as those City Press provided to me.
4.4 In terms of the clauses of the Press Code, it is clear that City Press took care to report that the introduction to the story – that thousands of Cadbury’s chocolates have been sold to the public despite being past their best - was based on “claims” made in the Labour Court.
These claims were germane to Mr van Tonder’s appeal against his dismissal. They were also mentioned by Mr Chinniah, who explained the relationship between MondalezSA and Diplomat.
4.5 The reporter, Matthew Hattingh needs to be commended for going the extra mile in this case: he took the bundle of documents to the Labour Court to be certified as documents before the court, he sent me his notebook, and came to Johannesburg for the informal hearing. (His editor, Mr Brown, sadly lost his father just before the informal hearing).
4.6 However, I am also sympathetic to Mr Khanyile for his belief that only what was said in court was relevant to the story; and also that the story took a different angle from the actual claim of unfair dismissal.
4.7 I can also understand why he was puzzled by the introduction of food experts (who did not testify) into the middle of the main story and in the sidebar.
4.8 He was concerned at the omission of Mr van Tonder’s evidence in the story that “overselling’ was the major issue and said that as a result his client was “at the Calvary of the court of public opinion.”
4.9 But the omission of some direct quotes, if similar reported speech is included, and the use of sidebars, and even the use of documents before the court to describe allegations, are all legitimate newspaper tools.
4.10 I am sympathetic however to his argument in the informal hearing that his client could not comment properly because the proceedings were still before the court.
To this end, both sides agreed that he or his client should be allowed a right of reply to the claims of chocolates being sold past their best-by dates. City Press has agreed to put this on its online site, at an agreed length, and to be allowed to do a minor edit that does not change the substance.
The Ombudsman will approve the edit.
4.11 I am also concerned that there could be any misunderstanding that the two food experts testified in court. Any misunderstanding that may arise is due to the lack of a proper “transition” between one paragraph that deals with the court case, and the next that starts ‘A food health expert emphasized there was no risk in eating chocolate past its best-by date.”
This is an editing fault but a problematic one. The reporter and/or sub-editors should have made it clearer in the main body of the story that the experts were not testifying before court.
4.12 However, this is a Tier 1 (minor) offence that requires no apology from City Press, although we hope it is noted.
The rest of the complaint, that City Press transgressed Clauses 1.1.,1.2 and 1.3 of the Press Code is dismissed.
4.13 As far as the right of reply is concerned, the reporter did indeed ask for a response from Diplomat and City Press published the main substance of that response, but in terms of the agreement, City Press is ordered to allow Diplomat a 400-word reply in its online edition with any editing done for grammar or minor word cuts to be approved by the Ombudsman.
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
June 8, 2019