National Health Laboratory Service vs City Press

Thu, May 25, 2023

Ruling by the Deputy Press Ombud

Date of publication: 19 February 2023, online at https://www.news24.com/citypress/news/national-lab-services-in-crisis-20230219, and on page 2 in print.

Headline of publication:

National lab services in crisis

Author: Nkululeko Ncana

Particulars

1. The complaint was lodged on 8 March 2023 by Prof Eric Buch, board chair, on behalf of the National Health Laboratory Service (NHLS).
2. The complaint was laid against City Press. The newspaper’s response was submitted by Rapule Tabane, deputy editor.  
3. I considered the following documents:

3.1 The complaint, which included a detailed set of questions the newspaper sent to the NHLS before publication, together with the NHLS responses;

3.2 the original report, as published online;

3.3 the newspaper’s response to the complaint, submitted on 3 April 2023, and

3.4 an undated rejoinder from the complainant.

The report

4. The report outlines elements of an alleged crisis at the NHLS.  The key claims are:

4.1 that R282m was paid to a Chinese company for Covid testing materials and equipment that were never delivered;

4.2 that the NHLS CEO, Karmani Chetty, bought 60 Mercedes Sprinter buses for use as mobile clinics without planning for the necessary resources. The report claims she equipped them from existing laboratories, and that almost all of them are now standing unused;

4.3 that Chetty protected a senior manager against disciplinary consequences after millions were fraudulently diverted into an improper account; and that

4.4 two managers were improperly appointed.

The complaint

5. Prof Buch complains that City Press breached 1.1, 1.2 and 10.1 of the Press Code. Though not mentioned at the outset, clause 1.8, requiring allegations to be put to the subject of a report for comment, comes up prominently in the complaint.
6. I will outline the various elements of the complaint, together with the newspaper’s response and give my view on each. I follow the structure of the complaint.68.1 

Complaint 1: Unfair and sensationalist presentation - crisis

Arguments

7. Prof Buch says that the headline is unjustified.  Even if the allegations made in the article were true, which he disputes, allegations of irregularities do not support a claim of crisis.  He argues that the core allegation that seems to support the claim of crisis is that decisions on procurement and deployment of equipment led to “devastating effects” on the NHLS. However, no evidence of such effects is presented, he argues, and this claim was not put to the organisation for comment. Though he does not list this as a basis for complaint, this would constitute a breach of clause 1.8 of the code, which requires newspapers to seek the views of the subject of critical reportage prior to publication.
8. The newspaper says that some equipment was inadequate, in that they were unable to carry out the essential task of TB testing. This constitutes a devastating effect, argues City Press, adding it does not understand what about these effects should have been put to the NHLS.  The newspaper also draws attention to a 2022 report by the Public Protector, which found a number of problems at the NHLS.
9. In response, the NHLS reiterates that the headline is not justified by the content, arguing that additional information that was not in the original report (being the claim that TB testing has been hampered) cannot be used to justify the term crisis. The NHLS also points out that the Public Protectors’ report dealt with issues that arose several years ago.

Discussion

10. The term “crisis” is a strong one. Under some circumstances, it might be justifiable to use it for an organisation where a range of problems have arisen even if the situation does not quite meet the strict dictionary definition.
11. However, it is necessary for there to be a sense of widespread dysfunction for the term to be applicable. Certainly, if decisions around equipment led to significant problems in some areas of work, it would be fair to refer to a crisis. Similarly, an impact on the organisation’s ability to provide forensic services would also be serious.
12. The report fails to report clearly on problems of that kind. It cites “impeccable sources” as explaining the “devastating effects”, but then says nothing about what these effects are.  If there were problems with TB testing, as the newspaper says in its response, these should have been spelled out in the published article. 
13. A brief reference is made to forensic services, but only through very generalised, speculative statements that are also rather hard to follow.
14. The Public Protector report is introduced in the City Press response, though it was not mentioned in the report. As Prof Buch says, the subject of that inquiry long predates the early Covid period, which is the subject of the City Press reporting.  If the argument was to be that the recent allegations were linked to the earlier issues, then the report should have dealt made that explicit.  
15. I will return to the question of claims not having been put to the NHLS.
16. Overall, City Press has failed to lay sufficient basis for the use of the word crisis.  Even if all elements of its reporting were substantiated, the report does not say anything convincing about ways in which the functioning of the organisation has been harmed by the alleged issues.

Ruling

17. This element of the complaint is upheld.  

Complaint 2: Inaccuracy – shielding a financial manager from disciplinary steps over R22m fraud

Arguments

18. The complainant denies most elements of this aspect of the report.  Though a fraud was discovered involving R22m, the money is not missing – R21m were immediately recovered, and the balance returned through an insurance claim. The financial manager in question was not found to be complicit, and was not declared medically unfit to face discipline.  Instead, a more junior official was found to be responsible for the fraud and dismissed.
19. The newspaper stands by the claim, arguing that the financial manager in question was the last person to sign off on the fraudulent transaction, and must therefore have been responsible.
20. City Press also refers to the recording of a meeting in which questions about “the missing R22 million” are raised with the CEO, Dr Chetty, arguing that the recording clearly shows the people raising the matter “are those with knowledge of the matter”. Various other issues emerging in the recorded meeting are raised, but they are not mentioned in the published report and are therefore not relevant to the complaint.  
21. In response, the NHLS argues that the fact that someone was the last person to sign off on a transaction does not establish complicity, and that the fact that staff members and union leaders mentioned the issue in a recorded meeting does not constitute evidence.

Discussion

22. It is perfectly possible for a junior official to find ways of defrauding their organisation, obtaining necessary signatures from more senior staff.  However, the purpose of having senior signatures on large transactions is precisely to guard an organisation against fraud.  Accordingly, the role of the senior manager must at least be open to question, and it is clear that some staff raised questions about the matter.
23. I accept that the fact of suspicions being raised in a meeting does not constitute evidence of wrongdoing.
24. Elements of the NHLS complaint seem to contradict the original responses provided by the organisation to the City Press reporter. Spokesperson Mzimasi Gcukumana, quoted in the report, said that charges were prepared against the manager, but he then fell ill, was given leave and finally resigned.  The response indicates the organisation found some culpability by the manager, though it is not clear how far it went.  It is also clear that in some form, medical issues arose which prevented the matter being taken further.
25. It would have been legitimate to report the fact that questions were being asked, and that a disciplinary process failed to take place because of medical issues. But the evidence available to the newspaper was not strong enough to present as a matter of fact that a manager was shielded unjustly.
26. Though it would have been legitimate to refer to questions about a R22m fraud, reference to “the missing R22m” suggests the money is still missing.  This is denied by the NHLS, and the newspaper’s only evidence to the contrary are claims from its sources.  Without further detail to contest the NHLS version, a bald claim is not sufficient.
27. The NHLS account of the recovery of the R22m should undoubtedly have been included in the report.

Ruling

28. This element of the complaint is upheld.

Complaint 3: Inaccuracy: Material worth R282m ordered that was not delivered

(This element does not appear with the other elements where the complainant alleges inaccuracy, but appears with the argument that the headline is unjustified. However, it clearly constitutes another point where the complaint alleges inaccuracy.)

Arguments:

29. Prof Buch says the claim that R282m of material was ordered from a Chinese company but not delivered is untrue. He says the equipment was delivered in full.
30. City Press indicates its sources insist the material was not delivered.
31. In his rejoinder, Prof Buch makes a distinction between equipment and reagents, and says that reagents were ordered and delivered. However, he says the value was not R282m.

Discussion

32. It does not emerge clearly from the report, or from the various responses, what exactly was ordered, delivered or not delivered.
33. City Press relies on statements by various sources that the goods were not received. Also reflected is the NHLS response, saying that everything was delivered.
34. Though the evidence about the matter could have been stronger, the newspaper reports on this matter as a claim.  The newspaper has also provided an indication of several sources and has reflected the NHLS version.

Ruling

35. This aspect of the complaint is dismissed.

Complaint 4: Inaccuracy – wasteful purchase of 60 mobile testing centres

Arguments

36. Prof Buch denies the report’s claim that 90% of the purchased vehicles are now “idle”. They are heavily in use, he says.
37. City Press responds by asserting that some clinics have been transferred to the Department of Health, and that contracts of some drivers in Limpopo have been terminated, and their vehicles will now join others in being unused. The newspaper offers no evidence or source for this new information, but stands by its claims.
38. In his rejoinder, Prof Buch provides further details of various developments around the mobile testing stations and reiterates that the vehicles are being used in several ways.

Discussion

39. The claim that 90% of the vehicles are unused is a very specific one, for which the newspaper has not offered sufficient evidence.  Though its sources make the claim very confidently, additional corroboration could and should have been sought. At the very least, the original denial by the NHLS should have been provided in the report.

Ruling

40. This element of the complaint is upheld.

Complaint 5: Inaccurate reporting – recruitment of two managers

Arguments

41. Prof Buch says the recruitment of a revenue enhancement manager was done in a procedural manner. He says the appointment of an NHI manager took place in line with company policy that shop stewards be accommodated after they complete their union term.
42. City Press repeats the claim that the appointments were questionable, saying the information was corroborated. It does not say how.
43. Prof Buch’s rejoinder does not address the point again.

Discussion

44. The published report is unclear about the fact it is dealing with two appointments. The last section of the report starts by referring to the allegedly unprocedural appointment of a revenue enhancement manager, but then quotes the NHLS response to the complaint about the other appointment, which involved a former shop steward. 
45. The newspaper presents these claims as verified fact even though they are contested. Though the NHLS is given some opportunity to respond, its denial of the claim on the first appointment is not reflected. The second claim is not properly outlined, but the NHLS response is given.  As a result, the reporting is simply confusing.

Ruling

46. This element of the complaint is upheld.

Complaint 6: failure to request comment

Arguments

47. The complaint highlights several ways in which City Press failed adequately to seek comment. They include:

47.1 That questions were asked about the supply of reagents, when the report talked of equipment;

47.2 Claims of “devastating effects” on the organisation;

47.3 Claims around a plan for the use of the mobile clinics post Covid;

47.4 Claims around a further fraud involving R400 000;

47.5 Claims about the impact of missing equipment on the NHLS’s role in providing the police with forensic support;

48. The newspaper does not respond to the claim that it did not seek comment on these points. However, it points to the fact that claims around a further fraud were raised with management in the recorded meeting as evidence of the claim.
49. In his rejoinder, Prof Buch reiterates that the newspaper was obliged to put these points to the NHLS for comment and provides some more detail on the procurement of testing materials from China.

Discussion

50. I do not believe the newspaper’s confusion between reagents and equipment is serious enough to warrant a finding that it failed to ask for comment on this point.  Though there is undoubtedly a clear difference between the two, the NHLS had enough context in the way the question was framed to be able to respond fully. The essence of the point was that some important material was bought but not delivered, not whether reagents or equipment were at stake. However, it did fall to the newspaper to clarify the distinction in its reporting.
51. The other elements of the complaints, on the other hand, were material, and should have been put to the NHLS directly.

Ruling

Except for the point about what was ordered from China, this part of the complaint is upheld.   

Complaint 7: Inadequate corroboration

52. In his rejoinder, Prof Buch introduces an additional matter. He asks the Ombud to consider the complaint that City Press failed to corroborate information supplied by an anonymous source. 
53. As the newspaper was not provided an opportunity to engage with this new complaint, it would be unfair to consider it as an additional element.
54. At the same time, the issue arises substantially in the complaints about inaccurate reporting and I have considered the extent of evidence in that context.

General conclusion

55. At the core of the complaint are questions of verification: various claims were passed on to the newspaper and reported.  For the newspaper, the fact that these claims came from several people in the organisation, and were raised internally, are sufficient evidence that they are true.
56. The report is framed in a way that strongly supports the validity of the claims: the headline asserts the existence of a “crisis” as fact, and though some parts of the NHLS response are reflected, they are immediately rebutted by the newspaper’s sources.  The treatment strongly favours the validity of the claims made, even where reference is made to allegations.
57.  The report begins with the phrase, “According to documents that are in City Press’s possession …” However, nowhere in the report or any of the newspaper’s responses to the complaint is any reference made to documents.  The audio recording mentioned is not a document. Claiming to have documents when there are none is simply false. There can be no justification for the use of the phrase and the newspaper should be censured for doing so.
58. On closer examination, however, it becomes clear that there is little corroboration beyond the statements made by sources. For a report of this kind, readers expect higher standards of verification, which address specific elements of an account. More needs to be done to establish the credibility of sources beyond asserting that they have “impeccable information and acute insight”.  The question of their access to particular information needs to be addressed: how does an informant know that 90% of vehicles are unused, for instance? That is a very specific number.
59. The report is not helped by elements of confusion, vagueness and internal contradiction.
60. It is clear that some NHLS staff members have complaints and questions - but there is a difference between reporting them as complaints and presenting them as established facts. It is not enough for the reporter to be persuaded by certain claims, it is the reader who needs to find them plausible. An audio recording of a meeting where some of these issues were raised proves that some staff members have concerns, not that those concerns are justified.
61. It is striking that much of the City Press response simply reasserts the correctness of the information, without trying to provide evidence. This is clearly insufficient for the purpose of rebutting the complaint.
62. As previously discussed, if the claim was that the NHLS’s functions have been affected by various problems, much more should have been done to show the impact.
63. Certainly, care should have been taken to put all important elements of the story to the organisation for comment.
64. Though of course the organisation’s entire response cannot be accommodated, the key parts must be reflected. Leaving out responses to important claims is simply unacceptable.

Rulings

Accordingly, I find that:

65. City Press breached clause 1.1 and 1.2 of the Press Code by presenting several claims as fact, though they were insufficiently verified. 

66. City Press breached clause 1.8 of the Press Code by not affording the NHLS adequate opportunity to respond to all of the claims made.

67. City Press breached clause 10.1 of the Press Code by headlining a “crisis” in the NHLS without enough substantiation.

68. City Press is directed to

68.1 Publish a correction and apology for the report.

68.2 A note to this effect should appear on the same page of the print version of the newspaper as the original report.

68.3 The note should include the words “Apology”, “Correction” and “NHLS” in its headline.

68.4 The note should

1. Mention the fact that the Deputy Ombud censured the newspaper for claiming to have documents when there were none;
2. Make it clear that the central allegations of the report are claims, not established fact;
3. Reflect the NHLS responses to the matters that were left out of the original report, specifically on the question of a crisis, the current use of the mobile clinics and the recovery of R22m;

68.5 The note should refer readers to the full text of this ruling on the PCSA website.

68.6 Online, the note should appear at the end of the article.  Between the headline and the text of the report, a line should be inserted saying that the report has been corrected in line with a finding by the PCSA, referring readers to the note at the bottom.

69. The publication is to provide a draft note for approval by the Deputy Ombud before publication.

Appeal

70. 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

Franz Krüger
Deputy Ombud
25 May 2023