Ruling by the Press Ombudsman and an Adjudication Panel
17 January, 2014
This ruling is based on the written submissions of Chief Superintendent Michael John Smith, a Johannesburg Metro Police (JMPD) investigating officer, and Janet Smith, executive editor of The Star newspaper, as well as on a hearing that took place in Johannesburg on 15 January 2014. Smith represented himself, but was accompanied by three witnesses as well as the Public Advocate; Smith and Shain Germaner appeared on behalf of the newspaper. The panel consisted of Susan Smuts (press representative), Philip van der Merwe (public representative) and the Press Ombudsman.
COMPLAINT
Smith complains about a front page story headlined, ‘A law unto himself’ – Former metro cops accuse top official of fraud, racism, published in The Star newspaper on 25 September 2013. The same article also appeared on IOL Online, headlined Top Joburg cop in racism scandal. He also complains about a poster, headlined Top cop in racism scandal.
The Star
Smith complains about the story that:
He also complains that the:
IOL Online
Smith complains that the headline was misleading and without any foundation.
Posters
Smith complains that the posters had no factual basis and that it was misleading.
Unnecessary harm
In conclusion, Smith complains that the reportage has unnecessarily harmed his unblemished record at the JMPD. “I have suffered prejudice in that my reputation and my integrity has been tarnished amongst my peers, family and friends. My character has been defamed through inaccurate articles in the printed media and on the worldwide web” (in that he has been labelled as a racist and being corrupt).
THE STORY IN DISPUTE
The story, written by Germaner, said that Smith and his administration had been accused of corruption and racism by three disgruntled officers who claimed that they had been unfairly dismissed. The story then largely focused on one of these officers, Mr Lesiba Kganyago, who was dismissed after he “accidentally” arrested one of his colleagues, Mr Tlou Sebetjane, mistaking him for a criminal. Another officer who had been dismissed, Mr Andries Mabaso, reportedly accused Smith and his direct superiors of mismanaging the metro police. Germaner ends his story by referring to Smith who did shopping in his full uniform, but without wearing his hat – as prescribed by the “manual”. A picture of Smith pushing a trolley in a shop confirmed this.
As background, Smith says that his work was to prosecute employees of the JMPD who have misconducted themselves. The story was based on reports that Germaner had received from some employees who were dismissed by the JMPD for corruption. Kganyago and others were accosted by Sebetjane on 28 June 2011 for being party to corruption when he saw the former take R20 from a taxi driver. Mabaso “extorted” R300 from a member of the public.
MODUS OPERANDI
In the following two sub-sections (Complaint and Responses: The Story; and Complaint and Responses: Pictures, Headlines, Posters) the panel summarises the gist of the documentation that we have received from both parties prior to publication.
Then follows a sub-section titled “At the hearing”, where we summarise the main arguments that the parties put forward at our meeting (without repeating what we have already stated), after which we shall weigh these arguments (under: “Analysis”).
COMPLAINT and RESPONSES: THE STORY
False, misleading, unverified, sentences/statements
Smith complains about the following sentences/statements:
Smith says that Nganyago had 21 years of service, and therefore that he was experienced enough not to make an accidental arrest. “It was evident in the hearing that Kganyago had to act in some form or another or else the allegation of him taking the R20 would have carried more weight.”
Germaner says that he wrote what Sebetjane told him. The newspaper asks: “Should we have held back on publishing this only because of his number of years of service?”
Smith denies this, saying that Sebetjane was merely doing his job. He saw the deal take place, properly identified himself, and then grabbed Kganyago’s hand with the money in it. In the meantime the taxi driver was able to run away. He adds that Sebetjane was first assaulted and the handcuffed – an incident that a colleague witnessed. Kganyago said on record that he should have killed Sebetjane and that he was allowed to use excessive force.
The newspaper says: “We reiterate that this was Kganyago’s version of the story, as stated in the piece.” It adds that Germaner was not aware of the statement that Sebetjane was first assaulted and then handcuffed, “…and we are surprised that the JMPD did not provide him with this information when he asked its communications office for a response”.
“…Kganyago was charged with assault, both in a criminal court and at an internal disciplinary hearing. The case was thrown out after Sebetjane withdrew all charges against Kganyago. The Star has seen an affidavit proving this. However, Smith…insisted that the charges be upheld”
Smith says that this statement is correct, but adds that Sebetjane withdrew the criminal charge as he did not want the three employees to end up with criminal records. However, Sebetjane wrote a letter to the JMPD, indicating that he wanted the disciplinary hearing to continue. He argues that there is no law that prevents anyone from changing their mind.
He adds that, as a prosecutor, it was his job to defend the employer’s policies that the hearing should continue (in terms of the Disciplinary Code for Local Government Employees). He argues that he was appointed to prosecute employees who have misbehaved. He denies that he insisted on “anything” and points out that the final say regarding the charges was with the presiding officer at the hearing and not with him.
The Star replies that it does not believe that Smith disputes any of the facts regarding this matter – “In fact, we believe Mr Smith may be corroborating what was published.” The publication also states that it merely reported what Kganyago told Germaner regarding the mechanics of the disciplinary hearing.
Smith denies that this is true. He says that he presided over a matter in 2008 (Case no. 60/11/2007) in which Khanyago had been accused of assault. (He gave the latter the benefit of the doubt and found him not guilty.)
The newspaper says that Germaner asked the JMPD to clarify this prior to publication, but he did not receive any response to this question. “However, we believe that this sentence should have read that he ‘claimed’ he had never had another disciplinary hearing, and [we] would be willing to relook this…”
Smith says that there is no evidence to suggest coercion – and certainly not by him. Sebetjane wanted the disciplinary hearing to continue, and in fact stated in his letter that he was not coerced by anyone. He adds that the charges could not have been “reinstated” as they had never been withdrawn in the first place. He categorically denies the allegation of a poor relationship – “I have never known Kganyago other than the fact that he appeared before me in a disciplinary hearing in 2008” (where he found him to be not guilty).
The Star says that it is Smith’s right to deny Kganyago’s side of the story. “However, we believe we gave the JMPD sufficient time to do the same prior to publication of the article.”
Smith says that the original presiding officer, Angus Watson, was seriously ill. He then reported this to the Chief of Police and referred to Watson’s matters that needed to be finalised. The Chief of Police then appointed the new presiding officer – not him. He states that he knew the presiding officer for 20 years. However, the issue of their friendship was never raised in the disciplinary hearing.
The newspaper does not materially respond to this part of the complaint.
Smith argues that the statement was an opinion based on allegations and not supported by facts. He says that the ratio of white to non-white was at around 20-1, therefore it was a reasonable inference to make that more non-white than white employees would face disciplinary action. “This fact cannot be attributed to me.” He emphasizes that he is not a racist and that he has never faced any accusation or disciplinary action relating to this issue. He adds that he can only institute disciplinary action based on completed investigations of written complaints received.
The newspaper replies that all three officers who came forward and complained said that either Smith himself or his administration were racist, and that only black officers who weren’t “politically connected” experienced such unfair disciplinary hearings. “Hence the racism allegation.” It adds: “Our reporter has confirmed that three officers filed complaints with The Star, on the record, regarding Mr Smit’s department. We therefore believe Mr Smith is in effect disputing what was said by those three officers and not by us.”
Smith points out that there was no evidence to suggest that he was one of those white officers. He also denies that he was aware of the allegations or the dubious activities mentioned. And: “Anybody who has knowledge of any potential misconduct may report it in writing to the Chief of Police or the Municipal Manager for further investigation – not to Mr. Mantashe.”
He adds that the story implied that he was involved, and explains that this sort of action did not fall within the scope of his duty – only the Chief of Police had the right to suspend an employee.
The Star says that this information was taken from a statement submitted to the ANC.
Smith says that there is no evidence to support this statement. “I have never been accused by anyone of mismanagement, ever. I have also never faced disciplinary action on any allegation of mismanagement.”
The newspaper replies that the allegations of mismanagement were provided to it in the written complaint and by the officers themselves.
Smith questions the phrase internal politics (“what internal politics”?) and says that Mabaso was afforded an appeal, with Mr G Daniels presiding (an independent person from the City of Johannesburg, and not employed by the JMPD). Daniels upheld the sanction of dismissal. Mabaso then took his case to the SA Local Government Bargaining Council for arbitration.
The Star replies that Mabaso himself told Germaner that he was worried that there would be internal politics affecting the outcome of his disciplinary hearing. “This was his theory and we presented it as such.”
Smith says that these regulations have not been signed off yet with either of the unions and were not effective at the time.
The newspaper alleges that it may have evidence that may refute Smith’s argument. “Our reporter has a photograph of a page in the metro police manual that states that officers be in their full uniform when out in public. If this is not official policy, why would it be in the training manual?”
Not asked for comment
The story referred to metro police spokesman Chief Superintendent Wayne Minnaar, who reportedly had been “unwilling to comment”, saying that the JMPD would only respond after the respective appeals were concluded (at the CCMA).
Smith complains that Germaner did not approach him for comment – no voicemail message was left on his phone, nor was any SMS sent to him. (He says that the reporter did call him after the publication of the story.) “On the day prior to publication I had sufficient airtime to phone the reporter back to give a factual response.”
He also argues that the reporter could not have relied on Minnaar’s comment as being a form of corroboration, as the latter had not been implicated in the story and could not speak on his behalf in relation to matters concerning his character. He concludes: “It is my submission that Wayne Minnaar was only contacted by the reporter in order for him to have some form of justification to print the article. He did not contact me nor was he able to contact Gwede Mantashe or other ANC spokespeople. Germaner did not make enough of an effort to obtain my side of the story. Wayne Minnaar’s alleged refusal to comment on the accusations doesn’t mean that Kganyago and CO were talking the truth. The matter is before the SA Local Government Bargaining Council and therefore sub-judice in terms of those proceedings.”
Smith adds: “There has to be some form of corroboration before printing an article… The only…corroboration available to Germaner was in the form of the two unnamed persons in the article.” He argues that the entire story was written on baseless allegations without an iota of evidence to substantiate the report.
The Star replies that going through Minnaar was, in fact, the correct procedure to follow. Germaner spoke to him more than a week prior to publication. “He asked for the questions in writing and provided our reporter with an insubstantial response. Germaner then called him again [for comment] as the allegations were serious.”
The newspaper adds that Germaner did ask in his email to speak to Smith himself, but Minnaar did not respond to that question. The journalist eventually found Smith’s contact details the day before publication, and tried to call him two or three times in the afternoon. According to the reporter, Smith told him the following day that he had seen the calls but that he did not answer as if was his day off.
We note that Germaner asked Minnaar several questions relating the incident, dated September 13, which indeed included a request to speak to Smith in person.
The reporter received a response on September 16, in which Minnaar merely said that the JMPD could not discuss any of the issues prior to the CCMA ruling. He mentioned nothing regarding Germaner’s request to speak to Smith himself.
COMPLAINT and RESPONSES: PICTURES, HEADLINES, POSTERS
Pictures wrongly credited
Smith says that Kganyago took the photographs of him on 9 September with his knowledge, but without his permission. The newspaper then dishonestly, maliciously and fraudulently credited the pictures in its online edition to its photographer, Boxer Ngwenya.
The fact that the pictures were taken without Smith’s knowledge is not relevant – he was in public, which means that Kganyago did not his permission at all.
The fact that The Star credited the pictures to Boxer Ngwenya is a different matter, though. The newspaper admits that the pictures were taken by Kganyago, but Ngwenya was asked to digitalise them. “We have a culture of publishing this kind of provided image under the picture byline of the photographer who did the montage or the digitalising, but I think we ought to revisit it on this kind of occasion… Perhaps it should have read: Images supplied by…”
Headline, subheading misleading, unsubstantiated
The full headline read: ‘A law unto himself’ – Former metro cops accuse top official of fraud, racism
Smith complains that both the headline and the sub-heading were misleading and without foundation.
Regarding the main headline, he says: “If [that] refers to me doing shopping without a cap on my head then note [that] there isn’t any regulation compelling me to wear a cap… Regulations relating to Municipal Police can be seen in Government Gazette 20142 dated 11 June 1999. The draft JMPD Departmental Administration Manual has not been agreed to yet by the Unions as it is perceived as being a carryover from the old Johannesburg Traffic Department. During my lunch break nothing prohibits me from conducting my personal affairs.”
He also argues that this was not a matter of public interest.
The sub-headline: He states that nowhere in the story was he accused of fraud and racism, nor had there been any evidence relating to those issues. He adds that the officers who were dismissed also never raised those allegations as preliminary issues during their hearing either. “In the last 21 years nobody, whether a city employee or a member of the public, has ever lodged an accusation against me of an act of fraud or racism. I have also not been accused of these acts before. This includes…Kganyago [and] Mabaso…whilst they were still in the employ of the JMPD.”
He concludes that the headline appeared to be a statement of fact, when in fact it was untrue.
The Star says that the story indeed mentioned allegations of racism – but admits that it does not say anything about. It states that it is willing to relook the sub-heading and reconsider if it was appropriate. “If we find this was not the case, we might be willing to apologise for that.”
In later correspondence, the newspaper says that, in fact, it changed the headline to read 3 officers accuse leading cop of corruption. It offers to publish this new headline, conceding that the original headline was incorrect.
IOL Online headline
The headline read, Top Joburg cop in racism scandal.
Smith complains that the headline was misleading and without any foundation. He notes that the issue around fraud fell away in this instance. He concludes that the headline appeared to be a statement of fact, when in fact it was untrue.
Posters
The posters read, Top cop in racism scandal.
Smith complains that the poster had no factual basis – he says that he has never been given the accolade of being a “top cop”, nor has he ever have been accused of racism. He also argues that the poster did not reflect the content of the story.
Smith’s conclusions
Smith says that the story:
AT THE HEARING
Smith’s presentation mainly consisted of the following:
Smith stressed that the most serious of the allegations probably had been the statement that he was allegedly a racist and that this resulted in a corrupt regime where black officers were victimised – and reiterated that there was no concrete evidence to this effect.
He also referred with disdain to the several times that the story used the words “alleged”, “claimed”, “believed to”, and similar expressions.
The Star argued that:
ANALYSIS
The panel’s first observation is that we are not in a position to entertain the statements that Smith complains about, but which did not concern him directly. We shall therefore concentrate on those that did mention him of have him in their focus. Having said that, we are also mindful of the fact that he was the subject of the story.
Our first major concern is the credibility of Germaner’s sources – all three of them claimed that they were unfairly dismissed, and shared a similar grudge against Smith as a result of that. At the hearing, Germaner admitted that this was true, at least to a certain extent.
In such a case, the warning lights should flicker – and red at that, not orange.
In addition, we noted that there has been no charge of any kind against Smith in his 22 years of service. There simply was no concrete evidence to support the claims made by these disgruntled sources. All that Germaner had at his disposal against Smith was the testimony of these (dubious) sources.
If publications were free to publish just any allegation, without some substance to it, they would do huge harm in society.
Secondly, we noted with concern that the story did not reflect Smith’s views. The story merely said that attempts to contact him (the day before publication) were unsuccessful.
We take into account The Star’s argument that they believed protocol dictated that they should ask Minnaar (and not Smith) for comment. Be that as it may, the story had huge potential to do Smith some serious unnecessary harm, and Germaner is to be commended for at least trying to get hold of him. (Telephone records show that the journalist phoned Smith three times on September 24 – the day before publication.)
However, since his last contact with Minnaar Germaner had nearly two weeks to communicate with Smith, yet he waited until the last day before publication. His explanation at the hearing (that he did not have Smith’s contact details) was shaky. We do believe that he could, and indeed should have done much more to contact Smith and to publish his side of the story.
The telephone calls themselves tell their own story. Germaner phoned at 16:35, 16:37 and 16:38 the day before publication – a time span of a mere three minutes. He also did not leave any voice messages or sent any SMSs to Smith.
This lack of sufficient effort resulted in a one-sided story, a fact that the newspaper admitted at the hearing.
These two factors, as outlined above, should not be seen in isolation, as they feed into each other – resulting in a disastrous outcome for Smith.
Section 2.3 of the Press Code says: “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance…” (emphasis added)
This is the point: While it is possible that the information obtained from the sources was true, it should have been treated with suspicion/caution/as unreliable until it was independently corroborated. In this case there was no other supporting evidence of any kind.
Another issue is the way in which the story presented the letter of complaint that was sent to Mantashe. At the hearing, the newspaper testified that Smith was not implicated in that document – yet the whole context of the story suggested the contrary.
We explain: The story started off by stating that Smith had been accused of corruption and racism (“his administration [allegedly] has been crippled by corruption condoned by him…”). This allegation came from people who believed that they have been unfairly dismissed.
After Germaner reported some details of one of these instances, he returned to Smith and ended with the words: “The Star has interviewed two other JMPD members who have attacked Smith’s conduct and the administration.”
Immediately afterwards, these words followed: “A complaint was sent to ANC general-secretary Gwede Mantashe, detailing incidents where white and correctly aligned non-white officers…”
Then, having finished with the Mantashe issue, the journalist continued thus: “Another former officer fighting his own allegedly unlawful dismissal, Andries Mabaso, has backed his fellow complainant’s claims, and said Smith and his direct superiors were responsible for the mismanagement of the metro police.”
From this context it should have been clear to reasonable readers that the reference to the Mantashe matter had everything to do with Smith, or else this issue would merely have been suspended in mid-air – yet, at the hearing, The Star denied this, saying that Smith had not been involved in the complaint to Mantashe. At the hearing, Smith accepted this after having read the relevant document.
The panel therefore concludes that Germaner should have stated clearly in the story that the letter of complaint to Mantashe merely served as background and that Smith had not been implicated in this complaint – in the absence of which the reportage was simply presented out of context.
We accept that exposing racism and corruption, especially in a government institution, is in the public interest – but then the newspaper needs more evidence than unsubstantiated allegations by disgruntled ex-workers, and it needs to listen to the other side and to publish that opinion before going to print.
The newspaper admitted that it went overboard with its headlines and posters.
Indeed.
The problem, though, is that these headlines and posters served to inflate the excessive and unnecessary harm that the story has already caused Smith.
The undisputed fact that The Star’s photographer did not take the pictures of Smith, but that the newspaper attributed them to him (especially in its online edition) amounts to plagiarism.
The panel has studied Germaner’s questions to Minnaar and has compared them to what he had reported in his story. We are satisfied that, barring an instance or two, he did address the substantive issues in his email – and duly reported those matters in the story.
It is unfortunate that Minnaar’s response was not adequate and certainly did not nearly go far enough to put matters in perspective. The JMPD should carry part of the blame for the unnecessary harm that the story caused Smith. The panel takes Germaner’s comment seriously when he said (with reference to Minnaar) that it was not a matter of him refusing to listen to the other side – it was rather a case of having been denied access to information.
But part of the blame should also go to the gatekeepers at The Star – who should have seen (and acted upon) the red warning lights that we have previously referred to.
Some other observations:
Given all of the above, the panel has no option but to underscore Smith’s sentiments when he said: “I have suffered prejudice in that my reputation and my integrity has been tarnished amongst my peers, family and friends. My character has been defamed through inaccurate articles in the printed media and on the worldwide web.”
In this process, the newspaper did not exercise the necessary care and consideration involving Smith’s dignity and reputation, as Section 4.2 of the Press Code requires.
We sincerely hope that this ruling and our further actions will go a long way in reversing this unfortunate affair.
FINDING
The Star is in breach of the following sections of the Press Code:
SANCTION
The Star is directed to:
The newspaper is directed to publish the following kicker on its front page, which should be placed above the fold in an appropriately large type: “Apology to Mr Mike Smith; full retraction of story – see page xxx”.
The Star is asked to publish the following text on an inside page, which should also be placed in its entirety on the top half of that page:
The Star apologises to top metro cop Mike Smith for a story headlined, ‘A law unto himself’ – Former metro cops accuse top official of fraud, racism (25 September 2013), and retracts the article hereby in its entirety.
The story said that Smith and his JMPD administration had been accused of corruption and racism by three disgruntled officers who claimed that they had been unfairly dismissed.
Smith lodged a complaint with the Press Ombudsman, after which a full Panel of Adjudicators found that we were not entitled to publish unfounded allegations of these workers in the absence of any concrete evidence to even remotely substantiate their wild claims.
This was exacerbated by the fact that we did not obtain and publish Smith’s views on these matters.
Moreover, our reference to a letter of complaint to ANC general-secretary Gwede Mantashe created the false impression that Smith had been implicated in that document.
The panel found that our headlines and posters these headlines and posters intensified the excessive and unnecessary harm that the story has already caused Smith. We also wrongly attributed pictures taken by someone else to our photographer – which, to the panel’s mind, amounted to plagiarism.
They said: “We note that the story began with Smith having been photographed doing shopping in full uniform without his cap – and ended up with an unbalanced story and the damning headlines and poster as detailed above. A mouse gave birth to a mountain.”
And added: “Given all of the above, the panel has no option but to underscore his sentiments when he said: ‘I have suffered prejudice in that my reputation and my integrity has been tarnished amongst my peers, family and friends. My character has been defamed through inaccurate articles in the printed media and on the worldwide web’.”
The panel expressed its sincere hope that this apology and retraction would go a long way in reversing the unnecessary harm that our reportage has caused Smith – who otherwise has a blameless record of 22 yours of service at the JMPD.
However, they noted with appreciation that we had offered Smith a right of reply (an offer which he refused), that we changed the headline for our later editions, and that we undertook to revisit our practice in attributing pictures. “We believe that these initiatives testify to the newspaper’s goodwill in this regard.”
The panel also deplored metro police spokesman Chief Superintendent Wayne Minnaar’s response, calling it inadequate. “The JMPD should carry part of the blame for the unnecessary harm that the story caused Smith.”
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.
Philip van der Merwe, public representative
Susan Smuts, press representative
Johan Retief, press ombudsman