Oasis Holdings vs. Rapport

Complainant: Oasis Holdings

Lodged by: Mr Jay Henning

Article: Gebou moet plat, eis Kadalie (Building should be flattened, demands Kadalie)

Date: 25 April 2011

Respondent: Rapport

Complaint
Asset management investment provider Oasis Group Holdings complains about a story in Rapport, published on February 6, 2011 and headlined Gebou moet plat, eis Kadalie (Building should be flattened, demands Kadalie).
Oasis complains that Kadalie did not base her opinions on all available, material facts.
Henning says this includes the following statements or insinuations in the story that are inaccurate and/or untrue and/or misleading, namely that:
  • Oasis Asset Management owns the office building in question;
  • the office building was built in the 1700s;
  • the manor house was made unstable by a nearby development;
  • there were more than 211 legal objections out of more than 300 households against the building;
  • Oasis was being forced to rebuild the historic building; and
  • the building should be demolished.
Oasis adds that Kadalie insults the Western Cape legal system as well as the Press Ombudsman, and that the newspaper should seek its views in future.
Analysis
The story, written by Marlene Malan, says that human rights activist Rhoda Kadalie has no confidence in the South African legal system. This is why Kadalie reportedly believes she would not win a law suit against Oasis – even though she believes she has a strong case. Kadalie explains that Oasis was previously financially involved with Judge John Hlope. “…he can appoint a judge of his choice to hear my case. What guarantee do I have for transparency?” Kadalie objects to Oasis that has established an office building in the suburb of University Estate in Cape Town (Kadalie is well-known for her opposition to this development). The story says that Oasis, in order to develop there, had to demolish a historic manor which dates back to the 1700s.
I shall now consider the merits of the complaint:
Opinion not taking fair account of all available, material facts
Oasis complains about a whole list of alleged “inaccuracies” (see above and below) uttered by Kadalie, saying that she clearly did not make an attempt to check her facts. It adds: “…we are further of the firm belief that her motives are malicious and dishonest. She operates with mala fides and is searching for every forum to make an utterance that is an attempt to damage our reputation and good standing.”
Oasis reminds me that I (in December 2010) reprimanded Business Day regarding a column by Kadalie about the same issue. (I found that she had ignored material facts that were readily available and that she had portrayed untruths as facts.) Oasis adds that Kadalie consequently misused the Rapport to spread her lies.
These “lies”, Oasis says, include the statements that:
  • Oasis owns the office building;
  • the office building was built in the 1700s whilst, in fact, it was built in 1929;
  • the manor house was made unstable because of building activity that took place nearby (Kadalie was “aware” that experts found that this was not the case);
  • more than 211 legal objections to the development out of 300 households were received – Oasis says there were many duplicated objections and that only 31 actual objections were lodged, adding: “A detailed and onerous review was run with a tribunal and all 31 objections were dismissed as they had no merit…”;
  • Oasis was forced to rebuild the historic building, whilst it had always “planned and explained that it would rebuild (it)”; and
  • Kadalie wanted the entire building to be demolished – but there are “obviously no grounds to demolish the development”.
Rapport replies that:
  • many of the issues mentioned above are Kadalie’s opinion and that the story presents them as such;
  • it is Kadalie’s right to have an opinion on the above-mentioned matters;
  • Oasis should not conclude that Kadalie is malicious just because she disagrees with the organisation;
  • it does not try to defend Kadalie – the story includes enough facts regarding both parties for the public to make up its own mind;
  • it is concerned that Oasis’ complaint borders on an attempt to censorship (Oasis asks Rapport’s editor to “never allow her utterances in Die Rapport paper again until she has verified them”); and
  • nowhere does the story state that the office building belongs to Oasis.
The main issue in the complaint against Business Day was 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.”
(Kadalie was given a chance to explain where she got her information from regarding many of the matters mentioned above and to tell our office on what she based her opinion on, but she refused to do so.)
However, the complaint at hand is materially different – Malan’s article is not a column, as the one in Business Day, it is a news story. Art. 4.3 of the Code therefore does not apply here, as that clause deals with comment by the press. This time, Kadalie is not the (opinionated) writer, but the subject of reportage. She is free to air her views to Malan (within the boundaries of the country’s Constitution, of course).
Note that only publications can be found to breach the Press Code; such a finding can never be against a member of the public. It is publications that subscribe to the Code and not members of the public.
So, Rapport:
  • merely reflects Kadalie’s opinion, to which she has a right (even though she may have been wrong or may have been lying);
  • indeed does not present her views as facts, but as her opinion (with the exception of one sentence, to which I shall come shortly);
  • had a right to publish Kadalie’s views; and
  • cannot be expected to decide if a subject of its reportage is lying before going to print (if that was the case, publications may have difficulty in filling their pages…)
The above-mentioned sentence in question reads: “To be able to do so, Oasis demolished a historic manor, Rocklands House, which dates back to the 1700s”. This sentence is not attributed to Kadalie, but it is presented as a fact.
Two issues are relevant here – the demolishing of the manor, and the dating back to the 1700s.
Firstly, it is true that Oasis “demolished” the manor. However, it is also true that Oasis said in a published “statement” (which Malan used as a source for this story – the nature of this statement will become clear shortly) that it “confirmed its continued commitment to the complete restoration of the manor house”. In fact, it mentions its intention to restore the manor more than once in that document.
When there is an “A” and a “B”, it is not acceptable for a publication to mention the “A”, but then to omit the “B”.
Also, consider the following:
  • Having read the Business Day finding, Malan knew that I wrote: “It is also reasonable to accept that this “fact” (the manor being built in the 1800s) is quite possibly not true, and that the information (to the contrary) was readily available.”
  • Suddenly, the “1800s” mentioned by Kadalie in her Business Day column now becomes the “1700s”.
With regard to mala fides, the following should be said:
  • Given Oasis’ obvious frustration with Kadalie, its contention that she is acting out of malice is understandable;
  • As I do not have all the facts at my disposal, I am in no position to find that she did act out of malice; and
  • Even if she did act out of malice, she is not breaching the Press Code – and neither is the newspaper for reporting her “malice”.
Insulting to the legal system
The intro to the story reads: “She (Kadalie) has no confidence in the South African legal system.” This is reportedly the reason why she does not believe that she can win against Oasis “who are known to have previously been financially involved with the Cape judge president”. The story also says that Oasis had too much influence over the Western Cape legal system for her to win a court case.
Oasis complains that this is an insult to the entire legal system. It adds: “For her to claim that Judge Hlophe would prevent a fair trial in court is a defamatory comment. It accuses both Judge Hlope and Oasis of being bound to operate in an illegal manner which is certainly not true.”
The same argument used above is valid here: It is Kadalie’s right to have no confidence in the country’s legal system, to accuse Oasis of having too much influence over this system, and to express that opinion. It was also the newspaper’s right to publish her opinion.
This is not to say that Kadalie is correct.
Insulting to the Press Ombudsman
The story quotes Kadalie as saying that our office (I, in this case) does not understand urban planning principles and that she was fired as a weekly columnist for Business Day for refusing “to deliver an apology”.
Oasis says that this is disrespectful of our office.
Again, Kadalie has a right to her opinion – even though the complaint against Business Day had nothing to do with “understanding urban planning principles”. She was the subject of reportage and she had the right to be disrespectful (if she was) of our office.
Kadalie also has a right to be wrong about refusing to “deliver an apology”. Wrong, because neither I nor the newspaper ever asked her to apologise. We merely asked her to explain the basis for her statements in the column (which she refused to do). I did not even ask the newspaper to apologise. In any case, a complaint is always directed at a publication and never at a journalist or columnist. If any apology is due, it should come from the publication.
Lastly, with reference to my ruling against Business Day (that Oasis colluded with city planning officials from the Cape Town municipality), Malan quotes me as saying: “It is possible that it is not true.”
This is not what I wrote – I said that it was “quite possibly not true”. The omission of the word “quite” misleadingly softens the finding.
Malan also incorrectly refers to me as “the press ombudsman”. Joe Thloloe is the press ombudsman; I am the deputy press ombudsman (as the ruling twice indicates).
The Business Day finding is published on the Press Council’s website (www.presscouncil.org.za – rulings, 2010).
Asked for comment
Oasis says that Rapport should undertake to in future obtain the views of Oasis and publish balanced stories that reflect “all aspects”.
Rapport interprets this to mean that Oasis did not complain about not being given enough opportunity to comment.
Oasis refutes this, saying that the essence of its objection is that it did not get a fair opportunity to respond.
Be that as it may, even if Oasis did not mention this issue at all, I would in any event have considered this matter.
The story includes four sentences of comment gained from Oasis. In a “statement” (this is Rapport’s word) it reportedly says that:
  • Kadalie made “inaccurate and misleading statements” in letters to newspapers and her newspaper column;
  • it has kept to all legal requirements;
  • it has appointed an approved heritage architect; and
  • it has repeatedly emphasized that the historic house will be completely restored.
This statement was published following a letter by Kadalie, published on 24 June 2010, to the editor of the Cape Argus. In this statement, Oasis objects to “inaccurate and misleading statements and serious allegations” made by Kadalie, adding that she had ample time and opportunity to consult it prior to making any allegations. The statement also says that Oasis has abided by all processes and legal requirements set by the authorities, including the appointment of an approved heritage architect. It also confirms its “continued commitment to the complete restoration of the manor house.”
It is important to note that Oasis’ statement does not go into any more detail. For example, it does not address the issues that the present complaint does.
Rapport admits that Malan did not ask Oasis for comment and said that it instead used the “statement” mentioned above.
Malan clearly thought that it would suffice to use the statement, even though:
  • it was published some eight months prior to her story; and
  • the specific issues mentioned by Kadalie were not addressed in that statement.
This is far from adequate.
The Press Code is quite specific about the need to ask the subject of serious critical reportage for comment. The fact that Malan knew about the Business Day finding aggravates her negligence in this regard – she knew that it was found that Kadalie had ignored material facts that were readily available and that she had portrayed untruths as facts. Malan was under an obligation to ask Oasis for comment.
To be more specific: In the Business Day finding, I stated that it was reasonable to accept that the following statements by Kadalie are “quite possibly not true” and that information (to the contrary) was readily available:
  • That the building dated from the 1800s (in Malan’s story, this becomes the 1700s);
  • That Oasis was aided and abetted by city officials; and
  • That residents had legitimate appeals.
Kadalie repeats these questionable statements in her interview with Malan – and yet she neglects to ask Oasis for comment.
It should be said that, three weeks after the publication of Malan’s story, Rapport published a letter by Henning, bulleting the following “factual inaccuracies” in the story: that Oasis does not own the office block in question; that the building was not erected in the 1700s but in 1929; that the construction work was not the cause for the manor house’s instability; that no developer at Oasis ever had any ties with Judge Hlope; and that the objections against the Oasis building were rejected.
Rapport says that it is prepared to publish text that includes all of the above.
General comment
It is easy to start believing information if it is repeated often enough.
We have here only one of two scenarios: Either Kadalie is right, or Oasis is. Never the twain shall meet, it seems.
If Kadalie is right, there is no problem as far as the press is concerned. In that case, the harm caused to Oasis by Kadalie and the press is well-earned. However, if she is wrong, the harm caused to Oasis is extremely unfair.
My task is not to decide who is right and who is wrong; it begins and ends with adjudicating the quality of reportage.
Finding
Opinion not taking fair account of available, material facts
It is not expected of the subject of reportage to take fair account of all available facts that are material to an issue or to uphold the Press Code. This part of the complaint is dismissed.
The statement that Oasis “demolished” a historic manor is presented as a fact and not as an opinion. The fact is true, but it is also true that Oasis stated more than once that it was committed to the restoration of the building. This is in breach of Art. 1.2 of the Press Code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarisation.”
The statement that the historic manor, Rocklands Villa, was built in the 1700s is presented as a fact. The reference to the 1700s is most probably not accurate, which 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.”
Insulting to the legal system
It is Kadalie’s right to have no confidence in the country’s legal system, to accuse Oasis of having too much influence and to express that opinion. This part of the complaint is dismissed.
Insulting to the Press Ombudsman
Kadalie has a right to her opinion. This part of the complaint is dismissed.
Malan’s omission of the word “quite” (in the Business Day finding) misleadingly softens the finding. This is in breach of Art. 1.2 of the Press Code.
Asked for comment
Rapport should have asked Oasis for specific comment on specific allegations and published this comment and was negligent to use a document that does not contain specific denials to the specific allegations made by Kadalie. This is in breach of Art. 1.5 of the Press Code that states: “A publication should usually seek the views of the subject of critical reportage in advance of publication…”
Sanction
Rapport is reprimanded for:
  • omitting to report that Oasis said that it intended to restore the demolished manor;
  • stating that the historic manor was built in the 1700s;
  • omitting the word “quite” in the phrase “It’s possible that it is not true”; and
  • not asking Oasis for comment on specific allegations made by Kadalie.
The newspaper is directed to publish this reprimand.
This text should include a summary of the finding (not the whole ruling) and sanction, and that Rapport already published a letter by Oasis in which it was pointed out that:
  • Oasis does not own the office block in question;
  • the building was not erected in the 1700s but in 1929;
  • construction work was not the cause for the manor house’s instability;
  • no developer at Oasis ever had any ties with Judge Hlope; and
  • the objections against the Oasis development were rejected.
Our office should be furnished with the text prior to publication.
Please add the following sentence at the end of the text: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding.”
 
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 khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman

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