Helen Zille vs. Sowetan: Ruling by the Deputy Press Ombudsman, April 12, 2011

This ruling is based on the written submissions of Ms Helen Zille, Premier of the Western Cape, and the Sowetan newspaper.

COMPLAINT

Ms Helen Zille complains about an editorial in the Sowetan, published on January 28, 2011, and headlined Sowetan says: Zille must come clean. She also complains about posters that stated Zille wasted R660m.

Zille complains that the editorial:

• incorrectly attributes the only quotation in the editorial to her;
• incorrectly mentions an amount of R684m that was allegedly spent on consultants;
• falsely alleges that she failed to properly account for expenditure;
• makes no attempt to identify the reports it relies upon for its facts and to verify these facts;
• incorrectly implies that those people who were paid lacked the necessary skills and expertise; and
• incorrectly implies that she is undemocratic, arrogant, considers herself not to be accountable to the electorate and is disrespectful of them.

She complains that the editorial's headline is unfair.

Zille also complains about the poster. She says that:

• the use of the word "wasted" is pejorative, that there is no factual basis to support the use of this word and that it is misleading; and
• it appears to be motivated by malice.

ANALYSIS

The editorial raises "questions" about the DA-led Western Cape government that reportedly "has spent R684m on consultants in just one year". It states that Zille has failed to fully account how she has spent the money on these "so-called experts". The editorial also says that Zille is accountable to the South African public, ending off by saying: "We agree with the ANC that Zille must come out and publicly declare who are the consultants she has hired and at what cost."

A story appeared about the same matter on page 4 of the same edition, headlined ANC fires at DA spending and written by Anna Majavu (the writer's name did not appear with this story). When Zille complained to our office, she was unaware of this article. In later correspondence between her office and ours this story is mentioned a few times. As there was no complaint about this story, I shall refer to it in this finding only when it is relevant. I shall therefore also refrain from commenting on the merits of this story.

I shall now consider the merits of the complaint:

The editorial:

Incorrect quotation

The sentence in question reads: "It is, for example, not enough to say that the consultants she employed ‘provided expertise that is confined to institutions that are better equipped and have the necessary skills to assist in a specific field'." This sentence is preceded by: "Zille must understand that it is the taxpayers' democratic rights to know how each and every cent of their hard earned money is being spent."

Zille complains that:

• a reasonable reader would understand this to mean that her explanations were unsatisfactory;
• the sentence is not a fair and reasonable reflection of the facts; and
• the quotation is by implication attributed to her, while she never made such a statement - neither orally nor in writing.

Initially, the newspaper did not reply to this part of the complaint. In response to a question of mine, however, Sowetan says it used the quotation marks "to capture the spirit of the Premier's response to the question by the ANC official". It admits that the use of quotation marks was a "faux pas" by the sub-editor.

I shall consider the first two bullits mentioned above in a separate section, and therefore limit myself here to the complaint regarding wrongful attribution.

The editorial clearly refers to a sentence in Majavu's story.

It is common practice that, when using quotation marks, the exact words of the source should be reflected. It is not an acceptable journalistic practice to try and "capture the spirit" of somebody's response, put words into that person's mouth, and then present it as if those were his/her exact words.

Having said this, however, it has to be noted that both Zille and Sowetan is wrong - the quotation in dispute does appear in the document that Zille provided parliament with in response to the question posed to her by Mr Pierre Uys, ANC local chief whip. Under the section Business & Advisory Services: Audit Committee (Non-Officials) the reason why the task was not performed by a department is stated as follows: "The expertise required is confined to institutions who are better equipped and have the necessary skills to assist in a specific field."

Zille may not have written this sentence herself, but it appears in an official document that contains her answers to questions posed by Uys.

R684m

The intro to the editorial states: "Reports that the DA-led Western Cape government has spent R684 million on consultants in just one year raises many questions about Premier Helen Zille."

Zille complains that the amount of R684m is wrong. She explains that this amount is rather "an aggregate of the total amount spent for a variety of purposes", making it misleading to suggest that the whole amount was spent on consultants. For example, she says that a total of R270m of this amount was spent on laboratory tests.

Sowetan responds that the ANC in the Western Cape has slammed the DA government for spending R684m on consultants in one year. It adds that it does not know why Zille included the R270m in the amount said to have been spent on consultants, "but to be fair I (Majavu) did include in my story that it was not spent on consultants but on medical tests".

In her reply to the newspaper's response to her complaint, Zille says it is untenable to argue that the editorial cannot be faulted for stating, as a fact, that R684m was spent on consultants on the basis that the ANC's question related to expenditure on consultants. She adds that the newspaper acknowledged that the amount of R684m (spent on consultants only) was wrong.

The relevant clause in the Press Code is Art. 4.3: "Comment by the press...shall take fair account of all available facts which are material to the matter commented upon".

It should be remembered that we are dealing with an editorial that is based on a (page 4) story. Note that the scope of this adjudication does not include an investigation into the veracity of the allegation that R684m was spent on consultants - my only question here is if it was reasonable for the editor to have based the editorial on this information in the story.

At first glance, it looks fine - the intro to the story says that the ANC has slammed the DA "for spending R684 million on consultants in just one year". Zille does not dispute the statement that "the ANC has slammed the DA, which means that it is reasonable for me to accept that as being true.

However, if one reads a few paragraphs further, the following sentence appears: "But more than a third of the money - R270 million - was not spent on consultants, but on medical tests."

This is what the editorial does:

• It conveniently overlooks the contradiction between the sentence that refers to R270m and the intro (R684m);
• It opts to use the amount mentioned in the first sentence (R684m); and
• It chooses to ignore the reference to R270m.

This is not taking "fair account of all available facts", as the Press Code dictates.

Failed to properly account for expenditure

The sentence in dispute reads: "Of even more serious concern is how Zille has failed to fully account how she has spent the taxpayers' millions paying these so-called experts to help her administration."

Zille complains that the allegation that she failed to properly account for the expenditure is false and "tantamount to uninformed opinion dressed up as fact". She says that she furnished details regarding the expenditure, that she accounted for it, and that the Auditor-General "has given a clean sweep of audits".

Sowetan says that the sentence in dispute refers to the fact that she (Zille) said she hired consultants because they " ‘provided expertise that is confined to institutions that are better equipped and have the necessary skills to assist in a specific field' - but did not explain exactly why this was the case". It says that it is to this sentence of Zille that the words "failed to fully account" refer to.

The newspaper adds that the ANC asked Zille in a written parliamentary question five months ago whether her government had employed any consultants between July 2009 and June 2010. "Zille only replied to the parliamentary question this week," it says.

The newspaper also says that some of the payments are "shrouded in mystery". For example:

• Zille said her government spent R5m on six consultants who provided "business and advisory services" for the provincial treasury. However, instead of saying what the money was spent on, she only wrote that the money needed to be spent because the expertise required "is confined to institutions who are better equipped and have the necessary skills to assist in a specific field."
• Two consultants were paid over R55 000 to translate and edit the provincial treasury's annual performance plan.
• Zille defended hiring two town planners as consultants at R1.7m, saying that the government did "not need to employ planners permanently".

Zille supplied our office with her written reply to the questions that Uys posed to her. This document is dated August 13, 2010.

The questions were: ‘Whether any consultants were appointed by provincial departments and/or entities during the last 12 months to help with the execution of their duties; if so, in each case, (a) how many consultants, (b) what tasks did they perform, (c) what is the name of the department and/or entity, (d) at what cost and (e) why could they not perform the duties themselves?"

Zille's response was: "Attached is a summary of information on consultants spent for the periods (1) 1 July 2019 to 31 March 2010 and (2) 1 April 2010 to 30 June 2010, extracted as per the audited downloads from the Basic Accounting System (BAS) and verified by the provincial departments. Health, during the verification process, summarized their information in one combined table for both periods. Please note that all engineering services and medical laboratory services have been excluded from this list."

Approximately 20 pages of items of expenditure then follow, outlining the tasks performed, the number of consultants used, the amount involved and the reasons why the tasks were not performed by the departments.

The following considerations are in Zille's favour:

• The newspaper does not deny that the Auditor-General "has given a clean sweep of audits" to Zille's government; and
• Zille's response to the questions posed by Uys does not point to an improper account of expenditure.

On the other hand, the newspaper was justified to raise critical questions as there were areas of uncertainty. For example:

• Uys asked Zille for information regarding consultants. What he got is a list containing payments for services other than consultants. This is confusing.
• The list does not specify who the companies were that performed the tasks, nor does it say what the daily fees were.
• Zille does not dispute the newspaper's allegation that it took her five months to reply to Uys.

Note that it is not for me to decide whether Zille failed to properly account for expenditure or not - my only consideration in this regard is the question if the newspaper was justified in asking critical questions and making critical remarks. Based on the above, it was justified.

No attempt to identify, verify reports

Zille complains that the editorial makes no attempt to identify the reports it relies upon for its facts. She says that the reference to multiple reports "was clearly intended to make the opinion expressed appear to be based on credible information obtained from multiple sources when this clearly is not the case".

She adds that the:

• appearance that the newspaper based its opinion on credible information is misleading and false;
• newspaper made no attempt to properly investigate the issues or ascertain the facts;
• facts could readily have been ascertained from her department or spokesperson prior to publication (she says that the newspaper should have contacted her office for comment);
• newspaper relied on hearsay (unidentified "reports"), but disregarded the "comprehensive, albeit summarized, written reply" furnished by her to written questions in the local parliament. She says that her documented reply, amongst other things, explains why consultants or services were utilised;
• newspaper would "in all objective probability" have drawn different conclusions had the correct facts been ascertained; and
• newspaper penned an editorial on a topic that did not feature in any news article in the Sowetan on the day in question. (This part of the complaint was later withdrawn.)

Zille concludes that the editorial treatment of unnamed reports is unfair, unbalanced and not supported by facts.

Sowetan argues that the editorial was based on a story that it ran that day and that it was not obliged to ask Zille's office for comment (regarding the editorial).

In her reply to the newspaper's response, Zille says that the newspaper, in its editorial, should have verified the facts that it relied upon "...as the journalist concerned (Anna Majavu), at the very least, justifies close scrutiny of articles written by her on the DA in the broad sense, because of a perception of bias, if not, actual bias, and the concerns about her bias - whether perception or fact - is notoriously well-known."

In support of this statement, Zille points our office to a ruling by me against the Sowetan, dated September 14, 2010 - an article that was also written by Majavu. Zille concludes from this that it was inappropriate for the author of the editorial to accept the "facts" or content of her article at face value.

Zille also says Majavu's story states that more than one-third of the amount did not relate to consultants - and that "this insight and acknowledgement should have alerted the Sowetan of the necessity to seek further clarification and/or input from the Premier."

Firstly, let's take a closer look at what the intro to the editorial says. It mentions reports (plural) that R684m was spent. It does not state that the reports are true; it merely says the "reports" about this issue raise "many questions".

The editorial clearly bases the intro on that of Majavu's story that reads: "The ANC in Western Cape has slammed the DA government for spending R684million on consultants in just one year."

To a question what other report/s this word refers to (reports that also allege that Zille has spent R684 m on consultants), the newspaper responds that it was rather meant as "allegations" instead of referring to a number of articles written on the subject.

I am inclined to give the newspaper the benefit of the doubt regarding the use of the plural ("reports") because:

• it refers to the story on page 4 where the amount of R684m is mentioned; and
• Zille does not dispute the newspaper's testimony that the ANC in the Western Cape "has slammed the DA government for spending R684m on consultants in one year".

It is true that these "allegations" are not spelt out. Although it would have been helpful to have done so, the lack thereof does not constitute a breach of the Press Code.

Also note that a newspaper is under no obligation to ask the subject of its editorials for comment.

Lack of necessary skills

The editorial refers to "so-called experts" (consultants).

Zille says that this incorrectly implies that those people who were paid lacked the necessary skills and expertise to do their job.

The newspaper does not respond to this part of the complaint. It also does not reply to a question of mine regarding this issue.

Zille is correct: The use of the word "so-called" indeed casts a shadow over the skills and expertise of the consultants.

If the newspaper had a reason to use this expression, I would have expected it to provide me with evidence to this effect. The only reasonable conclusion to come to is that this expression is baseless and unnecessarily negative.

Undemocratic, arrogant, unaccountable, disrespectful

Zille complains that the editorial incorrectly implies that she is undemocratic, arrogant, considers herself not to be accountable to the electorate and is disrespectful of them.

Regarding the word "arrogant", the newspaper says that it does not know what to say and refers our office to "the lawyers". It does not respond to the other allegations.

We have already dealt with the issue of accountability and therefore also, by implication, with the "disrespectful to the electorate" and "undemocratic" part. This leaves us with "arrogant".

The editorial accuses Zille of "political arrogance". Democracy and freedom of speech allow people to have opinions of their own and gives them, within the boundaries set by Section 16 of South Africa's Constitution, the right to express those views. If the newspaper thinks that Zille is politically arrogant, it is its right to say so.

In a certain sense, freedom of expression gives one the right to be wrong. (This is an academic statement, and not one that is passing judgement on the matter whether Zille is politically arrogant or not.)

The headline:

Unfair

Zille complains that the headline misleadingly suggests that she failed to come out with the truth, was secretive about the money that was spent and that she was somehow tainted with "dirt".

Zille adds: "Notwithstanding that the body of the editorial is not based on objective facts, even the editorial does not go so far as to suggest that Zille is ‘dirty'."

She argues that she did comprehensively explain how and why the moneys were spent and that she responded fully to all press queries made by other media. She concludes that the headline does not take cognizance of material facts that were available or could readily have been obtained.

Sowetan argues that Zille did fail to come out with the truth and that she was indeed secretive about the money spent, adding that Zille "can't win on this one".

The newspaper explains that the headline refers to the sentence that reads: "It is, for example, not enough to say that the consultants she employed ‘provided expertise that is confined to institutions that are better equipped and have the necessary skills to assist in a specific field'." From this quotation, the newspaper concludes that Zille indeed has not revealed which consulting firms were hired and why.

I have already ruled that the newspaper was justified (but not necessarily correct) in being critical towards Zille. Art. 5.1 of the Press Code states: "Headlines...shall give a reasonable reflection of the contents of the report...in question."

This is exactly what the headline does.

The headline does not imply that Zille is "dirty" in some way, but that she should respond to questions such as which firms were used and what their daily fees were.

The poster:

‘Wasted'

The poster says: Zille wasted R660m.

Zille says that the Oxford English Dictionary defines the verb "waste" as consuming or expending money or property uselessly, extravagantly; not to profit; to squander. The same dictionary defines the adjective as: "wasted resources squandered, dissipated, exhausted, used up, misspent, misused".

From this, she argues that the use of the word "wasted" is pejorative as it (misleadingly, inaccurately and unfairly) implies that she misused public funds and that the entire expenditure was uselessly spent or squandered.

Zille adds that there is no factual basis to support the word "wasted" - not even the editorial itself refers to this term or concept. She says the point that the editorial makes is that she failed to give a proper account of how the money was spent. The poster is therefore not a reasonable reflection of the content of the editorial and in that sense also misleading.

She argues: "This is aggravated by the fact that many members of the public would only have seen and read the poster and not been able to judge or reflect upon its accuracy..."

She adds that the posters were prominently displayed throughout Gauteng. It should also be kept in mind that this is an election year. She says: "The harm done by...the posters is accordingly substantial and particularly egregious."

The newspaper does not reply to this part of the complaint. Responding to a question by me, the newspaper merely says: "It seems that author of the poster took poetic licence when penning the bill."

However, elsewhere the newspaper says that the Head of Communications for the Health Department, Faiza Steyn, told the newspaper that the R270m used for laboratory tests was paid as a separate entity. It adds that ANC spokesperson Cobus Grobler said that government could have used the R270m to build its own laboratory "instead of wasting money outsourcing everything".

The newspaper also states that Uys slammed Zille's "excuses". It says that Uys stated that:

• Zille's office has a fully-fledged legal services unit with senior people to do the work, and that it was wasteful to spend R43m on legal consultants;
• A closer examination was needed of why so much tax-payers' money was spent on work that staff (such as project managers) could or should do;
• The ANC would now ask Zille for a list of which companies were hired, and their daily fees; and
• It was unnecessary to spend R2.5m on consultants who did translation and transcriptions.

Art. 5.2 of the Press Code states: "Posters shall not mislead the public and shall give a reasonable reflection of the contents of the reports in question."

Even though Majavu's story falls outside the scope of this complaint, it becomes relevant here because the poster does not necessarily refer to the editorial - it can also be based on the story.

If it refers to the editorial, it clearly does not live up to Art. 5.2 of the Code - the editorial makes no reference to "R660m" that the DA government has "wasted". 

This leaves me with the story.

Majavu's article says that the ANC in the Western Cape has "slammed" the DA government for spending R684m on consultants in just one year. It continues that the ANC asked Zille, in a written parliamentary question, if her government had employed any consultants between July 2009 and June 2010. It says: "Zille only replied to the parliamentary question this week. Much of the payments are shrouded in mystery." A few "examples" of wasting are then put forward. The story states that more than a third of the money - R270m - was not spent on consultants, but on medical tests. A few sources are quoted, including Zille, Grobler and Uys.

Grobler is quoted as saying that the provincial government could have used the R270m "to build their own laboratory, instead of wasting money outsourcing everything".

From this, it can be stated that at least one source thought that R270m was wasted.

The rest of the story may insinuate (but not necessarily so) that the DA government wasted money - amounts totalling R6 755 000 are mentioned. Taken together, the story refers to R276 755 000 that may have been wasted.

My conclusions are:

• The poster's reference to R660m that was wasted cannot be founded on either the editorial or on Majavu's story - not even if the assumption is correct that all the amounts mentioned were "wasted";
• Grobler's allegation that R270m was wasted is his opinion (to which he is entitled). However, if the poster said "Zille wasted R270m", the word "wasted" should have been put in inverted commas to show that it was someone's opinion. As it stands now, the poster states it as a fact that the money (R660m) was wasted; and
• The word "waste" is problematical, as it depends on people's interpretation - one person's "waste" may be another's "good spending". It is going to be extremely difficult for the newspaper to prove that Zille in fact wasted R660m.

The newspaper's "poetic licence" has indeed gone too far. Much too far.

Note that I have asked the newspaper where the amount of R660m comes from, as neither the editorial nor the story refers to this amount. I have not received an answer to this question.

I can therefore find no mitigating circumstances for this inexcusably unfair poster.

Motivated by malice

Zille says the poster appears to be motivated by malice, and adds: "The inaccurate and sensational character of the wording of the poster is suggestive of bias."

She argues that the failure by the newspaper to identify the author of the story that the editorial and poster relied upon, must have been intentional. "This may have been done so as not to attenuate the intended impact of the highly negative editorial and poster campaign." From this, and "given" Majavu's alleged bias against the DA, Zille concludes that the editorial and the poster "were motivated by malice and in furtherance of an ongoing vendetta against the DA".

I cannot entertain Zille's complaint regarding Majavu's alleged malice and bias as neither Majavu nor her story on page 4 is under scrutiny here. I am also not going to accuse the newspaper of a vendetta or bias - the reference to R660m was clearly grabbed out of the air, which rather makes me believe that the writer of the poster did not apply his/her mind properly. A mistake like this one is not necessarily due to malice.

FINDING

The editorial:

Incorrect quotation

The sentence in dispute appears in an official document that contains Zille's answers to questions posed by Uys. This part of the complaint is dismissed.

R684m

The reference to R684 million that was allegedly spent on consultants 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".

Failed to properly account for expenditure

The newspaper was justified in raising questions and making critical statements, even though Zille may have properly accounted for expenditure. This part of the complaint is dismissed.

No attempt to identify, verify reports

The newspaper was under no obligation to either spell out where the allegations or "reports" came from, or to ask Zille for comment. This part of the complaint is dismissed.

Lack of necessary skills

The use of the word "so-called" (experts) in relation to consultants is baseless and unnecessarily negative. This is in breach of Art. 2.1 that states: "News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the truth whether by distortion, exaggeration or misrepresentation."

Arrogant

If the editorial implies that Zille is arrogant, it was the newspaper's right to do so. This part of the complaint is dismissed.

The headline:

Misleading

The headline reflects the content of the editorial. This part of the complaint is dismissed.

The poster:

‘Wasted'

The poster is both misleading and it failed to give a reasonable reflection of the editorial. This is in breach of Art. 5.2 of the Press Code states: "Posters shall not mislead the public and shall give a reasonable reflection of the contents of the reports in question."

Motivated by malice

This part of the complaint is dismissed.

SANCTION

The editorial was, of course, not published on the front page. However, the posters were extremely unfair and may unnecessarily have caused huge damage to Zille. To make up for this, Sowetan is directed to publish an apology to her on its front page for being in breach of:

• Art. 4.3 for not taking fair account of all available material facts when referring to R684 million that was reportedly spent on consultants;
• Art. 2.1 for referring to consultants as "so-called" experts; and
• Art. 5.2 for the misleading and unfair posters.

The newspaper is directed to:

• publish this apology as part of a summary of the finding (not the whole ruling) and the sanction;
• after reporting on the nature of Zille's complaint to this office, proceed with the above-mentioned offences, beginning with a reference to the poster;
• use the words "apology/apologise" and "Zille" in the heading; and
• add the following sentence at the end of the text: "Visit www.presscouncil.org.za (rulings, 2011) for the full finding."

Our office should be furnished with the text prior to publication.

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: www.presscouncil.org.za

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