Below is my decision in the matter between Mr Darren Scott and Sondag newspaper. The story was headlined Plain Gemors – Eks-vriend eis nou R4.3 miljoen oor verlies, published on 2 June 2013.
There are currently legal proceedings before the Cape Town High Court between Scott and Mr Anthony Duke, which was reported in the story.
Sondag asked this office to reject the complaint on the basis of Section 1.6 of the Complaints Procedures that states: “Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about…the Ombudsman…shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate.”
Scott’s firm asked this office to accept the complaint on the following grounds:
- Scott’s complaint lodged at this office is not against Duke, but against Sondag;
- While this office would be in transgression of its authority if it decides on facts in dispute in court proceedings (“…clearly the reason for…clause 1.6…”), this does not give journalists a free reign to write as they please without being held accountable; and
- A line must be drawn between deciding on disputed matters which will be placed before a court (where Section 1.6 is applicable), and adjudicating on the nature and content of the story in question (where Section 1.6 is not appropriate).
Scott’s attorney concluded: “Our client does not wish that the Council decide on matters which are in dispute in court proceedings. Our client wants the Council to use their power and authority to decide whether or not the newspaper contravened the Press Code…”
That is exactly right, which means that the interpretation of Section 1.6 is at the heart of this matter. This section is worded in rather general terms, and calls for some interpretation.
Scott’s attorneys offered a meaningful interpretation of this section. Two issues are at stake here:
- Are there judicial procedures pending on the material that is reported on?; and
- Can the issue influence or interfere with the outcome of the court proceedings?
In other words, the intention of Section 1.6 is for this office to not make decisions that may interfere with “a decision reserved for a court in a judicial proceeding” (the words of Scott’s attorneys). At the same time, though, this interpretation should not clash with the rest of the Code and with its spirit (which is underlined by a deep concern for sound, ethical journalism).
It also may be that parts of the complaint fall under Section 1.6 of the Complaints Procedures, and other parts don’t.
I therefore asked Scott’s attorneys for more clarity as to why they are persuaded that Section 1.6 does not apply in this case. They supplied me with court documents (which is exactly what I needed) in order to try to convince me that the largest part of the story in dispute falls outside of court proceedings.
So, based on my interpretation of Section 1.6 of the Complaints Procedures I firstly need to establish which parts of the story are about matters pending in court, and which aren’t. If there are complaints about the latter, I need to take them on.
I shall do this analysis sentence by sentence, or groups of them – comparing them with the court papers which are in my possession:
- From: “Darren Scott…” to “…verkwis het”:
This part was about Scott’s racist behaviour that allegedly led to two media companies going bankrupt as result of his actions. The story reported that Duke had accused Scott of wasting R1.25-million in this process.
Even though these sentences represented Duke’s views, they are directly linked to the reasons that he is putting before the court as (at least part of) the reason why the companies went bankrupt. This matter is reflected in the first part of the summons (though the amount in the summons is R1.125-million and not R1.25-million, as reported).
- From: “Hy beweer ook…” to “…verwyder het”:
This sentence said that Duke alleged that Scott had fraudulently taken sound equipment of R120 000.
There is no documentation at my disposal to substantiate that this matter would be part of court proceedings.
- From: “Darren se optrede…” to “sê Anthony”:
Even though these sentences reflected Duke’s views, they also tie up with the first part of the story, which is part of court documents.
- From: “Hy eis nou…” to “ ‘… ongekende skade aan die maatskappye aangerig’, sê Anthony”:
The complainant admits that these sentences were about court proceedings that were pending.
- From: “Darren het toe sy werk…” to “… ‘ is daardeur verwoes’, sê Anthony”:
These sentences had to do with Scott having lost his job and the companies having allegedly gone bankrupt because of that. Scott contests this accusation in court papers.
- From: “ ‘Die laaste keer wat ek met Darren gepraat het…” to “ ‘…vir sy probleme met alkohol en depressie”:
The whole of this part was comment by Duke about Scott’s alleged ill behaviour.
- The rest of the story:
The rest of the story was about matters that were before the court.
The only parts of the story that I can entertain (read: which is not likely to influence court proceedings) are:
- the material which I referred to in the second last bullet (From: “ ‘Die laaste keer wat ek met Darren gepraat het…” to “ ‘…vir sy probleme met alkohol en depressie”); and
- the reference to sound equipment.
I believe that the sentences in the second last bullet were not protected by Section 1.6 of the Complaints Procedures because they were of a general nature which covered matters that had little or nothing to do with his alleged racist behaviour (which was the main reason for the companies going bankrupt, according to Duke’s summons).
I am therefore asking Sondag to read the complaint in this light, and to respond accordingly.
In addition: I need to get clarity on the last sentence of the story, namely that Scott did not want to discuss the matter in public. This is part of the complaint. The newspaper needs to provide evidence that it did speak to Scott (email, fax, telephone record – whatever is appropriate).
After I have received the newspaper’s reply, I shall ask the complainant for a response before taking the matter any further.