Appeal Hearing Decision: Daily Dispatch vs Kriel Natalie and Danelda Dicke

Decision: Application for leave to appeal

Applicant: Daily Dispatch

Respondent: Kriel Natalie and Danelda Dicke

Matter No: 4250/02/2019

  1. This is an appeal by Daily Dispatch (“appellant”) against the Ruling by the Ombud of the Press Council dated 8 February 2019. The Ruling was on a complaint by Ms Natalie Kriel and Ms Danelda Dicke (“the respondents”) against a story published by the appellant on 26 January 2019, front page, with the headline “Blood on Selborne grounds”.  The sub-headline read: “15 white boys beat me up, says school pupil”. It is common cause that Selborne is one of the highly regarded schools, and accepts pupils of all races. The respondents are parents at the same school; in fact Ms Kriel, as it turned out, was the mother to one of the boys alleged to have been involved in the alleged assault.  The gist of the article was that a black pupil at the same school was assaulted by a group of white boys. A photograph of the alleged victim, with a broken lip, accompanied the article.  Apart from the alleged number of the white boys involved (15) it is not in dispute that an altercation occurred. The respondents’ version, based on a school report produced after the article, is that the number of alleged attackers was 4. The alleged assailants were not identified in the article.
  2. Once the appellant became aware of the incident, it contacted the school. The school’s spokesperson acknowledged the existence of the incident.  He said the principal was away; that statements were taken from some boys and that the matter would be investigated. This was on the Friday afternoon of the incident, the day before the story was published.  The journalists also contacted the Department, which said the matter would be investigated and that it would visit the school.  The article mentioned that the journalist spoke to one Mr Ngwenya, spokesperson for the Buffalo City Municipality, who was the alleged victim’s uncle and also the spokesperson for the family.  The number (15) of the alleged attackers, according to the appellant, came from Mr Ngwenya who would have in turn gotten it from the beaten boy, his nephew.
  3. What then was the nature of the complaint by the respondents? The Ombud, correctly in our view, summarized the complaints as follows: “The common denominator in the two complaints is that the reportage was inaccurate, sensationalistic and one-sided, that it incited racism, and that it was based on hearsay.”  The appellant disputed all these.  In the end, the Ombud returned the following verdict:

Daily Dispatch are in breach of the following sections of the Press Code:

  • 1: ‘The media shall take care to report news truthfully, accurately and fairly’;
  • 2: ‘The media shall present news in context and in a balanced manner …’;
  • 7: ‘The media shall verify the accuracy of doubtful information, if practicable; if not, this shall be stated’;
  • 1: ‘In the spirit of Section 28.2 of the Bill of Rights the media shall exercise exceptional care and consideration when reporting about children.  If there is any chance that coverage might cause harm of any kind to a child, he or she shall not be photographed or identified without the consent of a legal guardian or of a similarly responsible adult and the child (taking into consideration the evolving capacity of the child) …’; and
  • 3: ‘In the spirit of Section 28.2 of the Bill of Rights the media shall not identify children who have been victims of abuse or exploitation … without the consent of their legal guardians (or a similarly responsible adult) and the child (taking into consideration the evolving capacity of the child) …’”

He then imposed a sanction.

  1. In coming to the conclusion he did, the Ombud relied heavily on the fact that the number of alleged attackers was given as 15. He said the following: “The allegation of ‘fifteen’ boys, all white, was:
  • Potentially extremely inflammatory in that it could have led (and still can) to some kind of racial voilence in retaliation – this time black against white. The newspaper should have been cognisant of this possibility, and should have been much more cautious in its reportage; and
  • Not accurate, fair and balanced, and neither was it reasonably true (fifteen attackers? Really?) or verified with a primary source”.

With all due respect to the Ombud, it is not clear on what basis he concludes that the mentioning of “’fifteen’ boys, all white … was (p)otentially extremely inflammatory and could have led…. to racial violence”. What about “ten”, “eight” etc? The respondents, and apparently the Ombud as well, would have been less worried about a possible racial incitement if the article had mentioned 4 as opposed to 15. And why would 4 (as it turned out to be the case) not lead to incitement? What would be the acceptable number for not inciting racism, and on what basis would that figure be acceptable as opposed to 15? What about say 11, 9 or 7 etc? Would anyone of these figures have been as acceptable as the figure 4 is to the respondents? What would be the maximum acceptable figure, or where should the line be drawn and by whom and on what basis? It cannot be permissible to arbitrarily determine a figure, or suck it from the thumb, as the acceptable maximum. Who knows, even the mentioning of the figure 4 (which the respondents would have accepted) could have been unacceptable to other people. The truth of the matter is that there lies no magic in the figure mentioned; what matters is the manner in which the story is reported. In their submissions at the hearing, the respondents, especially Ms Dicke, conceded, fairly, that one could not infer racism simply from the mere mentioning of the figure “15”.  What was apparent from their submissions was that they had a problem with the mentioning of the race of especially the alleged attackers, and the victim.  But, as the appellant indicated, racist attacks are a problem in the country and would need to be exposed whenever and wherever they rear their ugly head. How do we begin to expose racist attacks if we are to shy away from mentioning the race of either the alleged attacker or victim in inter-racial incidents? It is important to note that the article did not say the attack was racist; the article merely informed the reader of the race of the alleged attackers and the victim; and left the matter there. What was more, the article informed the reader that the matter was still going to be investigated further.  The first step towards fighting violent racism, the worst form of racism, is to mention the races of the alleged attacker(s) and the victim(s) in an inter-racial attack.  If we do not allow the media to do so, the chance of exposing racist attacks would be greatly diminished; the fight against racism would be lost even before it is begun.

  1. Criticism of the appellant’s reliance on Mr Ngwenya was not justified. The Ombud’s reasoning seems to be that the journalists should have gone past Mr Ngwenya and even past the mother and speak to the boy. This is apparent from the following in his Ruling: “From the internal ombud’s response to these questions, or perhaps rather from the lack of it, I gather that the journalists did not speak to the boy at all. This means that, despite all the journalists’ efforts to get comment from various officials – which should be commended, no doubt – the fact remains that the story was based on an allegation made by a secondary source.  This amounted to: ‘A source said that someone said that …’. That is called ‘hearsay’.

In effect, this means that the newspaper had no way of knowing that the boy in fact did allege that fifteen white boys had attacked him (while the sub-headline even quoted the boy as saying that fifteen white learners had attacked him).  But how did the journalists know that the boy had made that allegation?

Yes, of course the learner could have said it, but the newspaper did not verify that fact.  It merely took information from a secondary source as gospel”. But it is clear from the article that Mr Ngwenya had put himself forth as the uncle; and, importantly, that he was speaking to the journalist with the approval of the mother of the child and indeed the child; he had the picture of the child which he sent to the media. The mother even conveyed her own views to the journalists via Mr Ngwenya, namely, that the matter was not yet ripe to be reported to the police. In light of all these, it was reasonable for the journalists to believe that what they were told by Mr Ngwenya as coming from the boy and the mother did in fact come from them. It is, after all, not uncommon for example, for a bereaved family to have a spokesperson.  In fact, as it later turned out, the only incorrect information, which apparently did not come from the boy but from Mr Ngwenya, was the number of the alleged attackers. As shown in the previous paragraph, not much turned on this incorrect information.

  1. As the Ombud correctly ruled, the matter was of public importance. The respondents argued that the article could have been withheld until the school had investigated the matter. To bolster the argument, it was submitted that the school and the Department had not been given enough time to respond. That, of course, is not what the school’s spokesperson or the Department said to the journalists; these two institutions deemed it fit to comment as they did. None of them pleaded that they could not comment as they needed more time. Moreover, the article informed the reader that further investigation was still under way; they were therefore alerted that the full picture was not yet out. The respondents sought to argue that the mother had asked for the matter to be held back; but we all know that what she asked to be held back was reporting the matter to the police; she was not suggesting that the publication of the article be delayed. In any case, as to when to publish or not publish a story is a matter for editorial discretion; if the subjects of the story were to tell editors when to publish and when not, embarrassing articles would never see the light of day. Editors almost invariably stand firm, which is why people often try for a court interdict, but almost always inevitably losing; especially when the matter is of public interest or importance.
  2. It must be mentioned that the Ombud relied heavily on the report that was produced by the school, which was only after the publication of the article. This is problematic; it is the employment of the science of wise hindsight. Instances where he did so in the record are replete.
  3. There remains the issue of the publication of the photo of the minor child. There was no such complaint lodged with the Ombud by anybody, let alone on behalf of the child. By bringing up this issue on his own during his deliberation of the matter and therefore after the parties had already concluded their submissions, the Ombud effectively denied the appellant the opportunity to profer a defence. They might have explained how they got the picture. Indeed, as it tuns out, the appellant says it was given the photo by Mr Ngwenya.
  4. For all the above reasons, the appeal must succeed. The following Order is therefore made:
    • The appeal is upheld
    • The findings by the Press Ombud against the Daily Dispatch made in his Ruling dated 8 February 2019, as well as the sanctions imposed, are hereby set aside.

Dated this 29th day of April 2019

Judge B M Ngoepe, Chair, Appeals Panel

Mr Roy Mnisi, Public Representative

 

The dissenting minority Decision by Mr Wandile Fana, Media Representative, is attached hereto.