Ruling by the Press Ombud
7 August 2017
This ruling is based on the written submissions of Mr Cyprian Khumalo, legal advisor of EOH Legal Services, on behalf of the University of Pretoria (UP), and those of Martin Czernowalow, news editor of The Citizen newspaper.
The UP is complaining about a story in The Citizen of 9 May 2017, headlined Call to reinstate expelled UP students, and written by Nhlawulo Chauke.
Some follow-up stories were also published, all penned by Virginia Keppler (details below).
Complaint
The UP complains that the:
· newspaper did not approach it for comment; and
· story therefore contained false statements which painted a misleading picture of events (details below).
The text
The article quoted, among others, UP student activist Ms Mathapel Maganedisha as saying that the university had not yet held a meeting with them to negotiate on behalf of the expelled students. Some students embarked on a silent protest the day before, demanding that the university reinstate students who had been suspended last year after the #FeesMustFall protests.
This followed the arrest of a number of students in 2016 for violence and damage to property during the protests.
Maganedisha et al reportedly said the UP had:
· suspended several students on false charges, without following proper procedure and on cases without court rulings;
· failed to give students who wanted to finish their studies the platform to do so;
· not yet held a meeting with them to negotiate on behalf of the expelled students;
· disallowed some of the students who were doing their final year to write their examinations;
· been victimising activists; and
· refused to engage with students on the matter.
The arguments
The complaint in more detail
Elaborating on the UP’s complaint, Khumalo denies that the UP suspended students on “false” charges – he says a number of students were arrested in 2016 for violence and damage to property: they were criminally charged by the National Prosecuting Authority and the decision to arrest students was taken by the police, not by the UP.
He also denies that arrested students were not allowed to write examinations on campus and complete their academic year.
He adds that a small number of students were provisionally suspended pending a full disciplinary investigation relating to serious misconduct in terms of the university’s disciplinary code for students.
Special arrangements were made for these students to write examinations off-campus and to complete their academic year. Most of them, he says, made use of this opportunity, and two of them went on to complete their degrees.
Khumalo also denies that the UP was not prepared to engage with students. He submits that the university has been involved in ongoing engagement with the students on an individual basis, with their legal representatives, as well as with their parents, to provide various forms of support.
He adds that the disciplinary process in respect of one student has been concluded; another one’s process is still under way; one chose not to return to the UP; and the rest were not readmitted on account of their poor academic performance.
In conclusion, Khumalo says that, after the UP had complained to The Citizen, it published a follow-up story – which did not provide any context and did not indicate that it was a correction.
The Citizen replies
Czernowalow says the newspaper’s bureau chief in Pretoria, Virginia Keppler, contacted UP spokesperson Rikus Delport for comment on the afternoon of May 8. However, the latter indicated that no such student protest was taking place and that he had already left his office for the day. The news editor argues, “Thus, despite efforts to obtain comment, it was clear that none was forthcoming” – and therefore, the newspaper went ahead with publication.
He attests that Delport responded to the article on May 10, but did not ask for a correction. The Citizen nevertheless published the university’s comments, both in print and online (on May 11).
The news editor concludes, “We thus submit that sufficient effort was made to obtain comment from Mr Delport for the initial article, but it was his choice not to comment. The subsequent follow-up article was published despite there being no demand from Mr Delport for The Citizen to do so, thus we believe that enough was done from our side to reflect both sides of the story, accurately and fairly.”
UP responds
Delport, through Khumalo, says Keppler did not ask him for comment on the protest, as she only wanted to confirm that a protest was taking place. The spokesman says he told her he was not on campus but he would try to get that information, upon which she promised to call him back – which never happened.
He says Keppler told him the next day the story went through the editing process without her checking it, as she was dealing with a case of “attempted rape” in one of the office bathrooms. He then asked her to publish a correction. The article which appeared the next day was not a correction, he contests.
The newspaper again
Czernowalow calls Delport’s contention that the newspaper never asked him for comment “rather baffling and disingenuous” – a journalist calling to ask for confirmation about a protest is tantamount to seeking comment, he argues. Be that as it may, he says, the fact that Delport did not know about the protest meant that any further questioning would have been fruitless (as one cannot comment on something one does not know about).
He admits that Keppler promised to call Delport back, but explains that she was side-tracked by witnessing a “traumatic event” in her office building. She had to handle that situation as a matter of urgency – which is why she ultimately failed to call back the spokesman.
The news editor submits that the newspaper was responsible in its approach to the story, and adds that it was in Delport’s own interest to call the newspaper with his comments.
He submits that the May 11 article was published with the same prominence as the one of May 9, and that it set out the spokesman’s comments “in full”. He also contends that any correction at this stage would be superfluous and would not serve any real purpose.
Analysis
Chauke’s article contained only statements and allegations by disgruntled students, without any consideration for the university’s side of the story whatsoever – whatever valid reason The Citizen had for such a situation. The litmus test is not what was happening in the offices, corridors or bathrooms of publications, but only what was published.
From a readers’ perspective, and certainly from the UP’s point of view, that was unfair and unbalanced – and it had the potential to cause the reputation of the university unnecessary harm.
However, it is always better to correct mistakes rather than to ignore them – which is exactly what The Citizen did.
But first: In general, it is important not to read stories in isolation. In this regard, Constitutional Court Judge Edwin Cameron stated as follows in the case of The Citizen 1978 (Pty) Ltd and Others v Robert John McBride, Case No CCT 23/10 (judgment on 8 April 2011):
Par 94: “[it] seems to me to be wrong to assume that newspaper readers read articles in isolation. This is particularly so when they read editorial comment or columnists commenting on current affairs. It is likely that, in assessing comment, readers will bring to mind recent news coverage of the events in issue. Here, the articles attacking Mr McBride’s candidacy were closely linked in time (seven weeks), and theme (police chief of big metro) to a current controversy (Mr McBride’s suitability for appointment). It would be unrealistic to conclude that readers who read the first Williams article (18 September), or the front page report (22 September), or the Kenny article (21 October), or the second Williams article (22 October), would not have known, and held in mind, that he had committed the bombing as part of the struggle against apartheid, and that he received amnesty for it.”
and
Par 95: “This conclusion accords with decisions of the European Court of Human Rights to the effect that a publication alleged to be defamatory must be assessed in relation to the coverage as a whole. Considering the Citizen’s coverage as a whole also accords with the decision of the Supreme Court of the United Kingdom in Spiller. There the Court loosened the requirements for including facts underlying comment. The Court held that the comment need only “explicitly or implicitly indicate, at least in general terms, the facts on which it is based.”
The importance of context, indeed.
However, there is one big difference between this verdict and the complaint at hand – the Court dealt with text on matters previously reported, while this complaint is about text which was supplemented at a later stage.
Still, context is the common denominator in the two instances – and of vital importance in the complaint at hand.
While this difference, and similarity, will be reflected both in my finding and sanction, or in the lack thereof, let me clarify upfront: Text referring to previously published news reports may be interpreted in that light (and therefore may satisfy the Code of Ethics and Conduct – depending, of course, on other relevant factors); while text which was (first) in breach of the Code, but was supplemented at a later stage, still remains in breach of the Code – even though the later text(s) may have rectified matters.
Keeping all of this in mind, I need to look carefully at what Keppler wrote in her follow-up stories with regard to the UP’s response. The first story is of particular interest, but for the sake of completeness I also mention two others:
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Having perused Delport’s response to Keppler, and having compared that with the reportage which followed his response (especially in the May 11 story), I am satisfied that the newspaper did indeed cover his response “in full” (as stated by the news editor).
So this is my conclusion: Given the fact that the UP’s comments were published, and quite extensively and adequately so, I accept that the reading public would have considered this reportage as a whole and would have understood the allegations in the article in dispute for what they were – allegations.
Finding
The story (of May 9) was in breach of the following sections of the Code of Ethics and Conduct:
· 1.1: “The media shall take care to report news … fairly”;
· 1.2: “News shall be presented … in a balanced manner…”;
· 1.8: “The media shall seek the views of the subject of critical reportage in advance of publication …”; and
· 3.3: “The media shall exercise care and consideration in matters involving … reputation.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breach of the Code of Ethics and Conduct as indicated above are all Tier 2 offences.
Sanction
Because The Citizen has already effectively corrected the matter, and there is a reasonable expectation that readers would have interpreted the follow-up story on May 11 (and others) in the same context, there is no sanction.
I leave it to the editor to take the matter of Chauke’s story further, if necessary.
Appeal
The 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 Ombud