Councillor Kaldine and the Patriotic Alliance vs the Mail & Guardian

Thu, Sep 12, 2024

Ruling by the Deputy Press Ombud

Dates of publication:

4 & 5 April 2024

Headline of publication:

PA councillor ‘fraudulently’ transferred land to taxis (print)

PA councillor accused of ‘fraudulent’ Joburg land transfer (online)

Author: Khaya Koko

Particulars

1. The complainants are Juwairiya Kaldine, a Johannesburg city councillor and member of the Patriotic Alliance (PA), and the PA. The complaint was formally filed on their behalf on 18 April by Charles Cilliers, a member of the party’s national executive.  
2. Khaya Koko filed the newspaper’s response, dated 6 May 2024. Included in the response were several documents which formed the basis for the report.
3. The complainants sent through their rejoinder on 18 May 2024.
4. All these documents were considered in arriving at this ruling. Due to an unfortunate misfiling, this matter was only forwarded to me on 22 August 2024.

The report

5. The report quotes a civil society group in Eldorado Park, the Community Accountability Gatekeepers (CAG), as accusing councillor Kaldine of “fraudulently” allocating a plot of land to a taxi association for development. The article quotes from a letter of complaint from the association to the Gauteng provincial and Johannesburg city authorities, as well as from a letter by Kaldine stating she has no objection to the development. In the article, Kaldine is quoted as confirming she has no objection as the area is rife with social problems.
6. Notes from the Gauteng Human Settlements Department are quoted to the effect that she allowed the land invasion. The article describes the statement that the city owns the land as deceptive as it is in fact owned by the province and says no evidence could be found that the provincial government disposed of it in accordance with the law.   The newspaper also provides photographs and a description of activities at the site which indicate that building work is going on despite various attempts to prevent it.

The complaint

7. The complainants cite several sections of the Press Code.

7.1 Firstly, they cite several paragraphs from section 1 that deal with the obligation to report truthfully and accurately;

7.2 Secondly, they refer to section 3, dealing with the obligation to take care with matters involving dignity and reputation; and

7.3 Thirdly, they refer to section 10, which deals with headlines and captions.  

8. It is clear that the core of the complaint is that the report’s reference to fraud is inaccurate.  The complaint does not make a specific argument about dignity or reputation. Accordingly, this element cannot be considered.
9. The third element of complaint arises from the first and will be considered accordingly.

Complaint 1: Inaccurate reporting

Arguments

10. The complainants argue that the report is deceptive in reporting the accusation that she gave the land in question to the taxi association since it is not legally possible for her to do so. She lacks the power to commit the fraud she is accused of. The letter being quoted simply amounted to a statement that she did not have any objection to the association’s use of the land. The association would have to take the letter to the provincial authorities to gain approval to use the land.  The complainants compare the situation to one where she is accused of killing people by shooting fireballs from her eyes, a claim so ludicrous that it could not be published.
11. She accepts that the land actually belongs to the Gauteng province, rather than the city as the letter says, but says this error was corrected.
12. In response, the M&G argues that the association used the letter to develop a business plan and begin building work at the site, as evidenced by the photos in their report. The newspaper reiterates that there are no records of the land being allocated to the association in due process. She did not previously admit that her reference to ownership by the city was incorrect.  The claims were put to Kaldine and her responses reflected in full, the M&G says.
13. In their rejoinder, the complainants reiterate that the letter was merely a letter of non-objection and did not provide permission to the association to proceed with development.  Kaldine is therefore not responsible for anything the association may have done.  

Discussion

14. The letter from Kaldine to the taxi association is at the heart of the matter. In simple terms, the complainants argue it merely says she has no objection to the use of the site. In other words, it does not allocate the land as claimed by the CGA and reflected in the report.
15. The complainant is correct to say the fact that somebody makes an accusation does not release a newspaper from the duty to conduct some investigation of the claim. But is the claim quite as ludicrous as one that she has magical powers to kill?
16. The letter’s central statement is, indeed, that she has no objection to the land being used.  However, it goes on to say that three months’ notice should be given by the city, via her office, if the city later wants to develop the site. This seems to go further than simply expressing a lack of objection, assuming a direct role in a possible tenancy or lease. However, the statement is not quite clear, and in the absence of further details, I do not feel too much should be read into it.
17. The CGA believes the letter constitutes “permission to use vacant land”.  The CGA’s reference to fraud refers to her use of a City of Johannesburg letterhead, coupled with the fact that the land is actually owned by the Gauteng province, not the city, and construes this as an attempt to mislead the association.  Kaldine says this was a simple mistake, later corrected.
18. It can be accepted that this was an honest error. However, she did not say so in her comments to the newspaper before publication, and so the Mail & Guardian was justified in highlighting the contradiction.
19. It is also suggestive that the taxi association has begun work on the site, as evidenced by the newspaper’s first-hand account and its photographs. Though the association did not respond to questions, it suggests they felt they were permitted to proceed.  At the same time, it is perfectly reasonable for Kaldine to say that is their responsibility.
20. The report also quotes notes from the provincial human settlements department that refer to her as allowing land invasion.
21. It is material that the accusation against her was voiced by the CAG.  It is undisputed that they make the claim in a letter to the Gauteng premier, as well as the Speaker of the City of Johannesburg and its legal department.  Their letter of complaint to this effect has been provided and is quoted in the article.
22. I am not required to consider whether the claim is true or not, that is a matter for the appropriate authorities.  I need to consider only whether it was reasonable to publish.
23. I note that the newspaper did not publish the claim unchecked.  Some elements have been mentioned above: the accusation was formally put to the provincial and city authorities; a deeds search was conducted to find evidence of actual ownership; some internal notes from a government department were quoted; as well as evidence of the taxi association’s behaviour in beginning to build.
24. In addition, all parties were given an opportunity to respond.
25. It is also important to note that the report makes it abundantly clear throughout that the accusation comes from the CAG: the headline puts the term “fraudulent” in quotes, and the introduction immediately attributes the accusation to them.
26. 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.
27. Overall, I am satisfied that the newspaper discharged their responsibilities in dealing with the matter.  

Ruling

28. This element of the complaint is dismissed.    

Complaint 2: Misleading headline

Arguments

29. The complainants make no additional argument about the headline, though it can be inferred that their argument about the thrust of the article extends to the headline.
30. This would be in breach of clause 10 of the Press Code.
31. The respondents do not take up the issue separately, though their arguments about the article as a whole can be taken to apply to the headline.

Discussion

32. I have already said that the accusation is clearly attributed to its source throughout, and that enough basis for the report was laid.

33. The headline, as pointed out above, clearly presents the accusation of fraud as a claim.

34. The headline reasonably reflects the substance of the report.

Ruling

35. This element of the complaint is dismissed.

Rulings

36. I dismiss the complaint.

Appeal

37. The Complaints Procedures lay 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 [email protected]

Franz Krüger
Deputy Press Ombud
12 September 2024