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Avantgarde Development (Pty) Ltd vs Sunday Times and TimesLive


Sun, Aug 28, 2022

Complaint 9553                                                                                               

Ruling by the Press Ombud

Date of articles:                  19 June 2022

Headline of publications: “Trendy green tower stunted by debt action” (print “Unpaid R3m rates bill plants seed of doubt in Cape Town’s ‘fynbos tower’” (online)

Author:                                  Bobby Jordan                                                                                  

Particulars

  1. The complainant is Avantgarde Development (Pty) Ltd, a property development company responsible for a development named ‘The Fynbos’ in Cape Town. The company is represented in the proceedings by Craig Delport from CD Attorneys.
  1. The respondent is indicated as Arena Holdings. However, the publications concerned are Sunday Times and TimesLive. Susan Smuts answered on behalf of the publications.

Background

  1. Sunday Times carried a story in print and online about an upmarket property development to be located in Bree Street, Cape Town. The novelty of the proposed development is the plan to fynbos-clad the 20-story building so that it is, quite literally, a ‘living building’. Construction has not started yet.
  1. The crux of the article is that Avantgarde, the developer, had an outstanding rates and taxes bill in excess of R3 million owing to the City of Cape Town.
  1. The article was carried in the business section of Sunday Times and was styled as a typical property market/construction industry story.

The complaint

  1. Avantgarde wants a “withdrawal of the article from all available websites” as well as an apology.
  1. The initial complaint concerns the following clauses of the Press Code:

7.1 Clause 1.1. – reporting news accurately, fairly, and truthfully

7.2 Clause 1.2. – presenting news in context and in a balanced manner

7.3 Clause 1.3. – presentation of facts and allegations

7.4 Clause 1.5 – The media shall use personal information for journalistic purposes only.

7.5 Clause 3 – Privacy of personal information of the company.

  1. The complainant belatedly invoked Clause 1.8 of the Press Code by disputing whether the company was approached for comment.
  1.  The complainant also alleges the article is in breach of the Protection of Personal Information Act 4 of 2013 (“POPIA”). According to Delport, the journalist must account for how he obtained personal information about the company and must account for disclosing personal information.

POPIA

  1. This office has, in the past, strenuously avoided to become embroiled in complaints of alleged statutory transgressions. (See, for example, Mathys v EWN[1] where the complaint related to an alleged transgression of the National Health Act 61 of 2003 and Moodley vs News24[2], where the Intelligence Service Act 65 of 2002 was in issue.) The Press Council is not a court of law and does not do statutory interpretation. Its function is to uphold and enforce the Press Code.
  1. I therefore decline to pronounce on the allegations of POPIA infringements and will confine the ruling to an application of the Press Code and its principles.
  1. The Press Code provides for protection of personal data in two ways:

12.1 Clause 4 sets out principles relating to data protection. It essentially provides guidelines to journalist on how to treat data responsibly, primarily behind the scenes while performing their duties as journalists.

12.2 Clause 3 deals with the disclosure of private facts, i.e. in published articles. Here the test is the usual one applied to resolve tensions between freedom of expression on the one hand and the right to privacy, dignity and reputation on the other.

  1. In my view, the Press Code prescribes two golden rules for journalists: 1) don’t abuse personal information for any other purpose than bona fide journalistic activity, and 2) whenever a journalist discloses private information, it should be of sufficient public interest to do so.
  1. Avantgarde alleges the article is in breach of clause 1.5. of the Press Code, requiring journalists to use personal information for journalistic purposes only. This is, however, not substantiated in the different versions of Avantgarde’s complaints. There is no serious allegation that the journalist used the information for any other purpose than the article to be published in the Sunday Times. This complaint is therefore dismissed.

Alleged privacy infringements

  1. In relying on Clause 3 of the Press Code, Avantgarde submitted the following:

15.1 There was “no story” and the article has “no journalistic merit”. In effect, the allegation is that the facts presented in the story were not newsworthy. To quote Delport: “In what world is a story about post Covid rates in relation to a commercial building in Cape Town newsworthy?”

15.2 “My client demands to know how his private information was accessed and from whom the rates account was received”.

15.3 “The article is in breach of our client’s right to privacy in relation to the information published”

  1. Smuts says in response

16.1 “The development is a significant one in the City of Cape Town and it is already marketed to members of the public. The undisputed fact that the company is in arrears with its rates bill is relevant and newsworthy.”

16.2 There is an unassailable public interest in whether companies pay their taxes.

  1. Clause 3 of the Press Code stipulates (my underling):

“The media shall

3.1 exercise care and consideration in matters involving the private lives of individuals. The right to privacy may be overridden by public interest;…

3.3. exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:

3.3.1. the facts reported are true or substantially true.”

  1. Of interest is the wording in the Press Code that the privacy “of individuals” should be considered. The complainant in this matter is a juristic entity. At common law, it is acknowledged that a juristic entity could have a claim to privacy in appropriate instances. (Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (AD))
  1. I have reservations whether clause 3.1. of the Press Code aims to afford equal privacy protection to corporate entities than “private individuals”. It appears to me that the bar would have to at least be higher as to what constitute “private information” of a juristic entity. Extreme examples such as the disclosure of trade secrets and phone tapping aside, it is difficult to postulate what legitimate expectation of privacy a company could have.  
  1. A juristic entity does, however, have a right to its good name and reputation in terms of clause 3.3., which is a more appropriate test in the current circumstances.
  1. I agree with the publications that there was public interest in disclosing the outstanding rates bill of Avantgarde. The complainant is offering investment opportunities to the public. Potential investors have a legitimate interest in knowing about any potential disputes the developer is involved in, such as a rates dispute with the City of Cape Town that could have an impact on investments. The general public also has a legitimate interest in knowing if a company is owing taxes to the public purse.
  1. There is no dispute about whether the published information is true. Avantgarde says the dispute was resolved shortly after publication of the article. This does not change the position that the reported facts were true at the time of publication.
  1. As the reported facts are true and in the public interest, which public interest I find to be sufficient to outweigh considerations of privacy, there was no transgression of clause 3.
  1. Finally, there is no right to demand the disclosure of the identity of the source of information. Journalists would not be able to perform their duties if they were to unmask sources and whistle-blowers. It is in any event an irrelevant consideration as there is no dispute that the document leaked to the Sunday Times was authentic and accurate.

Alleged inaccuracies and untruthful reporting

  1. Avantgarde advances the following complaints:

25.1 The article quotes councillor Siseko Mbandezi, the mayoral committee member for finance of the City of Cape Town, as confirming the authenticity of the rates bill obtained by the journalist. This, Avantgarde says, is incorrect as Mbandezi denies speaking to the journalist.

25.2 It is incorrect to state the development is “long-awaited” as the development was recently launched and “sales are successfully ongoing”. “Furthermore the implication that our client has an unpaid rates bill and is therefore in financial difficulty is factually wrong.”

25.3 It is incorrect to state, “But the unpaid rates bill suggests the owners face a few hurdles before construction can begin.’

25.4 A quote is attributed to Dogon Group Properties whilst the latter allegedly denies giving the quote.

  1. In response, Smuts says:

26.1 The request to the City of Cape Town for comment was sent to the City’s media liaison officer who responded in writing. Smuts provided the written response from the media department. The media liaison officer confirmed that the rates bill is authentic and said that “debt management” procedures have commenced. The media liaison officer said: “Please attribute the response below in red to Councillor Siseko Mbandezi, Mayoral Committee Member for Finance.”

26.2 It is not for the publication to second-guess the City’s request on who to attribute the quotations to.

26.3 It is false that the publication did not speak to someone at Dogon Properties. “To suggest that the reporter simply conjured a fictitious quote, a complimentary one to boot, is absurd.”

  1. Avantgarde provided me with a recording of a telephone conversation – apparently between councillor Mbandezi and Paul Coelho, director of Avantgarde. In the recording, a person identified as Mbandezi by the complainant says he cannot recall speaking to the journalist from Sunday Times.
  1. There is, however, little mystery or disputes about what actually transpired. Apart from the publications’ word and written media query provided to me, I was further provided with a letter from the City of Cape Town’s legal department confirming that the media query was dealt with by the media department, forwarded to Mbandezi for approval, and sent to the Sunday Times as Smuts explained.
  1. There is nothing sinister about quoting Mbandezi. It is standard journalistic practice to address media queries to a dedicated media liaison who will provide a response and requests a publication to attribute the quotes to a certain individual. In fact, press releases with quotes from role-players are distributed and published on a daily basis without the journalist personally haven spoken to the person quoted.
  1. I also have no reason to doubt the publication’s version that they obtained the quotation from Drogon Properties in a proper way – not least because Drogon itself is not complaining. As Smuts rightly points out, the quotation is uncontroversial and in no way reflects badly on Avantgarde. It says Drogon confirmed that some units have already been sold. The disputed quotation is:

“It is probably one of the most successful developments – done with passion and consideration,” said a Dogon spokesperson. “They seem to be developers who are spending money on the environment – it’s not just about profit.”

  1. On the issue of the “few hurdles to be crossed” before construction may commence, I do not agree that this was inaccurate. The article clearly stated that there was a dispute about the valuation of the property which was, according to the City of Cape Town, resolved. In their submissions as part of this complaint, Avantgarde also makes it clear that there were challenges to be addressed with the City of Cape Town (which has, according to them, been resolved after publication).
  1. Nothing in the article would suggest to a reasonable reader that Avantgarde is “in financial difficulty”, as Avantgarde alleges in the complaint. The only suggestion is that Avantgarde had a sizeable bill to pay and that this posed a hurdle for the development.
  1. The article was neither inaccurate, nor unbalanced or untruthful.   

Comment

  1. The article states that the journalist attempted to obtain comment from Coelho who is listed as the sole director of Avantgarde.
  1. In its original complaint there was no mention of lack of pre-publication comment being sought. This only started featuring in later submissions.
  1. Smuts objected to the late introduction of this complaint. She added: “We did make an effort to speak to (Avantgarde). Their failure to respond can hardly be blamed on our reporter”. She also offered to provide evidence to the Press Ombud of these attempts.
  1. I do not find it necessary to canvass this aspect in any more detail. The complaint did not form part of the original or initial revised complaint and should not be considered. Avantgarde also does not seek a right of reply. It seeks a complete erasure of the article from the internet.

Conclusion

  1. For reasons stated above, the complaint is dismissed.

Appeal

The Complaints Procedure lays 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.

Herman Scholtz

Press Ombud

28 August 2022

[1] Matter 8980, 7 July 2021

[2] Matter 9463,