Ruling by the Press Ombud
29 July 2017
This ruling is based on the written submissions of Mr Jaco van der Merwe of Tatham Wilkes Inc, on behalf of the Maritzburg College Governing Body (MCGB), and those of Kuben Chetty, acting editor of The Witness newspaper.
The MCGB is complaining about a story in The Witness of 13 June 2017, headlined Fresh probe for K-word kid – Department wants to reopen investigation, as well as about a similar article on its website, headlined Racism: call for probe at College – Pupil allegedly referred to black peers by k-word twice.
Complaint
The MCGB’s main complaint is that the newspaper did not ask it for comment.
It also complains that the stories omitted material information, and were unbalanced and incorrect (details below) – the central issue being that the stories created the false impression that the school had deliberately hidden a racial incident involving its learners from the Department of Education.
In addition, the body also says that the reporter should have verified whether the school’s action was appropriate and if not, why not – instead, the reader would have thought that the school had flouted prevailing legislation, failed to act in terms of its own code and instead swept the matter under the carpet.
Van der Merwe adds that the school has received numerous threats of mass action, incitement to violence and even of arson, and argues that the (irresponsible) reportage has jeopardized learners’ safety and security.
The texts
The articles, written by Jeff Wicks (print) and Nokuthula Khanyile (online), said a Maritzburg College prefect who had used the k-word during an argument might face fresh disciplinary action after the school waited nearly four months to report an incident to the KwaZulu-Natal education department.
This, after a racist rant went viral at a neighboring school.
The department had reportedly intervened and called for an investigation into the Maritzburg College matter to be restarted from scratch. A departmental spokesman, Mr Kwazi Mthethwa, was quoted as saying that the delay in reporting this matter was “puzzling”.
The complaint in more detail
The MCGB says the stories were unbalanced in that the journalist had asked the principal for comment – while the headmaster in fact represented the head of the Department of Education at a governing body meeting. Asking the principal for comment, therefore, is tantamount to asking the department itself, Van der Merwe argues.
The governing body says the stories neglected to state that the:
· law did not require a governing body to inform the department of misconduct;
· department had no right to intervene and to call for the process “to start from scratch”;
· journalist had tried to contact the department for comment;
· principal was not allowed to speak to the media about any incident at the school;
· “Guidelines for the Consideration of Governing Bodies in Adopting a Code of Conduct for Learners” did not stipulate that a disciplinary hearing was automatically warranted in such a circumstance – instead, the impression was created that the school should have instituted such proceedings; and
· racism, as a form of misconduct, did not carry a minimum sentence (making it impossible to decide whether the punishment imposed on the learner was justifiable or not).
Van der Merwe adds that the stories omitted to state whose spokesperson Mthethwa was; besides, no mention was made of the manner in which the matter was reported to the department, to whom in the department the matter had been reported, and who had reported the incident – which means that the spokesman had to rely on hearsay evidence.
He also says that the perpetrator received a significantly greater sanction than what was published.
The Witness responds
Chetty says Khanyile sent an e-mail to the school, addressed to the principal, saying she wanted comment “from the school or SGB”. The headmaster explained that he was not allowed to speak to the media, and directed the journalist to the Department of Education (and not to the SGB).
He argues, “The school had referred her to the Department. On what possible basis could she then be expected to go back to the school to comment on what the Department said?”
He also submits it is unreasonable to expect a journalist to be an expert on SGBs – “but, in any event, given the specific directive from the Headmaster, the need to consult the Act or Regulations was clearly unnecessary.”
The acting editor also points out that:
· the stories quoted the principal, who said the matter had been dealt with in terms of the Schools Act;
· notwithstanding the absence of a statutory obligation to inform the department of a racial incident, the current state of race relations in the country tips the scales of good judgment into reporting such an incident to the department;
· if the school disputes the department’s conviction that the investigation into the matter should be reopened, it should take up the matter with the department – The Witness cannot be blamed for this, nor had the newspaper been aware of this difference of opinion;
· there was no need to report that the MCGB did not comment, given the principal’s direction in this regard;
· the reporter cannot be expected to know who reported the matter to the Department;
· if the department believes it has a right to investigate, it is “stretching matters” to argue that the newspaper should know better;
· the stories were news reports and were not intended to be an analysis of guidelines for governing bodies (to which the MCGB could have alerted the journalist when given the opportunity);
· the stories did not suggest that a disciplinary hearing was automatically required, nor did they refer to the school’s own Code;
· the suggestion that the school tried to sweep the matter under the carpet came from the department, not from the newspaper;
· the MCGB complains about the reportage on the sanction – but it does not point out exactly what this sanction was; and
· the distress was not caused by the reportage, but the incident itself.
MCGB replies
Van der Merwe replies it was not the principal’s job to point the newspaper in the right direction – if the journalist wanted a response from the MCGB, she should have directed her e-mail directly to that body. He adds that the articles’ failure even to mention the governing body is a clear indication that the reporter had no interest in its version or that she even knew to contact it.
He also says the principal was obliged to refer the journalist to the department.
Analysis
The MCGB’s argument regarding the journalist who should have known the law and should have contacted it directly is weak – indeed, the reporter addressed her e-mail to the principal and asked for a response from either him or the governing body.
Had the principal directed her to the MCGB, there would have been no problem. He did not do so, for whatever reason. The MCGB is wrongly blaming this on The Witness.
I also cannot but note the logical discrepancy in Van der Merwe’s argument – on the one hand he blames the newspaper for not contacting the MCGB, while on the other hand he also complains the journalist neglected to state that she had contacted that body. This does not add up.
But, more importantly: In the matter of Malema v Rampedi and Others, the Johannesburg High Court in 2011 regarded Mr Julius Malema’s failure to respond adequately to questions as an important factor favoring the reasonableness of publication. The court said that the applicant “was in a position to properly answer and properly set forward facts which would cast a different light upon the issue should he have wished to do so” – and by failing to do so, added credibility to the newspaper’s sourcing.
Having given the principal the option to refer the enquiry to the MCGB, and having been directed to the department instead, the journalists were relieved from any further obligation in this regard.
The MCGB’s complaint that the reportage endangered the safety of learners is groundless, for the same reason. If a mistake was made, it was not the newspaper’s.
As there is no complaint that the reporters misquoted either the principal or the department, I have no grounds to find for the complainant.
Finding
The complaint is dismissed.
Appeal
The 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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud