Ruling by the Press Ombudsman
4 December 2014
This ruling is based on the written submissions of Mr Paul Robbertse, on behalf of the Noupoort Christian Care Centre, and Pieter Malan of the Rapport newspaper.
Complaint
Noupoort is complaining about an article published in Rapport on 21 September 2014, headlined Noupoort moet dadelik ophou om só te straf (Noupoort must stop this punishment immediately).
The institution complains that:
Robbertse adds that Rapport has been “entirely insensitive” to the epidemic of drug dependence in South Africa.
The text
The story, written by Nielen de Klerk, is based on a report by the Centre for Child Law (CCL) and the Department of Social Development (DSD) in respect of court proceedings between Transnet and Noupoort in the Kimberley High Court. The DSD reportedly said that the practice of excessive punishment (called “corrective intervention” − CI) should stop immediately; acknowledged that children at Noupoort were in need of help and protection; and ordered Noupoort not to take in any more children until further notice.
The article also said the DSD found that children were often given old and even rotten food, that the Department found during a second visit that there had been several improvements at Noupoort since its first visit, and that its investigation was continuing.
Analysis
Story: Untruthful
Noupoort complains that the story did not portray a truthful reflection of the “true facts”. Robbertse adds, “Many of the allegations made in the article are blatant untruths and complete fabrications.”
Rapport notes that Noupoort either does not or cannot provide any details regarding the alleged inaccurate reporting – which makes it difficult to respond to the complaint. Malan adds that Noupoort does not even attempt to show how and where the story incorrectly presents or interprets the documents that served before the High Court.
Robbertse challenges Rapport on the absence of specific details regarding alleged inaccuracies in the story. He says: “It is not now the time to furnish comments on the allegations – these should have been obtained prior to the publication and should have been published.” He also argues that this office should adjudicate the matter “independent from what the responses would have been, if asked for”.
Despite this argument, the institution nevertheless does say that if the newspaper had sought comment, it would have commented on the statements below as follows (I concentrate on the more important ones):
Statements Would-be comments
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“[The] practice of excessively punishing children (called “corrective intervention”) should stop immediately.”
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This creates the false impression that an order had been made by an authority authorised to do so by law, and that Noupoort must stop to (allegedly) punish.
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“Members of the Department confirmed … the CCL’s findings: Apparently children need care and protection.”
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It is not true that children at Noupoort are in need of care and protection. |
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“[Children] are subjected to a form of punishment, ‘corrective intervention’… when they are not allowed to attend school for a period of 21 to 28 days. They then must do physical exercise. When they transgress, they are in exceptional circumstances isolated in a cage where they are only allowed to wear underwear, irrespective of the temperature… The parents of the four children who wrote matric this year were also concerned about the examinations.”
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All residents are orientated about Noupoort’s orientation programme. When a resident breaks a rule, all material details are recorded. Minor incidents are assessed by a team. The person who allegedly broke a rule is given a right of reply. Sanctions are decided upon in the resident’s presence, and they vary according to the seriousness of the offence. The main motivations for placing children in CI are to prevent them from obstructing the mainstream activities and for their own protection. The allegation about wearing only underwear is false.
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“The DSD also found that children were often given old and even rotten food.”
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This is untrue – the food presented at Noupoort is of the highest quality. |
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“According to court documents the Department phoned the children’s custodians and most of them were inter alia concerned about the money they would lose which they have already paid to Noupoort.”
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Custodians are not concerned – in fact, the contrary is true. There is documentation to confirm this.
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“Noupoort’s administration indicated (to the DSD) that the institution’s activities and especially the CI programme was severely punishing and that it has been revised.” |
Noupoort never made this statement to the DSD. Instead, its management explained that the CI programme has always had behavioural change as a goal. “This includes creating discomfort and consequences. Other people might view this as severe punishment.”
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“A nurse now monitors physical exercises and these activities do not last for longer than an hour.” |
Children are medically examined before doing exercises; physical training is part of the CI programme; and it lasts only one hour twice per day. It was not different in the past – the use of the word “now” is therefore misleading.
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Robbertse also explains procedures at Noupoort in more detail – which, for the purposes of this finding, can be disregarded as they are not likely to have a material influence the outcome.
My considerations
Noupoort does not specify in its complaint exactly what it deems to be wrong, as argued by Rapport. There is one exception to this, though, which I shall address under the sub-heading Headline: Misleading.
Noupoort cannot reasonably expect the newspaper to respond materially to vague allegations about untruthful statements; neither can it expect this office to find for the institution when given no details about “inaccuracies”.
Robbertse is correct when arguing that this office should adjudicate the matter independent from what the responses would have been, if Noupoort had been asked for comment.
In accordance with Robbertse’s own argument, I therefore disregard the issues recorded in boxes above – I have merely noted them for the sake of completeness.
However, let me comment nevertheless, as a footnote, on the arguments above: Most of the statements in dispute relate to what the DSD said. Rapport was merely the messenger in this regard. These statements may or may not be false – but that is not for the newspaper to decide.
See my arguments below, as these matters are inter-related.
Story: Image misrepresented, distorted, omitted, unbalanced, unfair
Noupoort complains that the story misrepresents and distorts its image – not only in what it reports, but also in what it omits. Robbertse argues that the story creates the dominant impression that residents at the institution are ill-treated − without regard to their welfare and well-being. This renders the article unbalanced and unfair.
The institution adds that the reporter should have:
My considerations
This part of the complaint cannot hold water. The story is not about an all-encompassing report on Noupoort – it rather addresses the specific matter of the DSD report. It would create an untenable situation if this office should expect of publications to find and publish information irrelevant to the matter at hand.
Story: Presenting allegations as fact
Noupoort complains that the newspaper is in breach of Section 2.3 of the Press Code that states: “[Where] a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly”.
Robbertse argues that the story consistently presents allegations as fact.
My considerations
There is no merit to this part of the complaint. A careful reading of the story suggests that the reasonable reader would have understood that the journalist reported on the findings of the DSD, and as such did not present any allegation as fact.
Story: Failing to verify accusations
Noupoort complains that the newspaper is in breach of Section 2.4 of the Press Code that reads: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified…”
Robbertse says that Rapport should have doubted the accuracy of the allegations against Noupoort, and therefore it should have sought to verify the accuracy and truthfulness of these accusations with the institution. He argues: “The allegations are of such a serious nature and allege such a degree of deviation from normal human behaviour by the effects of [Noupoort], that it is inherently improbable that these event[s] would have occurred.”
Malan refers to previous findings made by this office, in which it is stated that a newspaper is not obliged to ask for comment when it reports on court documents that are in the public domain.
Robbertse disagrees with this argument, saying that the requirement to ask for comment (Section 2.5 of the Press Code) remains applicable even when the press reports on court documents.
My considerations
Firstly, I need to point out that it is not the press’s job to verify the findings of an investigative body. If, for example, the Public Protector finds that Company A has been involved in corruption, it is ludicrous to expect from a newspaper to seek to verify the truthfulness of that finding before it publishes the outcomes of the investigation – the newspaper is in this case merely the messenger.
Likewise, even if the CCL and DSD reports contain incorrect and unjustifiable interpretations regarding Noupoort (I am not saying this is the case, I am merely making an argument), the newspaper still is justified to publish the outcomes of those investigations – as long as the findings are presented as such, and not reported as bare fact.
In this regard, I agree with Malan’s argument, as recorded above, that Noupoort does not even attempt to show how and where the story incorrectly presents or interprets the documents that served before the High Court. This means that I can accept that the gist of the story accurately reflects the content of the report in question.
Again, it would create an untenable situation if this office was to ask the press to obtain comment from people who are the subjects of a judicial report. Of course, nothing stops a newspaper from asking for comment (after a court case has been finalised) – but it is not under any obligation to do so, as both parties already had the opportunity to present their cases. The publication’s only obligation is to present the content of a report or finding in a fair and balanced manner.
Headline: Misleading
Noupoort complains that the headline created the false impression that the DSD was authorized to make an order for Noupoort to immediately stop the punishment of residents for contraventions committed in respect of their treatment programme, or that such an order was in fact made “which is denied as no such Order was indeed communicated by the [DSD] to Noupoort”.
My considerations
I asked Rapport the following questions:
Malan responds that the DSD is a national department with a supervisory role, especially with regard to the well-being of minors. He reiterates that the story relied on court documents. In the DSD report, certain recommendations were made about the way in which Noupoort had to act in future.
He argues that Noupoort’s argument about an “order” is therefore misplaced. The document is not a court order; neither did the headline (nor the story, for that matter) make such an insinuation. “The content of the reports can per definition not be equal to a court order.”
Malan adds that Noupoort was a respondent in the court case, and that the institution therefore should have received all court documents regarding this case.
My considerations
Rapport’s response on this issue is convincing and needs no further argumentation.
Insensitive
Noupoort complains that Rapport has been “entirely insensitive” to the epidemic of drug dependence in South Africa and the consequences that the publication of the story may have on the lives, welfare and well-being of prospective residents and on those who now may prematurely leave the institution.
My considerations
Given the public interest in this matter, and the materially correct way in which the journalist reported on this issue, I deem this part of the complaint to be trivial.
Finding
The complaint is dismissed.
Appeal
Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman