Manie van Schalkwyk vs Sunday Independent

Complainant: Manie va Schalkwyk

Article:  Hawks investigate complaints – Allegations of a conflict of interest and corruption against Credit Ombudsman.

Date: 02 November 2011

Respondent: Sunday Independent

Complaint

Credit Ombudsman Manie Van Schalkwyk complains about a story on page 5 in the Sunday Independent, published on August 21, 2011and headlined Hawks investigate complaints – Allegations of a conflict of interest and corruption against Credit Ombudsman.

Van Schalkwyk complains that the:
• sub-headline misrepresents the story;
• journalist did not verify her information with a reliable source; and
• story omitted denials of the allegation that he had received funding from the NCR when the reporter realized that her original information was incorrect.

Analysis

The story, written by Gcwalisile Khanyile, is about complaints by debt counsellor Reginald Matjokana against Manie (the story misspells his name – “Mannie”) van Schalkwyk (for conflict of interest), against former National Credit Regulator (NCR) CEO Gabriel Davel (for maladministration) and against senior manager of education and strategy Peter Setou (for corruption). The story says that Matjokana lodged these complaints with the Public Protector and the Hawks.

Regarding Van Schalkwyk, Khanyile writes that he:
• was listed as a member of the NCR’s main board and of some sub-committees;
• in one of the sub-committee meetings allegedly requested to extend his mandate to include dealing with complaints in terms of the National Credit Act and asked for funding from the NCR (implying that he was serving his personal interest rather than that of the NCR);
• recommended his request to the main board, “again without recusing himself”;
• denied that he was taking away complaints from the NCR; and
• asserted that he rather worked in co-operation with the NCR.

The story also says that this request was turned down by other members of the main board.

I shall now look at the merits of the complaint:

Sub-headline misleading

The sub-headline reads: Allegations of a conflict of interest and corruption against Credit Ombudsman.

Van Schalkwyk complains that the sub-headline mentions an allegation of corruption against him, whilst the story does not do that. He says that the sub-headline therefore misrepresents the story and argues that this was done to sensationalise the matter, arguing that his reputation and that of his office was consequently damaged.

He argues that this breaches the following articles of the Press Code:
• Art. 5.1: “Headlines…shall give a reasonable reflection of the contents of the report…in question”;
• Art. 1.1: “The press shall be obliged to report news truthfully, accurately and fairly” (as he denies that there was ever any allegation of corruption against him); and
• Art. 1.2.1: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from facts whether by distortion, exaggeration or misrepresentation…”

The Sunday Independent admits that the inclusion of the words “and corruption” in the sub-headline was an error for which the newspaper would apologise – even if this office does not direct it to do so. However, the newspaper argues that this mistake was an innocent error, “made by sub editors in the unfortunate rush to meet deadline”. The editor, Makhudu Sefara, adds that, had Van Schalkwyk alerted him to this error, this mistake would already have been corrected. He denies that the error was intentional and meant to sensationalise the story.

Sefara argues that his newspaper is a “serious product written for thoughtleaders and policy makers, in the main”. He explains that his readers would justifiably feel cheated that the sub-headline promises more than it delivers, and adds: “…if we engage in such stratagems to raise expectations only to disappoint readers, we, the people who put the paper together, would lose credibility in the eyes of these engaged readers”.

The editor concludes that it was not in the newspaper’s interest to be making such an error and that it is therefore not logical that the mistake was made with an intention to harm Van Schalkwyk. “The plain truth is that we erred and we are truly regretful.”

In his reply to the newspaper’s response, Van Schalkwyk says that he is inclined to give the editor the benefit of the doubt “and thus accept Mr Sefara’s explanation that the subheading was an ‘innocent error’ and (also) accept his willingness to apologise for the damage done to my reputation and (to) that of our organization”. However, he says that he is a “bit puzzled” that the editor places the blame on him for not alerting him to this error. He explains that he did not see the story or the sub-headline before it was printed and argues that it was therefore impossible for him to request a correction of the error. He states that this “innocent error” was still in violation of Art. 5.1 of the Code.

These are my considerations:
• The word “corruption” in the sub-headline is not reflective of the story;
• I accept that the word “corruption” is inaccurate;
• I accept the newspaper’s explanation of how this error came to be;
• I therefore also accept, without reservation, the editor’s assurance that it was an “innocent error” and that the newspaper did not intend to harm or sensationalise the story;
• I am grateful that the Sunday Independent offers to apologise for this error, even if this office does not ask it to do so;
• An apology would indeed be appropriate, even though the error was not intentional – a mistake remains a mistake; and
• The newspaper’s willingness to apologise to Van Schalkwyk for this error is testimony to the fact that it realizes that it has caused him and his office unnecessary harm.

Lastly, let me note that the editor did not expect Van Schalkwyk to alert him to the problem prior to publication or to have placed the burden of getting the facts right on him (as the editor points it out in later correspondence). What he meant was that he would have corrected the (published) mistake, had he known about it.

Information not verified

Van Schalkwyk complains: “The journalist/editor…printed the article about allegations of conflict of interest against the Credit Ombudsman despite the fact that I provided her with a reliable source to verify the truth of the allegations.” (He refers to the NCR’s chairperson, Adv Pansy Tlakula.)

He argues that verification was necessary because the journalist’s information proved to be incorrect and misleading and adds that Khanyile should have doubted the accuracy of her original information. He says that, by not verifying the truth with a reliable source, he believes that there was an intentional or negligent departure from the truth.

Van Schalkwyk adds that Khanyile did not verify the rest of the information or allegations about him (regarding conflict of interest and non-recusal from a NCR board meeting).

The Sunday Independent replies that the story says that Van Schalkwyk’s request for funding was turned down – and that it therefore could not have inferred that he indeed received some money. It says: “The point we make is that he did make an ill-fated attempt (to obtain funds). We received this not just from Matjokana, but from another source close to the developments.” (I note that the story does not refer to this second source.)

The editor adds that:
• when the journalist confronted Van Schalkwyk about this, he evaded the question and passed the buck (Van Schalkwyk referred the reporter to Tlakula);
• the story merely reported a claim that a whistleblower has asked some government institutions to probe;
• the newspaper did contact Tlakula;
• the NCR did not provide the newspaper with useful feedback on matters relating to Van Schalkwyk; and
• the crux of the story was merely that some actions by three individuals, linked to and including Van Schalkwyk, led to the investigations.

In his reply to the newspaper’s response, Van Schalkwyk denies that he has “passed the buck” and argues that he merely followed the rules of the board. He also lists two identical emails by Khanyile – one directed to NCR media officer Lebo Selibi, but addressed to Tlakula, the other one sent directly to Tlakula’s email address. He concludes that the editor’s assertion that the reporter did follow up with Tlakula is “disingenuous and divorced from the truth”, because the questions were based on the (false) assumption that his office has received money from the NCR. He argues that the email directed to Selibi cannot be construed as a proper “follow up”.

The Sunday Independent counters that it indeed sought Tlakula’s response. The editor says: “…at the time he (Van Schalkwyk) ‘directed’ us (to Tlakula), we were…already in communication with Tlakula’s office…” He states that the important question is whether or not the newspaper sought comment from relevant people, adding: “And we did.”

The newspaper also insists that Van Schalkwyk has passed the buck. The editor states: “There are questions that relate to him, that he needed to answer but chose not to.” Sefara argues that Van Schalkwyk therefore cannot claim to be a victim because the newspaper could not get a satisfactory response from the people he referred it to. “He had a responsibility to himself… Where he is personally accused, he can’t legitimately expect the Board to answer on his behalf”.

So let’s now take a closer look at the relevant correspondence:

In the emails Khanyile firstly states that Van Schalkwyk has announced that he had extended his mandate to take away debt counselling complaints from the NCR and handle them himself. She then asks how did he manage to obtain a R1 million a month funding from the NCR when he is a board member of that organization. She also wanted to know how the board could have sanctioned such a payment.

The reporter then states that, to her knowledge, Van Schalkwyk did not recuse him from the discussions about the funding and asks why the board agreed to outsource its legislative responsibility.

These are my considerations:
• It is not true that Van Schalkwyk did not provide the newspaper with useful feedback regarding himself – although he did not respond to all the questions, the story reports at least one of his comments;
• Van Schalwyk’s argument that the reporter’s questions in this correspondence were based on false assumptions may be true, but it cannot be valid – indeed, one of the reasons why reporters ask questions is to get to the truth, and may in this process discover false assumptions;
• Khanyile did her duty in sending two emails to the person who really mattered, namely the NCR’s chairperson – Van Schalkwyk’s complaint that the newspaper published the story despite neglecting to contact a reliable source to verify the truth of the allegation therefore does not hold water;
• The issue of a “follow up” and of “passing the buck” are neither here nor there as the fact remains that the reporter did try to establish the truth, timeously prior to publication and with the right person – which is all that really matters; and
• Khanyile did raise the issues of Van Schalkwyk’s alleged non-recusal from a NCR board meeting and a possible conflict of interest with both himself and Tlakula – Van Schalkwyk did not reply to these questions, and Tlakula denied them by implication.

Omitting information

Van Schalkwyk complains that the journalist omitted denials of the allegation that he had received funding from the NCR when the reporter realized that her original information was incorrect.

I believe that this denial implied that Khanyile’s question regarding Van Schalkwyk’s alleged lack of recusing himself, as well as her question as to how the board could have sanctioned his request for funding became largely irrelevant.

Tlakula also denied that the board outsourced its legislative responsibility.

Khanyile did not report any of this.

It certainly would have been better if she did. However, the crux of the matter is that the story does not say that Van Schalkwyk has received money from the NCR – all it says, is that he has requested funding from that organization. I note that Van Schalkwyk does not deny that he has requested money, only that he has received money – which the story indeed does not say.

Also, the story does report that Van Schalkwyk’s request was denied (although Khanyile does not report where this information came from). This denial implies that he did not receive any money from the NCR.

Therefore: Because the story does not report any allegation that Van Schalkwyk has received money from the NCR, it was not necessary for the journalist to publish his denial to this effect.

The story does not report Tlakula’s denial that the board has outsourced its legislative responsibility. However, this denial is covered by the quote from Van Schalkwyk that materially says the same.

Finding

Sub-headline misleading

The sub-headline is in breach of Art. 5.1 of the Press Code that states: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”

I accept that Van Schalkwyk was not accused of corruption, which makes the use of that word untruthful, inaccurate and unfair. This is in breach of Art. 1.1 of the Code that says: “The press shall be obliged to report news truthfully, accurately and fairly.”

Even though I accept that this mistake was unintentional, a mistake remains a mistake – one that has caused Van Schalkwyk unnecessary harm.

Information not verified

This part of the complaint is dismissed.

Allegation, denial omitted

This part of the complaint is dismissed.

Sanction

The Sunday Independent is directed to publish a prominent apology to Van Schalkwyk for wrongly stating in the sub-headline that there was an allegation of corruption against him as this has caused unnecessary harm to him and to his office.

The newspaper is directed to publish the following text on page 5 (at least the headline should be above the fold; if there is no appeal, this should be published on November 6 or, at the latest, on November 13):

The office of the Press Ombudsman has directed us to apologise to Credit Ombudsman Manie Van Schalkwyk for falsely stating in a sub-headline that he was being investigated for corruption.

Van Schalkwyk lodged a complaint with the Press Ombudsman about a story headlined Hawks investigate complaints – Allegations of a conflict of interest and corruption against Credit Ombudsman (21 August 2011).

He complained that the sub-headline misrepresented the story, that the journalist did not verify her information with a reliable source, and that the story omitted denials of the allegation that he had received funding from the NCR.

The story, written by Gcwalisile Khanyile, was about complaints by debt counsellor Reginald Matjokana against three people – an action that led to investigations against them by the Public Protector and the Hawks. We reported that Van Schalkwyk was being investigated for a conflict of interest.

Deputy Press Ombudsman Johan Retief found that we breached the Press Code by stating in the sub-headline that there was an allegation of corruption against Van Schalkwyk – not only did the story not mention or imply corruption, but it was also factually incorrect as Van Schalkwyk had never been accused of or investigated for such an offence.

He said that although he accepted that this mistake was unintentional, an error remained an error – one that has caused Van Schalkwyk and his office unnecessary harm.

Retief dismissed the rest of the complaint. He found that:
• our reporter did timeously try to verify her information with a reliable source; and
• it was not necessary for us to have published Van Schalkwyk’s denial that he had received money from the NCR as we did not report that specific allegation – we only reported that he has requested money, a request that reportedly was refused.

We hereby apologise to Van Schalkwyk for stating in the sub-headline that there was an allegation of corruption against him (that was being investigated).

Visit www.presscouncil.org.za (rulings, 2011) 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, 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 contacted at Khanyim@ombudsman.org.za.

Johan Retief
Deputy Press Ombudsman