Sthembile Mchunu vs. Ilanga newspaper

Wed, Feb 29, 2012

Ruling by a Committee of the Press Appeals Panel

November 18, 2011

This ruling is based on the written submissions of Ms Stacey-Leigh Manoek from Women’s Legal Centre, for the complainant, Ms Sthembile Mchunu, and the Ilanga newspaper, as well as on a hearing that was held in Durban on October 27, 2011. Mchunu was represented by Manoek, and the newspaper by its editor, Arthur Konigkramer. The Deputy Press Ombudsman was supported by two members of the Press Appeals Panel, Ethel Manyaka (public representative) and Gerda Kruger (press representative).

Complaint

Ms Sthembile Mchunu complains about a story in Ilanga, published on 12 – 14 May 2011, and headlined Umahosha ugonyuluka ngocansi nomfundisi (A prostitute is spilling the beans about sex with the pastor).

Ms Mchunu complains that:

· the article was defamatory in that it claims that she had sold sex to a priest;

· the photograph was not presented with sensitivity towards the prevailing moral climate; and

· her privacy was invaded.

Analysis

The story, written by journalist Nomfundo Ngwane, says that sex worker Sthembile Mchunu told her that she has slept with a priest, Mr Lucky Hadebe of the All Nations Cathedral International Church (in Durban). Mchunu reportedly said that Hadebe gave her R50 upfront for the room and promised to pay the other R100 afterwards. However, she said that he offered her only R30 and told her that that was all the money that he had. The story says that, when they got outside, she started to shout. She told her friends what had happened, who then started to beat up the priest. He ended up in hospital.

We shall now look at the merits of the complaint.

Defamation: Selling sex to a priest

Mchunu complains that she was defamed as the story falsely states that she had sold sex to a priest, adding that she does not even know him. She argues that that it was a case of mistaken identity as all the women in the shelter where she lives know that it was Zaza, a sex worker known to all in the vicinity, who was involved in the incident.

At the hearing, Mchunu argued that the journalist could have mistaken her for Zaza, as both had similar blond hair. She complained that the journalist must have received her information from someone else and mixed it up with the facts about living as a sex worker (presented by her to Ngwane). She also brought two witnesses with her to the hearing, who testified that Mchunu was at the shelter at the time of the incident.

Mchunu added that Zaza did not deny that she was involved, but said that she could not get involved any further. She said that Zaza then “disappeared”.

She also said that:

· she had found a security guard that was at the scene of the alleged assault, but he demanded money before he would come forward with the truth;

· she was not working as a sex worker at the time of the incident as she was doing a rehabilitation programme with Lifeline during February to June 2011;

· she was speaking with the journalist only because the latter indicated she might be able to assist her with the application process to obtain an ID document;

· the journalist took photos of her jewellery work and indicated she might help her to get the word around about her work; and

· she only discovered that Ngwane was a journalist after the interview.

Regarding the interview, Mchunu said that after they talked about the initial story, Ngwane asked her about her life as a sex worker. Eventually, she opened up about her harsh upbringing and her ID predicament which prevented her from getting a normal job. She testified that the journalist reassured her that she will help her to promote her jewellery work.

Mchunu went on to state that she was traumatised when she saw the story in the newspaper. She said that she had phoned the journalist, who then called her “stupid”, informed her that she could not help her and swore at her before putting the phone down. She added that, when a visit to the newspaper did not help, she went to the Police – but she received no assistance there either.

Manoek argued that Mchunu could not have admitted that she was the guilty party, as the attack on the pastor was illegal and such an admittance would have put her in jeopardy.

The newspaper argues that there can be no defamation as the complainant had willingly entered into the conversation with the journalist, offered the information freely and voluntarily posed for pictures.

At the hearing, Ilanga testified that its journalist spoke to various sex workers who identified Mchunu as the one who had sex with the priest and was involved in the incident when the priest was beaten up. Not a single source identified anybody else who may have been involved in the incident. Ngwane then contacted Mchunu, who agreed to an interview. When Ngwane and a photographer turned up, Mchunu was scared as she thought that they might be from the Police.

The reporter said that Mchunu willingly and freely offered information about sex with the priest and how the sex workers beat him up for not paying. They then talked about Mchunu’s life as a sex worker, about the difficulties with obtaining an ID document and about her jewellery business. Ilanga argued that there was no other lengthy interview that could have led to any mistaken identity.

The panel firstly considered whether Ngwane could have mistaken Zaza for Mchunu.

We agreed that the journalist’s notes that were taken during the interview were credible – they follow in a book that has interviews before and after the Mchunu interview, all written up in sequence. The article is clearly based on those notes that were taken down during the interview. It rather seems unlikely that the journalist could have fabricated them – the notes show a full discussion about the sex with the priest and the attack, swearwords and all, in the midst of other general discussions about the life of a sex worker, and the notes are reflected in the story.

We have no reason to believe that Ngwane has fabricated the notes. Also, the pictures place Mchunu at the interview. There was no independent evidence before the panel that proved or indicated to us that Ngwane mistook Mchunu for somebody else.

The panel also felt that it was:

· reasonable for Ngwane to have asked Mchunu for an interview as all the sex workers that she had contacted, identified her as the one who had been involved;

· unlikely for Mchunu not to have known that she was interviewed by a journalist, as she initially thought that Ngwane was from the Police, upon which the reasonable thing for Ngwane to do was to identify herself (as a journalist);

· not correct for Mchunu to have claimed that she only spoke to the journalist because she had thought that the reporter might have been able to assist her to obtain an ID document – notes of the actual interview reflect that Ngwane first talked about the incident with the priest, and only towards the end of the session addressed the possible assistance.

Also: There is no evidence that the journalist distorted, exaggerated or misrepresented the facts.

Picture not presented with sensitivity towards the prevailing moral climate

Mchunu argues that the photograph in particular breaches the Press Code as it was not presented with sensitivity towards the prevailing climate. She argues that sex workers are vulnerable individuals and “outing” them in public is traumatizing and dangerous.

The newspaper responds that Mchunu participated freely when the pictures were taken.

The panel considered the fact that:

· Mchunu did not deny that she participated freely when the pictures of her were taken;

· Mchunu must have known that the pictures were taken by a journalist; and

· Her picture was not portrayed in a sexual way.

Privacy invaded

Mchunu complains that the publication of the story and the picture did not take exceptional care and consideration involving her private life. She argues that, despite her willing participation in the interview and photographs, she did not give the newspaper permission to publish these facts and photographs.

She also complains that the photographer took a picture of her prior to introducing themselves and without her permission.

At the hearing, she explained that she gave the interview and posed for the photographs because she wanted assistance from the journalist in sorting out her ID document.

Ilanga argues that she had participated voluntarily and never indicated discomfort or hesitancy. The newspaper says that it was within its rights to publish, and states that it interprets Mchunu’s participation as an agreement that they could use the information.

At the hearing, the newspaper argued that it did not need consent from interviewees before publishing. The journalist admitted that she did not distinctly tell Mchunu that the information will find its way into a newspaper, but argued that because she and the photographer identified themselves as journalists Mchunu understood the implication that a story and picture may have been published.

The newspaper denied that its photographer took a picture of Mchunu before its journalists introduced themselves.

The panel understood the news-worthiness of the story. We believed that the newspaper has gathered the facts legitimately and had good reason to believe its reportage was fair.

The panel discussed the matter of Mchunu’s willing participation and whether the newspaper should have felt a moral duty to take exceptional care and consideration to not expose the sex worker’s identity as the story would brand her forever and publicly as a such – with possible devastating consequences to her.

We noted that the:

· editor had admitted that he had reservations about using her name and photograph;

· story was rather about the priest, more than about the sex worker;

· story could have, but did not use a pseudonym and also did not block out Mchunu’s face (to protected her identity without losing the strength or impact of the story);

· newspaper used Mchunu’s face prominently, but there was no picture of the priest; and

· newspaper did not inform Mchunu as to how the photo and article would be used.

The panel believed that the newspaper was on thin ice, as there was a possibility that it may not have exercised “exceptional care and consideration” regarding Mchunu’s private life (Art. 1.10 of the Press Code). The editor was not uncomfortable about the decision to publish for nothing.

We also took into account that Mchunu was a vulnerable member of the public and, in light of the extremely private nature of the details revealed, the newspaper should have considered – despite Mchunu’s willing participation – to at least discuss the publication of her face and her name with her, and/or to use a pseudonym and to block out part of her face.

However, we ultimately believe that the newspaper did not breach the Code on this matter as Mchunu:

· willingly participated;

· most probably knew that she was being interviewed and photographed by journalists;

· must have known that there was a possibility that her name and pictures would be used;

· never asked the journalists to protect her identity;

· is an adult; and

· is not mentally challenged.

We also kept in mind that the picture of her was not of a sexual nature.

Even if we can safely say that Mchunu is a vulnerable person, there is nothing in the Press Code that stipulates that vulnerable people should be treated differently than the rest.

Finding

The complaint is dismissed in its entirety.

Sanction

There is no sanction.

Appeal

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.

Gerda Kruger, press representative of the Press Appeals Panel

Ethel Manyaka, public representative of the Press Appeals Panel

Johan Retief, Deputy Press Ombudsman