Mackson Maluleka and Nteboheng Phakisi vs. Sowetan

Mon, Nov 10, 2014

Ruling by the Press Ombudsman

10 November 2014

This ruling is based on the written submissions of Mr Mackson Maluleka and Ms Nteboheng Phakisi, and those of Mapula Nkosi, deputy editor of the Sowetan newspaper.

Complaint

Maluleka’s and Phakisi’s complaints are so closely related that I am combining them into one finding.

They are complaining about an article published in Sowetan on 16 October 2014, headlined Criminals shot duo at lover’s nest – Woman killed, partner fights for life.

Phakisi and Maluleka, who has a child with Ms Nolwasi Lubisi (30), complain that the story incorrectly states that Ms Lubisi left with an unknown man for an outing at a “lovers’ nest”.

Maluleka says Lubisi was kidnapped next to her home (before she was killed on an open veld) – Lubisi’s sister Granny found her cellphone when she opened the gate to the house the next morning, together with some documents that were also thrown out of the car, “which we believe…was an alert from the victims to signal to the family that something [was] wrong”. He adds that the story created more pain for the grieving family.

Phakisi also denies that Lubisi left home in a mini skirt, and adds that the story has tainted her image, especially in the eyes of her daughter.

The text

The story, written by Pertunia Mafokwane, said criminals had identified as an easy target a stretch of veld that had became a rendezvous for lovers. “It is feared killers are lurking in the bushes after the naked body of Nolwazi Lubisi of Block R Soshanguve, near Pretoria, was found in the veld on Monday morning.” Her male friend was reportedly fighting for his life in hospital. Lubisi’s sister Granny was quoted as saying that she had left the house in a mini skirt just before midnight. Mafokwane reported a police spokesman as saying that they had found the woman’s bra and the man’s underwear, belt and shoes in the car. “He said police often found couples having sex during patrols in the area. ‘We chase them away and warn them of the dangers involved’, he said.”

The arguments

Nkosi says Granny (24) spoke on behalf of the family and that her testimony was captured in the story. The reporter also relied on the police spokesperson and a resident living nearby. The deputy editor denies that it was Sowetan’s intention to portray Lubisi in a demeaning manner – “in fact, the aim of the article was to educate vulnerable victims of the dangers lurking in the veld”.

Maluleka replies: “How come they never included the part about Nolwazi’s cellphone and the friend’s documents being found at the gate?” He says the police had this information – but the reporter neglected to mention it because it would have spoilt the story.

He asks:

• Can Sowetan provide proof that the victims were having sex; and
• Did the newspaper ask the source if he or she had heard anything on the night of the incident?

He concludes that, if it was Sowetan’s aim to highlight the dangers of the veld, the reporter should not have included Lubisi’s name in the story.

Analysis

I asked Sowetan if the reporter, prior to publication, knew about the:

• cellphone and documents that were allegedly thrown out of the car outside Lubisi’s house – and if so, why did she not report that fact/allegation; and
• possibility that she could have been hijacked and driven, against her will, to the open space – and if so, why did she not report that possibility?

Nkosi replies that the information about the cellphone (which had been found near the yard) was communicated to Sowetan and that it was initially meant to be part of a follow-up story. However, according to her neither the family nor the police articulated any hijacking fears to the newspaper. The deputy editor adds that the story did not say they were shot “at” the lover's nest. “It is unfortunately (only) our headline that does.”

I note the fact that Lubisi’s body was found on open veld is not in dispute – only the questions of how she got there, and why, are relevant.

I agree with Nkosi that the story did not state explicitly that she went there to have sex, before being murdered. However, I have little doubt that the insinuation to this effect was clear.

Let me take a closer look at the first two paragraphs to substantiate this statement. These are the salient matters, which constitute the context of the story:

• The veld has been turned into a love nest;
• Criminals have identified lovers at this place as easy targets; and
• It is feared that killers are lurking in the bushes after Lubisi’s naked body was found there.

Even though the story did not state so explicitly, the insinuation is abundantly clear: Lubisi went there to have sex, and was consequently murdered. Two plus two makes four. The headline merely stated explicitly what the story strongly insinuated.

Within this context, the following issues are puzzling, and even inexplicable:

• Sowetan had the information, but decided not to report that Lubisi’s cellphone and some other documents were found outside the house gate the morning after that fateful night. Why wait for a follow-up story? Surely, these facts were relevant to the breaking story?
• The newspaper had a duty to report this fact to enable the public to come to a (possibly) different conclusion as to why Lubisi had been found at the lovers’ nest; and
• Nkosi says neither the family nor the police “articulated to Sowetan any hijacking fears” – and yet, the article said that the police were investigating a case of hijacking. (Maybe the journalist thought that the hijacking might have taken place at the lovers’ nest – but that would have been a weak assumption, taking into consideration that her cellphone and some documents were found outside the gate of her house.)

So: Did the facts stand in the way of a good story? And: Did the journalist for one moment consider the unnecessary harm she might cause the family by insinuating that Lubisi went to the lovers’ nest to have sex?

On the other hand, I need to consider the fact that Lubisi did leave the house voluntarily late that night, with a male partner at that (waiting for her outside the gate). There was no complaint about this matter. There still is a possibility that she did go to the veld to have sex.

This is the point: Ultimately, it is not for me to determine whether Lubisi was abducted, taken to a lovers’ nest, sexually abused, and then murdered – or whether she went there of her own free will. That matter is for the court to decide. My question is a journalistic one: Was the story truthful, accurate, fair, and in context? Or, more to the point: Was it justified to leave out the detail about her cellphone and other documents that were found the next morning outside her house?

Having left out these details that may prove to be vital, and having strongly insinuated that she went to the veld to have sex, I do believe that the story consequently was unbalanced and unfair, with a possibility that it was also inaccurate.

Having said that, it follows that there is a real possibility that the story did cause the family some unnecessary harm – which the newspaper should have foreseen at the time of publication.

Finding

The story strongly suggested that Lubisi went to the lovers’ nest to have sex – but it omitted to state information about the discovery of Lubisi’s cellphone outside her home the morning of her murder.

This is 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
• 2.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

The headline confirmed the insinuation in the story, again without taking into account the cellphone and documents found outside Lubisi’s home. This is also in breach of Section 2.1 of the Code.

Sanction

Sowetan is reprimanded for:

• strongly insinuating that Lubisi (voluntarily) went to a lovers’ nest to have sex, but omitting to state in the process that her cellphone and some documents were found outside the gate of her home the night she was murdered – which would suggest the possibility that she was abducted and taken to that place; and
• stating as fact in the headline the insinuation in the story that she was murdered at a lovers’ nest.

The newspaper is directed to publish a follow-up story, with the angle of a possible abduction (based on the allegation that her cellphone and some documents were thrown out of the car outside her house), and acknowledging that the article in question might have caused the family some unnecessary harm. The story should also include the reprimand.

The newspaper should furnish our office with the text prior to publication. The text should end with the following words: “Visit www.presscouncil.org.za for the full finding.”

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