Richtersveld Sida !Hub Communal Property Association vs. Eland News

Wed, Feb 29, 2012

Ruling by the Deputy Press Ombudsman

December 1, 2010

This ruling is based on the written submissions of Mr Willem (Mannetjie) Diergaardt as chairperson of the committee of the Richtersveld Sida !Hub Communal Property Association, and the Eland News newspaper.

Complaint

The Richtersveld Sida !Hub Communal Property Association (CPA) complains about a front page story in the Eland News, published on 23 June – 7 July 2010. There is no headline to this story.

The CPA complains that the newspaper failed to clearly distinguish between fact and opinion with regards to the following sentences:

“The Richtersveld community is on fire and demands the head of Mannetjie Diergaardt…”
“The community now demands that Diergaardt be black-listed and that hy must pay hundreds of thousands of rands in his personal capacity for the court case” because “he fought against the community in attempting to hide his unlawfulness”.

It also says that the following sentences are either factually incorrect or a distortion, exaggeration and misrepresentation of the facts:

“…Judge A.J. Phatshoane…ordered that the CPA pay all legal fees.”
“…during the week the community had gone to the offices of Diergaardt…”
“Diergaardt and the CPA have been opposed to the vast majority of the Richtersveld community for the past three years.”
“ ‘The crooks must resign’ continued from page one”

To this, the CPA adds that the newspaper failed to advise its readers that its publisher has supported the applicants in their (court) case against the CPA.

Analysis

The story says that the community demanded Diergaardt’s head after the Supreme Court found the CPA guilty of violating the rights of 148 residents in the Richtersveld for removing their names off an official list of Beneficiaries of the Richtersveld Land Claim Settlement.

We shall now consider the merits of the complaint:

Richtersveld community demands Diergaardt’s head

The story says that the Richtersveld community was on fire and that it demanded the Diergaardt’s head.

The CPA says that the story presents this statement as fact, while it is rather founded on opinions, allegations, rumour or supposition.It says that the general impression gained from the story, namely that “the community” is opposed to the CPA, is false as its committee was democratically elected. It adds that the elections were overseen by the Independent Electoral Commission.

The newspaper says its reportage is borne out by later events:

Diergaardt and “others” resigned their positions as directors of the Richtersveld Agricultural Holding Company (as carried in its 4 – 18 August edition); and
Diergaardt and his entire committee were ousted by the community, who delivered a vote of no confidence against them.

The last sentence is of particular importance – and it needs some elaboration.

Eland News says that on September 18 a “packed hall comprising the overwhelming majority of Richtersveld CPA members entitled to vote, removed Mr Diergaardt and his entire committee with a vote of no confidence which was underwritten by a court order of Acting Judge President, Steven Majiedt”.

It is reasonable to believe that this public meeting was held as a result of the Supreme Court’s verdict two months earlier and the community’s response to that verdict.

If that is true, surely the newspaper was justified in reporting that the community demanded Diergaardt’s head days after the verdict was delivered – which makes this issue not only relevant but even central to the adjudication of this complaint.

So, how would Diergaardt react to this argument? Strangely, in his reply to the newspaper’s response to his complaint, he calls the newspaper’s statements “not relevant” and adds that he therefore declines to respond to them. He adds: “The fact that we have not responded to such statements should not be seen as an acknowledgement of the veracity thereof.”

Not relevant? On the contrary.

Based on Diergaardt’s failure to respond to this specific issue, it can be fairly and reasonably assumed that he and his committee were indeed given the boot by the community – which means that the newspaper was justified to report that the Richtersveld community demanded his head at the time of publication.

It is also reasonable to believe that the community was unhappy with the CPA for having acted illegally (as found by a court of law).

It is noted that Diergaardt sends our office the document that contains his reply to the newspaper’s response still on an official CPA’s letterhead and also signs it on behalf of the CPA’s committee. The document is dated November 19 – more than two months after he and his committee were ousted.

Diergaardt be black-listed

The story says that the community demanded that Diergaardt be black-listed and that he should pay hundreds of thousands of rands in his personal capacity for the court case because he fought against the community in attempting to hide his unlawfulness.

The CPA says that the story presents this statement as fact, while it is rather founded on opinions, allegations, rumour or supposition.

The newspaper says that its reportage was fair, accurate and justified.

Based on the argumentation regarding the first part of the complaint, it is fair to give the newspaper the benefit of the doubt on this issue.

Ordered to pay all legal fees

The story says that the CPA was ordered to pay all legal fees.

The CPA says that this is not correct. It says that the CPA was ordered to pay the applicants’ costs until January 28, 2010, as well as the “applicants’ costs of the appearance of the two counsel on March 29 and 30”.

The newspaper does not reply to this part of the complaint.

The court’s verdict proves that the CPA is correct on this issue.

‘The community’ went to Diergaardt’s offices

The phrase in dispute is: “…during the week the community had gone to the offices of Diergaardt…”

The CPA says that this statement distorts, exaggerates and misrepresents the facts. It states that approximately 30 people (some of whom were not members of the CPA) supported the writer of a memorandum, Mr Niklaas Philips, when he visited the CPA’s offices. (The memorandum called on Diergaardt and his committee to resign.) It says that, of these people, ten met with Diergaardt and other committee members. The CPA says that this memorandum was signed by Philips only, without specifying the organization that he represented. From this, the CPA concludes, it should be clear that “the community” did not go to Diergaardt’s offices – and the memorandum did not give any indication that its contents were supported by the community. It adds that the memorandum did not include a list of names, as the story indicates.

The newspaper says that its reportage was fair, accurate and justified.

The reference to “thirty people” who supported Philips’ memorandum and went to Diergaardt’s offices makes it probable that they were representative of “the community” – which makes the sentence in dispute fair and justified.

Opposed to the vast majority of the Richtersveld community

The story says that Diergaardt and the CPA had been “opposed to the vast majority of the Richtersveld community for the past three years.”

The CPA says that this sentence is not true – Diergaardt and other CPA members were democratically re-elected (which was monitored by the Independent Electoral Commission).

The newspaper says that the overwhelming sentiment conveyed by the majority of Richtersvelders who attended the court case was opposed to Diergaardt. It adds that its reportage is borne out by a later event, where the “overwhelming majority” of the community removed Diergaardt and his entire committee with a vote of no confidence.

The same argument that I have used more than once also applies here. The newspaper was justified in its reportage.

‘The crooks must resign’

The front page story leads on to page two, where the heading says that ‘The crooks must resign’.

The CPA complains that this quotation does not feature in the story itself, adding that the impression is created that the quote refers to its committee and to Diergaardt. It argues that the quote implies that they have been found guilty of wrongdoing and that they therefore should resign from their posts as CPA committee members. This, the CPA concludes, is defamatory.

The newspaper says that this headline has been “a public slogan of the majority of Richtersvelders who have confronted Diergaardt on numerous occasions”. It adds that this was also the overwhelming sentiment conveyed by the majority of the Richtersvelders who attended the court case “where Diergaardt and his committee had been found to have wrongfully and illegally removed 148 legal Beneficiaries from the official list”.

The last sentence is significant. Diergaard’s behaviour was found to he illegal – which clearly prompted the newspaper to use the word “crook”. While the newspaper’s language is not exemplary, it can be forgiven for the use of this word, keeping the court’s decision in mind.

However, the phrase in dispute is used in inverted commas, which means that it is supposed to quote somebody. There is no such quote in the story.

Failing to advise its readers that its publisher has supported the applicants

The CPA complains that the newspaper failed to advise its readers that its publisher has supported the applicants “financially and otherwise” in their case against the CPA.

The newspaper does not respond to this part of the complaint. I interpret this omission as an implicit acknowledgement that the CPA’s allegation has legs to stand on.

Even though the newspaper was justified in the essence of its reportage, it should have declared its interest in this case.

Finding

Richtersveld community demands Diergaardt’s head

The newspaper’s reportage was borne out by the fact that it later removed Diergaardt and his entire committee with a vote of no confidence. This part of the complaint is dismissed.

Diergaardt be black-listed

Based on the argument above, the newspaper gets the benefit of the doubt on this issue. This part of the complaint is dismissed.

Ordered to pay all legal fees

The court’s verdict proves that this statement is not accurate, breaching Art. 1.1 of the Press Code that states: “The press shall be obliged to report news…accurately…”

‘The community’ went to Diergaardt’s offices

The people who went to Diergaardt’s offices were most probably representative of “the community”. This part of the complaint is dismissed.

Opposed to the vast majority of the Richtersveld community

Based on the argument used above, this sentence is probably true. This part of the complaint is dismissed.

‘The crooks must resign’

The quote does not refer to anybody using those words. This is in breach of Art. 1.2.1 of the Press Code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure of the facts whether by distortion, exaggeration or misrepresentation…”

Failing to advise its readers that its publisher has supported the applicants

The newspaper’s failure to respond to this part of the complaint is found to be an implicit admission that the CPA’s allegation is true – in which case the newspaper’s interest in this story should have been acknowledged. This is in breach of Art. 1.2.2 of the Press Code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure of the facts whether by…material omissions…”

Sanction

The newspaper is directed to publish the following text on its front page:

Mr Mannetjie Diergaardt, a former chairperson of the Richtersveld Sida !Hub Communal Property Association (CPA), lodged a complaint at the Press Ombudsman about a front page story in the Eland News, published on 23 June – 7 July 2010.

The story said that the community demanded Diergaardt’s head after the Supreme Court found the CPA guilty of violating the rights of 148 residents in the Richtersveld for removing their names off an official list of Beneficiaries of the Richtersveld Land Claim Settlement.

Diergaardt’s main complaint was that the allegation that “the community” demanded his head is false.

Deputy Press Ombudsman Johan Retief found that we were justified in our reportage on this issue, mainly because the truth of what we wrote was borne out by later events (when Diergaardt and his entire committee were removed by the community with a vote of no confidence).

However, Retief reprimanded us for inaccurately stating that the CPA has been ordered to pay all legal costs, for using the quotation ‘Crooks must resign’ without a source and

for failing to advise our readers that our publisher has supported the applicants (financially and otherwise) in the court case against the CPA.

Visit www.presscouncil.org.za (rulings, 2010) for the full finding.

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