Ruling by the Press Ombud
26 April 2016
This ruling is based on the written submissions of Mr Boy Ngobeni, head of Gauteng’s eGovernment department, and those of Asa Skiti, deputy production editor of the Sowetan newspaper.
Complaint
Ngobeni is complaining about a story on page 7 in Sowetan of 11 March 2016, headlined Lobola king sued for papgeld.
He complains that the newspaper:
· published information without asking him about it;
· ignored material information that he provided prior to publication;
· did not make a reasonable attempt to verify the correctness of the information received; and
· disregarded the privacy of his wife.
Ngobeni adds that the headline was misleading, adding that the reportage has unnecessarily tarnished his dignity and reputation.
The text
The story, written by Lindile Sifile, said Ngobeni “recently shocked many people by paying lobolo for the second time for his wife of 24 years”. He had reportedly been accused of living the high life – while his child’s mother (37) struggled to support the girl (7). The article said Ngobeni disputed the paternity of the child before DNA tests proved him wrong.
Sifile reported that, four years ago, the mother of the child “dragged” Ngobeni to the maintenance court for child support. The woman was reportedly looking for Ngobeni “so that she can hand him court summonses to appear at the Protea Magistrate’s Court in May to discuss the adjustment of this child support”.
The woman accused Ngobeni of flashing his money around, while he did not fully support his own child, and reportedly ignored her phone calls.
The journalist quoted him as saying that the woman was “confused” and “malicious”, because he had been paying child support, as well as an additional amount of R3 000 for clothes. “I have always honoured my responsibility to maintain the child and continue to [do so],” he reportedly said.
Sifile also reported the woman said she was not aware that Ngobeni was married when they were dating. “I even obliged when he suggested that we should make a baby,” she was quoted as saying.
The story mentioned the name of Ngobeni’s wife.
Note: The story did not name the mother of the child, but she was identified in the papers that are before me. I am withholding her name (as well as that of her child) for obvious reasons.
The arguments
Ngobeni says on March 8 Sifile sent him an e-mail, asking for a response before 14:00 that same day regarding a woman from Soweto who had come to the newspaper, claiming that Ngobeni had not been paying child support to her satisfaction, and that she had applied to the court to increase this support.
He complains that these questions seemed to suggest that he had not carried out his responsibiliy to pay maintenance, or alternatively, that his payments were insufficient. He says that he has been paying maintenance for his daughter in terms of a court order handed down in August 2013.
He communicated this to the journalist, adding that:
· his contribution was deducted monthly from his salary, as per order of the Johannesburg Family Court;
· he further paid the woman R3 000 per year for clothing (which has already been paid earlier this year); and
· he had not been served with any variation order or called to appear before the Family Court for an increase.
Ngobeni says the woman was malicious and confused, and sought to drag his name through the mud.
He complains that, despite this correspondence, the story contains the following allegations which were not put to him for comment:
· The woman was unable to locate him in order to serve summons on him (requiring him to appear at the Protea Magistrate’s Court);
· He paid as little as R200 for the maintenance of his daughter;
· He suggested that she fall pregnant;
· He disputed the paternity of his daughter; and
· The inference in the story that he had been evading the woman in order to avoid a summons being served on him.
He argues it was not the woman’s duty to serve a summons – that was the sheriff of the court’s job. He says that neither his home address, nor his cell number, nor his e-mail address has changed since the court order in August 2013. “The fact that Ms Sifile … was able to email me her questions is testament to the fact that I am easily located. Therefore, the assertion that I am unable to be located in order for a summons to be served on me is patently incorrect and a misrepresentation of the facts.”
Ngobeni adds that no sheriff has visited either his home or work premises when either his wife or he were there. “In lieu of this, I believe that the Sowetan did not make a reasonable attempt to verify the correctness of the information received…”
He also argues that the newspaper should have contacted the court or the relevant sheriff to verify its information.
He says that on March 10 he went to the Family Court to establish whether an application for variation of the maintenance order had in fact been made. He states he was told that such an application had never been made. “I communicated this finding to the Sowetan that day. Despite my communication in this regard, the Sowetan maintained its position and continued to publish the false allegations when, in fact, they were in possession of the correct facts.”
He also submits that the story was sensationalist, as it reported that he had been “dragged” to court and that he had been a “Lobolo King”.
The mentioning of his wife’s name, while protecting that of the woman, indicated that the Sowetan was biased. “There can be no justifiable reason to protect the identity of [the woman] while there is complete disregard for the privacy of my wife.”
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Skiti replies that the story was in the public interest “due to previous reports regarding Mr Ngobeni’s personal life”. He denies that Sowetan did not exercise care and consideration regarding the latter’s personal life. He submits, though, that Ngobeni has placed himself in the public domain by allowing publication of the ceremony where he paid lobola for his wife for the second time. Skiti also denies the story stated that Ngobeni was not paying maintenance. He argues that Sifile had trouble in getting hold of Ngobeni – “[it] was therefore easy for us to believe that [the woman] could not get hold of him either”. He explains that Ngobeni’s cell phone was off, more than once, when the reporter tried to contact him. Sifile then asked Ngobeni’s personal assistant for his e-mail address, which she refused to supply when she learnt that it was about a personal matter. “We then waited at least three more days before publishing the story, carrying Mr Ngobeni’s response.” Skiti adds that the newspaper has in its possession a copy of the document the woman was trying to serve on Ngobeni. The journalist also enquired with the Department of Justice why she was asked to serve the summons herself. “This formed part of our story.” He admits Sowetan erred in not asking Ngobeni about: · the payment of R200 for child support; and · his suggestion that the woman fall pregnant. He says a paternity test was done to prove that Ngobeni was the father of the girl when the case was taken to the Family Court. He denies that the headline was meant to demean – it was used merely in recognition of his public payment of lobola for the second time. He explains that newspapers do invent words from time to time, such as “Sushi King”, the “Cradock 4”, etc. “For as long as these words are substantiated and are relevant to the story we do not see them as ‘misleading and malicious’.” He says the newspaper did not reveal the woman’s identity in order to protect her daughter (7), who bore her surname. “We were not protecting the mother.” He also denies that the story contained any defamatory information about Ngobeni’s wife. He argues that the previous story merely reported that Ngobeni had twice paid lobola for her – if he did not want her name or picture to be published, he should “have blocked the publication of the first article. He cannot be selective on what should be reported on him, he himself opened his family up to public scrutiny”. In later correspondence, Skiti offers to publish an apology, stating the story said that Ngobeni had paid R200 in maintenance for his child, and that he had disputed this. “The allegations [were] not put to him and we therefore apologise for this oversight.” The article also reported Ngobeni suggested that the woman in question “should conceive”. Ngobeni has since disputed this and this allegation was also not put to him. “We apologise to Mr Ngobeni unreservedly.” |
Ngobeni rejects the proposed apology saying, “The story should be read in totality and the Sowetan cannot concede two points and say the rest of the story is fine. I submit that the whole article with all its components is meant to defame.”
He replies as follows to Skiti’s response:
· Why did Sowetan find it easy to believe that he was difficult to find when in less than eight hours they had found his PA, and his work and e-mail addresses, and they knew where he had been?
· The story did not indicate that the newspaper had asked the Department of Justice why the woman had been asked to serve summons on him – instead, the department said that was the responsibility of the maintenance investigator;
· On the day prior to publication he sent a further e-mail (to deputy editor Mapula Nkosi), indicating that he went to the Family Court to ascertain whether they had been looking for him. “The court has both my home and work address and they said they were not looking for me. The Sowetan never published this information”;
· It is only proper that a DNA test should confirm paternity at the start of a legal process. Saying that this was “disputed” taken together with “I suggested that she fall pregnant” suggested an intention to defame him;
· The examples of “Sushi King” and others are not appropriate, and Sowetan should explain why the depiction of him as the “Lobola King” only emerged in the second story;
· The headline stated “Lobola King” as fact, and did not put it in quotation marks;
· Sowetan, in an earlier story, did identify the woman – “This flatly contradicts their response”;
· If the newspaper wanted to protect a child, why did it not protect his wife’s children (5, 10 and 15) as well? (A picture of his wife went with the story);
· Sowetan knows that he cannot “block” any story, or “allow” it to be published; and
· He did not open himself to public scrutiny, as the event in question was a private family event, in a remote village.
Ngobeni concludes that it is difficult to understand what the newspaper’s motive could have been, other than to defame him.
Analysis
My first – and lasting – impression is that the whole story was written with a negative slant towards Ngobeni. I am talking about words such as “dragged” to court, as well as the woman’s allegation that she was having a hard time while Ngobeni was flashing his money around. I also note that the heading to the caption with his picture said, “WANTED”.
But, let me address his complaint point by point:
Publishing information without asking him about it
Sowetan admits having erred by not asking Ngobeni about his suggestion that the woman should fall pregnant, and about the amount of R200 for child support.
I appreciate this admission, but I also need to state that the allegation about falling pregnant is exceedingly serious. The woman alleged Ngobeni made this suggestion while he was married (to another woman). I am not convinced that the newspaper should have published this allegation in the first place – even if the reporter did ask Ngobeni about it. Be that as it may, I cannot even begin to imagine how it was possible to publish such an allegation without at least getting his response.
Sifile should also have asked Ngobeni about the statement / allegation that the woman was unable to locate him in order to serve summons on him (read: the inference in the story that he had been evading her in order to avoid a summons being served on him), and regarding him having disputed the paternity of his daughter.
Again, the suggestion of evading being located is serious, and it puts (unnecessary?) doubt in readers’ minds about Ngobeni’s motives and character.
I am not going to speculate as to why the reporter neglected to ask Ngobeni these questions – I leave this matter for the editor to handle.
But that is not all. Skiti has admitted to only two issues of neglecting to enquire by the journalist. I am in the dark as to why he did not address the other issues as well.
Ignoring material information that was available
The journalist reported Ngobeni’s statements (at the very end of the article) as follows: “Ngobeni said the woman was ‘confused’ and ‘malicious’ because he had been paying child support and additional R3 000 for clothes. ‘The lady is malicious, confused and seeks to drag my name in the mud. I have always honoured my responsibility to maintain the child and continue to [do so],’ he said.”
I have correspondence in my possession that shows Ngobeni has also communicated to the journalist that:
· he had been paying maintenance for his daughter in terms of a court order handed down in August 2013;
· his contribution was deducted monthly from his salary, as per order of the Johannesburg Family Court; and
· he had not been served with any variation order or called to appear before the Family Court for an increase.
In addition, Mr Charles Phahlane of the Department wrote to the Sowetan (directed to Mapula Nkosi, and dated March 10) that Ngobeni had contacted the Johannesburg Family Court where the maintenance order was made to ask them whether they were looking for him, or if there was a summons out for him. “The Family Court said they were not looking for him neither do they have any summons for him,” he stated.
The same problem is raising its ugly head here. The matter is simple: Ngobeni says he has been acting in terms of a court order, that he has been paying regularly, and that he has not been served with any variation order or called to appear before the Family Court for an increase. The question is equally simple: Why did the journalist not report these statements? Were they standing between him and a “good” story?
Again, the reporter’s motives for failing to mention the above are questionable – a matter which, I believe, the editor should take up with him.
I need to state, though, that the inclusion of Ngobeni’s comments would have put a totally different perspective on the story. No, let me be more precise: It should have sunk the story. There really was no story…
And again, Skiti does not respond to this part of the complaint – and I still do not know why.
No reasonable attempt at verification
Ngobeni argues that the newspaper should have contacted the court or the relevant sheriff to verify its information.
The newspaper did exactly that, and reported the response of the Department.
Disregarding the privacy of Ms Ngobeni
Ngobeni complains that the mentioning of his wife’s name, while protecting that of the woman, indicated that the Sowetan was biased.
This suggests to me that, had the story revealed the woman’s identity, it would have been in order to do so with his wife as well.
Be that as it may, I accept Skiti’s defence that the newspaper did not identify the woman in order to protect her child (even though it may have identified her in an earlier report); I also am not convinced that the identification of Ms Ngobeni has invaded her privacy, or that the story was biased on this issue.
Misleading headline
I am not concerned about the term “lobola king” at all. Skiti’s explanation in this regard is convincing, even though he did use some inappropriate examples in his response to the complaint.
Dignity, reputation
For all the reasons set out above, Ngobeni’s complaint that the reportage has unnecessarily tarnished his dignity and reputation holds water.
But, let me be specific:
· Sifile did not ask Ngobeni about the woman’s statement that:
o he suggested she should fall pregnant (while he was married to another woman);
o the woman was unable to locate him in order to serve summons on him, implying that he had been evading her in order to avoid a summons being served on him;
· The journalist did not report Ngobeni said that:
o he had been paying maintenance for his daughter in terms of a court order handed down in August 2013;
o his contribution was deducted monthly from his salary, as per order of the Johannesburg Family Court; and
o he had not been served with any variation order or called to appear before the Family Court for an increase.
I need to repeat: Given all of the above, there really was no story…
All of the above, together with the negative slant towards Ngobeni (as mentioned at the beginning of my analysis), leave me with little doubt that the story did indeed unnecessarily tarnish his dignity and reputation.
Section 3.1 of the Code of Ethics and Conduct is relevant, as it allows for some exceptions. This section reads as follows:
The media shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only if it is in the public interest and in the following circumstances:
3.3.1. The facts reported are true or substantially true; or
3.3.2. The reportage amounts to fair comment based on facts that are adequately referred to and that are true or substantially true; or
3.3.3. The reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or
3.3.4. It was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest.
3.3.5. The article was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party.
I do not believe that any of the above-mentioned exceptions are applicable in this case.
I also need to comment on Skiti’s reply that the story was in the public interest “due to previous reports regarding Mr Ngobeni’s personal life”. My understanding of “public interest” is not that it is linked to (previous) media reports – as if the publication of a report causes a matter to be in the public interest, by default.
The Preamble to the Code of Ethics and Conduct describes this matter as follows: “The media’s work is guided at all times by the public interest, understood to describe information of legitimate interest or importance to citizens” (Emphasis added.) It does not say, “The media’s work is guided at all times by the public interest, understood to describe information that has previously been published.”
Finding
Publishing information without asking the subject about it
By neglecting to ask Ngobeni about the woman’s statement that he suggested she should fall pregnant (while he was married to another woman), as well as her allegation that she was unable to locate him in order to serve summons on him (implying that he had been evading her in order to avoid a summons being served on him) Sowetan was in breach of Section 1.8 of the Code of Ethics and Conduct which states, “The media shall seek the views of the subject of critical reportage in advance of publication…”
Ignoring material information that was available
The journalist did not report Ngobeni’s comments that:
· he had been paying maintenance for his daughter in terms of a court order handed down in August 2013;
· his contribution was deducted monthly from his salary, as per order of the Johannesburg Family Court; and
· he had not been served with any variation order or called to appear before the Family Court for an increase.
He also omitted information from Phahlane, which was material to the issue.
This was in breach of the following sections of the Code:
· 1.1: “The media shall take care to report news…fairly”; and
· 1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions…”
No reasonable attempt at verification
This part of the complaint is dismissed.
Disregarding the privacy of Ms Ngobeni
This part of the complaint is dismissed.
Misleading headline
This part of the complaint is dismissed.
Dignity, reputation
For all the reasons set out above, the reportage was in breach of Section 3.3 of the Code that states, “The media shall exercise care and consideration in matters involving dignity and reputation…”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above are Tier 2 offences.
Sanction
Sowetan is directed to apologise unreservedly to Ngobeni for:
· not asking him about the woman’s statement that:
o he suggested she should fall pregnant (while he was married to another woman);
o the woman was unable to locate him in order to serve summons on him, implying that he had been evading her in order to avoid a summons being served on him;
· not reporting his statements that:
o he had been paying maintenance for his daughter in terms of a court order handed down in August 2013;
o his contribution was deducted monthly from his salary, as per order of the Johannesburg Family Court; and
o he had not been served with any variation order or called to appear before the Family Court for an increase.
This text should include my comment that, had the newspaper not breached the Code of Ethics and Conduct, as described above, there would have been no story.
The text, which should be approved by me and should be published at the top of page 7, should:
The headline should include the word “apology” or “apologises”, as well as Ngobeni’s name.
If the offending article appeared on the newspaper’s website, the correction should appear there as well.
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