Marius and Annet Pistorius vs News24

Sun, Jul 31, 2022

Date of publication: 13 May 2022

Headline: The Melkbos Monster: Unmasking a ‘toddler rapist’

Authors: Tammy Petersen and Deon Wigget

Particulars

This finding is based on a joint written complaint by Mr Marius Pistorius and his wife Ms Annet Pistorius, with a number of annexures, a written response by Mr Charl du Plessis of Willem de Klerk Attorneys on behalf of News24, accompanied by various annexures, and a further written response by the complainants.

Complaint

The complainants do not refer to any specific clauses of the Press Code, but the details of their complaint relate to Clauses 1.1, 1.2, 1.3, 1.7, 3.1, 3.3 and 10.1:

“1. The media shall:

“1.1 take care to report news truthfully, accurately and fairly;

“1.2 present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;

“1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such; …

1.7 verify the accuracy of doubtful information, if practicable; if not, this shall be stated; …”

“3. The media shall:

“3.1 exercise care and consideration in matters involving the private lives of individuals. The right to privacy may be overridden by public interest; …

“3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest and if:

 “3.3.1. the facts reported are true or substantially true; or

“3.3.2. the reportage amounts to protected comment based on facts that are adequately referred to and that are either true or reasonably true;

“3.3.3. the reportage amounts to a fair and accurate report of court proceedings, Parliamentary proceedings or the proceedings of any quasi-judicial tribunal or forum; or

“3.3.4. it was reasonable for the information to be communicated because it was prepared in accordance with acceptable principles of journalistic conduct; or

“3.3.5. the content was, or formed part of, an accurate and impartial account of a dispute to which the complainant was a party;…”

“10.1. Headlines … shall not mislead the public and shall give a reasonable reflection of the contents of the report … in question …”

1. Overview of articles

1.1. News24 published a package of nine news articles based on an investigation into allegations of the sexual assault and/or rape of at least seven minors by Marius Pistorius, who were allegedly removed from a pre-school owned by his wife Annet.

1.2. The findings of the investigation were published together on their own “website” on News24’s main website. The package includes links to the complainants’ denial of all the allegations and also repeats Pistorius’s denial several times.

1.2.1. The main article, Article 1, outlines various allegations against Pistorius based on multiple sources, including medical examinations, psychological evaluations, affidavits and other documents. The most recent incident allegedly took place in 2018.

1.2.2. Article 2 deals with parents’ descriptions of the trauma experienced by their children, who were allegedly among Pistorius’s victims. It also looks at an investigation by the organisation ACVV (Afrikaanse Christelike Vrouevereniging or Afrikaner Christian Women’s Movement).

1.2.3. Article 3 features parents who speak about the trauma of finding out that their children were allegedly sexually abused or raped and about their difficulty with coming to terms with a lack of legal action to hold accountable the man whom they believe to be responsible.

1.2.4. Article 4 describes an interview with Sandy Crake (formerly Gould), who has a child with Pistorius. She recalls how she met him when she was a teenager and makes a number of allegations against him, including that he allegedly raped her when she was a minor.

1.2.5. Article 5 outlines the response of the National Prosecuting Authority (NPA) to concerns about why the rape and/or sexual abuse cases involving minors in Melkbosstrand were not prosecuted.

1.2.6. Article 6 is a follow-up article, in which the NPA explains that it could still reconsider its decision not to prosecute. This article also features an interview with social worker Edith Kriel, who is regarded as an expert in the field of child abuse.

1.2.7. Article 7 looks at the results of a search conducted at Pistorius’s two Melkbosstrand properties in 2012 as part of a court order (known as an Anton Piller order) in a civil case after the State declined to prosecute.

1.2.8. Article 8 features an interview with Kriel, who describes the warning signs in children who have been sexually abused. She also talks about her involvement in the case involving the allegations against Pistorius.

1.2.9. Article 9 outlines the response of Marius and Annet Pistorius to a list of questions that News24 sent to them.

2. Arguments

Marius and Annet Pistorius

2.1. The complainants submit that News24 contravened the Criminal Procedure Act by publishing the headline “The Melkbos Monster: Unmasking a ‘toddler rapist’ ”, identifying Marius Pistorius as the “Melkbos Monster” and publishing a photograph which identified him and his wife Annet’s pre-school.

2.1.1. Pistorius observes that he has never been charged “with this offence nor pleaded to this offence in any court of law”.

2.1.2. He submits that all allegations against him were proved to be untrue during extensive police investigations. There is therefore no reason, according to him, for the public to be alerted to “alleged crimes that could be ongoing”.

2.1.3. Pistorius further submits that identifying him, his wife and her pre-school resulted in hate speech and threats of violence towards him, his wife and teachers at the pre-school from members of the public on social media.

2.1.4. Pistorius also believes that News24’s rationale for publishing this information “in the public interest” cannot be substantiated because he has been living on a farm about 300 kilometres from Melkbosstrand for the past 29 months and for various other periods which he specifies.

2.2. The complainants contend that News24 breached the Press Code in a number of ways (the relevant clauses will be identified in brackets after each complaint).

2.2.1. Complaint one: They submit that the headline misled the public to believe that Pistorius had been convicted of the alleged crimes (Clause 10.1).

2.2.2. Complaint two: They contend that News24 failed to report truthfully, accurately and fairly (Clause 1.1).

2.2.3. Complaint three: They submit that News 24 failed to present news in context and in a balanced manner, departed from the facts and omitted to publish facts supplied to them in reply to specific questions (Clause 1.2).

2.2.3.1. They further claim that expert evidence and reports that disprove News24’s allegations were ignored or “hidden away”.

2.2.4. Complaint four: They submit that News 24 failed to verify the accuracy of doubtful information, if practicable, and, if not, to state that it did not verify any doubtful information (Clause 1.7).

2.2.4.1. Among the examples they cite in support of their complaint is the allegation that an assistant at the pre-school reportedly took a child from the school during nap time and took her to a certain house.

2.2.4.1.1. They submit that this particular child was not enrolled for “a nap time option” and that the assistant in question cannot drive. They add that News24 did not question whether the assistant and the child were able to walk six kilometres between the pre-school and the house during school hours.

2.2.4.2. They also submit that News24 did not follow up on evidence that Pistorius could not have been identified by the alleged child victims as he was “far away”.

2.2.4.3. They further submit that News24 did not interview the six teachers and assistants employed by the pre-school to establish if it was possible for Pistorius to remove children from the pre-school without being seen.

2.2.5. Complaint five: They submit that News 24 misled the public about its investigations by intentionally withholding affidavits, forensic reports and medical evaluations supplied to them by Pistorius’s lawyer (Clause 1.2).

2.2.5.1. They contend that the information withheld by News24 refuted the “evidence” supplied by their informants to such an extent that it convinced the investigating officers in 2011 and 2013 that the allegations against Pistorius were false.

2.2.5.1.1. They submit that this was the reason why the cases which News24’s informants made against him never made it to court and not, as claimed, because they ran out of money.

2.2.6. Complaint six: They further submit that News24 selectively used the forensic reports and medical evaluations to fit “the publication”, and cite various examples in support of their claim (Clause 1.2).

2.2.6.1. They refer to reports which formed part of a civil action and an Anton Piller order instituted in 2012 by some of the parents on whose information News24 relied. They state that the civil action was dropped when reports from their experts and IT forensic evidence proved their innocence.

2.2.6.2. They also submit that News24 had access to the report of the supervising attorney when the Anton Piller order was executed, but that it failed to verify discrepancies in the report (for example, the location of a lawnmower allegedly used to threaten the children, the non-existence of an allegedly concealed room at the pre-school and that no stuffed lion, giraffe or rhino heads were found during the Anton Piller search).

2.2.7. Complaint seven: They also provide other examples in support of their claim that News24 did not verify or disclose certain facts. In their view, this resulted in a lack of balance and bias (Clauses 1.2 and 1.7).

2.2.7.1. For example, they refer to various claims by the children which were not verified and to discrepancies regarding the vehicles used to allegedly transport the children from the pre-school.

2.2.7.2. They also argue that they gave detailed answers in response to certain questions by News24 and also referred to various expert reports.[1]

2.2.7.2.1. Despite News24 having access to all the affidavits, forensic reports and medical evaluations, they claim that the publication proceeded without verifying its information with the experts who compiled these reports.

2.2.8. Complaint eight: They state that News24 also relied on information supplied by Crake, with whom he has a child.

2.2.8.1. Pistorius invited News24 to read the record of the trial for more particulars regarding the case to get custody of his minor daughter. He argues that it appears that News24 did not do so as it would have taken note of a report by a social worker.

2.2.8.2. Pistorius adds that part of his “full response” published by News24 was redacted which, he believes, supports his contention that News24 was not truthful, accurate and fair (Clause 1.1).

2.3. In light of the above complaints, the complainants request a correction, retraction or explanation and, where appropriate, an apology and/or the findings of the Press Ombud to be published by the respondent.

News 24

2.4. The respondent submits that it believes its reporting fully complies with the Press Code.

2.4.1. It argues that, throughout its reporting, it reported the claims as allegations rather than as facts. However, it adds that it is satisfied that, on a balance of probabilities, the allegations are true and that publication of these allegations was in the public interest.

2.4.2. It adds that the allegations against Pistorius are made by “multiple, credible and independent victims”.

2.4.2.1. It states that these allegations are detailed in statements and accounts given to the police and to social workers by the child complainants. In Crake’s case, she made an affidavit under oath.

2.4.2.2. According to News24, these statements and accounts are supported by medical evidence of sexual assault and/or rape and by forensic or social worker reports based on interviews with the children shortly after the events in question. Furthermore, it claims that these reports concluded that the children’s allegations are credible.

2.4.2.3. It submits that these statements and accounts are supported by interviews with the majority of parents involved and, in some cases, by detailed statements under oath from the parents concerned.

2.5. The respondent refers to the complainants’ attempt to bring an urgent application to interdict News24 before publication of the articles.

2.5.1. In its 371-page answering affidavit, News24 provided details of its investigation, including all the steps it took (part of this affidavit is included in its annexures).

2.5.1.1. Firstly, News24 conducted in-depth interviews with one or both parents of almost all the minor victims (most were interviewed more than once). In addition, it interviewed Kriel, the social worker who interviewed most of those alleged to be victims in 2011.

2.5.1.2. Secondly, News24 collected documentation on the allegations (it attached what it regards to be the most pertinent documents as annexures).

2.6. The respondent further states that a common theme of the complainants’ complaint appears to stand on two legs.

2.6.1. Firstly, the complainants claim that “expert evidence and reports that disprove their [News24’s] allegations are simply ignored” and that these reports “cast serious doubt on the reports prepared by the social workers, which the News24 team present as irrefutable expert testimony”.

2.6.1.1. News24 states that the complainants refer to affidavits, reports and medical evaluations that were supplied by their lawyers “as if there are a multiplicity of such documents”.

2.6.1.2. In fact, it says, the complainants only submitted three documents in advance of publication: a report by child psychologist Dr Rosa Bredekamp (October 2014), a report by child psychologist Dr Glyde Thompson (September 2015) and the minutes of an “alleged” meeting between Bredekamp and Thompson (August 2016).

2.6.1.3. News24 comments on each of these documents, and provides reasons why it disagrees with the complainants’ assertion that they “disprove” the allegations or cast “serious doubts” on the allegations against Pistorius.

2.6.1.4. According to News24, the Bredekamp report confirms the credibility of the allegations against Pistorius by two of the alleged child victims However, the publication says it did not rely on this report because it was produced some years after the alleged events in question, and instead relied on a contemporaneous report by a police captain who is a forensic social worker.

2.6.1.5. As for the Thompson report, News24 submits that it only relates to three of the seven alleged child victims, that Thompson is not an objective expert as he was appointed by the complainants’ lawyer; that he never conducted any interviews with the alleged child victims and that he does not make a finding that the children’s accounts were false.

2.6.1.6. Regarding the Bredekamp/Thompson minutes, News24 notes that these are dated 29 August 2016 (about five years after the events in question) and that its conclusions only relate to two of the seven alleged child victims. It asked a psychology professor for an independent assessment, who indicated that the material in the minutes was questionable.

2.6.1.7. For the above reasons, News24 believes that the three documents do not disprove the allegations, nor do they cast serious doubts on the information provided by News24.

2.6.2. Secondly, the respondent addresses the complainants’ claim that annexed documents were “hidden away” and “intentionally withheld”, and that the public was “misled” because they were not attached to the complainants’ published responses.

2.6.2.1. The respondent states that there was a simple reason why it did not publish the annexed documents: it notes that News24 did not publish any of the private and personal documentation which detail the allegations of sexual assault of the children.

2.6.2.2. It believes that publishing this documentation, even with redactions, would be in breach of its ethical obligations towards the alleged victims as well as in breach of Clause 3.4 of the Press Code, which prescribes that the media should “not identify rape survivors [and] survivors of sexual violence which includes sexual intimidation and harassment”.

2.6.2.3. Furthermore, News24 states that it is not prepared to risk the possibility of any indirect identification of the alleged victims (hence its decision to assign pseudonyms to them in the published articles).

2.6.2.4. In addition, it notes that some of the alleged victims’ friends have been told about their experiences and may therefore be able to indirectly identify them from the documents had they been published. News24 believes this would potentially cause serious harm.

2.6.2.5. It also argues that, notwithstanding the fact that the annexed documents were not published, the version presented in the documents was fairly reflected in its reports.

2.7. The respondent further contends that this has been done in a manner that more than satisfies the Press Code’s requirements for reflecting the views of a subject of critical reportage.

2.7.1. It points out that, where relevant, Pistorius’s denial of all of the allegations is included in the articles.

2.7.2. In addition, it notes that it published the full 17-page text of the complainants’ responses to the questions addressed to them, and says that the reference to “full response” referred to the complete 17-page document submitted by the complainants.

2.7.3. For the above reasons, it argues that the views of the subjects of critical reportage were reflected more than adequately. It does not believe that the facts were taken out of context or that there was any misrepresentation.

2.8. Regarding the complainants’ contention that the Criminal Procedure Act was contravened, the respondent states that whether or not it has been breached was not relevant to the adjudication of a complaint before the Press Ombud.

2.8.1. It adds that, even if this were a competent complaint, there must be criminal proceedings before any section of the Criminal Procedure Act can apply. In this instance, however, there are no such proceedings.

2.9. On the aspect of public interest, the respondent believes the articles are undeniably of public interest.

2.9.1. It notes that levels of sexual violence against women and children in South Africa are among the highest in the world. Moreover, it states that reporting on “credible and substantiated allegations of sexual assault and rape against minors” – who are the least capable of defending themselves – will always be a matter of public interest.

2.10. The respondent denies the complainants’ claim that “all the allegations” against Pistorius were “proven untrue during extensive police allegations”.

2.10.1 It argues that the police do not investigate people in order to prove allegations untrue, and adds that Pistorius has never been acquitted by any court of law on any of the allegations.

2.10.2. It adds that, while criminal guilt is a matter for a criminal court to decide and must be determined beyond reasonable doubt, this is not the standard of proof required of the media – “with good reason”.

2.10.3. It argues that, if a criminal conviction was a prerequisite for the media to publish a person’s identity, “the vast majority of corruption in South Africa would have gone unreported and, most likely, unknown”.

2.10.4. It further argues that, where the criminal justice system itself fails victims, “the public interest in publication is even more acute”.

2.10.5. It states that the parents of the alleged victims, Kriel and the ACVV believe that the police, the NPA and the criminal justice system failed the minor victims in this instance.

2.10.6. It regards failures of the criminal justice system as one of the most important considerations of public interest, and declares that the public have an interest in learning about and interrogating such failures because they depend on and fund this system.

2.10.7. Nevertheless, News24 states, it was mindful of the fact that the NPA’s decisions could have a material bearing on its decision to publish. As a result, it took certain steps to investigate this issue, which included an off-the-record interview with a senior prosecutor involved in the matter.

2.10.8. It believes that the NPA’s reasons for not prosecuting “related to technical legal issues regarding evidence and establishing proof beyond a reasonable doubt – not because any of the accounts were believed or found to be false”.

2.10.9. It dismisses Pistorius’s contention that his geographical location – “for which there is nothing but his word (not given under oath)” – can negate the public interest that is attached to reporting of this nature.

2.11. In response to the complaint that the headline is “misleading the public to believe that he has been convicted”, the respondent submits that the complainants misquote the headline in the first line of their complaint and that it reads as follows: “The Melkbos Monster – unmasking ‘a toddler rapist’.”[2] It contends that the headline does not sustain the meaning that the complainants ascribe to it for three reasons.

2.11.1. Firstly, it says that the phrase “a toddler rapist” – this should, in fact, read “a ‘toddler rapist’ ” – is placed in inverted commas to indicate that this is an allegation, and argues that the use of inverted commas to indicate an allegation in a headline is a practice which is accepted by the Press Ombud in its rulings.

2.11.2. Secondly, it says that the word “unmasking” indicates that something is being revealed. It submits that it is used in the media in circumstances where a person’s identity is revealed after an investigation, whereas a person who is convicted or appears in court is not “unmasked”.

2.11.3. Thirdly, it says that the description of Pistorius as a “monster” is a statement of opinion justified by the facts in the articles: a “monster mask” was found at his home and one of the alleged victims referred to Pistorius as a “monster oom” (“monster uncle”).

2.12. The respondent also addresses various specific matters of detail raised by the complainants, including their claims about “discrepancies” regarding the report of a supervising attorney when the Anton Piller order was executed (see details in point 2.2.6.2).

2.12.1. It replies that, while a lawnmower was not found at Pistorius’s home, a lawnmower was found at the pre-school. It adds that a lawnmower is “not a fixed, immovable object”.

2.12.2. It points out that it did not report on the existence of a concealed room at the pre-school.

2.12.3. And, although no lion, giraffe, or rhino heads were found, News24 says the supervising attorney’s report made it clear that Marius and Annet Pistorius were in the middle of moving house at the time of the Anton Piller search, and adds that Annet Pistorius told the supervising attorney that they had thrown away 20 black bags of rubbish the previous week.

2.12.4. However, News24 acknowledges that one headline – which refers to “rhinos” being found during the Anton Piller search – was inaccurate and attributes this to a subediting error. It points out that this has since been corrected and adds that it is not “a material error that has any bearing on the substance of News24’s reporting”.[3]

2.13. In response to complaints that it did not verify or disclose certain facts (see point 2.2.7.1), News24 submits that these are “not material nor do they lead to unbalanced reporting”.

2.13.1. It goes on to respond to some of the specific examples mentioned by the complainants.

2.13.2. It reaffirms that it remains satisfied that, on a balance of probabilities, the allegations against Pistorius are true.

2.14. In conclusion, the respondent asks that the complaint be dismissed in its entirety.

Further arguments

2.15. The complainants submit that, in the absence of proof of their involvement in the allegations, it cannot be in the public interest to reveal their identities, “especially in view of the prejudice we have suffered in the past and will suffer in future”.

2.15.1. It attached a copy of a Notice of Motion to the court which, among others, sought an order to prevent the publication of their identities until allowed to do so by the court.

2.15.2. However, they argue that News24 rendered their application moot when it placed their identities in the public domain by identifying the complainants and the pre-school in their answering affidavits.  

2.15.3. They contend that, in so doing, News24 did not act in good faith and disregarded their rights.

2.16. The complainants also object to the respondent’s claim “that it was satisfied that, on a balance of probabilities, the allegations against Pistorius were true”. They argue that News24 is “not equipped and qualified to be trusted with findings regarding credibility, independence, corroboration, and reliability which fall in the domain of Courts of Law”.

2.16.1. They further argue that News24 relied on cherry-picking facts to suit its preconceived views.

2.17. The complainants note that News24 conducted separate interviews with parents and Kriel, and also relied on the Anton Piller order and supporting affidavits.

2.17.1. In addition, they state, News24 had access to all the expert reports. However, they submit, News24 did not conduct interviews with these experts (as they did with Kriel).

2.17.2. Accordingly, they submit that the publication relied only on the views and opinions of those experts who support their preconceived views and their opinion that, on a balance of probabilities, the allegations against Pistorius are true.

2.18. The complainants also point out that News24 visited the pre-school on 17 May 2022 to familiarise itself with access to the pre-school and questioned Annet Pistorius on this aspect. They regard it as “peculiar” to publish a story and only conduct an investigation afterwards.

2.18.1. They repeat their complaint that News24 did not interview teachers and staff, nor did it interview any of the staff members who were implicated in allegedly assisting Pistorius.

2.18.2. They submit that such “cherry picking” resulted in News24 failing to report truthfully, accurately, fairly or in a balanced manner.

2.19. The complainants point out that they do not intend to deal with the content and differences of opinion of the experts, and state that it is not the Press Ombud’s function to evaluate the reports of these experts in order to establish whether or not Pistorius is guilty of the allegations against him.

2.19.1. However, they argue, it is clear that News24 did not consider it necessary to consult experts who disagree with those experts who support their “preconceived views” of Pistorius’s guilt.

2.20. The complainants also once again take issue with the non-publication of the annexures which they regard as part of Pistorius’s “full response”, and reject the respondent’s submission that this was done to protect the identities of the alleged victims.

2.20.1 They further submit that the questions posed to them by News24 referred to the alleged victims’ names, and that their response merely recorded the questions as they were posed to them.

2.20.2. They deny that they casually disregarded the identities of the alleged victims during their engagement with News24. They note that they used initials in their court application to protect the alleged victims and their parents as well as their own identities.

2.20.3. They further assert that News24 reverted to the process to redact the identities of the parties only when it suited it.

2.21. The complainants repeat their contention that the Criminal Procedure Act prohibits the publication of the identity of an accused before appearing in court and pleading.

2.21.1. According to Pistorius, he is already in the position of an accused person in view of the fact that steps are under way to privately prosecute him. As such, he argues, he is entitled to the protection of the law against being identified prematurely.

2.22. In response to the respondent’s submission that publication of its reports is of undeniable public interest, Pistorius declares that sexual abuse of children is “abhorrent” and that it deserves to be reported so that society can guard against it.

2.22.1. However, he adds, it is wrong to taint him as an alleged perpetrator without proper proof.

2.22.2. He states that the parents of some of the alleged child victims took steps to have the allegations against him investigated, but that the NPA declined to prosecute and that civil action was not continued except in one instance (and withdrawn in the other instance). He adds that “revived complaints” laid in 2019 also came to nothing when the Director of Public Prosecutions decided in 2022 not to prosecute.

2.22.3. He claims that the parents of some of the alleged child victims were clearly not content with the NPA’s findings and their own decisions not to take further action. Instead, he argues, they have now used the media to try him in the “court of public opinion”.

2.23. The complainants deny that the headline is not capable of sustaining the meaning which they ascribe to it.

2.23.1. They argue that relying on the use of inverted commas and a photo of a “monster mask” to justify the headline is disingenuous and an afterthought.

2.23.2. They quote the following sentence from a letter by News24’s editor-in-chief to readers, titled “The meaning of trust”: “Trust is a three-month investigation by Tammy Petersen and Deon Wigget into the ‘Melkbos Monster’, Marius Pistorius, who allegedly sexually abused toddlers at his wife’s pre-school in the Western Cape.”

2.23.3. They state that “there is no other interpretation to what he conveyed to his readers”, and submit that the headline had the same intention – to identify Pistorius as the “Melkbos Monster”.

2.24. The complainants repeat their contention that, despite doubtful information and contradictory facts in the documentation, the respondent chose to consider only what supported its preconceived views of the allegations against Pistorius.

2.24.1. To support their claim, the complainants again observe that News24 failed to interview those pre-school staff members who were implicated in the allegations against Pistorius. They also failed to interview staff to establish whether it was possible to remove children from the pre-school and only investigated this aspect after the articles were published.

2.25. The complainants again refer to the discrepancies in the information and documentation that they cite in their complaint. Despite these discrepancies, however, they point out that the respondent remains satisfied that, on a balance of probabilities, the allegations against Pistorius are true.

2.25.1. They reiterate that none of the allegations against Pistorius were ever proved on a balance of probabilities, and believe that News24 chose to use information selectively to support its preconceived views on the allegations against him.

2.26. The complainants reject the respondent’s explanation of the “rhino” reference in a headline as a subediting error, and believe the reference “fitted” the publication.

2.26.1. They regard this as an example of a discrepancy which News24 chose to ignore in forming its opinion that the allegations against Pistorius are true on a balance of probabilities.

2.27. In conclusion, the complainants restate their view that the respondent relied on the “cherry-picking” of facts to suit its preconceived views on the allegations against Pistorius. Accordingly, they believe that News24 failed to report truthfully, accurately and fairly, which resulted in a violation of their rights and caused them to suffer damages.

3. Analysis

3.1. It must be stated at the outset that it is not for the Press Ombud’s office to make any pronouncement on whether or not the allegations against Pistorius are true. This aspect falls outside its jurisdiction and is best left to the criminal justice system to determine.

3.1.1. The key issue under consideration here is whether or not it was reasonable for News24 to publish the allegations on the basis of the information at its disposal and, moreover, to name Pistorius as the alleged perpetrator despite the NPA’s decision not to prosecute him.

3.1.2. This issue is at the core of the complaint, and needs to be addressed before turning to the specific details of the eight complaints submitted by the complainants.

3.2. News24 argues that the publication of the allegations is in the public interest.

3.2.1. In general terms, there is indeed sufficient justification for publishing such allegations on the grounds of public interest.

3.2.1.1. Sexual violence against children is an increasingly serious problem in South Africa. According to the 2019/2020 annual crime statistics, more than 24 000 children were sexually assaulted in South Africa during that 12-month period alone.[4] This is, on average, 2 000 children a month.

3.2.1.2. In view of such alarming figures, it is certainly in the public interest for the media to draw attention to reasonably substantiated allegations of sexual abuse and/or rape of minors, who are among the most vulnerable members of society.

3.3. With regard to naming Pistorius, News24 submits that it is satisfied that, on a balance of probabilities, the allegations against him are true. While only a court of law can establish this, News24 does provide a number of reasonable grounds to justify publication of his name.

3.3.1. The allegations against Pistorius are made independently by a number of alleged victims.

3.3.2. These allegations are detailed in statements and accounts given to the police and to social workers by the alleged victims (Crake, now and adult, made an affidavit under oath).

3.3.3. Furthermore, these statements and accounts are sufficiently supported by medical evidence of rape and/or sexual assault as well as by forensic or social worker reports based on interviews with the children shortly after the events in question allegedly took place.

3.3.4. In addition, these statements and accounts are supported by interviews with most of the parents of the children allegedly involved and, in some cases, by detailed statements under oath from the parents concerned.

3.3.5. The nature of the allegations against Pistorius, and that they relate to different time periods (the allegations of six of the minors date back to 2011, while the most recent incident allegedly occurred in 2018), are of sufficient concern to justify placing these allegations in the public domain.

3.3.6. In light of the above, there are reasonable grounds to conclude that public interest overrides Pistorius’s right to privacy.

3.4. With regard to the specific complaints of the complainants outlined under points 2.2.1 to 2.2.8, these will now each be addressed in turn.

3.4.1. Complaint one: The headline in question is made up of two parts: The first part reads “The Melkbos Monster”, and the second reads “Unmasking a ‘toddler rapist’ ”.

3.4.1.1 While the second part of the headline clearly refers to an allegation – which is signalled by the inverted commas around “toddler rapist” – the first part of the headline is problematic.

3.4.1.2. The description “The Melkbos Monster” is not qualified in any way. It states, as a matter of fact, that someone is a monster.

3.4.1.3. This contradicts – and, for all intents and purposes, nullifies – the second part of the headline, which is presented as no more than an allegation.

 3.4.1.4. The fact that a mask of a monster was found at Pistorius’s home, and that one of the alleged victims refers to him as “monster uncle”, are not sufficient grounds to refer to Pistorius as “The Melkbos monster”.

3.4.1.5. In any event, it is not clear that this part of the headline is based on the mask and the reference to him as a “monster uncle”. There is no supporting evidence in this part of the headline to suggest that it should be viewed in the context of this additional information.

3.4.1.6. Furthermore, News24’s argument that “The Melkbos monster” is a statement of opinion (see point 2.11.3) also does not pass muster. There is no indication that it is an opinion and not a statement of fact.

3.5. Complaint two: The complainants do not provide any compelling evidence that the articles are not substantially true, accurate and fair.

3.5.1. Over an 11-week period, News24 interviewed, among others, the parents of some of the alleged child victims, a social worker who interviewed most of those alleged to be victims in 2011 (Kriel) and the ACVV. It also obtained various documents relating to the allegations.

3.5.1.1. On the basis of these interviews and documents, it published nine articles on various aspects of these allegations. In all the reports, the claims are presented as allegations, and not as facts.

3.5.1.2. Furthermore, News24 published the 17-page text of the complainants’ response to the questions it sent to them, and several of the articles include a link to their response and refer to Pistorius’s denial of the allegations.

3.5.1.3. In view of the above, it is evident that News24 made extensive efforts to adequately meet the Press Code’s requirements to report fairly, truthfully and accurately, and to clearly present the allegations as such.

3.6. Complaint three: News24 makes a convincing case against the complaint that it failed to present news in context and in a balanced manner by ignoring or hiding evidence and reports which disprove its allegations.

3.6.1. In its response to the complaint, News24 points out that the complainants only submitted three documents in advance of publication (see point 2.6.1.2), and  notes that these were all duly considered.

3.6.1.1. It addresses each of the three documents in some detail and provides persuasive reasons why these documents do not “disprove” the allegations or cast “serious doubts” on the allegations (see points 2.6.1.4 to 2.6.1.6).

3.6.2. News24 also provides a valid reason why it did not publish the annexures provided by the complainants along with their 17-page response.

3.6.2.1. The publication decided – quite understandably – not to publish any of the private/personal documentation which outlines the allegations of sexual assault of children because it did not want to risk the possibility of indirectly identifying the alleged victims. It is therefore difficult to comprehend why the complainants insist that the annexures should have been published, even if only in redacted form.

3.6.2.2. News24 further argues that, even though the annexed documents were not published along with the 17-page response of the complainants, its reports adequately reflect the version presented in these documents. There is sufficient merit in this argument.

3.7. Complaint four refers to examples of what the complainants regard as evidence of their claim that News24 failed to verify the accuracy of doubtful information and that it did not make it clear when it was unable to do so.

3.7.1. As far as can be ascertained, the example referred to in point 2.2.4.1 relates to a claim in an affidavit by a parent of one of the alleged victims that her child was removed from the pre-school by an assistant.

3.7.1.1. Firstly, it must be noted that this claim is not included in any of the articles.

3.7.1.2. Secondly, News24 cannot reasonably be expected to verify each and every allegation contained in the large amount of information it obtained in interviews and documents during the course of its investigation.

3.7.1.3. The point remains that the accounts of the alleged child victims are remarkably similar in many respects. For example, all the children – except one – claim that they were transported at some point from the pre-school in a vehicle.

3.7.2. Nor was it essential to interview any of the teachers or assistants on whether or not Pistorius could have removed any children from the pre-school without being seen (see point 2.2.4.3).

3.7.2.1. The package of articles includes a link to the complainants’ 17-page response, which describes the security arrangements at the pre-school at some length.

3.7.2.2. In addition, News24 provides an overview of the 17-page response in one of the articles, “Á ‘vendetta for reasons not understood’ – crèche owner’s husband denies allegations of child rape in Melkbosstrand”.

3.7.2.3. In this article, Annet Pistorius is quoted on certain security arrangements at the pre-school.

3.7.2.4. She also points out that police did not find any evidence of Pistorius entering and removing children from the pre-school during its investigation or after the Anton Piller order was executed.

3.7.3. In response to the complaint that News24 did not follow up on evidence that Pistorius could not have been identified by the alleged child victims as he was “far away” – on a farm about 300 kilometres from Melkbosstrand – during the periods in questions, the publication makes the valid point that there was only his word to this effect and that no evidence was provided to substantiate this claim. Nonetheless, this claim was duly reflected in the complainants’ 17-page response and recorded in Article 9.

3.8. Complaint five: This complaint is essentially the same as Complaint three.

3.8.1. As noted under point 3.6.1.1, News24 provides persuasive reasons why the three documents referred to by the complainants do not “disprove” the allegations or cast “serious doubts” on the allegations (see News24’s response in points 2.6.1.4 to 2.6.1.6).

3.9. Complaint six: Part of this complaint was also previously dealt with in relation to Complaint three.

3.9.1. With regard to the “discrepancies” identified by the complainants in the report of the supervising attorney after the Anton Piller search, News 24 provides an adequate response (see News24’s response in points 2.12.1 to 2.12.3).

3.9.2. In addition, News24 points out– with sufficient cause – that there is “a striking similarity” in the kinds of items that were described by the alleged child victims and some of the items found during the search.

3.10. Complaint seven: Once again, this complaint deals with aspects of Complaint three.

3.10.1. As noted under point 3.6.1.1, News24 puts forward a convincing case about why the three documents referred to by the complainants do not “disprove” the allegations or cast “serious doubts” on the allegations (see News24’s response in points 2.6.1.4 to 2.6.1.6).

3.10.2. There is also insufficient merit in the complainants’ contention that their reply was not carried in full. News24 published a link to the 17-page text of their responses to the specific questions addressed to them.

3.10.2.1. In addition, it published a reasonably comprehensive overview of the complainants’ 17-page response in a separate news article (see point 3.7.2.2).

3.10.2.2. It provides an acceptable explanation why it did not publish the annexures provided by the complainants (see point 3.6.2.1).

3.10.3. News24 also provides a satisfactory response to the complaint that it did not verify certain information relating to claims by the alleged child victims[5] and to details about the transport allegedly used to remove them from the pre-school (also see point 3.7.1.3).

3.10.3.1. Over and above this, there is sufficient merit in News24’s argument that the examples cited by the complainants are not material (see point 3.7.1.2).

3.11. Complaint eight relates to Pistorius’s objection to the fact that his reply to News24’s questions about information supplied by Crake was redacted.

3.11.1. The explanation provided by News24 for redacting his reply is eminently reasonable and should, in fact, be supported by Pistorius. Instead, he makes the rather peculiar claim that the redaction proves that News24’s reporting is not truthful, accurate and fair.

3.11.2. Furthermore, News24 justifiably points out that the issues raised by Pistorius in this complaint are not relevant to determine the veracity of Crake’s allegation that he raped her when she was 13 or that she gave birth to his child at the age of 18.

3.12. Finally, the complaint that News24 contravened the Criminal Procedure Act by publishing Pistorius’s name does not fall within the jurisdiction of the Press Ombud’s office.

4. Finding

The complaint that the article is in breach of Clause 1.1 is dismissed (for the reasons identified under point 3.5.1 of my Analysis).

The complaint that the article is in breach of Clause 1.2 is dismissed (see the points under 3.6 of my Analysis).

The complaint that the article is in breach of Clause 1.3 is dismissed (see the reasons outlined in points 3.5.1.1, 3.5.1.2 and 3.5.1.3 of my Analysis).

The complaint that the article is in breach of Clause 1.7 is dismissed (see the reasons outlined under points 3.7.1 to 3.7.3 of my Analysis; also see point 3.10.3).

The complaint that the article is in breach of Clause 3.1 is dismissed (see the points under 3.3 of my Analysis).

The complaint that the article is in breach of Clause 3.3 is dismissed (see the points under 3.3 of my Analysis).

The complaint that the article is in breach of Clause 10.1 is upheld (see the points under 3.4.1 of my Analysis).

News24 is required to apologise to the complainant for breaching Clause 10.1 of the Press Code. The headline should contain the word “apology”, and the text should:

• be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
• refer to the complaint that was lodged with this office;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
• be published with the logo of the Press Council; and
• be approved by the Deputy Press Ombud.

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

Tyrone August

Deputy Press Ombudsman

31 July 2022