Ruling by the Press Ombudsman
23 October 2015
This ruling is based on the written submissions of Ms Anneliese Burgess, on behalf of the Oscar Pistorius family as instructed by the family’s attorneys, and those of Kashieva Ajam, acting editor of the Saturday Star newspaper.
Complaint
The Pistorius family is complaining about a front-page lead in the Saturday Star of 22 August 2015, headlined Oscar’s diva demands – Prison life doesn’t meet convicted athlete’s stringent conditions. The story was also published on the newspaper’s website.
Burgess says that the article was based on information contained in an earlier CNN report (which was in turn based on an interview with Mr Murasiet Mentoor, the regional manager of the Judicial Inspectorate – an independent office under control of the Inspecting Judge), but rewritten in such a way that the overall effect was a deeply misleading misrepresentation of the facts.
The family complains that the:
· story “massaged” statements from the CNN report to suit the newspaper’s agenda – about a bath, food, gym equipment for Pistorius, his complaints, and his bed – not only misrepresenting facts in the process, but also neglecting context (details below);
· journalist did not independently verify the facts; and
· headline and sub-heading were unfair and unbalanced.
The text
The story, written by Kashieva Ajam, made several statements of fact and allegations to the effect that Pistorius had acted as a diva in prison (details below).
The complaint in more detail
‘Massaging’ some statements
Bath
The story said, “The Department of Correctional Services built Oscar Pistorius a bath in his cell at the Kgosi Mampuru Prison because he complained that he wanted to take a bath.”
Burgess denies that the bath was built in his cell. “The fact is that a bath was not available in the section where Pistorius was held, but one was later installed in the cellblock where Pistorius [was] held. Pistorius’ cell [was] 2m x 2.5m. Any journalist, especially someone as senior as Kashiefa Ajam, would know that single cells are built to provide space for a bunk and very little else. He most certainly [did] not have a bath in his cell.”
She adds that the article created the misleading statement that he requested a bath because showering was not good enough for him and that he simply felt like “taking a bath”. “The bath issue also has a context that can be traced right back to the very public and very transparent court case that the Saturday Star covered extensively, but in this report is conveniently forgotten.”
Burgess says when asked in court about the facilities in prison for inmates with Pistorius’s specific disability, the Commissioner explained that a bath was available for those prisoners who were not able to use shower facilities due to a specific disability.
The fact that a bath was made available in Pistorius’s cell block was therefore hardly a new or sensational “demand” and presenting this as a “diva demand” was unfair and deliberately misleading.
Burgess says that Mentoor, in his CNN interview, provided further context that was omitted completely from The Star story. “He says a bath was provided for Pistorius ‘because he can’t shower’. The Star says a bath was built ‘because [Pistorius] complained that he wanted to bath’.”
She concludes that deliberate spin put on the bath issue by The Star was not only factually incorrect, it was also deliberately misleading and clearly crafted to support the “diva” headline.
She also argues that, irrespective of the reason for Mentoor saying “in his cell” instead of “in the cell block”, this fact could have been established very quickly, had the journalist asked her or Correctional Services. “This was not done and very conveniently, The Star… was able to report the obviously wrong fact because it suited their preconceived storyline.”
Food
Ajam wrote, “[Mentoor] also revealed how Pistorius was given permission to prepare his own food – because the athlete was paranoid about being poisoned.”
Burgess says Mentoor did not say in the interview that Pistorius had been allowed to prepare his own food. Paraphrasing Mentoor, the CNN reporter says, “…whilst most prisoners complain about food, it seldom has to do with fear… and so Pistorius will only buy food from the prison store” (emphasis added).
She argues, “Buying from the prison shop is not a ‘diva demand’, it is something every prisoner is allowed to do. Not eating the prison food is also something every prisoner is allowed to do, for whatever reason they might have.”
Also, the statement that Pistorius was allowed to prepare his own food suggested that he had been provided with kitchen facilities of some sort – once again playing into the concept of his so-called “diva demands” and the sub-text of special treatment. “Eating a can of food from the prison shop is something every Group B prisoner is allowed to do, and is hardly a ‘diva demand’.”
Burgess adds that the words “paranoid about being poisoned” was also a deliberate twisting of what Mentoor said in the interview, as he stated clearly that high profile prisoners “will be targeted” (not “can be”, but “will be”). The CNN reporter also stated as fact that prisoners have been killed in South African prisons, context which is totally missing from the story.
She concludes that the issue of death threats against Pistorius by the notorious 28s prison gang was widely reported during the trial. “The death threat came directly from a gang member who had called the journalist. It was graphic and specific and said they would ‘get him’ even in the hospital section of a prison.”
The Saturday Star story also omitted this context – instead, the fact that Pistorius was subsisting on food from the prison shop because of the very real fear that prison gangs would try to “get” him, was turned into a “diva demand”.
Gym equipment
The article stated, “Mentoor said officials had also conceded to Pistorius’s demands that new equipment be installed in the prison gym.”
The family complains that the words “conceded to his demands” constituted a loaded term that was not supported by facts, and was carefully chosen to support the “diva demands” headline. It implied that Pistorius “demanded” and that Correctional Services then jumped to “concede”.
The reference to “new equipment” also misleadingly suggested that Pistorius wanted special treatment because the prison equipment was not good enough for him as a “diva”.
Burgess: “During the trial and in court, the Commissioner of Prisons, Zach Modise, outlined the various ways in which inmates are assisted with their rehabilitation inside prison. One of these was exercise and he emphasized that prisoners were encouraged to use the prison gym. Due to the concerns around Pistorius’ safety, he was not allowed to use the prison gym. Two pieces of equipment were then offered to the prison officials as a donation by family and friends of Pistorius, and after a lengthy process of authorization, Correctional Services allowed this equipment to be made available to the inmates in the section where Pistorius and others are kept.” This equipment was used by other prisoners as well.
She concludes that Correctional Services therefore did not “concede to his demands” by going out and buying new equipment to suit his “stringent demands”.
Complaint
Burgess says thousands of complaints are raised by thousands of inmates every year. The lodging (or raising) of a complaint by an inmate is therefore hardly out of the ordinary or exceptional.
She says it is important to provide some context to the use of the word “complaint”. The Judicial Inspectorate deals with prisoner complaints or issues raised by them. All issues reaching the Judicial Inspectorate are labeled as “complaints” – it is the administrative word used for issues lodged with the Inspectorate, and it is every inmate’s right to lodge such an issue or complaint.
Burgess says while the family can accept the publication’s use of the word “complaint” as the correct administrative term for all issues lodged with the Inspectorate, they do believe that Saturday Star created a misleading spin by not placing Pistorius’s “complaints” in the context of thousands of similar complaints made to an independent body set up by the authorities to assist Correctional Services.
Bed
The story read, “[Pistorius] grumbled about his bed – and the department replaced his bed for him.”
The family complains that by using a word such as “grumbled” Saturday Star meant to advance the underlying theme of the story, namely that Pistorius was making “diva demands”.
Not independently verifying the facts
The family complains that Saturday Star should have independently verified its information (with the family).
Unfair headline, sub-heading
The family complains the headline unfairly inferred that Pistorius was a “complainer” with “diva demands”. Burgess also contends that the story was written to suit the headline.
The newspaper’s response
Ajam says she stands “100%” by her story.
She argues, “I don’t see why I had to call the Pistorius family for comment (Let's not forget the fact they DO NOT comment to anyone and haven't for a long while.) The story was around Oscar being in prison, which has got nothing to do with them. He is in the system and the responsibility of the Department of Corrections.”
The acting editor says she went directly to the source, who confirmed the CNN story as well as a Daily Mail story (which Saturday Star followed).
“We phoned…Mentoor, [who] said he didn’t want to comment further and that he had got calls from international media all day. I read the story to him and he said ‘yes that is all correct’.”
Saturday Star also called:
· Manelisi Wolela, who directed it to Logan Maistry, spokesperson for the Minister of Correctional Services, who directed the journalist back to Wolela;
· Mthunzi Mhaga, spokesman for the Department and Ministry of Justice and Correctional Services, who did not want to comment on the issue; and
· criminal law expert William Booth, and quoted him.
Ajam concludes that the newspaper did not have any comebacks from the department or the ministry because they were all aware of the story before Saturday Star went to print.
She also denies that she wrote the story to fit a headline as stated by Burgess.
In her response to the complaint, Ajam mentions nothing about a bath, food, gym equipment, complaints or the bed.
Analysis
‘Massaging’ some statements
Firstly turning to the specifics of the complaint (the bath, food, gym equipment, his complaints, his bed and the headline), I need to state that Ajam’s choice not respond to these parts of the complaint is rather disappointing.
I am therefore forced to adjudicate these issues without the acting editor’s input – and having nothing else to go on, I have no reason to disbelieve Burgess’s arguments.
On the basis of what is at my disposal, I submit the following:
Bath: I do not accept that the DCS built a bath in Pistorius’s cell of 2m x 2.5m (the story stated this allegation as fact), but rather that one was installed in his cell block; I also do not believe that he requested a bath because he “wanted” it, but rather because he could not shower and therefore “needed” a bath. The story omitted this information
Food: It is not reasonable to accept that Pistorius was allowed to prepare his own food in such a close space. Where would the kitchen facilities have been accommodated? It is rather more reasonable to accept that Pistorius in fact bought food from the prison store. In any event, the story (inaccurately) reported that Mentoor had been given permission to prepare his own food – a statement that he did not make in the CNN interview. However, I do take into account that Mentoor might have said this in the newspaper’s interview with him Mentoor also did say that Pistorius was worried that his food might be poisoned. But, at the very least, the newspaper should have tried to independently verify this statement as well as the previous one(see a separate section on verification below).
Gym equipment: In light of Burgess’s argument, the term “conceded to [Pistorius’s] demands” was putting too much spin on the ball; this goes for Pistorius’s “demand” for “new equipment” as well – see Burgess’s arguments above, which I find reasonable. I take into account that this was not stated as fact, but as Mentoor’s opinion. But again, the newspaper should have approached representatives of the subject of its story for comment on this issue.
Complaint: I do not believe the newspaper erred by using the word “complaint”, or by not mentioning the “thousands of similar complaints” – the story was about Pistorius, and not about the total picture as far as complaints were concerned.
The bed: The story stated that Pistorius “grumbled” about his bed. My simple question is this: how did the newspaper know this? I agree with Burgess that this was meant to advance the underlying theme of the story, namely that Pistorius had been making “diva demands”.
Not independently verifying the facts
Ajam’s argument that “…Oscar being in prison…has got nothing to do with [the family]” is rather odd. This, I submit, needs no further argument – of course Oscar being in prison had everything to do with his family.
I am also mindful of the fact that his attorneys have instructed Burgess to lodge the complaint on behalf of the family – which they would not have done if the matter had nothing to do with them.
The argument that the family did not comment to anyone is also weak. In my ruling on 24 March 2010 in the matter between the ANC Youth League and the Mail & Guardian, the reporter also explained that the Youth League never responded to her questions, which is why she did not attempt to contact the relevant person/s.
I found that she should have done so, irrespective of the situation – Section 2.5 of the Press Code requires that the subject of critical reportage should be asked for comment prior to publication (and, if unsuccessful, this should be reported).
In this case, Pistorius was the subject of critical reportage. While I commend the newspaper on contacting a few sources, it should also have asked his attorneys or spokesperson for comment – and reported that no comment was forthcoming (had that been the case).
Unfair headline, sub-heading
The headline reflected the content of the story, as required by Section 10.1 of the Press Code. However, if the content of a story is false and unfair, then such a headline would also be false and unfair.
Burgess’s argument that the story was written to suit the headline does not hold water – in standard journalistic practice the headline is written after the story has been completed and received the care of the sub-editors. To suggest that a story can be written to suit a headline is to put the cart before the horse.
Conclusion
Overall, Saturday Star painted a picture of a diva, with so many allegations presented as fact – but without evidence to support that. When asked to provide it, the newspaper failed dismally.
I can only conclude that the story was blatantly inaccurate and unfair to Pistorius.
In my six years as first Deputy and then Press Ombudsman I have encountered enough similar examples to make the following statement: Sometimes, journalists suffer from what I call the 007 syndrome – “licence to kill”. Once a reporter has made up his or her mind that the subject of a story is guilty, then anything goes.
I do not care how many people think of Pistorius as a diva, or that he was guilty of murder rather than of culpable homicide, or that his prison sentence was too light, or that he was released from prison too early. Even if all of these things were true (I am not saying they are!), the press still has a responsibility to report news truthfully, accurately and fairly – which in this instance did not happen. Not even close.
The press is supposed to “take out” information from a situation, not to “put in” its own information or opinions and then, taking those out again, present them as if they were true.
Finding
‘Massaging’ some statements
Bath: The statement of fact that the DCS built Pistorius a bath in his cell is in breach of Section 2.1 of the Press Code that says, “The press shall take care to report news truthfully, accurately and fairly.” The omission of Mentoor’s statement that Pistorius could not shower is in breach of Section 2.2 of the Press Code that states, “News shall be presented in context and in a balanced manner, without an intentional or negligent departure from the facts whether by…misrepresentation…”
Food: The newspaper should have obtained comment from a representative of the subject of its reportage on Mentoor’s statement that Pistorius was allowed to prepare his own food and that he was “paranoid about being poisoned”. This is in breach of Section 2.5 of the Code: “A publication shall seek the views of the subject of critical reportage in advance of publication… If the publication is unable to obtain such comment, this shall be stated in the report.”
Gym equipment: The newspaper should have obtained comment from a representative of the subject of its reportage on Mentoor’s statement that officials conceded to Pistorius’s demands that new equipment be installed in the gymnasium. This is in breach of Section 2.5 of the Code.
Complaint: I do not believe the newspaper erred by using the word “complaint”, or by not mentioning the “thousands of similar complaints” – the story was about Pistorius, and not about the total picture as far as complaints were concerned.
The bed: See my argument above - How did the newspaper know that Pistorius “grumbled” about his bed? I agree with Burgess that this statement, presented as fact, was meant to advance the underlying theme of the story, namely that Pistorius was making “diva demands”.
Not independently verifying the facts
By not asking the family, its lawyers or its spokesperson for comment, the newspaper is in breach of Section 2.5 of the Press Code.
Unfair headline, sub-heading
The headline reflected the content of the story, as required by Section 10.1 of the Press Code. However, if the content of a story is false and unfair, then such a headline would also be false and unfair. The headline is in breach of Section 2.1 of the Code.
The complaint that the story was written to suit the headline is dismissed.
Conclusion
When seen as a whole, the story is also in breach of Section 2.2 of the Press Code that states, “News shall be presented in context and in a balanced manner, without an intentional or negligent departure from the facts whether by distortion, exaggeration, or misrepresentation, material omissions, or summarization.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are all Tier 2 offences.
Sanction
Saturday Star is directed to apologise to the Pistorius family for falsely and unfairly picturing Oscar as a diva – without evidence to support the statements in some cases, and without asking his family for comment on other issues.
In particular, the newspaper is asked to apologise for:
· stating as fact that the DCS built Pistorius a bath in his cell, instead of a bath in his cell block; and that he had “grumbled” about his bed;
· not asking the family for comment on the allegation that Pistorius was allowed to prepare his own food, that he was paranoid about being poisoned, and that officials conceded to Pistorius’s demands that new equipment be installed in the gymnasium.
Saturday Star is also reprimanded for an unfair and misleading headline.
The newspaper is directed to publish the following words, in bold and in a suitable type, in a box immediately beneath the masthead on its front page: “Apology to Oscar for unfairly, falsely portraying him as a prison diva – see page 2 (or 3).
The apology itself should be carried on either page 2 or 3, in either case at the very top of the page, and the headline should again contain the word “apology” or “apologises”, and “Oscar”.
The text, which should be approved by me, should end with the sentence, “Visit www.presscouncil.org.za for the full finding”.
The newspaper should also carry the apology on its website.
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 Ombudsman