Ruling by the Press Ombudsman
21 November 2014
This ruling is based on the written submissions of Cllr Vincent Vena (City of Johannesburg) and those of Mr Andrew Boerner, on behalf of the Daily Sun newspaper.
Complaint
Vena is complaining about an article published on pages 1 and 2 in Daily Sun on 10 October 2014, headlined Sjambok shock for sex workers! – Thrashed for ‘saying no to a councilor!’
He complains that the:
The text
The story, written by Everson Luhanga, quoted some sex workers in Yeoville as saying that Vena beat them with a sjambok after they refused to “bonk [him] for free”. It added that the sex workers claimed the councillor “poked them without condoms”.
The complaint in more detail
Vena says Daily Sun ran with a story of a sex worker who had previously laid a charge of assault against him – “and the case was dismissed”.
Also, the newspaper “took the story of the prostitutes who operate illegally in our area as true story despite my objection” – giving the false impression that he had been abusing them and that they should be allowed to do their (illegal) business in the area.
He says that he has reported matter to the Police on several occasions. “My action of chasing them out of the area has made [me] their enemy and they insult [me] whenever I pass them in our area.”
Vena argues that the story has damaged his reputation, the image of the City of Johannesburg and the ANC and asks if it is correct that − when implementing the laws of the country and city by-laws − he should be subjected to defamation and blackmail “by illegal prostitutes in collaboration with an irresponsible journalist who wants to discredit the ANC by all means”.
He adds: Despite his constant communication to Luhanga that it was, in fact, a campaign by community members to rid the area of illegal prostitution, Luhanga nevertheless published the distorted article without consulting and confirming with members of the community. “This is the community in which I reside to and I’m also forming a part and parcel of decision taken by them in working together. We have community structures that work in collaboration with South African Police Service in tracking crime trends and street patrolling in the area.”
Vena also refers to several articles published in other newspapers to boost his case.
He says the story in the Daily Sun “[has] caused an unbearable pain to my family and [has] destroyed my image as a reputable public representative. It has also brought the character of the City of Joburg into disrepute and…discredited the ANC [’s] good standing in the South African society in general”.
Vena argues that the newspaper’s conduct confirms the suspicion that there are “sinister forces that are working day and night to do anything to discredit the image of the ANC and leaders in all spheres of government”.
Daily Sun’s response
Firstly, Boerner refers to Vena’s complaint about of reputational damage allegedly suffered by the City of Johannesburg and the ANC. He argues that I need not consider these matters, as neither the City nor the ANC are party to the complaint, nor does Vena have the standing to complain on their behalf.
He argues that the story does not even mention the City; also, it is common cause and not discriminatory to describe Vena as an ANC Councillor – this cannot support Vena’s allegation that the article relating to him is part of an attempt by the journalist to discredit the ANC.
The newspaper “denies any vendetta or politically motivated agenda against either the City of Johannesburg or the ANC – as is clear from its record of balanced reporting”.
Boerner then addresses the following issues:
|
Investigation by the journalist Boerner mentions that:
Allegations against Vena Boerner says the story reported that Vena had been “accused” of assaulting sex workers in the Yeoville area, as well as of having had sexual intercourse with them. The journalist consistently reported the allegations as allegations (read: the views of the sex workers) and never portrayed them as fact. In order to verify the legitimacy of the allegations, Boerner contacted the Women’s Legal Centre. Miss Kelly-Ann Cleophas then provided him with the names of the sources, as well as with Vena’s name. She also confirmed that their organisation had received complaints from one of the sex workers against Vena which resemble the allegations in the article. Boerner argues that the newspaper does not need to prove the truthfulness of the allegations; it only needs to demonstrate that the allegations against Vena are reasonably true and that it acted reasonably in relying on the information at hand. “Given that several sex workers made the allegations and that a leading women’s rights NGO is aware of similar allegations against [Vena], it is our submission that the [newspaper] has discharged the onus of proof.” In order to provide balance and fairness to the allegations, the story (according to Boerner) reflected Vena’s views quite extensively. He concludes that the allegations emanated from multiple sources and stresses that similar allegations have been brought against Vena before an independent body (the Women’s Legal Centre). “Therefore, the newspaper was justified in relying on the information.” Relevant case law – truthfulness Boerner uses two of my findings (Justice Ndaba vs. Sondag and Jacqueline Maarohanye vs. Sunday Sun) to argue that, if there is some form of substance to an allegation, and the text is published as an allegation and not as fact, there can be no breach of the Press Code in this regard – and, he argues, the story adhered to these conditions. (These findings are on www.presscouncil.org.za.) Public interest and relevant case law Boerner argues it is in the public interest to report on the treatment of sex workers, particularly if allegations are made against a public figure. It is common cause that sex workers face widespread abuse given the nature of their activities and the often powerless position that they face. He again turns to one of my findings (Nkosinathi “Black Coffee” Maphumulo vs. Sunday World, which is also on the website quoted above), and concludes: “Therefore, even though the article invades [Vena’s] privacy, if one has regard to the subject matter and the strength of the allegations, it is without doubt in the public interest to report on the treatment of the sex workers.” Defamation Boerner argues that defamation is a matter for the High Court and is not covered by the Press Code. However, Sect. 4.7 of the Press Code does state that the press shall exercise care and consideration in matters involving dignity and reputation. The reporting was accurate, he says, and complied with the following exceptions: · the facts reported are true or substantially true; or · It was reasonable for the article to be published because it was prepared in accordance with acceptable principles of journalistic conduct and in the public interest. Conclusion Boerner says that I am not able to rule on the veracity of any of these allegations, nor is it my job to do so – I should merely be concerned with whether Daily Sun was justified in its reporting on this matter. He concludes that the newspaper was justified in its reporting, given that the publication: · relied on several sources; · presented the allegations as allegations; · obtained Vena’s comment, as well as that of the police spokesman; · verified with a third party that similar allegations had been made against Vena; · did not publish the story recklessly (i.e. without caring whether its content was true or false) or negligently; · published an article which constituted a fair and balanced account of the interviews, enquiries and investigation conducted into the subject matter of the article; · complied with the standards of investigative reporting applicable in the journalistic profession; · could take no further reasonable steps to ascertain the truth and veracity of the information, save for actually conducting a thorough in-depth investigation into the charges levelled against Vena, which would be unreasonable in the circumstances; · is a daily newspaper and as such operated within logistical economic constraints (in the circumstances, Daily Sun’s conduct was “reasonable”); and · prepared the story in accordance with acceptable principles of journalistic conduct and in the public interest (as required by the Press Code). |
My considerations
The allegations against Vena are serious, and should be treated as such by all and sundry.
In this case, and consistent with all my other findings of a similar nature, I submit that I am not a court of law, which means that it is not in my mandate to establish whether or not Vena is guilty of the accusations made against him by some sex workers. I am not judging him, nor am I interested in the sex workers. My one and only concern is whether or not the newspaper was justified in its reportage.
I am firstly taking into consideration that the allegations were published as allegations and not as fact.
In itself, though, this is not sufficient justification for the newspaper to publish just any allegation – it also must have some reasonable ground to do so, and it must be in the public interest.
In this regard, the email by Cleophas must be taken seriously. She responded to Boerner by saying that her instructions were to confirm the content of the story as it applied to “her” (the person’s identity is not revealed, for obvious reasons). This, on its own, provided enough “reasonable ground” for the newspaper to publish the story.
The matter of public interest is beyond dispute.
Without having to repeat Boerner’s arguments, I can safely state that I – in general – agree with them. The few times that I am in disagreement are not serious enough to belabour those issues.
I also agree that Vena does not have the standing to complain on behalf of the City of Johannesburg and the ANC, and accordingly those parts of his complaint fall away.
Given all of these arguments, it follows that I do not believe that the story has caused Vena unnecessary harm.
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