Phindiwe Kema vs Sunday Times

Wed, Feb 29, 2012

Ruling by the Deputy Press Ombudsman

December 7, 2011

This ruling is based on the written submissions of Ms Phindiwe Kema and the Sunday Times newspaper.

Complaint

Ms Phindiwe Kema complains about a story in the business section of the Sunday Times, published on 9 October 2011 and headlined New horseracing player faces an uphill task.

Kema complains that she was not contacted for comment prior to publication.

She also complains that the story misleadingly states that:

she was unprepared to enter the horseracing industry;
she was dishonest in that her motives for approaching the Competition Commission was questioned;
the story omits a reference to her application for a rescission of a default judgment granted against her; and
she was liable for the payment of a racehorse.

She concludes that the story has discredited her reputation in the industry and that it will have a negative impact on her future.

Analysis

The story, written by Brendan Peacock, says that various role players have questioned an application by horseracing entrepreneur and founder of Africa Race International Phindi Kema to the Competition Commission to investigate the horseracing industry. Peacock writes that Kema claimed she was going to organize an international horseracing event, but that these “industry experts” said she was unlikely to succeed. They also questioned “how she could be remotely ready to enter the industry”, naming several practical obstacles in her way. Kema reportedly cited “the existence of an old boys’ club apparently blocking a new entrant” as a motivation for her complaint. (In her complaint, Kema explains that the racehorse industry has not sufficiently transformed yet.)

This story is a follow-up to an article that was published a week earlier, headlined Probe into horseracing – Call to rein in Phumelela and Gold Circle. This story focuses on Kema’s application to the Competition Commission, which reportedly came after she has failed to reach an agreement with Phumelela Gaming & Leisure to buy Arlington racecourse in Port Elizabeth.

I shall now look at the merits of the complaint:

Not contacted for comment

Kema complains that the newspaper did not ask her for comment prior to publication.

Sunday Times admits that it should have approached Kema, and apologises for not doing so.

Correct.

But more needs to be said. The neglect to contact Kema should namely not be seen in isolation – the potential harm that this oversight may have caused Kema should also be considered. I shall address this issue shortly.

Unprepared to enter the horseracing industry

The story says that various industry experts “questioned how she could be remotely ready to enter the industry”.

Kema complains that this is a misrepresentation. She emphasizes that she did not have the opportunity to comment on her ability to play a meaningful role in the industry and adds that the story does not mention her “positive contributions or ability” in this regard. She says: “This article has had the effect of discrediting my ability and reputation as a newcomer in an industry which has been dominated by the elite for far too long.”

Sunday Times says that this part of the complaint is unfounded as the story is not about Kema’s ability or contributions to the industry, “and we deny that we were under any obligation to report on these”. The newspaper argues: “The story concerned her allegations about the way the industry is run and the counter arguments put forward by her opponents.”

The newspaper’s argument is correct – except for the sentence in dispute, which is on a different (read: personal) level than the rest of the story.

Note that the Sunday Times did not state it as a fact that Kema was not ready to enter the industry, as it was merely quoting its sources. The newspaper was entitled to this reportage.

However, if Kema was given the opportunity to comment, she could have defended herself against this allegation and in so doing minimize possible unnecessary damage to her reputation and future.

Dishonest

Kema complains that the story questions her motives for approaching the Competition Commission “and further creates the impression that I have done so frivolously or vexatiously as a result of my alleged inability to play a meaningful role in the industry”. She adds that this is “totally incorrect” and argues that “such a comment” should not have been made before the commission has made its ruling.

The newspaper merely says that this part of the complaint is unfounded.

It is, indeed. The story mentions sources who said that she did not have enough grounds for her complaint – these people had a right to their opinion, and the newspaper was justified in reporting that.

Furthermore, there is:

nothing in the story that questions her motives – only the grounds for her application (and ability to enter the industry) are being queried; and
reasonably no link to be made between her complaint and her alleged inability.

I have already addressed the “inability” issue.

I also keep in mind that the first story did focus on Kema’s application to the Competition Commission – see the argument below under the heading General.

Reference to court application omitted

Kema says that she has applied to the court to rescind a default judgment granted against her (regarding her intention to buy a racehorse) and that this matter was still pending, and complains that the story does not refer to this application. She argues that, should the court find for her, the story has (needlessly) damaged her reputation.

The newspaper:

denies that the Competition Commission had to make a ruling before it could report on any aspect of the matter; and
says the fact remains that there is a default judgment against Kema, even if she had a chance to explain to the newspaper the circumstances surrounding that judgment.

The story in dispute is mainly about counter arguments against Kema’s application to the Competition Commission. As such, her court application to rescind the default judgment is not essential to this specific article. I therefore cannot find that this omission was material to the story.

Liable to pay for a horse

The story mentions that Thoroughbred Breeders’ Association was granted a default judgment on outstanding debt against Kema after she had bought a horse for R850 000 “and allegedly failed to make payments”. One source reportedly said: “We had to take the horse back and write off other debt. The debt wasn’t even acknowledged.”

Kema complains that the story omits “various circumstances” surrounding this issue. In later correspondence she explains that she returned the horse voluntarily and the two parties resolved the matter amicably, adding that she has correspondence to this effect.

The newspaper does not respond to this part of the complaint.

Again: The newspaper was within its rights to publish what the source had said – but Kema should also have had a chance to state her side of this story to minimize possible unnecessary harm.

Discredited Kema’s reputation

Kema concludes that the story has discredited her reputation in the industry and that it is negatively impacting on her future, “especially taking into consideration the fact that I am a newcomer to a close knit industry”.

The newspaper merely says that this part of the complaint is unfounded.

I have already argued or at least implied that the bulk of the story is in order, except for not giving Kema the opportunity to respond to the allegations regarding her personal readiness to enter the industry and the issue of the racehorse.

Now is the time to consider if the newspaper’s neglect to contact Kema has caused unnecessary harm to her reputation.

Note that the new Press Code protects people’s reputation. However, this Code came into effect on October 15, whilst the story was published on October 9 – which means, of course, that I need to use the former Code in this adjudication.

So: I accept that there is a possibility that Kema’s reputation was unnecessarily harmed by the lack of her comment in the story. Whilst I am not going to find that the newspaper has breached the (former) Code on this specific issue, I shall nevertheless keep the possibility of unnecessary harm (which is not in the former Code, but which is indeed a media ethical principle) in mind when sanctioning the newspaper.

General

Sunday Times says that the story in dispute is a follow-up to the one that it published a week earlier. The newspaper argues (with reference to a recent Constitutional Court ruling in the McBride/Citizen matter) that these two stories should he read together and not in isolation. It says that the first story gave weight to Kema’s views, and the second one highlighted the opinions of her opponents, and adds: “We also submit that all the allegations and facts reported in the second story were properly and transparently reported.”

Kema differs. She argues that the first story was not about her, but rather about the Competition Commission’s investigation which was brought forward by Africa Race Group; she also says that the headline to and the picture in the second story rather makes her (and not that of her opponents) the focal point in the disputed story. She describes the McBride/Citizen judgment as “totally irrelevant”, as her complaint is “not handled through the court process”.

The newspaper is correct – the stories should not be seen in isolation, especially as they were published in back-to-back publications. It would have been a different matter if the second story was published, say, a few months after the first.

Regarding the first story: Kema’s distinction between herself and Africa Race Group, and her contention that the focus is rather on the Competition Commission’s investigation do not hold water – she is the founder of that organization and the investigation came about as a result of her application.

Finding

Not contacted for comment

The newspaper did not contact Kema for comment. This is in breach of Art. 1.5 of the Press Code that states: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication…”

Unprepared to enter the horseracing industry

This part of the complaint is dismissed.

However, the newspaper should specifically have given Kema the opportunity to respond to the allegation that she was not remotely ready to enter the industry. I have already indicated that this neglect is in breach of Art. 1.5 of the Code.

Dishonest

This part of the complaint is dismissed.

Reference to court application omitted

This part of the complaint is dismissed.

Liable to pay for a horse

This part of the complaint is dismissed.

However, the newspaper should specifically have given Kema the opportunity to respond to the allegation that she was in trouble for not paying for a racehorse. I have already indicated that this neglect is in breach of Art. 1.5 of the Code.

Discredited Kema’s reputation

I have already dealt with this part of the complaint.

General

This part of the analysis does not form part of the complaint.

Sanction

Sunday Times is:

reprimanded for not asking Kema for comment; and
directed to apologise to her for that, and for the harm that this may possibly have caused her.

The newspaper is also directed to:

publish a summary of this finding and the sanction;
reflect her views on the allegations that she was not remotely ready to enter the industry and that she failed to pay for a racehorse that she had bought (if she still wishes to comment);
prepare the text as follows: After setting the context, the story should start with what the newspaper got wrong and apologise to Kema; the newspaper then is free to elaborate on the parts of the complaint that were dismissed if it wishes to do so;
end the text with the following words: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding”;
publish the text in an appropriately prominent manner in its business section; and
furnish our office with the text prior to publication.

If there is no appeal, this text should be published before the end of this year.

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Deputy Press Ombudsman