Ruling by the Deputy Press Ombudsman

December 21, 2010

This ruling is based on the written submissions of Mr Jay Henning, for Oasis Holdings, and the Business Day newspaper. The writer of the column in dispute, Rhoda Kadalie, was given a chance to respond to the complaint - an opportunity that she did not make use of.

Complaint

Property developers Oasis Holdings complains about a column in Business Day, published on October 19, 2010, and headlined Crumbling foundation of citizen participation.

The main complaint is about the following sentence: "In University Estate, where I (Kadalie) live, a historic villa dating back to the 1800s was destroyed by its owner, aided and abetted by city officials despite residents' legitimate appeals."

Oasis says that the column untruthfully states that:

• the building dated from the 1800s;
• it was "aided and abetted by city officials";
• residents had "legitimate appeals"; and
• the property at 4 Garrick Street "allegedly belongs to the same company..."

Oasis also complains that the editor/newspaper should have checked the facts before going to print.

In its complaint, Oasis furthermore says that the column is also in breach of:

• Art. 1.3 of the Press Code (this article states that, where a report is founded on opinions, it should be indicated as such);
• Art. 1.4 (the accuracy of a report should be verified);
• Art. 1.5 (the subject of reportage should be asked for comment prior to publication); and
• Art. 1.6 (a publication should make amends after having been at fault).

However, the first article referred to has already been complied with - the text is presented as an opinion piece and not as a news article. The next two articles mentioned do not apply to Kadalie's column as her column is not a news story. Art. 1.6 can also not form part of a complaint, as this article is used as sanction after a complaint has been dealt with.

I informed Oasis of my decision not to entertain this part of the complaint.

Analysis

In the column, Kadalie asks: What is the point of citizen participation if the powers that be do not take concerned organizations seriously?

In the part of the column that concerns Oasis Kadalie states that, whilst the construction of modern buildings and road infrastructure signifies progress to Cape Town's city council, a historic villa in University Estate was destroyed by its corporate owner - aided and abetted by city officials despite residents' legitimate appeals against such action. She mentions another example in the same estate, allegedly owned by the same company, that "violates every municipal regulation in the book". This is allowed, she writes, despite the opposition of more than 200 members of the University Estate Residents Association.

Let's now take a look at how Oasis motivates its complaint.

Oasis says it is untrue that:

• the building dated from the 1800s - it says that it was built in 1929, adding that "experts" did give Kadalie this information;
• it was "aided and abetted by city officials" - it says that it has been fighting with "the city" for 8 years to develop the particular property;
• residents had "legitimate appeals" - it says that Kadalie's appeal against demolishing the building was dismissed as "there was no merit in her arguments". (Oasis adds that she therefore resorted to forums such as this where she can make unsubstantiated, untested claims); and
• it owns 4 Garrick Street. It says that, as a member of the Residents Association, "she (Kadalie) is fully aware that we do not own the building" - and concludes that it again seems that she lied to serve her purposes because the facts did not suit her.

From this, Oasis concludes that the column is not an honest opinion based on verified facts, but rather an attack on the group.

The last part of the complaint is that the newspaper did not check the facts before publishing the text.

Business Day says that Kadalie is well-known to be passionate about the development and maintenance of Cape Town, where she lives - and that her brief is to mainly write opinion pieces about the Cape. The newspaper says that criticizing a property developer, even harshly, is "routine" - property developers frequently destroy bits of urban history and often enflame local opinion.

The newspaper admits that her column is an attack of the Oasis group, but says that that is not unreasonable. It says: "Columnists frequently attack other people and institutions."

The newspaper adds that this issue, like all matters of property development, is extremely complex - it also argues that the development is "the subject of contracts and undertakings to which a columnist could not reasonably be expected to have access". From this, Business Day concludes that Kadalie should not be found to be in breach of the Press Code; at worst, the newspaper says, she is guilty of getting the ownership of 4 Garrick wrong.

Business Day continues that an "honest expression of opinion (regarding Art. 4.3 of the Press Code) does not require her to be accurate or even fair - it requires that she says what she honestly thinks "and not what she thinks is honest". The newspaper also denies that Kadalie wrote the column "with malice or dishonest motives" (Art. 4.3).

The newspaper adds that:

• Kadalie should have known that Oasis does not own 4 Garrick (if indeed it does not);
• the date of completion of the building is not material (it says that it may have been built in 1929 but in an older style and argues that 70 years later it does not matter anymore - "what she meant was that the building was of historic interest"); and
• to argue that something has been destroyed does not mean that it has been flattened (renovations may also have been "destructive").

Kadalie's lack of response to the complaint is unfortunate.

Firstly, we have to be clear about the nature of this adjudication. Kadalie, like anybody else, has a right to her opinion. This exercise is not intended to take that right away from her in any way whatsoever. Hers was an opinion piece - in the interest of freedom of speech anyone has the right to voice his/her opinion, unless it is against the Constitution (hate speech, incitement to violence, etc.) or the law (defamation).

The article in the Press Code that regulates this matter is Art. 4.3 that states: "Comment by the press shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair account of all available facts which are material to the matter commented upon."

It is not for me to accuse Kadalie of being dishonest and malicious - even if she was. I simply do not have enough evidence to prove - or disprove - such an accusation.

This means that I shall focus only on the part of the article that states that Kadalie, in voicing her opinion, should have taken "fair account of all available facts which are material to the matter commented upon".

Now, we have to distinguish clearly between "fact" and "opinion". Here are two general considerations:

• What this expression cannot mean, is that an "opinion" should be "accurate" - opinions are by their very nature subjective and can therefore never be called "accurate". The one person's freedom fighter may be the other one's terrorist.
• What it does mean, however, is that "facts" that are being presented as "facts" (also in an opinion piece) should be accurate. It is one thing to voice an opinion, but quite another to present untruthful statements as facts.

Let's now take a closer look at the crucial words/phrases in Art. 4.3 itself: "fair account", "all", "available facts", and "which are material to the matter commented upon". Here are some considerations:

• The word "fair" boils down to being balanced - which means that the Press Code requires of columnists to not take into account some facts, whilst ignoring other (important, material) issues;
• A columnist's opinion should also be based on "all" available (read: important, material) facts - which is therefore essentially the same than the previous consideration;
• The "facts" that an opinion should be based on, should be readily available - it would be grossly unfair to expect a columnist to base his/her opinion on facts that are not readily available; and
• The facts that the columnist should take into account, should be material to the matter.

I shall now try to apply the above-mentioned considerations to the complaint. This boils down to the question whether or not Kadalie ignored relevant, material facts that were readily available; if she portrayed untruths as "facts"; and if the complaint is frivolous ot not:

The building dating from the 1800s

Business Day's statement that the building may have been built in 1929 (but in an older style) may be correct, but it still is a flimsy one - it does not provide any shred of evidence that it was indeed build in 1929.

It's argument that it does not matter anymore if it was built is 1929 ("seventy" - ? - years later) or in the 1800s also does not hold water - the earlier the construction was built the more emotional people are likely to react against its demolition/renovation.

The statement in dispute is therefore indeed relevant and material; it is also reasonable to accept that this "fact" is quite possibly not true - and that the information (surely) was readily available.

 Oasis ‘aided and abetted by city officials'

The newspaper does not respond to this part of the complaint.

Oasis gets the benefit of the doubt. This issue can also reasonably be construed as material as well as possibly untrue. In that case, information to the contrary should also have been readily available.

‘Legitimate appeals'

The statement that residents had "legitimate appeals" is, in light of the documentation at my disposal, both material and an opinion that is not reasonably based on facts (as their appeals were already dismissed). In that case, information to the contrary should also have been readily available.

4 Garrick Street

By the newspaper's own admission Kadalie is "at worst guilty of getting the ownership of 4 Garrick wrong" and also admits that she should have known that Oasis was not the owner ("if it is true").

This is also material, as the statement in the column (admittedly using the word "alleged"), adds to the attack on Oasis. Whilst the attack on the developer may or may not be legitimate, this added issue is not fair towards Oasis. Information to the contrary should also have been readily available.

Checked that facts

Oasis also complains that the editor/newspaper should have checked the facts before going to print.

The following should be said:

• An editor (always) has to take final responsibility for everything that is published in his/her publication;
• It is easier for any editor to verify facts if the reportage is about well-known information or people - which, in this case, clearly was not the case (due to the locality of the issue); and
• Even though the editor (should have but) did not verify information that were being presented as facts, he may be forgiven for not doing so (due to the locality of the issue and the impracticability of such an action).

Finding

The building dating from the 1800s

The statement in dispute is relevant and material to the issue. It is also reasonable to accept that this "fact" is quite possibly not true, and that the information was readily available. This is in breach of Art. 4.3 of the Press Code that states: "Comment by the press...shall take fair account of all available facts which are material to the matter commented upon."

 Oasis ‘aided and abetted by city officials'

The statement in dispute is relevant and material to the issue; it is also reasonable to accept that this "fact" is quite possibly not true and that the information (to the contrary) was readily available. This is in breach of Art. 4.3 of the Press Code.

‘Legitimate appeals'

The statement in dispute is relevant and material to the issue. It is also reasonable to accept that this "fact" is quite possibly not true and that the information (to the contrary) was readily available. This is in breach of Art. 4.3 of the Press Code.

4 Garrick Street

The statement in dispute is relevant and material to the issue; it is also reasonable to accept that this "fact" is quite possibly not true and that the information (to the contrary) was readily available. This is in breach of Art. 4.3 of the Press Code.

Checked that facts

Even though the editor is responsible for everything that is published in his newspaper, he can be forgiven for not doing so in this instance due to the locality of the issue as well as the impracticability thereof. This part of the complaint is dismissed.

Sanction

Business Day is reprimanded for ignoring material facts that were readily available, as well as for portraying untruths as "facts".

The newspaper is directed to publish a summary of this finding. Our office should be furnished with the text prior to publication.

Please add the following sentence at the end of the text: "Visit www.presscouncil.org.za (rulings, 2010) for the full finding."

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties 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 reached at [email protected].

Johan Retief

Deputy Press Ombudsman

Source: Press Council, January 21 2011

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