Ruling by the Deputy Press Ombudsman
June 22, 2011
This ruling is based on the written submissions of Mr Andrew Boerner of Jurgens Bekker Attorneys, for the Daily Sun, and Mr Dario Milo/Ms Okyerebea Amptoto-Anti for The New Age.
Complaint
The Daily Sun complains about a story in The New Age, published on March 23, 2011 on page 24, and headlined Journalist sues Daily Sun for R7.2m. This story was announced on page 1 under the headline Journalist sues newspaper.
The Daily Sun complains that the story inaccurately states that:
• it was summoned; and
• the journalist Alfred Moselakgomo demanded R7.2 million.
The newspaper adds that neither Moselakgomo’s lawyer nor The New Age asked it for comment prior to publication.
Analysis
The story, written by Masoka Dube, says that Moselakgomo, a journalist of the Sowetan, is suing the Daily Sun for R7.2 million for a “defamatory” article published in March 2010 “which alleged that he had been bribed by one of the province’s warring politicians from the ruling ANC”. His lawyer, Mr Msebenzi Masombuka, reportedly said that the Daily Sun portrayed his client as a brown-envelope journalist for taking R60 000 from an ANC politician. The story adds that Moselakgomo had been suspended from work; however, the Sowetan later lifted the suspension and no charges were pressed against him.
The story on the front page says materially the same.
These stories are related to a story headlined Reporters suspended (published on March 17, 2010). This story says that two journalists of the Sowetan, one of whom was Moselakgomo, was suspended over allegations of bribery.
I shall now consider the merits of the complaint:
Not summoned
The story says that Moselakgomo was suing the Daily Sun for defamation.
The Daily Sun denies that it was summoned. Its lawyers say: “We have yet to receive a summons…nor has our client, despite the fact that we selected our address for service in earlier correspondence to Mr. Moselakgomo.”
The New Age says that Dube interviewed Masombuka (Moselakgomo’s lawyer), who informed him that Moselakgomo was suing the Daily Sun for defamation. It adds that it is evident that the information in the story emanates from Masombuka. The newspaper says: “Masombuka also provided Dube with a copy of the summons.”
The newspaper also says that, subsequent to receiving the complaint, it conducted an interview with Masombuka who told it that the summons was:
• served on Media 24 on April 5, 2011; and
• issued on March 8 – prior to the publication of the article.
The New Age argues that the information in the story was obtained from a well-placed source (Moselakgomo’s attorney), who was the right person to confirm that the journalist was suing the Daily Sun. “Dube had no reason to believe that the information provided by Masombuka was incorrect.”
The Daily Sun replies that at the time of publication, it had not received any summons. It argues that the reportage is therefore incorrect.
Firstly, it is not evident that the information regarding the summons and the amount emanates from Masombuka – the intro states it as a fact and does not attribute it to anybody. The lawyer is only mentioned in the third paragraph and still there is nothing to indicate that the information in the first two paragraphs emanates from him.
Let’s now take a close look at what the story says and what it does not say.
It says that Moselakgomo “is suing” (first sentence of the story) the newspaper and “is suing” (second sentence) the Daily Sun. The very same words are used twice in the front page story that refers to the one on page 24. These are the only references to “suing” in the stories.
It does not say that the journalist “has sued” the newspaper or that a summons “has been served” on the Daily Sun. Those phrases would have implied that the Daily Sun had received the summons, which would have been inaccurate.
The words “is suing” are indeed accurate as it refers to the process of suing and as it does not imply that the Daily Sun has already received the summons. The fact that the Daily Sun at the time of publication did not know about the summons, does not negate the fact that Moselakgomo was indeed in the process of suing that newspaper.
Both headings say that the journalist “sues” the Daily Sun. Again, this does not imply that the newspaper has already received the summons.
The reportage regarding the suing was accurate as it was stating a fact – which means that it was not necessary for The New Age to attribute that particular piece of information to a source (although it would have done no harm if it did do so).
R7.2 million
The story says that Moselakgomo was suing the Daily Sun for R7.2 million.
The Daily Sun says it has not received a summons for R7.2 million and that it has received an email from Moselakgomo who demanded payment of R2 million. The newspaper says that when the summons was eventually served, the amount was R11.2 million.
The New Age says that Masombuka admitted that he had erroneously told Dube that the amount was R7.2 million. The newspaper says that this was a bona fide mistake “which arose from the fact that in a previous version of the summons which he had drafted the amount claimed was R7.2 million”.
The newspaper argues that this error had a minimal impact on the veracity of the story because the actual amount claimed is even higher than R7.2 million, and that “the sting of the allegation was accurate” (namely that the Daily Sun was being sued).
The New Age has earlier convincingly argued that the information in the story was obtained from a well-placed source (Moselakgomo’s attorney). The summons was drafted by Masombuka’s company, so clearly he was in a position to give Dube information about the amount. The information was coming from the one man in the world who was supposed to know for how much his client was suing the newspaper. It was therefore not reasonable to expect Dube to verify this information – he indeed had no reason to believe that the amount provided by Masombuka was incorrect.
Not asked for comment
The Daily Sun complains that The New Age did not ask it for comment prior to publication.
The New Age says that Dube sent an email to the editor-in-chief of the Daily Sun, Themba Khumalo, on the day before publication. However, Dube did not receive a response.
The Daily Sun replies that Dube sent the email at 18:14 – “long after he (Khumalo) had left the office”. The newspaper argues that Dube did not make a genuine attempt to contact it despite the fact that its contact details were readily available.
The newspaper adds that:
• Moslakgomo’s lawyers reportedly blamed the Daily Sun for not verifying its information, but then The New Ago does exactly the same that it accused the Daily Sun of; and
• it contacted The New Age twice after publication on March 23, but not even then a response was forthcoming.
The question now is if this attempt by Dube can be considered to be timeous and adequate, or was it a matter of too little, too late.
Note that the newspaper:
• only once attempted to contact the Daily Sun;
• tried to contact the Daily Sun after normal working hours;
• tried to contact somebody who was not necessarily on night duty; and
• apparently never tried to establish if the Khumalo was available to ensure that he had received Dube’s email (I have no reason to believe that it did).
I would hope that no respectable journalist believes that this attempt was adequate.
Let’s also look at the allegations that are made in the story against the Daily Sun because it has a bearing on the seriousness of this part of the complaint.
The story quotes Moselakgomo’s lawyers as saying that the Daily Sun’s story:
• damaged his reputation;
• caused him unbearable stress;
• was a fabrication intended to “injure” his reputation;
• was based on hearsay;
• portrayed him as a brown-envelope journalist;
• was not credible; and
• should have been verified prior to publication.
Some of these allegations are quite serious and surely necessitated a response.
I am not interested in the question whether these allegations are true or not. My concern is the fact that the Daily Sun did not get a fair chance to defend itself. There is not even a sentence in the story to say that Dube had tried to contact the newspaper, but that it was not able to respond in time.
This is fundamentally unfair to the Daily Sun as the lack of its comment resulted in a one-sided, unbalanced story.
General comment
The fact that I am dismissing the first two parts of the complaint should not mislead the reader to think that, as only one part of the complaint is upheld, the overall picture is not all that bad. On the contrary, the The New Age’s failure to contact the Daily Sun and to report its views represent a basic journalistic mistake as one should always listen to the other side – basic, but also serious in this case, especially when allegations made against the subject of reportage are as grave as the ones in this story.
Finding
Not summoned
The reportage that Moselakgomo “is suing” the Daily Sun is factually accurate, even if that newspaper did not know about it at the time of publication. This part of the complaint is dismissed.
R7.2 million
It was reasonable for The New Age to report that the amount of the summons was R7.2 million and not R11.2 million, as its information came from the person whose company was responsible for drafting that summons. Dube could not reasonably have foreseen that Masombuka may have given him a wrong amount. This part of the complaint is dismissed.
Not asked for comment
The New Age did not adequately try to contact the Daily Sun. This is aggravated by the seriousness of the allegations made against the Daily Sun in the article. This resulted in a story that portrays only Moselakgomo’s side, which is fundamentally unfair to the Daily Sun.
The newspaper’s inadequate attempt to contact the Daily Sun is in breach of:
• Art. 1.1 of the Press Code that states: “The press shall be obliged to report news…fairly”; and
• Art. 1.5 of the Code: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication…”
Sanction
The New Age is directed to apologise to the Daily Sun for not adequately trying to get comment and to publish that comment.
This apology should form part of a summary of this finding (not the whole ruling) that should be published on page 24 or close to that page. This text should end with the following: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding.”
The newspaper is also directed to publish the views of the Daily Sun on the allegations made against it in the story, if that newspaper wishes to do so. The publication of these views may form part of the summary, or it may be contained in a follow-up story. The length of this text should not be unreasonably long.
The newspaper is also directed to refer to this apology and the summary of the finding on its front page.
Our office should be furnished with both texts prior to publication.
Appeal
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at khanyim@ombudsman.org.za.
Johan Retief
Deputy Press Ombudsman