Ruling by the Press Ombudsman
29 July 2015
This ruling is based on the written submissions of Mr Billy Gundelfinger, on behalf of Mr Tokyo Sexwale, and those of of The Star editor, Kevin Ritchie.
Complaint
Sexwale is complaining about a story in The Star of 26 May 2015, headlined Judy puts Tokyo in a tight spot on finances – She has subpoenaed his auditor.
The gist of the complaint is that the newspaper identified Sexwale and his wife in their divorce proceedings – leaving him and his children humiliated and embarrassed.
He also complains that the following were either incorrect, unfair or slanted, namely the:
· judge’s name;
· impression created that Sexwale had been represented at a court hearing and/or had been a party to the proceedings; and
· statement that the company Mvelaphanda Holdings belonged to him.
Furthermore, he complains that the headline was misleading.
In later correspondence, Gundelfinger added to the complaint by referring to the use of a picture, which was “misleading”. The Star accepted this addition.
The text
The introductory sentence to the story, written by Omphitlhetse Mooki, said, “Tokyo Sexwale’s Mvelaphanda Holdings is holding on tightly to its financial statements, putting up a legal battle to fight a subpoena Judy Sexwale (his wife, the defendant in divorce proceedings) obtained to access the records.”
Ms Sexwale reportedly subpoenaed Mr Carel Steenkamp (Mvelaphanda’s auditor) to hand over annual financial statements dating back to 2001.
The complaint in more detail
Identified
As stated above, the gist of the complaint is that the newspaper identified Sexwale and his wife in their divorce proceedings – leaving him and his children humiliated and embarrassed.
Gundelfinger says at the hearing Adv Brian Pincus SC, representing Mvelaphanda and Steenkamp, drew the court’s attention to the fact that the press was in attendance, and specifically to the case of Johncom Media Investments Ltd vs. M and others. The relevant part of this verdict stated: “Subject to authorisation granted by a court in exceptional circumstances, the publication of the identity of, and any information that may reveal the identity of, any party or child in any divorce proceedings before any court is prohibited.”
Acting Judge D. Berger then asked Ms Sexwale’s representative (Adv Chris Loxton SC) whether or not he had any objections to the press being present. He had none – upon which Judge Berger declined to make “such an order” (read: that the press was allowed to identify the parties).
Gundelfinger argues that, in the absence of such an order, the Johncom case applied. “The Star misconstrued the fact that Judge Berger declined to make an Order as an authorisation that they could do so.”
The wrong judge
Sexwale complains that the story incorrectly stated that Judge Gregory Charles Wright presided over the matter, while it was Acting Judge D. Berger.
Wrong impressions created
The story said, “Tokyo Sexwale’s Mvelaphanda Holdings is holding on tightly to its financial statements” and, “Sexwale’s lawyers tried to get Judge Wright to bar The Star from identifying parties involved in yesterday’s case…”
Sexwale complains that the story wrongly created the impression that he had been represented at the hearing and/or had been a party to the proceedings, and also that Mvelaphanda was his company.
The headline
The headline read, Judy puts Tokyo in a tight spot on finances – She has subpoenaed his auditor.
Sexwale complains that the headline was unfair and inaccurate – “Mooki is endeavouring to create the impression that [he] has been put in a tight spot by his wife…and that Steenkamp is his auditor – which is…untrue and incorrect and in any event, the Learned Judge reserved his Judgment.”
Attempts to mediate
The newspaper never submitted a formal response to the complaint (it did reply to correspondence and provided my office with some documentation, though). Instead, attempts were made by both parties to come to a settlement. The newspaper formulated a first draft, which Sexwale rejected; Gundelfinger then drew up a second draft, which The Star turned down.
I consulted with the Public Advocate, who confirmed that my only task is to finalize an apology by the newspaper as I see fit (against which either of the parties, of course, may apply for leave to appeal).
The first text was drafted by The Star, and it reads as follows:
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On May 26 this year, The Star published a report headlined Judy puts Tokyo in a tight-spot over finances. It has since been pointed out that naming the parties in the matter was in contravention of the law pertaining to divorce and that we were wrong to name Tokyo Sexwale as a participant in the case when Judy Sexwale brought the matter against Mvelaphanda’s auditor. It has also been pointed out that it was wrong to refer to Mvelaphanda as belonging to Tokyo Sexwale, when it is only the family trust, of which Sexwale is a trustee, which holds 25 percent of the shares. The Star accepts these contentions. |
Also of importance is the following note, sent to the editor by Ms Abigail Oliver of Independent Newspapers:
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The rectification/apology should cover the following aspects, namely:
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This was Sexwale’s response, as formulated by Gundelfinger:
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The draft apology therein contained is unacceptable to my client and I set out hereunder what is acceptable. It is unacceptable to my client that the apology should be in the form of a postage stamp “for the record” in relation to the article, which, together with the photograph, took up almost two-thirds of page 3. My client requires appropriate prominence with a re-publication of the photograph, which should be at the top of page 3 of the newspaper. It is of moment that a reference to the article also appeared on billboards. Should the draft set out hereunder not be acceptable to The Star, I propose that the Press Ombudsman makes an adjudication on it.
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The newspaper rejected this draft. This is how Ritchie motivated his decision:
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I thought that: (a) the need to republish the picture of the now separated couple was gratuitous (and disingenuous) since Billy has got us to apologise for naming them in the first place in contravention of the Constitutional Court ruling on divorce cases, getting us to show their pictures would make us guilty of another offence. (b) Placing the apology above the fold on page 3, in the same space, etc, afforded the original piece was a disproportionate sanction, since we have never received a ruling to this effect from your office. (c) Finally, the call to apologise yet again for getting the name of the judge wrong after already doing so off our own bat within editions of the mistake I thought was unnecessary. Plus, I would like to add for your interest and the other parties involved in this dispute the unsolicited email we received from Mrs Sexwale's attorney, just after Billy issued press statements to all and sundry at the time about our misconduct. |
In response to this reply, Gundelfinger points out that the picture is what attracted people to read the article, that it took up one-quarter of the full page (“the picture is similarly required to draw the attention of the public”), and that the republication will not create a new offence as it would merely be a correction.
My considerations
My first observation is that the second draft includes all the issues addressed in the first draft – with additions.
The first addition is recorded in the second sentence, and it reads: “The aforesaid related to an application brought by Mvelaphanda Holdings (Pty) Limited (“Mvelaphanda”) and its auditor, Carel Steenkamp (“Steenkamp”) to set aside a subpoena as an abuse, which subpoena was issued by Mrs. Judy Sexwale against Mvelaphanda and Steenkamp.”
This merely gives context to the story, and can do no harm.
The second addition is more material, and it reads as follows:
“The Star acknowledges that the photograph utilized in the said article was an old file photograph which gave the impression that Mr. Tokyo Sewale and Mrs. Judy Sexwale were leaving Court after or during the hearing on May 26 this year. This was not so.
“The Star acknowledges that neither Mr. Sexwale nor Mrs. Sexwale were at Court on May 26 this year and that the photograph was misleading.
“Mr. Sexwale was not a party to the proceedings on May 26 this year, nor was he represented in the proceedings.”
When asked for the newspaper’s reasons for rejecting Gundelfinger’s draft, the editor did not deny this part of the text. I therefore accept Gundelfinger’s version of this specific issue.
The same goes for another addition – the denial that Sexwale was a trustee of Mvelaphanda Holdings.
The last addition stated, “The Star acknowledges that it misconstrued the fact that Judge Berger declined to make an order as permission for them to publish the names of Mr. Tokyo Sexwale and Mrs. Judy Sexwale.”
Again, the same argument as above applies here.
Also, I note that the newspaper’s draft apology did not include the following aspect suggested by Oliverfor correction:
· The headline, as it created the wrong impression that Sexwale was a participant in the case; and
I agree that the this point should be incorporated in the apology.
Lastly, I need to deal with Ritchie’s objections to Gundelfinger’s draft.
I have thought long and hard about the republishing of the picture. In the end, Ritchie’s argument swayed my mind – the newspaper should not have identified them in the first place, and “getting us to show their pictures would make us guilty of another offence”. That would be the same offence that led to Sexwale’s complaint.
Yes, the text that I am asking The Star to publish is not going to contain any reference to the divorce – but still, the story in question was published not so long ago that I can safely assume that the reasonable reader may read the apology within the context of the offending article. I would therefore rather be safe than sorry.
Gundelfinger’s proposal that the text includes a reference to the picture should suffice.
I also agree with the editor that the newspaper has already (and adequately) apologized for getting the name of the judge wrong; I am therefore not going to ask it to do so again. I note that the apology was rather small, but I leave it at that as the mistake was not likely to have harmed Sexwale.
The only remaining issue is where the apology should be published, and how prominent it should be.
I note that Gundelfinger did not ask for the same prominence, but for “appropriate prominence”. This is in line with Section 2.6 of the Press Code.
In this case I am taking a golden mean, especially as I have decided not to have the picture published again. The space occupied in the future edition would therefore be smaller (I have also edited Gundelfinger’s text, which inter alia resulted in a shorter version – see below under Sanction). On the other hand, the story was published at the top of the page, and indeed occupied most of it.
This will be reflected in the sanction.
Finding
I accept Gundelfinger’s draft in essence (not all of it), but the attorney’s style should, with all due respect, be turned into a journalistic one. (It is as difficult for an attorney to write as a journalist as it is for a reporter to write as a lawyer.)
Sanction
The Star is directed to publish the following text:
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The Star published a report headlined Judy puts Tokyo in a tight spot on finances – She has subpoenaed his auditor on May 26 this year. The story related to an application brought by Mvelaphanda Holdings and its auditor, Mr Carel Steenkamp, to set aside a subpoena which was obtained by Mrs. Judy Sexwale against Mvelaphanda and Steenkamp. It has since been pointed out that The Star was wrong to: · identify the Sexwales; · name Mr Sexwale as a participant in the case – he was not a party to it, nor was he represented in the proceedings; and · refer to Mvelaphanda as belonging to Mr Sexwale, while, in fact, the family trust holds 25% of the shares. He is not a trustee. We also acknowledge that the photograph gave the false and misleading impression that the Sexwale couple were leaving court after or during the hearing on May 26 this year – neither of them were at court on that day. The Star acknowledges that it misconstrued the fact that Acting Judge D. Berger declined to make an order as permission to publish the names of the Sexwales. We also apologise for the headline, as it created the wrong impression that Sexwale was a participant in the court case. · This matter was referred to the Press Ombudsman, whose full ruling can be found at www.presscouncil.org.za. |
Please note that I have omitted the words “as it was in contravention of the law, pertaining to their divorce” which had been part of the first bullet in the text above, as it (again) would have unlawfully identified the Sexwales as being parties in a divorce.
The apology has to be published at the top of page 3.
The headline should include the word “apology” or “apologises”, as well as Sexwale’s name.
If the story appeared on the newspaper’s website, the full text and picture should be published 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 Ombudsman