Mondiall PR consultant Janie van der Spuy of Five Star PR chose a lovely Cape Town weather day to invite writers from Cape Town etc, House & Leisure, and I to a tasting of the new Summer Menu of the Bistro two weeks ago. The Bistro has an enviable view onto Table Mountain, the icon of our beautiful city! Continue reading →
Organised in Cape Town in partnership with the Cape Craft & Design Initiative (CCDI), Kamers opens in the City Hall on Thursday, and runs until Sunday. Last year the four Kamers shows jointly attracted 58000 visitors, and showcased about 250 invited exhibitors. The organisers continuously look for new design talent, and display this in a pop-up venue, often changing. Last year I was impressed with the use of The Castle as the pop-up venue. It is only the second year that Kamers is on show in Cape Town.
Some of the more than 100 Cape Town exhibitors include M Patisserie from Continue reading →
* A new airport is being built in Somerset East, and should be completed by mid-2014.
* South Africa and China are the countries’ largest trading partners, South Africa importing goods to the value of R120 billion, while China buys from our country to the value of R81 billion.
* MasterChef Australia Judge Gary Mehigan will be in South Africa for the first time, at the Good Food & Wine Show in Johannesburg from Saturday until Heritage Day.
* South African lady winemakers jointly produced 871 million litres of wine last year.
The launch of the herb and vegetable garden on the terraces of the two year old Upper Eastside Boutique Business Hotel in Woodstock on Thursday demonstrated that one does not need a massive garden to work on one’s carbon footprint, and to grow wonderful herbs and vegetables. The hotel has created the first organic rooftop urban hotel garden in the country.
The 183-room hotel and conference centre is large, and all its space is dedicated to the building and parking, with little space for a garden. An approach by House & Leisure to do an article about inner city living introduced the hotel to Ben Getz of Urban Harvest, who brought in an initial 21 plant boxes, soil, and a selection of herbs and vegetables. The project was so successful that the urban hotel garden has doubled in size, to 92 square metre, with 42 different varieties of herbs, vegetables, and edible flowers. Natural ‘pesticides’ such as lavender have been planted to keep pests away. The next project is to create a green wall, in affixing plant pots to a prominent hotel wall.
Caroline Coates, Upper Eastside Hotel’s Marketing Manager, proudly showed us the urban hotel garden, spread over three sections of the first floor terrace, and told us what pride and joy it has become of Executive Chef Simon Kemp and his kitchen staff, who come to harvest rocket, spinach, basil, carrots, fennel, coriander, oregano, thyme, spring onions, rosemary, and many more. But the housekeeping staff, the waiters, and even the hotel guests have taken an interest in the urban hotel garden, all being committed to the success of the project, and feeling that it is ‘a nice thing to do’. Given that the staff spend so much time inside the hotel, the garden is a green lung for them. Ultimately, it helps the hotel to reduce its carbon footprint, said Upper Eastside Hotel GM Francois Steyn.
Ben and his team at Urban Harvest brought in the reclaimed timber boxes, made from off-cuts from a mill, which have not been treated with chemicals, to not affect the plants growing in them. Chef Simon has overall responsibility for the garden, and is proud to bring his herbs and vegetables into his dishes at the hotel’s Liberty’s Restaurant, harvesting weekly. We experienced the produce in the wonderful canapés that were served, to give the guests a taste of dishes for Liberty’s new winter menu, including a white tomato and basil espresso, beef tataki, goat’s cheese bruschetta (below), fennel and Ouzo mussels, Szechuan crispy duck spring rolls, coppa and basil beignets, mushroom bombs, and Gorgonzola ostrich fillet. The rooftop garden reflects Chef Simon’s commitment to sourcing local ingredients and to serve the hotel’s guests fresh, healthy food. After just two months, 80% of the kitchen’s fresh herb requirement is provided from the herb garden harvest for the hotel’s daily catering for 250 covers at Liberty’s and 1000 meals for the conference centre. This means that the higher cost of organic herbs and vegetables is not passed on to the hotel’s clients. The balance of the requirements is sourced less than 50 km from the hotel. Food wastage has been reduced through the project, and no packaging needs to be recycled or thrown away.
The organic rooftop urban garden at the Upper Eastside Hotel is a commendable project, and is a challenge to every other hotel and restaurant to create its own herb garden, no matter how little space they have!
Upper Eastside Hotel, 31 Brickfield Road, Woodstock. Tel (021) 404-0570. www.uppereastsidehotel.co.za Twitter:@UESHotelCape
Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter:@WhaleCottage
Chairman: Cape Town Tourism
15 September 2011
MEMBERSHIP OF CAPE TOWN TOURISM
Thank you for your letter regarding the status of our Whale Cottage Camps Bay membership of Cape Town Tourism, dated 8 September 2011. In your 9-page letter you request us to motivate why Cape Town Tourism should not terminate our membership due to our Blog, and more specifically, selected comments on it!
I thank you for the opportunity to set the record straight in terms of the allegations you make about our alleged ‘barrage of cyber-criticism’, ‘cyber attacks’, and ‘CTT bashing’ in your letter, and for the challenge to revisit our policy as far as comments on our Whale Cottage Blog goes. As the criticism is about our Blog, I am posting my reply to you on our Blog, so that members of Cape Town Tourism should be informed of your proposed action, and allow them to participate in the debate about Social Media and its responsible use in tourism marketing, being a public interest matter.
For the background, you will no doubt know that my PR company Relationship Marketing previously, and now my Whale Cottage Camps Bay, have been a member of Cape Town Tourism for about 20 years, motivated by our belief that it is the right thing to be a member of one’s local tourism bureau, and we have adopted this policy in the four towns in the Western Cape in which we have Whale Cottages. In addition, I was a Board member of Cape Town Tourism for a number of years, of its previous (still not yet wound-up) Section 21 company, and was its Deputy Chairman, working closely with then-CEO Sheryl Ozinsky to run the most successful tourism bureau in the country at the time. Our loyalty towards Cape Town Tourism has been visible to your CEO, in that we assisted her to get her current job, and in that I invited her to address members of our Camps Bay Accommodation association, which I head up, to motivate our members to become members of Cape Town Tourism. In fact, we made it mandatory for members of our association to be members of Cape Town Tourism, until our members regrettably voted against this membership criterion a few months ago, due to their dissatisfaction with the benefits of membership of Cape Town Tourism, leading most Camps Bay guest houses to not renew their membership of your organisation.
You may also know that we have written a WhaleTales newsletter for the past ten years, and it is a tourism newsletter, including general news about tourism in Cape Town and the Western Cape, and news about local restaurants, the wine industry, the film industry, whale watching, and any other news that is related to tourism. Our Whale Cottage Portfolio Blog was started three years ago, and we publish a daily post about a tourism-related topic. Our blog is known for its honesty, and achieved the honour of a Top 10 listing of ‘Most Controversial Blog’ in the SA Blog Awards last year. You will note our blog credo is “independent.incisive.informative”, and we have lived up to this at all times. Over time, both the newsletter and blog have achieved a substantial readership. Our writing has not changed over the past ten years, and Cape Town Tourism has been allowed to contribute input and response over the years. In the past three months (i.e. out of 92 blogposts), we have written nine blogposts about Cape Town Tourism and its marketing activities, and another 21 have referred to Cape Town Tourism in a secondary manner.
It is therefore a surprise that we should receive your letter of allegations relating to our recent writing about Cape Town Tourism, given that it is no more or less in quantity than before. What has changed in content is that we have become more critical of the Marketing activities (or rather, lack of) by Cape Town Tourism, after it became clear to us that there was no recognition of nor action by your management of the tourism crisis in our city, until we wrote about it on our Blog, and it was then picked up as a front page story by the Cape Argus. In our capacity as a member of Cape Town Tourism, as a ratepayer of Cape Town, and as a writer, it concerned me greatly to hear your CEO answer a question about the positioning of Cape Town at the ‘strategic plan’ presentation at the Baxter Theatre recently, which reflected her obviously uninformed Marketing understanding. The fact that she had to call in consultants to write the plan, and Australian ones at that, deserved intense debate in the interest of the industry.
Our response to your adverse allegations about our Blog is as follows:
* No Code of Conduct has ever been sent to us as members, and therefore not signed or agreed to in acceptance. In the past week your offices have not been able to honour our request to send us such a signed document.
* Your nine-page letter refers repeatedly to us not treating Cape Town Tourism, its staff, and its representatives with ‘honesty, respect and dignity’, as per the Cape Town Tourism Code of Conduct, in six comments and two blogposts on our Blog, for which you present examples of alleged ‘disrespect’, but no allegations of dishonesty nor loss of dignity are made or substantiated by you. We reject these allegations with contempt, given that our blogposts and comments have not been designed to prejudice Cape Town Tourism and its agents.
* You write about the ‘immense volume, intensity and frequency of the criticism’ (clause 5.1.1), ‘frequency and intensity of these cyber-attacks’ (clause 5.1.2), and ‘torrent of criticism’ (clause 5.1.3), and it demonstrates your lack of understanding of Social Media. None of these alleged criticisms of frequency by yourselves are contrary to any code of conduct nor to Social Media practice, and cannot be linked to an alleged ‘attempt to denigrate CTT (Cape Town Tourism)’, as claimed by you.
* You refer to “Twitter posts” (the word is ‘Tweets’) as being a problem, yet present no evidence of this!
* You (mistakenly) refer to a commenter on our blog as a ‘follower’, implying that we have a special relationship with our commenters! Most commenters are unknown to us, especially as they use false names and/or gmail addresses. Interesting is how you take one comment out of hundreds on our blog out of context, to support your ‘argument’! You have not fairly highlighted the numerous replies to comments that I have written, defending our relationship with your CEO, and stating over and over again that nothing that we write is meant personally about her or her colleagues. We have also expressed over the years our respect for your CEO and the good work that she and her team has done in amalgamating the Visitor Bureaus in Cape Town. This does not mean, however, that some activities by your organisation are not worthy of criticism.
* Your clause 5.1.3. is devoid of all logic
* Your clause 5.1.4. alleges ‘CTT bashing’, which you link directly to comments being disallowed on our blog. As the owner of a blog, one has the right to disallow defamatory, disparaging, and dishonest comments. Whenever we post a blogpost about Cape Town Tourism, we receive what can be described as ‘hate speech’ towards ourselves, and while they may state their support for Cape Town Tourism, they also ‘bash’, to use your word, myself and my Whale Cottages, which is not what comments are intended for. A question begging an answer is how you would know that (unpublished) comments have been sent to our blog, given that comments are not visible until I allow them? Could it be that the sending of comments in support of Cape Town Tourism has been encouraged by your PR department, or dare I allege, even written by Cape Town Tourism, using pseudonyms and gmail accounts?!
* It is the comment we received from Mavis Wilken (clause 5.2.1) that appears to be at the crux of your letter, as we received a separate letter from your lawyers Webber Wentzel on the same day, threatening legal action if her comment is not removed from our Blog in its entirety. We had edited the comment soon after it was allowed (30 hours is an extreme exaggeration), to protect your CEO. The comment was received on the same day as Ms Wilken forwarded an e-mail to us which she had sent to the tourism representatives of the City of Cape Town and the Western Cape government, alleging mismanagement by Cape Town Tourism in a number of respects. Under threat of legal action by yourselves, but not in admission of any wrong-doing, we have removed Ms Wilken’s comment in its entirety.
* The remark made by Ian Macfarlane, the Australian ‘Strategetic consultant’ of Cape Town Tourism, was written by me in a positive manner, and was expressed by him as a compliment to your CEO in her ability to obtain funds from the City of Cape Town and other sources. To read an allegation of ‘corruption’ , defamation, and disparagement into this compliment is preposterous, and is disparaging in itself!
* We have noted a surge in disparaging comments from a small collection of commenters (Marco, Mike, and Jeremy Claasen in the main, the latter sometimes writing the same comment six times a day, in the mistaken belief that it will be published), all in support of Cape Town Tourism, and wildly disparaging towards ourselves, whenever we publish a blogpost about Cape Town Tourism. We have had to increasingly request these commenters to rewrite their comments by editing out their disparagement, and we delete these comments if they are not rephrased. It is our Blog, and quite frankly we can write on it what we wish (you appear to have little problem with its content, and more with its comments), and can allow reasonable comments. For the first time we have edited two commenters’ comments, both of these edits relating to blogposts in which Cape Town Tourism is mentioned, received from Ms Wilken and Maria. No disparagement was intended nor implied in our reply to Mike’s comment (clauses 5.2.3 and 5.2.4). To read into our reply to him that Cape Town Tourism ‘…is deserving of no support…’, as alleged by you, and that it is an ‘..attempt on your part to undermine and cause embarrassment to the organisation’ is ludicrous, and is rejected with contempt! Being a member of the tourism industry, it would be ludicrous for me to defame or disparage the good name of an industry association that my company is a member of.
* The comment we made about your CEO’s lack of support of the Grand Prix in Cape Town was exactly as you stated it, made in ‘jest’ (clause 5.2.5). No allegation was made that your CEO is ‘…not of sound mind and sober senses’, and cannot be deduced from our writing. We reject your allegation.
* You appear to be looking for allegations of implied ‘corruption’ in reading our Blog and its comments. The ‘corruption’ link you make to my observation about your Board members Nils Heckscher and Susanne Faussner-Ringer, in their capacity as previous Board members of FEDHASA Cape, and their irresponsible attempts at coercing the accommodation industry to sign with MATCH for the FIFA World Cup last year, is far-fetched and incomprehensible (clause 5.2.6). It therefore cannot be seen to be ..‘unfounded, unsubstantiated and patently disparaging’, as alleged by you, as the tourism industry knows about the financial loss it suffered as a result of signing with MATCH on the recommendation of these two directors, and it is ironic that the loss suffered included the properties managed by Mr Heckscher and Mrs Faussner-Ringer! It is also rather obvious that your organisation is using the same threatening technique to terminate our membership, as FEDHASA Cape attempted to two years ago, when we spoke out against MATCH!
* Your response to our claim that Cape Town Tourism ‘planted’ the ‘100 Women 100 Wine’ blogpost comment from ‘Thandiwe Motse’ is factually incorrect, as I did not write that it emanated ‘..from the offices of CTT’, as alleged by you. Comments can be sent to a blog from any computer, and after hours too (clause 5.2.7). Cape Town Tourism’s link to this comment is clear, especially given that no Google reference exists for ‘Ms Motse’, that she provided an incorrect e-mail address for herself, very odd for a businessperson, and that her surname was incorrectly spelt in both the comment and Cape Town Tourism Tweets about this event. ‘Ms Motse’ would have been welcome to e-mail and to call me, to express her point of view to me directly, as the owner of the Blog, rather than to complain via her ‘friend’ about our Blog to Cape Town Tourism! No racial slur was implied, as alleged by you! We have proof that your PR Manager has directed an (unpublished) comment to our Blog, using a false name.
* Over and above the specific denials we have made against your allegations, we categorically deny your allegations of ‘bad faith’, ‘malicious intent’, ‘evident satisfaction in what you perceive to be failings…’ , as well as of ‘disparaging, undermining and even defamatory comment and criticism’.
Lastly, comments have become the bane of blogs, and are increasingly disparaging, rude, and even crude, not always aimed at the subject matter of the blogpost, but often at the blog owner too. Initially our policy was to allow most comments, in the interest of freedom of speech without prejudicing tourism, but soon it became evident that commenters saw our Blog as a means of ‘blog bashing’ us in the main. As the blog is a voluntary unpaid-for activity we do for the love of it, we see no reason to post such disparaging comments.
We are delighted that you support that ‘..our members are entitled to engage in debate about the direction, strategy and performance of CTT, and that this debate may be ‘robust’. We believe that we have acted within these guidelines, as well as the Freedom of Speech which is ensconced in the Constitution of our country. We feel that your organisation’s CEO may be over-sensitive to Social Media, which spares no one, including myself and my company!
While you and I are debating ‘respect‘ in the main, I believe that respect is a two-way courtesy, and therefore we have the right to demand respect, and that we should not be disparaged or defamed by your organisation, its CEO, and staff too. Consider the following examples of disrespect which have been shown to ourselves as a member of Cape Town Tourism, and as a blogger listed on your Cape Town Tourism media list:
* The Re-Tweet in October last year by your PR Manager Skye Grove of a Tweet by Naashon Zalk, of which the content was defamatory to ourselves, making her guilty of defamation too. A complaint lodged to your CEO about the defamation was rejected, reflecting your CEO’s lack of understanding of the law of defamation. Another defamatory Tweet by @Lesterkk was also Re-Tweeted by Ms Grove on 22 November 2010.
* The acceptance by Cape Town Tourism of a complaint lodged against our Whale Cottage Hermanus (not a member of Cape Town Tourism), by Mr Zalk about our warning to our guest house colleagues in Hermanus about an attempt by him and his House & Leisure editor wife Naomi Larkin to defraud us, instead of it being passed on to the Hermanus Tourism Bureau, as would have been the correct procedure. Cape Town Tourism attempted to bring us into disrepute with the provincial Consumer Protector, by passing on Mr Zalk’s complaint to them. We have never heard from them again about the matter, after explaining Mr Zalk’s alleged fraud attempt against us.
* Ms Grove attempted to have our website www.whalecottage.com, which was hosted with Hetzner, closed down last year, which led us to move it to an American server, at a cost to ourselves.
* The accusation on 22 November 2010 by Ms Grove, in a comment posted on the ‘Spaniard in the Works’ blog, that I had ‘unlawful‘(ly) taken down Martin Hatchuel’s website is defamatory. It was clear, by Mr Hatchuel’s own admission, that his refusal to delete a defamatory comment on his website, leading to a complaint against his site, had led Hetzner to close down the website. In the same comment, Ms Grove disparages my ‘lack of journalistic quality and substance’! Further content in her comment to this blogpost, as well as on the Salma Gandi blog, demonstrates the personal issues she has with ourselves, something a ‘professional’ PR Manager should not express of a member of Cape Town Tourism, or any other person for that matter, on a public platform!
* In the past three months Whale Cottage has made a concerted effort to improve its Facebook presence. Proactive suggestions by Facebook about prospective persons to ‘befriend’ led us to Ms Grove, and so we sent a Facebook Friend request. The immediate message we received from her questioned why we would want to be a friend. Ms Grove never accepted the Friend request, as is her right. However, later that day, she Tweeted that she could still taste the vomit in her mouth from the Friend request that she had received earlier that day!
* Your CEO, new Marketing Manager Velma Corcoran, and PR Manager have blocked us on Twitter, but your CEO reconsidered her action, and unblocked us. Blocking is a severe sign of disrespect on Twitter. It is such a shame that your managers should be missing out on my pearls of wisdom contained in my Tweets about Cape Town!
* We have good reason to believe that Ms Grove is part of the team writing the disparaging, libelous, and defamatory ‘Whalespotter’ Twitter campaign about Whale Cottage and myself. A Tweet on Monday this week referred to your letter by implication, which Ms Grove would have inside knowledge of.
* In the past month your CEO has refused to respond to our e-mails, which have requested information for input to our blogposts, despite an invitation by the City of Cape Town representative on your Board, Ms Mkefa, to direct any question to Mrs Helmbold. Your CEO Tweeted on 31 August that she would only answer questions from us via the Cape Town Tourism website, and a few days later a detailed justification for the appointment of the Australian Strategetic Consultants was posted on your website. When one receives no reply to e-mails, the negative inference is that the organisation is trying to hide something.
* Cape Town Tourism has not reacted to the blogposts that you refer to in your letter, having the opportunity to do so via a comment to each blogpost, as would any other commenter. In the past we have posted all comments received from your CEO, either in the blogpost, or as a comment.
* Your City of Cape Town Mayoral Executive Committee member for Tourism, Grant Pascoe, directly responsible for the R40 million allocation of the City’s monies to your organisation, has refused to return our calls or to respond to our e-mails relating to Cape Town Tourism.
No blog forces readership of it on anyone, and therefore your CEO and staff are welcome to save their valuable time and to not read our Whale Cottage Portfolio Blog in such detail, and to rather focus that time on marketing Cape Town, given the severity of the tourism crisis.
It would appear that you hold me solely responsible for criticism of Cape Town Tourism’s performance. However, blogger Carl Momberg recently wrote a critical piece, also questioning your organisation’s ability to market Cape Town. The Cape Times picked this up and ran with the story, quoting additional tourism players expressing their dissatisfaction with the performance of your organisation. Will you also be attempting to censor Mr Momberg?
Surely the monies of Cape Town Tourism should more wisely be spent on marketing Cape Town, and not on lawyers’ fees? Surely your organisation would want to retain members and not lose even more members? Surely you do not want Cape Town Tourism to be perceived as the ‘big bully’ of tourism media censorship?
Earlier this year your membership officer Mrs Cathy Alberts begged us to rejoin as a member of Cape Town Tourism, and I explained to her my reservations to do so, given the unprofessional behaviour and disrespect I and my company have experienced from Cape Town Tourism and its staff, as detailed above. We were surprised about Mrs Alberts’ insistence that we rejoin Cape Town Tourism, and it was our ‘patriotism’ to Cape Town, and loyalty to Cape Town Tourism, that made us rejoin.
Given the disrespect which Cape Town Tourism, your CEO Mrs Helmbold, your PR Manager Ms Grove, and you as Chairman with your Board of Directors, through this one-sided disparaging letter, have shown Whale Cottage, coupled with the lack of delivery on the promised Cape Town Tourism membership benefits, we have decided to not renew our membership of Cape Town Tourism, which expired at the end of August 2011, for the next year. We reserve the right to re-apply for membership in future. We will continue the debate about the marketing of Cape Town, and will continue to write about the activities of your organisation, as well as any other body handling the marketing of Cape Town. I am available to share my tourism and marketing experience with your organisation’s management at any time that it is needed, in the interest of our common passion for our beautiful city Cape Town!
Warm whale wishes
Chris von Ulmenstein
Whale Cottage Portfolio cc
POSTSCRIPT 15/9: We have just (11h41) received a follow-up letter from Webber Wentzel, Cape Town Tourism’s lawyers, making a demand that we apologise to Mrs Helmbold for Ms Wilken’s alleged ‘defamatory comment’, promise to “…desist from, in the future, publishing any further such defamatory comments about our clients on the Blog and/or any other cyber-medium used by you to communicate to the public including,but not limited to, Twitter and Facebook”, and provide the ‘correct and full name’ of ‘the so-called Mavis Wilken’, so that they can take ‘steps on behalf of our clients against the author’. We are shocked that Cape Town Tourism could be setting itself as the Tourism information censor! We await with interest their reaction to our Open Letter!
POSTSCRIPT 18/9: In an interview with the Cape Argus published today, Cape Town CEO Mrs Helmbold is quoted as saying that Whale Cottage Camps Bay is still a member of Cape Town Tourism, as our membership has not been resigned by letter. There is no form that we are aware of to complete to resign one’s membership, and one would have thought that the last paragraph to this blogpost, addressed to its Chairperson, motivating why we will not be renewing our long-standing membership, as well as the non-payment of the annual membership fee, for the period 1 September 2011 – August 2012, would have been a clear communication that we have no intention to renew our membership for the next year! We are considering our legal options regarding a defamatory Tweet sent by Cape Town Tourism on 15 September, and Re-Tweeted by Mrs Helmbold, stating “Whale Cottage Membership Termination“.
POSTSCRIPT 19/9: We have posted our new policy on comments received to blogposts written about Cape Town Tourism today, in the light of the letter we received from the Chairman of Cape Town Tourism, as well as two letters received from the lawyers of Cape Town Tourism.
POSTSCRIPT 23/9: In response to our lawyer’s letter to Cape Town Tourism, to confirm that our Letter to its Chairman Ian Bartes posted on our Blog above is confirmation of our non-renewal of our membership of Cape Town Tourism for the next year, Cape Town Tourism lawyers Webber Wentzel have sent a three-page lawyer’s letter, accepting our non-renewal, which somehow had not been clear to Cape Town Tourism from our blogpost above! One wonders why Cape Town Tourism is wasting its scarce financial resources on legal fees against a past member of Cape Town Tourism!
POSTSCRIPT 6/10: Under pressure from ourselves, Cape Town Tourism has revised its misleading and defamatory statement about our membership of Cape Town Tourism on its website, confirming their acceptance of our communication that we have chosen to not renew our membership for 2011/2012.
It is surprising how little has been written about the new Consumer Protection Act No 68 of 2008, which comes into operation on 1 April. It gives tremendous power to consumers in their dealings with businesses, and will put every business on its toes, the punitive fines of R1 million or more being a strong motivator.
The Act itself runs to just under 100 pages, and whilst written to be understood, it is a volume of information to comprehend. We bought the book written by Advocate Neville Melville, ‘The Consumer Protection Act Made Easy’, to guide us in evaluating our business in terms of compliance with the new Act. It is frustrating that there are many grey areas, as the author had to write the book as broadly as possible, to be applicable to every South African business and industry. I have written this blogpost with a focus on how the new Act will affect the hospitality industry, not as an expert by any means, as an hospitality business owner. Accommodation provision is most specifically identified as a type of Service covered by the Act, whereas restaurants are not mentioned as such, but the Act applies to the provider of “Goods”, which includes anything “marketed for human consumption”. Any contracts entered into before 1 April 2011 are excluded from the provisions of the Act.
The Act is introduced as follows: “To promote a fair, accessible and sustainable marketplace for consumer products and services and for that purpose to establish national norms and standards relating to consumer protection, to provide for improved standards of consumer information, to prohibit certain unfair marketing and business practices, to promote responsible consumer behaviour, to promote a consistent legislative and enforcement framework relating to consumer transactions and agreements, to establish the National Consumer Commission…”.
It has been designed with the express purpose to protect the poor, and vulnerable and historically disadvantaged consumers, and to ‘promote their full participation as consumers’. It also aims to apply ‘internationally recognised customer rights’, and seeks to ensure transparent ‘redress’ for consumers subjected to ‘abuse or exploitation in the marketplace’. From a consumer perspective, it will certainly lead to improved customer service and better quality products, as complaints about service and product quality, as incorporated by the Act, can be taken to the newly established National Consumer Commission. The penalties that businesses can face are R1 million or 10 % of the annual turnover, whichever is the higher figure. Advocate Melville advises that businesses must ensure that they have sufficient public liability insurance.
The Consumer Protection Act ascribes eight rights to consumers:
!. The Right of Equality
A business may not exclude or unfairly discriminate against any person, or category of persons, prioritise one set of persons over another, or charge certain types of persons more than another. This raises an important issue about the “Right of Admission” signs in hotels and restaurants. Le Quartier Français in Franschhoek, in banning patrons from its establishments, may fall foul of the new Act on this point.
One may not contract with a minor, or with mentally challenged persons.
2. The Right to Privacy
Consumers have the right to reject or block unwanted direct marketing or any other communication via e-mail, telephone and sms. Allowable contact times for direct marketing may be specified in future. Newsletters, for example, must have an ‘unsubscribe’ option, to allow recipients the right to not receive them in future, especially if they are deemed to be for ‘direct marketing’ purposes.
3. The Right to Choose
Products may not be bundled together with another product or service linked to it, and therefore a supplier or retailer cannot make it mandatory to buy another (possibly unwanted) product as part of a package. Consumers also have the right to ‘examine goods’, yet cannot be held liable for damage in doing so, a bizarre ruling – however ‘gross negligence, recklessness, malicious behaviour or criminal conduct of the consumer’ is chargeable.
By agreement, the consumer and supplier can agree how, when and by whom the product or service will be delivered. If it is not specified, it is implicit that the supplier must deliver the product within a reasonable time period. The consumer has the right to check the goods on delivery, to ascertain whether they meet the specifications of the order.
4. The Right to Disclosure
All documentation must be written in plain and understandable language (the tenancy clause in the Taj Cape Town ‘legal document’ when one checks in will not meet this criterion in the Act!). The advertised or marked price is the one that must be honoured, even if it is an error. A brand name or trade mark must not attempt to mislead consumers. “Grey market goods” must be identified by the sellers as such. Important to note is that a ‘written record of the transaction’ must be provided, and must contain the following prescribed information:
* Supplier’s full registered business name and VAT registration number
* Date of transaction (could be two dates for accommodation establishments, if a deposit is taken to make the booking. The transaction date will differ from the actual accommodation dates, so there could be three sets of dates)
* Description of goods and services provided
* The unit price
* The quantity supplied
* The total price before tax
* The VAT amount – few establishments separate this amount, as all transactions are VAT inclusive
* The total price.
The right to disclosure also would include information about anything that can affect the consumer’s use of the product, in containing potentially hazardous or harmful ingredients (e.g. Reuben’s at One&Only Cape Town correctly specifies which of its dishes contain nuts, alcohol, and pork).
5. The Right to Responsible and Fair Marketing
Marketing must be honest. One may not over-promise, exaggerate, mislead or make false claims, so as to lead the consumer to have a different expectation. One must honour one’s commitment to have a specified product or service available on the date/time that was agreed. Restaurants, for example, may not claim that their dishes contain ingredients that they do not, or that they are imported when they are sourced locally. Advertising must realistically portray the benefits of the product or service.
Loyalty programs are specifically mentioned, and the ruling is that the promised reward must be available to the consumer. The communication of how the loyalty programme works must be clear.
6. The Right to Fair and Honest Dealing
The Act uses the word ‘unconscionable’, a complex word Melville writes, given that the Act itself calls for ‘plain language’ in all dealings with the consumer! This clause calls for positive conduct with the consumer, and does not allow a supplier to use ‘undue influence, pressure, duress or harassment, unfair tactics or any similar conduct’ in getting payment due to the supplier, or goods returned. As a hospitality supplier, it would be great if the Act protected suppliers against such abuse and blackmail too!
The supplier may not withhold material facts about the product or service (e.g. renovations taking place at a guest house), nor imply a benefit of the product or service that does not exist, or fail to correct a misunderstanding that the consumer expresses about the product or the service. Reasonable availability of the product or service must be accurately communicated, as must be the availability of parts for repairs. Pyramid schemes are expressly forbidden.
Overbooking, with the express purpose of taking more bookings than one has the capacity for, based on the knowledge that not all booked customers will arrive (e.g. airlines, hotels) is no longer allowed, as one must have the service/product available if it has been booked. Any such overbooking and therefore inability to honour a booking calls for a refund of the cost of the booked service as well as the costs involved in cancelling the booked service (e.g. loss of business suffered by the customer), which could become very costly for the supplier! However, the supplier may make an alternative arrangement on behalf of the customer, and that customer is reasonably expected to accept the alternative arrangement.
7. The Right to fair, just and reasonable terms and conditions
The Act regulates ‘agreements’ (not calling them contracts) between suppliers and consumers. One may not contract with minors, and those that are mentally unfit. Information in the agreement must be in plain understandable language. Repairs must be pre-quoted. Some agreements will be specified by the Minister to be in writing. The sales record must contain the required information (as specified above). Any risk to the consumer that may lead to serious injury or death must be highlighted (does a pool count?). Any other potential risks associated with the product or the service must be highlighted. A ‘fair’ price must be offered, and the terms must be ‘fair’ and reasonable, although ‘fair’ is not defined. “Unfair” is however defined as agreements which are one-sided in benefit to a party other than the consumer, or are based on misleading information. No clause in an agreement can be in contravention, or cancel any provisions, of the Consumer Protection Act. PIN codes and ID books may not be kept by the supplier, and only copies may be made of the ID book and the PIN code used for a transaction.
A contentious provision for businesses is the right to a cooling-off period, which allows the consumer to return bought goods within five days of purchase, and must be refunded in full within 15 business days. The notice of cancellation must be in writing. Melville uses the word ‘good’, and not ‘service’, so it is not clear if this applies to bookings made for services such as accommodation, for which a 50 % deposit is likely to have been taken. Even more uncertain is how the provision that a consumer can return a ‘good’ if he/she did not have a chance to see the product beforehand, but only of it is not hazardous to the public health (which would exclude food and beverages) or if it has been tampered with. Such a clause could apply to accommodation too, being an unsighted purchase (but is defined as a ‘service’), so this may not be applicable.
Consumers have the right to cancel an advance booking or order, ‘but may be liable for a charge for doing so’. A supplier may “require payment of a reasonable deposit in advance and impose a reasonable charge for the cancellation” . The ‘reasonable’ is not defined, but Melville writes that it should be decided on the basis of the following:
* The nature of the products and services
* the length of notice of the cancellation
* the “reasonable potential for the service provider, acting diligently, to find an alternative consumer between the time of receiving the cancellation notice and the time of the cancelled reservation”.
* The general practice of the industry concerned
In the case of the death or hospitalisation of the person making the booking, the deposit paid must be refunded in full, but this does not apply to a family member’s death or hospitalisation.
Should a supplier close a service facility (say a guest house which decides to close over winter), 40 business days’ notice must be given to the customer, and the deposit payment must be refunded within 5 business days after the service facility has closed.
8. The Right to fair value, good quality and safety
Any good, or element within a good, that can cause harm, injury or potential death to the consumer must be spelt out to the consumer. These risks can include those that the consumer may not ordinarily have expected, especially those which can lead to serious injury or death. At Whale Cottage we have evaluated our operation relative to this clause, and have changed our breakfast menu to highlight all nut-based cereals, and have changed the content of one of our Huguenot Fine Chocolates’ turn-down chocolates, which previously was a hazelnut praline.
Products that are available to or sold to the consumer that may contain hazardous substances must have the warning and description on the pack or available separately (e.g. we stock Tabard insect spray in our guest bedrooms, with instructions and health warnings on the pack).
The Act calls for compensation to consumers if the products bought caused harm to themselves and/or their property. Not only the direct supplier is liable, but also the importer, the retailer, the manufacturer, the distributor, and the installer can be sued for damages within a three year period from the date of the loss or damage.
A further requirement is that products and services should be of a quality that consumers are ‘generally entitled to expect’. It states that industry association codes and practice would guide what this reasonable level of quality would be. For the accommodation industry, the Tourism Grading Council guidelines and requirements probably would be a good quality guide. Timing of the delivery of the service is once again highlighted as having to be ‘reasonable’, and suppliers must give consumers ‘reasonable’ notice (timing undefined) of ‘unavoidable’ delays. A good requirement, for anyone dealing with builders or repairmen, is that the property must be left in the condition it was when they first started their work. Suppliers of repair services must safeguard the consumers’ goods in their care, and this includes deposits that may have been paid.
Products bought must deliver on what they are expected to perform. They must be in good working condition and free of defects. So, for example, a toaster used in a guest house can not be expected to perform the same service compared to one used domestically, and the consumer must declare the usage, so that he/she can make the most suitable purchase. If the product does not perform, the consumer can return the product within a six month period, and can demand a new replacement product, money back, or repair of the item. The consumer has the right of choice in this regard, not the supplier. This places a responsibility on suppliers to stock enough of any products to be able to replace products, especially if the items might be discontinued! Repaired goods have a three month warranty period through the Act. No ‘voetstoots’ clause applies for any purchase any longer.
The Consumer Protection Act is a lengthy piece of legislation, and each business is advised to check its practices and communication to customers, to evaluate its compliance with the new Act. It could become an explosive minefield if opportunistic consumers were to try to exploit the provisions of the Act, especially for the service industry, where things are not always black or white. However, the protection it affords consumers is welcomed, and the improvement in the level of service and quality of products one can expect as a result is too.
POSTSCRIPT 26/5: This afternoon I attended a Consumer Protection Act workshop at the Radisson Blu hotel, organised jointly by Cape Town Tourism and FEDHASA Cape. The first part was presented by a lawyer from Webber Wentzel, the most boring speaker, who quoted clauses from the Act and had assumed that the audience knew nothing at all about the Act. He had misread his audience completely. He was followed by FEDHASA legal consultant Peter Cumberlege, who was far more entertaining as well as informative, but with strong views that FEDHASA Cape appears to rely on, without robust debate! The key points made:
* nothing in the Act is new – we all treat guests fairly
* the most contentious statement was that the hospitality industry should NOT have a standardised cancellation and refund policy – all establishments are unique. However, the Chairman of the National Consumer Tribunal said in Franschhoek recently that the hospitality industry should form an industry body, and should standardise its cancellation policy, given that the Act regularly refers to standard industry practice.
* Establishments must try to resell cancelled rooms, and should try not to charge for these. If there is a charge, it should be to recover expenses, and not a full room rate, especially if the establishment is not fully booked on the day of the cancellation- this is a contentious view of Cumberlege, and many would disagree with him.
* SQ prices must come off restaurant menus
* Invoices can no longer be handwritten, given the invoice requirements in the Act
* All websites and brochures should be checked for accuracy of claims. Avoid overclaims.
* If one overbooks one’s accommodation, the guest must be given equal or better accommodation, or one must refund: interest on money held plus monies paid plus cost of cancellation to the client
* One is responsible for guests’ belongings on one’s property
* Disclaimers and waivers are now meaningless in contracts
* Sites representing a number of establishments must state the rate of the establishment and the percentage commission that they have added = full disclosure
The Consumer Protection Act Made Easy, Adv NJ Melville, 2010. Exclusive Books.
Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter: @WhaleCottage
The Sweet Service Award goes to Twitter, and to Tweeters in Christchurch in New Zealand, as well as in Japan, who kept the world up to date regularly with first hand information about the latest developments in the aftermath of their recent earthquakes and subsequent disasters.
The Sour Service Award goes to Naashon Zalk and Facebook. Last October we posted a warning to other guest houses on Facebook about the attempt by Zalk (and his House & Leisure editor wife Naomi Larkin) to first defraud us in regard to payment for a booking, and then reneging on the booking by walking out on arrival. Zalk complained to Facebook, and the post was removed by them then. We did not post any further content about Zalk in the past six months. Recently we switched to the ‘new’ Facebook, and a band of photographs and logos appeared above our wall without our influence or doing. Zalk must have gone back to Facebook to complain about this too, and Facebook removed our Whale Cottage Portfolio Facebook page without warning or requesting an explanation from us. No amount of pleading and explaining from our side would sway Facebook to re-instate our Facebook page, meaning a loss of two years’ worth of Facebook posts. We have created a new Facebook page.
The WhaleTales Sweet & Sour Service Awards are presented every Friday on the WhaleTales blog. Nominations for the Sweet and Sour Service Awards can be sent to Chris von Ulmenstein at email@example.com. Past winners of the Sweet and Sour Service Awards can be read on the Friday posts of this blog, and in the WhaleTales newsletters on the www.whalecottage.com website.
Whale Cottage and I have been the subject of a most vicious defamatory and destructive Twitter campaign in the past week, with unsubstantiated untruthful allegations made, aimed at damaging the reputation of our company and of myself. The Twitter campaign fabricated information for the benefit of causing a sensation. Initially the account was set up as an impersonation of myself, by appearing to be my personal Twitter account. Twitter closed the account down temporarily last Friday, until the perpetrator changed the Biography on the Twitter page. Not only was it malicious in content and libelous, but it was also threatening in its aggressive tone.
I have written this blogpost with the purpose of acknowledging that we are aware of the campaign, that we know who drove it, and that we believe in what we do and what we stand for. We do not want to signal through silence that the abusive campaign contained any truth, other than the colour of my jacket that I wore at the OYO lunch on Friday, referred to in one of the Tweets, bringing the perpetrator and his companion into the foodie blogging community!
So how did this campaign arise? About 2 weeks ago I wrote a review about Crush!3, as I have also done about the first two issues of the Crush! digital food and wine magazines, of which Michael Olivier is the editor. A number of food bloggers and our readers posted comments on the Blog, the majority being in agreement with our point of view. We have regularly requested input from Olivier in response to our reviews, but have received none. In fact, his reaction has been to block us on Twitter, to not respond at all to communication, and to not acknowledge my presence at a recent industry function, even though we have been acquainted for many years. On Saturday 16 October, the Crush! team of editor Olivier, and contributors Sophia Lindop, Andy Fenner (JamieWho?) and David Cope (of The Foodie blog) , who also owns the PR company called Established & Partners, with Chef’s Warehouse and Cookery School as sole client, it would appear, and Caveau/HQ/Gourmet Burger, Rudera Wines, Cape Classics and Hippo Hotel as ex-clients) had dinner at Lindop’s house to celebrate Crush!3. On Twitter one was informed about the dinner through the attendees’ Tweets. A Tweet by Fenner “Having a whale of a time with the @Crush_Online team” first caught my eye that evening, which was reTweeted by Cope (but since removed), and echoed by the Crush! designers on the @Crush_Online Twitter account “also having a whale of a time. Flap Flap”, a few minutes later.
An hour later a full-scale campaign began, with a total of 99 disparaging Tweets sent over the period of a week, one more demeaning than another. A number of clues allowed us to link the campaign to Cope, information which we have handed to the police. An abusive collection of e-mails was received from Cope as well, and there were clear parallels in what he wrote by e-mail and in the Tweets of the abusive Twitter account. When we alluded on our blog to the Crush! team, and Cope in particular, being responsible for this childish campaign, there was no response from Olivier to deny it, and thereby he has condoned it. We invited him to comment on our exposure in this blog post, and were surprised to receive a response from him for the first time since Crush! was published (we are delighted that Olivier acknowledges our input, but surprised to read that he values it, given his reaction to it, as detailed above): “I am not aware of any campaign, by any member of the Crush team, to defame you or Whale Cottage. We would not embark on a defamation campaign when we are trying to build an online community willing to engage with us in an open, honest and constructive manner. At Crush we value all constructive feedback and the fact that you have taken the time to read Crush and to make suggestions. Crush magazine is in its third edition and determined to establish itself in a new market. Needless to say, the Crush team would not like its brand linked to campaigns that aim to defame. I would therefore appreciate it, if you could forward any material that uses the Crush brand without our permission”.
Our Whale Cottage Blog has been controversial (no surprise that we were nominated and voted a Top 10 finalist in the Most Controversial Blog category in the recent 2010 SA Blog Awards). We have exposed the dishonest claim by Carne restaurant that all its meat is organic (claim since removed from their website); we have awarded Sour Service Awards every Friday, never popular amongst its recipients; we have exposed the conflict of interest in the running of tourism matters in Hermanus; we have been critical of many restaurants that we have reviewed; and we have been critical of Crush!, but have acknowledged that it is improving. This does not always make us popular amongst those businesses that we have written about. We are proud of this Blog, and present the truth as we experience and see it. We are not afraid to tackle any topic. Our reward is the 40000 unique readers reading our Blog every month, and our more than 1300 Twitter followers.
I have asked myself whether one changes tack in the face of such an abusive and emotionally violent and terrorising Twitter campaign. Some people I spoke to used the PR adage that all publicity is good publicity. Others said that social media memory is short, and that Cope would run out of things to fabricate, which is what happened. But the overwhelming response was that I should change nothing about this Blog, and that I should continue with what we do. This is wonderful support. Some very special readers and followers were brave enough to react to the campaign publicly, and I am most grateful to all of them. We are also grateful to our Twitter followers who saw the petty campaign for what it was, and unfollowed or blocked the abusive Twitter account.
One of the characteristics of social media is that the boundaries of what one can say are blurred, with no clear guidelines of what is acceptable, and what is not. There is no consistency in the different social media platforms and their codes of conduct. Freedom of speech seems to be the overwhelming principle of this new method of communication, often at the expense of the truth.
Freedom of speech brings with it responsibilities, and cannot ignore the law, which dictates that one cannot disparage and defame others. Good journalistic practice – yes, Bloggers, Facebookers and Twitterers are “New Age” journalists – is that information presented must be checked for accuracy, and that one cannot make statements about others unless they are proven. The word “alleged” should precede any label one would give the action of any other person one is writing about, unless they have been convicted of the action they have been accused of.
This raises the question as to what the limits are for social media users, and what responsibility sits with Social Media platforms such as Facebook, Twitter and Blogging.
Blogging seems to have few restrictions, as there are numerous blogging platforms. Many bloggers use WordPress, but the company does not specify a Code of Conduct. The servers hosting the blogs may have a code of conduct, but these are not normally visible to the blogger, especially if one works via a webmaster.
Facebook’s Code of Conduct is lengthy, and appears to be the most protective against disparagement and defamation. It is also very reactive to complaints in taking action immediately, not a surprise when one sees ‘The Social Network’ movie about the establishment of Facebook. It states the following in respect of protecting one’s rights, the closest it gets to addressing what one may or not say:
“1. Protecting Other People’s Rights
We respect other people’s rights, and expect you to do the same.
1. You will not post content or take any action on Facebook that infringes or violates someone else’s rights or otherwise violates the law.
2. We can remove any content or information you post on Facebook if we believe that it violates this Statement.
3. We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page.
4. If we remove your content for infringing someone else’s copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal.
5. If you repeatedly infringe other people’s intellectual property rights, we will disable your account when appropriate.
6. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission.
8. You will not post anyone’s identification documents or sensitive financial information on Facebook.
9. You will not tag users or send email invitations to non-users without their consent.”
Twitter has a Code of Conduct too, but seems very loath to take action against Twitter abuse, believing in freedom of speech, and Twitterers’ rights to expression. It does not disallow disparagement, a major weakness of its Code. It also does not demand honesty in Twittering, which means that anyone can say anything about anyone else on Twitter, without it necessarily being truthful. It abdicates its legal liability in any dispute between Twitterers, yet does call for local country laws to be respected:
· Impersonation: You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others
· Trademark: We reserve the right to reclaim user names on behalf of businesses or individuals that hold legal claim or trademark on those user names. Accounts using business names and/or logos to mislead others will be permanently suspended.
· Privacy: You may not publish or post other people’s private and confidential information, such as credit card numbers, street address or Social Security/National Identity numbers, without their express authorization and permission.
· Violence and Threats: You may not publish or post direct, specific threats of violence against others.
· Copyright: We will respond to clear and complete notices of alleged copyright infringement. Our copyright procedures are set forth in the Terms of Service.
· Unlawful Use: You may not use our service for any unlawful purposes or for promotion of illegal activities. International users agree to comply with all local laws regarding online conduct and acceptable content.
· Verified accounts: You may not use the Verified Account badge unless it is provided by Twitter. Accounts using the badge as part of profile pictures, background images, or in a way that falsely implies verification will be suspended”
The abusive campaign has created food for thought for many Bloggers and Twitterers, many wondering how they would react if they were targeted by such a 140-character onslaught on a daily basis. There are no clear rules. There also is no precedent in South African law as to any Blog post, Tweet or Facebook entry having been the cause of a defamation claim to date. In the USA, a young Twitter user last year sent a disparaging comment about an apartment rental agency to her 20 followers, and she was sued for $50 000 by the agency.
We welcome your point of view on Freedom of Speech in Social Media Marketing.
POSTSCRIPT 27/10: The abusive campaign recommenced this morning, the first Tweet denying David Cope’s involvement, a little too obvious! Another Tweet refers to a lunch I have booked at Tokara this weekend, a violation of my privacy relative to the restaurant, meaning that this information has been leaked by a staff member of the restaurant.
POSTSCRIPT 12/11: We have established that food blogger Clare Mc Keon/McLoughlin from Spill Blog is passing on information to David Cope for the abusive Twitter campaign.
Chris von Ulmenstein, Whale Cottage Portfolio: www.whalecottage.com Twitter @WhaleCottage