Ruling by the Deputy Press Ombudsman
This ruling is based on the written submissions of Magistrate B. Hansjee and the Daily Dispatch newspaper.
Mr B. Hansjee complains about a story in the Daily Dispatch on 16 February 2012 headlined Freed after deadly threat.
Hansjee complains that:
· the story contained three inaccurate statements (see below);
· there was no comment or attempt at verification from several interested parties about some issues;
· the story omitted material facts (out of context);
· the reporter was not present at hearings;
· the sources of information were suspect;
· the reporter ignored the sub judice nature of the matter; and
· the mentioning of his first name without his permission was disrespectful of his constitutional right to dignity and privacy.
As a result, Hansjee argues that the article is inaccurate, unfair, not in context and that his right to privacy has been invaded.
The story, written by court reporter Kathryn Kimberley, says that Hansjee granted bail to an accused, Mr Mxolisi Leleke, “even after he allegedly threatened to hunt down his ex-girlfriend and kill her”. This reportedly came after Leleke had shot her three times in August 2011; the fourth shot was aimed at her head, but there were no more bullets in the barrel and she survived. The story says that the state would bring the matter on appeal. The article also states that senior state prosecutor Indra Goberdan reported Hansjee to the Director of Public Prosecutions (DPP), and that Hansjee ordered Leleke to not interfere with witnesses or the complainant in the court case. A large part of the article consists of interviews with the girlfriend whom the accused had shot, the police, the chief prosecutor and a source.
· he was reported to the DPP;
· Leleke “…is free to roam the streets”, and;
· two cases were appealed against.
The story says that Goberdan has “reported” Hansjee to the DPP after a spate of bail rulings by him.
Hansjee denies this and complains that the statement is a misrepresentation of court procedure and process.
Kimberley says that she spoke to Goberdan, who confirmed that she herself had reported Hansjee to the DPP.
The only way to have found out the truth was to contact Goberdan herself. She explained to me that she merely provided the DPP with documentation, asking it to appeal Hansjee’s decision. She said that the use of the word “reported” was too strong, and that that was not what she had said.
The story says that Leleke was “free to roam the streets”. (Kimberley also writes that he was told to report to the police station once a week, and ordered not to interfere with witnesses or the complainant.)
Hansjee denies that Leleke was free to roam the streets.
The newspaper does not respond to this part of the complaint.
This statement indeed creates the impression that a dangerous man is on the loose. However, it is precisely what the newspaper wanted to achieve – it needed to inform the public that a man who apparently shot his girlfriend and who reportedly threatened he was going to “finish her off” was back on the street, and that she was living in fear.
Hansjee does not motivate why the statement in dispute is not accurate. It is also not clear why the restrictions placed on his bail would have prevented him from “roaming the streets”.
Cases taken on appeal
The sentences in dispute read: “Xolani Jamada, 34, was just one conviction away from being declared a habitual criminal when Hansjee released him on bail. Also last year, Hansjee released a man convicted of murder pending his appeal.”
Hansjee denies that these cases were taken on appeal.
The reporter says that she spoke to Goberdan, “who has confirmed that the above matters were taken on appeal”.
Goberdan confirmed that to me as well.
No comment, verification sought
Hansjee says that the largest part of the story was about the victim, and complains that neither Leleke, nor his lawyer, nor the bail prosecutor, nor the DPP, nor he himself was contacted for comment or for verification. He adds that Kimberley did not tell him what she intended to write, which he says was unfair. He therefore accuses the reporter of non-compliance or under-compliance in this regard.
For example, he says that the reference to a “spate of bail rulings” was not verified, neither was the statement that he was reported to the DPP.
Kimberley says she interviewed the witness, the police officer and her anonymous source and states: “All information about the case was then confirmed by Goberdan, who spoke on the record.” She also says that she contacted Hansjee the day before publication and informed him about the story, but states that he declined to comment.
She adds that she could not contact Leleke, but says that she did speak to his nephew who told her that she could interview him after his court case. “We agreed that an interview may interfere with the case. I therefore only reported on the matters before court.”
I accept that Kimberley was unable to contact Leleke and that she and his nephew agreed that the interview should in any event take place after the court case. This decision was a sensible one.
I note that Hansjee himself says that he told Kimberley that the matter was sub judice. This means that the reporter and Hansjee did have some sort of communication. It would have been helpful if someone had set out precisely what that discussion was about.
In any event, judicial officers do not, as a rule, comment on their own decisions in the press.
I note that the newspaper does not respond to the complaint that it did not contact the DPP and/or the bail prosecutor.
I also take into account that the reporter says she has a “very reliable” anonymous source, who gave her the information in the first place, that she tried to contact the chief magistrate, and that she spoke with the witness, a police officer and her anonymous source.
The reporter took reasonable steps to gather and verify her information and cannot be faulted for not doing enough in this regard.
Kimberley had no reason to tell Hansjee what she intended to write, as this is not normal journalistic practice. Neither “non-compliance” or “under-compliance” enters the picture here.
Material omissions (out of context)
Hansjee complains that the story was not presented in context because no mention was made of “other considerations” in the hearing.
For example, the story omitted to state that:
· he refused the first bail application and the reasons for that refusal; and
· the state did not appeal the decision to grant bail in some cases and omitted considerations giving rise to the successful bail application – this amounted to an exaggeration and a distortion of facts.
The newspaper does not respond to this part of the complaint.
The “other considerations” are not central to the issue that the story addresses.
But more needs to be said. The story says that Leleke, allegedly an extremely dangerous man, received bail – but it does not tell the public why this decision was taken. Hansjee must have had his reasons for this, and the public was entitled to know what these reasons were. Without that motivation, Hansjee was portrayed as a loose cannon who granted bail haphazardly. This was aggravated by the reference to a “spate of bail rulings” by Hansjee.
Now: It may or may not be true that Hansjee granted bail without proper motivation – but then it became even more important to mention that, so that the public can decide for itself.
It is true that Hansjee cannot complain about this matter if he refused to comment. However, the public was entitled to know why he granted bail to Leleke. Kimberley should at least have tried to ascertain his motivation behind his decision. Without that background, the story could only have been one-sided and unbalanced.
Not present at hearings
Hansjee says that the reporter was absent at the hearings where the bail application was refused and the one where Leleke was released, which was an omission on her part.
Kimberley admits that she did not attend the hearings of the bail applications, but says that she interviewed the witness, the police and a reliable source, and that she obtained a copy of the charge sheet.
This is common journalistic practice.
The non-attendance is relevant only if the reporter gave the impression that she was attending the bail hearing – which she did not.
Source of information suspect
Hansjee says that the source of information which led the reporter to say “Leleke then held a gun to Somazambe’s head” is suspect; so are other sources of other information reported.
The newspaper says that the sentence in dispute came from Somazambe herself, and that it was corroborated by the prosecutor, witnesses and another credible source. It adds: “Although direct speech may have made this clear the report…is acceptable and is not in breach of the Press Code.”
I accept that neither the prosecutor nor the “other credible source” was present when the alleged incident took place. They were therefore secondary sources.
I asked for more clarity regarding the witnesses. The reporter said that the matter was not in dispute, and added: “Leleke admits to shooting Somazambe. He went as far as to hand himself over to the police and made a confession. He is not disputing the confession and during his bail application admitted to the facts. My information was also corroborated by (xxx)…a highly confidential source… Witnesses included petrol attendants at the garage and the video footage which shows Leleke holding the gun to Somazambe’s head. This was then corroborated by the IO (and xxx)…and Somazambe… The indictment before court also states that he held the gun to her head.”
That is good enough for me.
Hansjee says that he told Kimberley that if a matter is under appeal it is sub judice – and complains that she nevertheless continued with her reporting.
The newspaper does not respond to this part of the complaint.
The crux of the matter is the question if the reportage could in any way have influenced or was likely to influence the matter that was before the court.
I do not think that this was the case as no new facts were revealed.
The story refers to Hansjee by his first name and surname, and then by his surname.
He says that he has not given the newspaper permission to mention his first name and complains that this is disrespectful of his constitutional right to dignity and privacy.
Kimberley replies that it is the paper’s style to initially use first names and surnames, and then revert to surnames only.
The newspaper’s style is normal journalistic practice – in South Africa, and universally. As long as the newspaper is consistent in the application of its style and the style does not generally cause offence, it cannot be said that it is in breach of any article of the Press Code.
The statement that Goberdan has “reported” Hansjee to the DPP is in breach of Art. 1.1 and 1.2 of the Press Code that state:
· “The press shall be obliged to report news truthfully, accurately and fairly” (1.1); and
· “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation…” (1.2)
The complaint regarding the other two sentences is dismissed.
No comment, verification sought
This part of the complaint is dismissed.
Material omissions (out of context)
The public was entitled to know why Hansjee granted Leleke bail. This is in breach of Art. 1.2 of the Press Code that says: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…” (1.2)
Not present at hearings
This part of the complaintis dismissed.
Source of information suspect
This part of the complaintis dismissed.
This part of the complaintis dismissed.
This part of the complaintis dismissed.
The Daily Dispatch is directed to apologise to Hansjee for:
· inaccurately stating that Goberdan has “reported” him to the DPP; and
· not reporting his reasons for granting bail to Leleke.
The newspaper is directed to:
· ask Hansjee for his reasons for granting bail (if he wants to comment); and
· include that in the text that follows (that it is asked to publish).
Daily Dispatch apologises to Magistrate B. Hansjee for inaccurately stating that senior state prosecutor Indra Goberdan has “reported” him to the Director of Public Prosecutions (DPP), and for not reporting his reasons for his decision to grant bail to Mr Mxolisi Leleke.
This comes after Hansjee has lodged a complaint with the Press Ombudsman about a story headlined Freed after deadly threat that we published on 16 February this year.
The story, written by court reporter Kathryn Kimberley, was about Hansjee having granted bail ton Leleke, “even after he allegedly threatened to hunt down his ex-girlfriend and kill her”. We also reported that Goberdan “reported” Hansjee to the DPP after a “spate of bail rulings”.
Deputy Press Ombudsman Johan Retief directed us to apologise to Hansjee as Goberdan did not “report” Hansjee to the DPP, but merely requested it to take the matter on appeal. He also found that the story was unbalanced as it did not state Hansjee’s reasons why the bail application was granted.
REASONS TO BE ADDED (IF APPROPRIATE)…
Retief dismissed the complaint that the story contained two inaccurate statements, that there was no comment or attempt at verification from several interested parties about several issues, that the story omitted material facts, that Kimberley was not present at hearings, that the sources of information were suspect, that the reporter ignored the sub judice nature of the matter, and that the mentioning of Hanjee’s first name without his permission was disrespectful of his constitutional right to dignity and privacy.
Visit www.presscouncil.org.za (rulings, 2012) for the full finding.
The Complaints Procedure permits a party to apply for leave to appeal against a decision of the Press Ombudsman. An application for leave to appeal, fully setting out the grounds, may be made to the Chairperson of the South African Press Appeals Panel, Judge Ralph Zulman. He may be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman