Ruling by the Press Ombudsman and a Panel of Adjudicators
26 June 2014
This ruling is based on the written submissions of East London magistrate Xoliswa Stuurman and on those of the Daily Dispatch newspaper, as well as on a hearing held on 11 June 2014 in East London. Present were the reporter, Ray Hartle, with his legal representative, Ms Anushka Singh. Stuurman was accompanied by Public Advocate Latiefa Mobara. The two members of the Panel of Adjudicators who assisted press ombudsman Johan Retief were Fanie Groenewald (press representative) and Neville Woudberg (public representative).
COMPLAINT
Ms Stuurman is complaining about a story published in the Daily Dispatch of 5 April 2014, headlined Spotlight shines on EL magistrate – Investigation could lead to impeachment.
In general, she complains that the journalist:
Stuurman concludes that the journalist reported with malice and had dishonest motives, and the story has tarnished her reputation and defamed her character.
THE STORY
The first two sentences of the story, written by Ray Hartle, accurately summarised its content: “Racist, recalcitrant, defiant, unprofessional, working at ‘her own snail’s pace’, and flatly refusing to do her job. These are some of the descriptions by local lawyers and justice department officials of East London magistrate Xoliswa Stuurman, whose investigation by a magistrates’ commission could see her being impeached by parliament.”
ANALYSIS
Incorrect, unfair
In general, Stuurman complains that the story was factually incorrect, distorted, one-sided, misrepresentative, exaggerated and unfair, and contests all allegations as cited above (racist, recalcitrant, defiant, unprofessional, working at her own snail’s pace, being responsible for a backlog, and flatly refusing to do her job). She is also dissatisfied with the headline.
In particular, she adds that the story inaccurately stated that:
She also says: “I have done nothing but to rescue the Civil Section from the brink of collapse and brought it to life again.”
She concludes: “Nobody I have been working with…can accuse me of being anything contained in Mr Hartle’s article, as it is the direct opposite of me as a person and my work. The only thing that I have been accused of is that of having perfectionist tendencies.” She adds that the comments in the story by anonymous sources were not presented fairly and honestly.
The newspaper replies that:
At the hearing, Stuurman emphatically denied that she was being investigated by the Magistrates Commission. She explained there was an earlier investigation comprising of seven charges, but argued that these matters fell outside the time frame of what Hartle referred to in his story. She said over the last few years there had been a number of complaints against her (by Chief Magistrate Gqiba) but it all the cases the complaints had either been dropped or dismissed. According to Stuurman the current investigation of the Magistrates Commission (by Allers) was against the Chief Magistrate, after she (Stuurman) had lodged complaints. Hartle refuted this, saying his understanding was that Stuurman was being investigated.
She added that the “studying” that the story referred to was in fact her attending a workshop, which was part of her job.
The panel’s considerations
Firstly, we note that there are two investigations against Stuurman – both by Allers, as directed by the Magistrates Commission. (This is clear from the correspondence received by the panel from Stuurman after the hearing, as requested).
It was also clear that Stuurman had been informed of an investigation which involved her – which she denied at the hearing. We find this puzzling.
Secondly, Stuurman alleges that the allegations as reported by Hartle fell outside of the time frame that the story was about (regarding the first investigation), and argues that the story was unjustified on this score alone.
After the hearing, the panel received a charge sheet of the Magistrates Commission, dated 12 July 2013, consisting of seven charges of misconduct against Stuurman. Although Stuurman indicated at the hearing that all previous charges against her were either dropped or dismissed, she now says: “The investigation has not concluded and there is no outcome. It is long overdue.”
This is baffling.
Furthermore, if the investigation was still underway, surely Hartle was entitled to report on the allegations/charges against her?
Having studied these charges, we are convinced that Stuurman’s complaint about having been recalcitrant, defiant and unprofessional cannot be upheld – she was indeed being accused of these matters.
The other issues that Stuurman complains about are the following, together with the panel’s comments on these matters:
The story, complaint Our comments
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Stuurman went on study leave in August last year. |
She presented us with credible evidence that she had been on a workshop in the line of her duty – which Daily Dispatch did not deny. |
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Her work experience being three years longer than the story stated. |
The newspaper did not contest her evidence in this regard. |
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Stuurman refused to deal with a default judgment backlog. |
She provided us with credible evidence that the backlog was not of her making, as she had only been working on these cases between September 2013 and March 2014. |
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She was only dealing with unopposed civil matters. |
She presented us with credible evidence that this statement was untrue. |
We note with concern that all of these statements were presented as facts – but that none of them were properly verified and all of them were inaccurate. Clearly, these had the potential to cause her serious, unnecessary harm.
We therefore believe that the story needlessly portrayed Stuurman as being:
In another instance worth mentioning, the story referred to “one case” where Stuurman’s decision to grant a rescission of an earlier court decision was overturned on review. Hartly wrote: “Judge Clive Plasket found she had a discussion with an attorney before granting the rescission and also committed a ‘gross irregularity’ by not granting the opposing attorney a postponement.”
The panel is convinced that this specific reporting, while accurate, was unfair, as it was merely trying to prove how justified the so-called allegations/statements against her were – while, in the meantime, the story only mentioned one such case, and in this process ignored the multitude of other findings by Stuurman that were not overturned.
Lastly: Stuurman explained at the hearing that the use of the word “impeachment” in the sub-headline was inaccurate. After a long discussion, the panel decided that, while the use of the word itself may have been unfortunate, it conveyed the essence of the message that Hartle wanted to portray.
Advocating racial hatred; incitement to cause harm
Stuurman complains that Hartle advocated hatred that was based on race and ethnicity amongst the local judiciary, and that his reporting constituted incitement to cause harm to the country’s democracy as well as to transformation in the judiciary. She explains that people were saying that the story had been a plot by her white colleagues as well as white attorneys who hated her efficiency.
She says that she has never been accused of racism during the 17 years she has been working in the East London Magistrate’s Court.
The newspaper says that Hartle drew his sources from various race groups and denies any racial bias on the reporter’s side.
At the hearing, Stuurman argued that there had been no basis for stating that she had been accused of racism. She added that she had no reason to verbally abuse someone in Xhosa who did not understand that language – and insisted that the reporter purposefully advocated hatred that was based on race and ethnicity. The panel asked her why Hartle would “purposefully” do such a thing; she responded that he did so on behalf of her “opponents” at work. She later clarified that she was referring to magistrate Nazeem Joemath, who she described as Hartle’s “ally”.
The reporter denied the above, stating that he did not know Joemath outside of court.
The panel’s considerations
The panel is determined to keep its eyes on the ball – the issue is not Hartle’s intentions (which we are not mandated to judge), but rather if the story justifiably stated that Stuurman had been accused of racism.
We note that the first word of the story was “racist” – reportedly a “description by local lawyers and justice department officials”. The second reference to racism appeared in the fourth paragraph, but this did not elaborate on the first allegation (it merely repeated it). The last (possible) reference to this issue is the statement that she had verbally abused a non-Xhosa speaking attorney in Xhosa.
This “justification” for Stuurman having been racist cannot hold water – it does not make sense to verbally abuse somebody if that person does not understand what is being said.
Hartle testified that he got his information from his sources. As the panel does not know what complaints exactly were investigated by Allers, we have a situation of Stuurman’s word against Hartle’s.
We certainly could find no mention of racism in any document at our disposal. It there had been, the newspaper should have provided the panel with such evidence.
The panel views this allegation in a serious light, as it could potentially destroy Stuurman’s career.
The mere fact that someone has alleged something, does not give a journalist a free hand to report such a statement, especially if that statement can cause huge unnecessary harm to the subject. In an earlier finding by this office (18 June 2010), it was stated in the matter between KZN Premier Zweli Mkhize vs. the Sunday Tribune:
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The Code states: “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact and such fact shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinions, allegations, rumour or supposition, it shall be presented in such a manner as to indicate this clearly.” The second sentence in this section of the Code is not a licence to publish allegations and rumours… The basic spirit of the code is to be truthful, accurate and fair. If newspapers and magazines were allowed to publish any allegations…they would do huge harm in our society.” |
The panel notes with concern that Hartle did not have any concrete proof of racism on Stuurman’s part. She testified that she had never been charged with racism, let alone being found guilty of such. We are convinced that, in light of the lack of such proof, the mere publication of such a damning allegation was not justified.
However, we do not believe that Hartle advocated hatred that was based on race and ethnicity, and that his reporting constituted incitement to cause harm to the country’s democracy as well as to transformation in the judiciary.
No disclosure, corroboration
Stuurman complains that Hartle did not disclose his source (Gqiba), nor did he corroborate his information. She says it was practicable for the journalist to verify the accuracy of his report “as the information that disproves his allegations was and is easily available”. She said that the Magistrates’ Commission was in possession of factual and correct information. However, the story merely said that this commission had confirmed a complaint about default judgments, “and not the complaint against me or that I am doing default judgments or that I have default judgments in backlog”.
Daily Dispatch replies that the story was based on comments by various legal professionals who have had dealings with Stuurman. These sources asked to go unnamed for fear of victimization. They expressed serious concerns about her actions as a presiding officer; these concerns were also evident in reviews of her judgments by the High Court.
The editor adds that Gqiba’s name was mentioned in the original story, but that it was cut in the editing process.
The panel’s considerations
The panel heard that Gqiba had not mentioned Stuurman’s name to Hartle, and that she had merely admitted that there had been a problem. The reporter assumed that Stuurman was part of this problem (based on information obtained from his sources). We were also informed that Gqiba’s name had been edited out from Hartle’s story. This is bizarre, as the mentioning of her name would have strengthened the story. We can only wonder who edited out her name and why.
Hartle was under no obligation to disclose his source (Gqiba) to Stuurman. However, we are convinced that Hartle did not adequately verify his information.
Obtaining information dishonestly, unfairly
Stuurman complains that Hartle obtained his information by dishonest and/or unfair means. She refers to a meeting between the journalist and Gqiba and says that he admitted to this meeting only after discovering that she knew about it.
The panel’s considerations
We disagree with Stuurman on this issue. There was nothing dishonest or unfair about Hartle having spoken to Gqiba, and he did not act unethically even if he admitted to this meeting only after discovering that she knew about it.
Not enough time to respond
Stuurman complains that Hartle did not give her enough time to respond to allegations made against her. “He ambushed me telephonically on 03.04.2014 just before 09h00 although he knew as a court reporter that I had to be at court by 09h00.” She says that it was departmental policy not to speak to the press without permission, but the journalist nevertheless went ahead and published his story the next day – he “…failed to give me an opportunity to request permission from the Magistrates Commission to…answer his questions.”
Daily Dispatch replies that Stuurman gave no indication that she wanted time to seek permission from her superiors or to meet with Hartle.
At the hearing, Hartle explained that Gqiba had advised him to speak to Stuurman the morning after their conversation, and that a good time to phone her was between 8:30 and 9:00. He stated that Stuurman had been adamant that she would not speak to him, and that she had never asked for time to get permission to do so.
The panel’s considerations
We believe that, given the fact that Hartle had little or no evidence to back up the allegations, he should not have rushed into publishing the story. We noted that he himself admitted at the hearing that there had been no immediate need to publish; we also take into account that his newspaper did not have competition which could have scooped it on this matter.
Malice, dishonesty
Stuurman says that Hartle omitted material facts and concludes that the journalist reported with malice, had dishonest motives and that the story has tarnished her reputation and defamed her character.
The newspaper denies this.
The panel’s considerations
We are convinced that the story indeed unnecessarily tarnished Stuurman’s reputation and dignity – but, having listened to Hartle, we do not believe that he was either dishonest or that he acted with malice.
FINDING
Incorrect, unfair
Stuurman’s complaint that she was portrayed as recalcitrant, defiant and unprofessional is dismissed.
The story inaccurately, unfairly and without verification portrayed Stuurman as being:
This was in breach of the following sections of the Press Code:
· 2.1: “The press shall take care to report news truthfully, accurately and fairly”; and
· 2.3: “…Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”
The reference to the “one case” where Stuurman’s decision was overturned, was unfair and unbalanced, and in breach of the following sections of the Code:
The complaint about the sub-headline is dismissed.
Advocating racial hatred; incitement to cause harm
The complaint that Hartle advocated hatred that was based on race and ethnicity, and that his reporting constituted incitement to cause harm to the country’s democracy as well as to transformation in the local judiciary is dismissed.
The publication of the damning allegation that Stuurman was racist was not justified. This was in breach of Section 2.1 and 2.2, as well as of Section 4.2 of the Press Code: “The press shall exercise care and consideration in matters involving dignity and reputation…”
No disclosure, corroboration
The reporter was under no obligation to disclose his source to Stuurman. This part of the complaint is dismissed.
The journalist did not adequately verify his information. This was in breach of Section 2.4 of the Code: “Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be stated in such report.”
Obtaining information dishonestly, unfairly
This part of the complaint is dismissed.
Not enough time to respond
The journalist did not sufficiently try to get comment from the subject of the story. This was in breach of Sect. 2.5 of the Code: “A publication shall seek the views of the subject of critical reportage in advance of publication…”
Malice, dishonesty
This part of the complaint is dismissed.
SANCTION
Daily Dispatch is directed to apologise to Stuurman for unfairly:
In general, the publication is directed to apologise to Stuurman for unnecessarily causing her harm and tarnishing her dignity and reputation.
The newspaper should:
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.
Fanie Groenewald (press representative)
Neville Woudberg (public representative)
Johan Retief (press ombudsman)