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Ruling by the Press Ombud 23 August 2016

Ruling by the Press Ombud 23 August 2016

***Sign the campaign for an independent inquiry here: www.amandla.mobi/lilymine 

This ruling is based on the written submissions of Mr Rob Devereux, business rescue practitioner, on behalf of Makonjwaan Imperial Mining Company (Pty) Ltd, and those of Wally Mbhele, editor of the Sunday Independent newspaper.

The mining company (MIMCO) is complaining about a story in Sunday Independent of 19 June 2016, headlined Did mine management flout rules? – Lily must show it was in on the safety act.

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Complaint

MIMCO complains that, based on the (premature, unverified, unfounded and defamatory) statements by a member of the Cape Peninsula University of Technology (CPUT), Mr Shaheed Mahomed, the reporter concluded in his article (without any apparent direct evidence) as follows:

  • “It would appear that management at Lily Mine (which belongs to MIMCO) stands in violation of even these most basic demands of the act if mining expert Shaheed Mahomed’s analysis is anything to go by”;

  • “According to an expert, this is what the Barberton mine owners failed to ensure – something which, according to the act, is a criminal offence”; and

  • “His questioning of the managerial behaviour at Lily points to gross negligence. Somebody did not do their job”.

The text

Don Makatile’s article questioned whether MIMCO’s management had been negligent before a fatal rockfall at Lily Mine (near Barberton) that had “swallowed” three workers. He cited the Mine Health and Safety Act of 1996, which places the responsibility on mine management to “provide and maintain a working environment that is safe and without risk to the health of employees”.

He wrote, “It would appear that the management at Lily Mine stands in violation of … [this] act if mining expert Shaheed Mahomed’s analysis is anything to go by.”

Mahomed reportedly said that mine management would not give him and his school access to the terrain to assist with rescue efforts, and that it would not expose its negligence to industry experts. He and his team then drafted an interim report “on the periphery of the disaster” – which was quite critical of the mine’s management – especially pointing out that management should have been aware of potential weak areas around the mine, where the risk of land subsidence was greater (as the mine was situated on a fault line).

Mahomed reportedly concluded that Lily Mine had ignored “basic health and safety” matters. 

The arguments

Devereux adds that the fatal incident was still under investigation. He also argues that the publication of an article of this nature was “extremely prejudicial” to all parties involved, and that it might negatively affect hundreds of jobs.

Mbhele replies that the statements in question amount to fair comment, and justifies his argument on the basis of Section 7 of the Code of Ethics and Conduct. He adds that the article was in the public interest, that Mohamed’s comments were credible, and that the reportage was justified and in context.

Analysis

I need to point out that Section 7, to which Mbhele refers in his argument, is specifically aimed at editorial comment such as columns and cartoons – as is the previous section (which is about advocacy). The relevant section here is 1.1, which deals with fair reporting.

Even though the matter was still under investigation, I do not believe that reporting on the issue was premature – given the huge public interest in the matter. Surely, Mahomed was justified in airing his views, and likewise the newspaper in reporting them.

I would have preferred Makatile to have clearly pointed out that MIMCO was still investigating the matter – but the mining company is itself to blame for this, given the fact that Operations Director Mike Begg did not respond to the newspaper’s request for an interview (as MIMCO does not deny this in its complaint to this office, I accept that it is true).

I note that the statements made by the reporter, which form the crux of the complaint, were without exception quite circumspect – he said “it would appear…”, “according to an expert (referring to a possible criminal offence)” and that Mahomed’s questioning “pointed to” negligence – the statements were never presented as fact.

Makatile’s comments may prove to be inaccurate, pending the outcome of an independent investigation – but I believe that Makatile was justified in making his (cautious) comments at the time of publication. 

Finding

The complaint is dismissed.

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 Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombud