Appeals panel says Mail & Guardian got it wrong on councillor’s role in occupation

An appeal by Johannesburg City Councillor Juwairiya Kaldine against a Press Ombud ruling last year has been upheld. Illustration: Lisa Nelson.

The Appeals Panel of the Press Council has overturned a decision of the Press Ombud that dismissed a complaint against the Mail & Guardian.

Last year, this commentator had reservations that a particular ruling of the Press Ombud left one “somewhat unsatisfied, in large part because the complainants’ central concern – the allegation of fraud – was not tested in the article”.

In the article – PA councillor ‘fraudulently’ transferred land to taxis – the Mail & Guardian reported that Councillor Juwairiya Kaldine had “been accused of fraud by a civil society group after signing approval to give land owned by the Gauteng government to a taxi rank development without following the law”.

This commentator noted: “There is simply nothing even to suggest that Kaldine acted fraudulently, something the article does not say. And no land was given away. At most, based on what’s reported, Kaldine may have acted inappropriately in suggesting that the land could be used, without making it clear to the taxi association that she had no authority to authorise its use.”

The Deputy Ombud’s ruling dismissed the entire complaint brought by Kaldine and her political party, the Patriotic Alliance. They had alleged three violations of the Press Code: section 1, which requires the media to “take care to report news truthfully, accurately and fairly”; section 3, which deals “with the obligation to take care with matters involving dignity and reputation”; and section 10, which – among others – requires headlines not to “mislead the public and … [to] give a reasonable reflection of the contents of the report … in question”.

The section 1 claim was the nub of the complaint – the allegation of fraud. In his ruling, the Deputy Ombud noted that “the newspaper did not publish the claim unchecked”, but had taken various steps to test the allegation. In his view, “the newspaper discharged their responsibilities in dealing with the matter”.

He explained: “In a matter of public interest, as this undoubtedly is, journalists must be able to shine a light on allegations that are formally brought to the attention of relevant authorities. Only if they are completely spurious would one recommend caution. I do not believe the claim is as ludicrous as the complainants say.”

Unhappy with the ruling, Kaldine sought leave to appeal, which was granted on a very narrow issue: “whether the applicant granted the taxi association permission to occupy the vacant land (as contended for by the respondent), or whether she merely stated in her letter that she had no objection against the occupation.”

In its recent ruling, the Appeals Panel upheld the appeal, finding that “by stating that … Kaldine granted a taxi association permission to occupy a vacant piece of land in Eldorado Park, Johannesburg”, the newspaper “contravened clauses 1.1, 1.2, 1.3 and 1.7 of the Press Code”. These clauses deal with the following obligations of the media

• to “take care to report news truthfully, accurately and fairly”;
• to “present news in context and in a balanced manner …”;
• to “present only what may reasonably be true as fact …”; and
• to “verify the accuracy of doubtful information, if practicable”.

The appeal ruling is short. It compares the letter Kaldine actually wrote, in which she stated that she had no objection to the taxi association occupying a portion of the stand, with what was reported: that she “confirmed authoring the letter granting permission to the association to occupy the vacant land”.

The question to be answered is this, the appeal panel ruled: “does the letter grant permission to occupy the land in question”? The panel found that it did no such thing.

In its defence, the Mail & Guardian had put up two arguments. The first being “that saying ‘I have no objection against the occupation’ amounted to saying ‘I hereby grant the permission to occupy’.”

Based on the ordinary meaning of the words used, the appeal panel held that one cannot elevate a non-objection to the grant of permission. “There would be chaos in the property industry”, it held, “if having ‘no objection’ were to be elevated to ‘granting permission’ to occupy”.

The second argument focused on the actual occupation of the site following the issuance of the letter. Unsurprisingly, that argument didn’t help either, with the appeal panel holding that subsequent events “could not retrospectively change the clear words ‘no objection’ in the letter; they would remain a mere ‘no objection’”.

Even if the taxi association had interpreted the letter to mean permission was granted, it does not mean that Kaldine even purported to grant permission.

This commentator is still left a bit concerned, largely because of what was not (and could not be) before the appeal panel. As previously noted, the land in question is not City land, it belongs to the province, and Kaldine had no authority to authorise its use.

In such circumstances, did she not act inappropriately in suggesting that the land could be used, without making it clear that she had no authority to authorise its use? Should she not also be issuing an apology?

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