Vuyokazi Mbelani and Vuyani Mthimkhulu vs Daily Dispatch

Complainant: Vuyokazi Mbelani and Vuyani Mthimkhulu

Lodged by: Vuyokazi Mbelani and Vuyani Mthimkhulu

Article: Ngqushwa’s half a million bill mystery – Bisho wants answers on consultant’s invoices, and Mlibo’s deployee helps to hire herself to top job.

Author of article: Aphiwe de Klerk

Date: 17 December 2013

Respondent: Daily Dispatch

COMPLAINT

Mbelani and Mthimkhulu complain about two stories in Daily Dispatch, published on 17 and 25 October 2013, headlined Ngqushwa’s half a million bill mystery – Bisho wants answers on consultant’s invoices, and Mlibo’s deployee helps to hire herself to top job.

They complain about the first story that the:

·         documents that the article were based on were unlawfully removed from the municipal offices;

·         statement that  Mthimkhulu had been permanently contracted was incorrect;

·         statement that Mbelani had personally asked for the former to be hired was incorrect;

·         journalist refused to utilize press statements issued, and misquoted and/or twisted Mbelani’s words;

·         journalist was rude and aggressive towards Mbelani;

·         reporter sensationalized on the hours worked by Mthimkhulu regarding an hourly rate of R1 000, and the total of hours that he worked;

·         journalist failed to mention kilometer rates by Public Works, and that the distance Mthimkhulu traveled was presented as unreasonable and unfounded; and

·         heading was intended to create the misleading impression that there was corruption at the municipality.

They complain about the second story that the:

·         reporter misrepresented the facts of Mbelani’s appointment; and

·         headline sensationalised the issue.

TEXTS

Both stories were written by political reporter Aphiwe de Klerk.

The first story said that the Ngqushwa municipality had paid over half a million rand to Mthimkhulu for services relating to budgets, human resources and other issues over a period of four months; the second story reported that Mbelani had allegedly been involved in the process that saw her appointed for the post of municipal manager.

ANALYSIS

First story

Documents unlawfully removed, published

Mbelani and Mthimkhulu complain that the documents that the article were based on were unlawfully removed from the municipal offices.

Daily Dispatch replies that the documents were leaked to its journalist, a “normal practice in the industry”, and denies that this was either unethical or unlawful.

The complainants reply that the documents, in particular some bank statements, were reported to the police as stolen property. “How can it not be unethical or unlawful to utilize documents that were obtained under criminal circumstances?”

Section 1.1 of the Press Code says: “News should be obtained legally, honestly and fairly, unless public interest dictates otherwise.” (emphasis added)

Therefore, even though this information may have been obtained illegally, there is nothing in the Code that prohibits the publication of such information – if it was in the public interest to do so. In this instance, I submit that there was a clear public interest in this matter as taxpayers’ money were involved.

Incorrect statement (1)

De Klerk reported that the municipality had employed Mthimkhulu “permanently”.

The complainants deny this.

Daily Dispatch concedes that the statement that Mthimkhulu was permanently hired was incorrect – “the error was introduced during editing and should [instead]have referred to Mbelani”.

The complainants reply that this error was unacceptable as it had negative repercussions on the good name and reputation of both the municipality and Mthimkhulu. “To merely blame [the mistake]on editing is unacceptable and a poor reflection on…the newspaper…”

I have no reason to disbelieve the newspaper on this issue, and therefore accept that the mistake slipped in during the editing process. However, the public does not (and should not) care about all the journalistic processes that take place prior to publication. All that matters to the readers is the end-product.

Careless editing can also be in breach of the Press Code.

Incorrect statement (2)

De Klerk reported that Mbelani had personally asked for Mthimkhulu to be hired.

The complainants deny this.

Daily Dispatch says that Mbelani, in subsequent conversations with the reporter, owned up to the re-engineering strategy which led to Mthimkhulu’s hiring. It adds that Mbelani on one occasion said: “The contract I entered into with the municipality says ‘tools of trade’. For me to carry out these things, I will always say, if tomorrow we need a tourism expert, I will go and find a tourism expert because I need that to get the municipality out of here.”

The complainants reply that it was incorrect to have stated that Mbelani “personally” requested Mthimkhulu’s services. The “tools of trade” that the newspaper refers to was not that of Mbelani, but rather that of the Council. “That fact is corroborated by the Council resolution to appoint Mthimkhulu to provide support to the municipal manager.”

The newspaper’s defence on this point is rather weak. It does not in any way prove that Mbelani asked for Mthimkhulu’s hiring – all it does, is that she in fact wanted to employ a tourism expert. I also note that the story stated this accusation as fact, and not as an allegation.

In this instance, I do believe that the story has caused Mbelani some unnecessary harm. This will be reflected in the sanction.

Press statements misquoted, twisted

Mbelani and Mthimkhulu complain that the journalist refused to utilize press statements issued, and misquoted and/or twisted the former’s words.

Daily Dispatch denies that either the political editor or the news editor ever received a press statement from Mbelani. “The reporter acknowledges that she said she sent it, but no statement ever arrived from her.” The newspaper says that the quotes attributed to Mbelani were based on conversations with her and argues that there was no substance to the allegation that its reporter had “twisted” her words. It adds that it did receive a statement from Mthimkhulu, who said that his hiring had not been illegal.

The complainants maintain that a statement was indeed sent to the newspaper. Mbelani adds that she phoned the journalist to inform him of the press release – yet the newspaper anyway went ahead to publish the article without acknowledging this document or the municipality’s input. “This merely underlines the intent of the reporter and his flagrant disregard for the basic ethical requirements for responsible reporting.”

I am in no position to decide if the newspaper indeed received this statement or not.

Rude, aggressive

Mbelani and Mthimkhulu complain that the reporter was aggressive and rude to the former.

Daily Dispatch denies these allegations – it says that the conversation was spirited and the journalist’s questions were justifiably rigorous, but adds that a “professional air” was maintained at all times.

Mbelani replies that the reporter “simply spoke down” any endeavour she made to correct him or to respond. “There was blatant rudeness and disregard for any attempt…to correct his perception or to get him to read the press release.” She maintains that the journalist’s conduct was unprofessional, bullying, intimidating, reprehensible, and cowering her.

This aspect of the complaint falls outside the scope of the Press Code.

Sensationalising hours worked, payment

The story said that Mthimkhulu had been:

·         billing the municipality “an hourly rate of R1 000”; and

·         paid R592 295 for the period between May 26 and the end of August 2013.

The complaint is that this reportage sensationalized both these matters “as though [they]had no Council sanction”.

Mbelani says that the undertone of the reporting of the hourly rate was as though there could have been a better rate – while overlooking the information sent by her to the newspaper. She adds that the reporter further sensationalized on the hours worked by Mthimkhulu without any basis to substantiate the reporting. “How many hours should Mthimkhulu have worked? Does the journalist have any basis for mentioning that and what was its purpose?”

Daily Dispatch replies that it presented both these aspects of the story as matter of fact, as a means of helping the reader to arrive at the overall figure invoiced by Mthimkhulu. “It is necessary detail and was presented as nothing other than a set of numbers reproduced from official documents.” And: “It was perfectly reasonable to publish such figures as they compromised Mthimkhulu’s earnings, the very basis of the story.”

Mbelani and Mthimkhulu reply that the facts were wrong regarding the period of work and the payment – the journalist based his whole story on a one-sided, unfounded allegation without verification. “To work an 8 hour day is normal in any work situation and there is no reason to make an issue of this save to create sensationalism.” A proper investigation would have ascertained the facts.

I note that the complainants did not stipulate in their original complaint that the “facts were wrong” about Mthimkhulu’s period of work and his payment – they only stated that the story “sensationalized the matter”. Based on that, I do believe that the figures as quoted in the story were correct, and that Daily Dispatch merely fulfilled its duty as part of the Fourth Estate. I therefore submit that the alleged “sensationalizing” thereof had no legs to stand on.

Failing to mention kilometer rates; distance travelled

De Klerk reported that Mthimkhulu had charged the municipality R16 135 for travelling a distance of 2 160 km between Port Alfred and Peddie (between May 26 and June 7) at a rate of R7.47 per km.

The complaint is that this insinuation was unreasonable and that these statements misrepresented the facts. The complainants say that a single trip between Peddie and Port Alfred amounted to 90 km. If one multiplies that by two, and by 12 days, the answer was 2 160 km. “At the rate of R7.47 per kilometer (km rates paid by Public Works, which the journalist failed to mention)…the journalist would have found the answer to be R16 135.20.”

The complainants ask what benchmark the journalist used for making the last statement, taking into account that Mthimkhulu had to travel to Peddie and back.

Daily Dispatch replies that:

·         it was not necessary to mention rates paid by Public Works “because there was no comment to suggest the rate itself was irregular”;

·         its reportage, which was common practice, helped readers to “understand the constituent parts of the overall claim”, and argues that such details added to the credibility of reports; and

·         the complainants admitted that the distance had been 2 160km, “which is what we stated” (and which had been derived from official documents).

Mbelani and Mthimkhulu reply that this reportage further sensationalized the matter, and state that the manner in which the reporter (intentionally negatively) projected the total kilometers as “excessive” further sensationalized the already one-sided story.

This part of the complaint is rather baffling – based on the complainants’ own calculations, the information that they complain about was indeed correct. If these figures were “sensational”, the blame for that should not be laid at the newspaper’s door.

Misleading headline

Mbelani and Mthimkhulu complain that the headline was intended to create the misleading impression that the municipality was engaged in corruption.

Daily Dispatch replies that the story intended to question how a municipality with limited finds saw it fit to spend nearly R600 000 on one consultant for four months of work. “It is valid to raise this aspect in the circumstances. There was no suggestion in the headline of corruption.”

Mbelani and Mthimkhulu reply that the facts were wrong regarding the period of work and the payment. The word “mystery” alluded to something that had been irregular or unlawful/corrupt – while there was no mystery at all, as Council processes were followed to the letter. “How many hours Mthimkhulu should have worked to ‘eliminate the mystery’?”

The headline reflected the information contained in the story, which was arguably substantially correct. This adheres to the Press Code. I also specifically accept the use of the word “mystery” – the newspaper merely wanted to get the question across of how it was possible for a municipality that struggles financially to spend that amount of money on one person during such a short space of time.

Second story

Misrepresenting appointment

The story said that Mbelani was allegedly involved in the process “that saw her being hired for the post” of municipal manager – “leading to some employees…saying she hired herself”.

Mbelani says that the journalist’s information was based solely on the data supplied by disaffected employees with the specific intention to cause harm and damage to her. She states that the process to appoint a municipal manager were clearly laid down in Local Government Legislation – this process was “followed to the letter”. She adds that, once Mbelani expressed an interest in applying for the post, she in fact withdrew for any involvement in the process (which unfolded in terms of the Council selection policy).

She confirms that she had applied for the post and says that she was appointed to it “in terms of the legislative process and the fact that she was seconded to the post does not preclude this right”.

Daily Dispatch replies that it had reason to investigate Mbelani’s appointment process as three independent sources within the municipality said she had drafted the advert for her post. “That would present a clear conflict of interest.”

The newspaper adds that it quoted the mayor as saying that the appointment process had been followed to the letter – while Mbelani herself declined to comment on this issue. It adds that Local Government SG Stanley Khanyile was quoted as saying that they had refused to ratify Mbelani’s appointment until further documentation was forthcoming from the municipality. Khanyile also objected to the idea that a senior municipal employee might pave the way for his/her own appointment or benefit.

Mbelani denies that there was any conflict of interest as the advertisement had been drawn up strictly in accordance with local government legislation “and in no way could have advantaged any candidate irrespective of who they were”. She adds that Khanyile reportedly said that there was nothing in the municipality’s constitution that prevented anyone from applying for a post as advertised.

These are my considerations:

The word “allegedly” is not always strong enough to warrant a newspaper to publish a statement, as there has to be some kind of substance, or possible substance to the assertion.

In this case, however, the allegation that Mbelani had been at least partly responsible for or involved in the advertisement, coupled with the fact that she eventually was appointed in the position, surely may have led to speculation that she was involved in her own appointment.

If the story stated this allegation as fact, it would have been a different matter. However, the article consistently ascribed the accusation to (the opinion of) sources.

Given this context, the journalist was justified to publish these allegations as allegations.

Sensationalising the headline

The complaint is that the headline sensationalised the issue, misrepresented the facts and tried to damage their reputation without any factual basis.

Daily Dispatch replies that the heading “encapsulated the obvious conflict of interest”.

This is not correct. While de Klerk was careful enough never to report the “obvious conflict of interest” as fact, but consistently reported it as an allegation, the headline went further in that it stated the allegation as fact. That is not in accordance with the Press Code.

I do take into account that the headline did not state that Mbelani hired herself, but merely that she helped to hire herself. Be that as it may, it still amounted to an allegation that was presented as fact.

Again, I believe that this has caused Mbelani unnecessary harm.

FINDING

First story

Documents unlawfully removed, published

This part of the complaint is dismissed.

Incorrect statement (1)

The statement that the Ngqushwa municipality had employed Mthimkhulu “permanently” was incorrect. This is in breach of Section 2.1 of the Press Code that says: “The press shall take care to report news…accurately…”

Incorrect statement (2)

The statement that personally asked for Mthimkhulu to be hired was unsubstantiated and cannot be accepted as truthful.  This is in breach of Section 2.1 of the Press Code that says: “The press shall take care to report news truthfully…”

Press statements misquoted, twisted

There is no finding on this aspect of the complaint.

Rude, aggressive

This part of the complaint is dismissed.

Sensationalising hours worked, payment

This part of the complaint is dismissed.

Failing to mention kilometer rates; distance travelled

This part of the complaint is dismissed.

Misleading headline

This part of the complaint is dismissed.

Second story

Misrepresenting appointment

This part of the complaint is dismissed.

Sensationalising the headline

The headline erroneously stated the allegation that Mbelani had been involved in the process that saw her being hired for the post of municipal manager as fact. This is in breach of Section 10.1 of the Press Code that says: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”

SANCTION

Daily Dispatch is directed to apologise to Mbelani for:

·         untruthfully and without substance stating as fact that she had personally asked for Mthimkhulu to be hired (first story); and

·         for publishing in a headline the allegation that she had helped to hire herself to the position of municipal manager as fact (second story).

The newspaper is reprimanded for making a careless mistake in its editing process, erroneously stating that the Ngqushwa municipality had employed Mthimkhulu “permanently” (first story).

Daily Dispatch is directed to publish the following text:

Daily Dispatch apologises to Ngqushwa Municipality municipal manager Vuyokasi Mbelani for untruthfully and without substance stating as fact that she had personally asked for consultant Vuyani Mthimkhulu to be hired, as well as for publishing in a headline the allegation that she had helped to hire herself to her position as fact.

Mbelani complained about two stories, published on 17 and 25 October 2013 respectively, headlined Ngqushwa’s half a million bill mystery – Bisho wants answers on consultant’s invoices, and Mlibo’s deployee helps to hire herself to top job.

Both stories were written by political reporter Aphiwe de Klerk. The first story said that the municipality has paid over half a million rand to Mthimkhulu for services relating to budgets, human resources and other issues over a period of four months; the second one reported that Mbelani had allegedly been involved in the process that saw her appointed for the post of municipal manager.

Press Ombudsman Johan Retief found that we were in breach of the Press Code involving both statements and that they have caused Mbelani some unnecessary harm. He also reprimanded us for a mistake that occurred in the editing process, whereby we erroneously reported that the municipality had appointed Mthimkhulu on a permanent basis.

However, he dismissed the largest parts of the complaint. These include the complaint that we have unethically published the content of stolen documents, that our reporter was rude and aggressive, as well as that we have sensationalized some matters (the hours that Mthimkhulu worked, the rates at which he was paid, and the first headline).

Visit www.presscouncil.org.za for the full finding.

APPEAL

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chair of Appeals, Judge Bernard Ngoepe, fully setting out the grounds for the application. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombudsman