City of Johannesburg vs. The Star


Wed, Dec 26, 2012

 

Ruling by the Deputy Press Ombudsman

December 26, 2012

This ruling is based on the written submissions of Mr Graeme McMaster, for the City of Johannesburg, and The Star newspaper, as well as on a meeting that was held on December 10 between both parties and me.

COMPLAINT

The City of Johannesburg (CJ) complains about a page 2 story in The Star on 24 May 2012, headlined Council says it will sort out billing crisis in 5 weeks – Ratepayers to feel the pinch when new tax year starts in July.

CJ complains about a paragraph (see “Analysis” below) that:

·         “misrepresented” and “distorted” the CJ’s answering affidavit to that of the Property Owners and Managers Association’s (POMA’s) application to stop it from cutting services without fulfilling several legal requirements;

·         contained the opinion of the newspaper or the journalist without making the above clear;

·         created the impression that the CJ acted illegally regarding a “billing crisis” by not considering itself to be bound by its own by-laws; and

·         omitted to mention that the court order took the form of an undertaking by the City.

CJ also complains that it was not asked for comment.

ANALYSIS

The story, written by Louise Flanagan and Brendan Roane, said that the CJ had given itself five weeks to sort out residents’ billing queries.

This story was a follow-up on one that Anna Cox published on May 22, and the paragraph in dispute was a summary of that article.

The sentences in dispute read: “The council has been badly hit by the billing crisis, which peaked with a court interdict in December, preventing the council from disconnecting residents for unpaid services unless certain legally required steps were taken first. The council is opposing this, claiming it can’t afford to abide by its own laws on disconnections, and that revenue this year is substantially down.”

A careful comparison of the two stories revealed that Flanagan and Roane indeed correctly summarized the information contained in Cox’s story; I am also convinced that the average reader would have interpreted the story in dispute in the same light.

The question that I have to address, therefore, is whether the information that was carried over from Cox’s story was factually correct.

Misrepresenting, distorting the answering affidavit

The CJ says that the paragraph in dispute did not appear in the CJ’s answering affidavit. It complains that the story falsely stated that its opposition to the POMA’s affidavit was based on an argument that it could not afford to abide by its own by-laws regarding the collection of revenues (and thereby acting illegally). The CJ concludes that the story recklessly departed from the affidavit and was a “grave distortion” thereof.

The Star denies that the story misrepresented and distorted the court documents. “We believe that the article was accurate so no retraction is necessary.”

The newspaper also submits a response by Flanagan to McMaster after the publication of her story. She told McMaster that she had checked the court papers and that she had based her story on these documents.

I obtained legal advice from a senior advocate on both the founding and answering affidavits, as these documents were written in highly technical legal language.

This was his (unedited) response:

The Answering Affidavit

In December 2011 the council operated its credit control system subject to an undertaking (page 14 of the answering affidavit) which the city made in advance of a hearing for interim relief. The undertaking was made an order of court. As a result, the council was operating according to an undertaking and not an interdict.

On page 15 (par 16 of the answering affidavit) the council produced a table to showing the number of disconnections (and reconnections) between September 2011 and March 2012.

“The table shows that there was a significant drop in disconnections after the interim undertaking was made an order of court...” says the council. Accordingly, there has been a marked drop in revenue collection. On this basis the council says “the chilling effect of that order has resulted in a significant decrease in the disconnection of residents who are in arrears in relation to their service charge payments.”

On Page 17 of the answering affidavit the council explains that the change to the SAPS management system has crated teeth problems resulting in “a larger than usual number of errors”. This number of errors, says the council, does not justify the newspaper’s use of “billing crisis” to describe the problem.

Explaining the problem the council says of 1,2 million consumer accounts, 37 cases of maladministration had been alleged but 33 of these were found to be unfounded and only 4 complaints were attributable to errors on the part of the council.

The salient information

Based on the aforegoing the following is evident:

·         the number of complaints or disconnections did not approximate a “billing crisis” ad The Star opined.

·         An interdict was not granted against the council because the council had made an undertaking and this undertaking was made an order of court.

·         As a result of the court order, there was a significant decrease in the disconnection of residents in arrears in relation to the service charge payments.

Conclusion

·         The use of the words “billing crisis” is an exaggeration;

·         No court interdict was granted. The council made an undertaking before the hearing of the interdict. The undertaking was made an order of court.

·         The council does not say that it can’t “abide by its own laws on disconnections”. The council referred to the “chilling effect” of the undertaking.

End of response.

I am relying on his response and therefore conclude that the story falsely stated that The CJ’s opposition to the POMA’s affidavit was based on an argument that it could not afford to abide by its own by-laws regarding the collection of revenues (and thereby acting illegally).

This means that the story caused the CJ and its relevant officials unnecessary harm.

I also need to point out that journalists should be careful not to take stories as gospel merely because they were published. Whenever material matters such as the one in dispute is reported on (ones that may cause somebody unnecessary harm), journalists should take care to verify them – or else a false statement may merely be perpetuated, and will eventually become “truth” in the eye of the public.

Newspaper’s opinion

The CJ complains that the paragraph in dispute above contained the opinion of the newspaper or the journalist, and that the affidavit did not portray it as such. It argues that the story did not disclose its source and that the only reasonable interpretation was that the statement was that of the newspaper.

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

It is clear to me that the paragraph in dispute was stated as fact, and not attributed to a source – even though it was placed between the reporting on two sources. Therefore, my task now is to decide whether the statements in dispute were reasonably true.

Flanagan told McMaster that the newspaper did not think that a retraction was justified.

These were her arguments:

·         Throughout the City’s answering papers there is a theme that disconnection of electricity or water services is legal if the account is not paid and due process is followed;

·         The City’s answering papers aim to overturn the interim interdict and repeatedly refer to the “chilling effect” of this interdict on the City’s ability to carry out disconnections and collect revenue;

·         The interim interdict explains how disconnections will be done. Nowhere in that interdict or in the City’s answering papers is there an indication that this interim interdict offers any extra concessions beyond the existing law and/or City processes;

·         The repeated references to the “chilling effect” of the interdict on the City’s ability to collect do not refer to any such extra concessions in the interdict; and

·         Paragraph 70.1 of the City’s answering papers underlines the underlying assumption that disconnections are done purely in terms of existing law and City policy: “Carleton View will only be in danger of having its supply of services terminated by the city if no payment is received in terms of the Credit Control Bylaws.”

She concludes that it was therefore reasonable to assume that the CJ agreed to an interim interdict on disconnections based on existing laws, including the City’s own by-laws and policies, and that the City’s need to overturn that interdict also refers to the City’s difficulty with applying those laws and policies when it comes to disconnections.

She adds that McMaster’s own letter to the newspaper also emphasises that the interim interdict – which the City wants to overturn due to the “chilling effect” of this on collections – is based on the City’s by-laws.  “You are reminded that the City, on the 15th of December 2011, undertook by way of a Court Order not to disconnect services before due process and procedure in terms of the by-laws is followed.”

My legal advisor said that an interdict was not granted against the council because it had made an undertaking and emphasises that this undertaking was made an order of court.” As a result of the court order, there was a significant decrease in the disconnection of residents in arrears in relation to the service charge payments.”

Based on the legal advice that I have obtained, it follows that this part of the complaint should be upheld – if Cox misinterpreted the answering affidavit, then a correct summary by Flanagan would also be factually incorrect. The summary indeed stated Cox’s opinion as fact.

Not bound by by-laws

The CJ complains that the disputed paragraph created the impression that it did not consider itself to be bound by its own by-laws.

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

My legal advisor confirmed that the council did not say that it can’t “abide by its own laws on disconnections”.

The same argument as above therefore applies here.

Omission

The CJ complains that the story omitted to mention that the court order took the form of an undertaking by the City. It explains that the content of this undertaking was the product of an agreement between the parties.

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

The story should have stated this as it would have provided the necessary context.

Not asked for comment

The CJ complains that the newspaper did not ask him for comment.

The Star says that this was not necessary – the disputed paragraph was a summary of Cox’s story.

This argument is convincing.

FINDING

Misrepresenting, distorting the affidavit

The sentences in dispute misrepresented the affidavit (and caused the CJ and its relevant officials unnecessary harm). This is in breach of Art. 1.1 of the Press Code that states: “The press shall be obliged to report news truthfully, accurately and fairly.”

Newspaper’s opinion

Cox misinterpreted the answering affidavit, and a correct summary by Flanagan of Cox’s story was therefore also factually incorrect (stating Cox’s interpretation as fact). This is in breach of Art. 1.1 of the Code.

Not bound by by-laws

The disputed paragraph created the false impression that it did not consider itself to be bound by its own by-laws. This is in breach of Art. 1.1 of the Code.

Omission

The mentioning that the court order was the product of an agreement between the parties would have given a different context to the story – but the story omitted to state this fact. This is in breach of Art. 1.2 of Code that says: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions, or summarisation.”

Not asked for comment

This part of the complaint is dismissed.

SANCTION

The Star is:

·         directed to apologise to the City of Johannesburg for misrepresenting and distorting its affidavit, falsely stating it as fact that it acted illegally regarding a “billing crisis” by not considering itself to be bound by its own by-laws;

·         reprimanded for omitting to state that the court order was the product of an agreement between the parties; and

·         cautioned not to take stories as gospel merely because they were published, but to verify information that is likely to cause somebody unnecessary harm.

The newspaper is directed to publish the following text on page 2, and to use the word “apology” or “apologises” in the headline:

The Star apologises to the City of Johannesburg (CJ) for misrepresenting and distorting its answering affidavit, falsely stating it as fact that the City acted illegally regarding a “billing crisis” by not considering itself to be bound by its own by-laws.

This comes after the CJ lodged a complaint with the Press Ombudsman about a story that we published on 24 May 2012, headlined Council says it will sort out billing crisis in 5 weeks.

The story, written by Louise Flanagan and Brendan Roane, said that the CJ had given itself five weeks to sort out residents’ billing queries. This article was a follow-up on one that Anna Cox published on May 22, and the paragraph in dispute was a summary of that story.

The background to these sentences was that the court had granted the Property Owners and Managers Association’s (POMA’s) application to secure that several legal requirements had to be met before the CJ may cut off water and electricity.

Deputy Press Ombudsman Johan Retief said that a careful comparison between the two stories revealed that Flanagan and Roane indeed correctly summarized the information contained in Cox’s story. “I am also convinced that the average reader would have interpreted the story in dispute in the same light. The question that I have to address, therefore, is whether the information that was carried over from Cox’s story was factually correct.”

Cox based this information on an affidavit by the CJ; Retief said that he had obtained senior legal advice as this was written “in highly technical legal language”.

His legal advisor replied that the:

·         number of complaints or disconnections did not approximate a “billing crisis” and the use of those words was therefore an exaggeration; and

·         council did not say that it cannot “abide by its own laws on disconnections”.

Retief: “I am relying on his response and therefore conclude that the story falsely stated that the CJ’s opposition to the POMA’s affidavit was based on an argument that it could not afford to abide by its own by-laws regarding the collection of revenues (and thereby acting illegally). This means that the story caused the CJ and its relevant officials unnecessary harm.”

He directed us to apologise to the CJ, and also reprimanded us for omitting to state that the court order was the product of an agreement between the parties.

Retief added: “I also need to point out that journalists should be careful not to take stories as gospel merely because they were published. Whenever material matters such as the one in dispute is reported on (ones that may cause somebody unnecessary harm), journalists should take care to verify them – or else a false statement may merely be perpetuated, and will eventually become ‘truth’ in the eye of the public.”

However, he dismissed the complaint that we should have asked the CJ for comment on the disputed sentences as these was merely a summary of Cox’s story.

Visit www.presscouncil.org.za (rulings, 2012) for the full finding.

End of text

APPEAL

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party 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 contacted at Khanyim@ombudsman.org.za.

Johan Retief

Deputy Press Ombudsman