Douglas Mthukwane vs. Diamond Fields Advertiser

This ruling is based on the written submissions of Mr Douglas Mthukwane and the Diamond Fields Advertiser (DFA) newspaper.

Mr Douglas Mthukwane complains about a story in the DFA, published on May 17, 2010 and headlined Teacher, boy die on notorious road.

Mthukwane complains that the story:

The story is about a high-speed car chase between Mthukwane, Media and Parliamentary officer in the Northern Cape Education Ministry, and the Police on the road between Barkley West and Kimberley. The chase ended in the former’s vehicle being written off. (This story forms part of another story, relating another accident on the same road in which a teacher and a young boy died.)

We shall now consider the merits of the complaint:

Mthukwane says that the DFA mentions his name despite the fact that he was not charged or even appeared in court. This, he says, is a breach of the principle of objective reporting.

The DFA says the information that Mthukwane could possibly face charges of reckless or negligent driving, drunk driving and malicious damage to property came from the Police. Furthermore, the newspaper says that Mthukwane is a prominent resident with a public persona – the use of his name in the story was therefore justified.

If Mthukwane was charged and has not yet pleaded in court, his name should have been withheld. However, he himself says that he was not charged (or appeared in court). The newspaper was therefore under no obligation to withhold his name. The fact that he is a public figure makes it reasonable for the DFA to have mentioned his name.

Mthukwane complains that it is wrong to refer to him as a “former high-ranking official” and a “departmental spokesman” – in his communication he says he consistently refers to himself as Media and Parliamentary officer in the Northern Cape Education Ministry. He does not deny that he previously held those positions (these references therefore seem to be factually correct) – only that he now holds a new position.

The DFA explains that Mthukwane has held several positions in local government, including that of spokesperson of the Department of Education, spokesperson for the Ministry of Education and deputy director in the same department. The newspaper adds: “It was, however, during his tenure as spokesman for the Department of Education that he created a public persona for himself.”

This argument may reasonably be true. Morover, the phrases “departmental spokesman” and a “high-ranking official” carry more weight that just an “officer” in the Ministry – which is probably part of the reason why the DFA used the older titles. There is nothing wrong with that.

Mthukwane says the newspaper published the Police’s version in full, overlooking the fact that the Police was in fact covering up and downplaying its role in causing the accident “which nearly killed me and caused my vehicle to be written off”.

The newspaper says it is not aware that Mthukwane has laid a complaint against the Police.

Let this be clear: It was indeed the DFA’s duty to publish the Police’s version of the events (even if the Police did cover up some facts and downplayed its role in the accident).

There is, however, a problem with what the newspaper did not do – it did not balance out the story by publishing comment from Mthukwane.

I therefore asked the DFA if the reporter was at any time in a position to ask comment from Mthukwane and if not, if the reporter made an attempt to contact him.

The newspaper replied that the reporter did attempt to speak to Mthukwane. However, the latter was being loaded into an ambulance and “I (the editor) do not believe he was in a position to talk to us at the time.” The newspaper says that the DFA tried to contact Mthukwane several times prior to publication, but without success – his phone was switched off and he did not respond to SMS messages sent to him from the editor’s phone.

However, Mthukwane says that he actually greeted a DFA journalist as he was being loaded into an ambulance – he says his injuries were slight and he could easily have responded to questions if required to do so. He also says that his phone was never switched off and denies that anybody tried to contact him on his phone.

I then obtained a list of telephone calls that was made by the DFA from the time of the accident to the date of publication – no call was made to Mthukwane’s phone; only one call was made to Mthukwane’s former Departmental phone.

However, Mthukwane says that he did not use that phone since after his suspension in February 2009 (15 months prior to the story in dispute).

It does not seem likely that the DFA did not know that Mthukwane could no longer be reached on that official number.

Consider the fact that the newspaper had three full days in which to contact Mthukwane. (The accident took place on Thursday – the story was only published on the following Monday.) If his phone was indeed off, a visit to the hospital would have done the trick.

The lack of evidence that the newspaper tried to contact Mthukwane during the next three days and the lack of effort to visit him make it reasonable for this office to give him the benefit of the doubt on this issue.

Furthermore, if the newspaper did unsuccessfully try to contact Mthukwane, it should have stated that fact in the story. An article that is solely based on one side of a story (like this one) is likely to be unfair towards the other party.

Mthukwane says the sentence that states that he was suspended from the department “pending the outcome of several rape charges against him” is wrong.

DFA says an article published on April 3, 2009 states that Mthukwane appeared in court on a charge of drunken driving – and according to this story he has been suspended on charges of rape.

That is not true. The story that the DFA refers to does not make any mention of rape charges.

However, Mthukwane admits in later correspondence to this office that a separate rape trial is pending against him. He adds: “…but this had absolutely nothing to do with the accident…”

To this, the DFA replies that the reference to rape charges “…gave the readers the necessary background to Mr Mthukwane’s history of (alleged) conflict with the law.”

This argument is convincing; this is normal journalistic practice.

Mthukwane says the report that he was arrogant, that his wife was verbally abusive and that he drove at a speed of 160 k/h are all lies.

The newspaper argues that the statements in dispute were attributed to the Police whose members were at the scene and who were involved in the car chase. The DFA adds that its reporter and photographer were also at the scene shortly after the accident and that they confirm the Police’s interpretation of events.

The references to Mthukwane being “arrogant” and his wife being “verbally abusive” are indeed attributed to the Police; the statement about speeding at approximately 160 k/h is ascribed to an eye-witness. This is presented not as a fact, but as the opinion of the eye-witness.

Mthukwane was not charged and the newspaper was therefore under no obligation to withhold his name. He also was a public figure. This part of the complaint is dismissed.

The use of Mthukwane’s former position is justified. This part of the complaint is dismissed.

The publication of the Police’s versions of events was necessary. This part of the complaint is dismissed. It is reasonable to believe that the newspaper did not try to contact Mthukwane for comment, given that it had three whole days in which to do so. This is in breach of Art. 1.5: “A publication should usually seek the views of the subject of serious critical reportage in advance of publication…”

Mthukwane himself admits to a rape charge; the mentioning of this rape charge was relevant to the story. This part of the complaint is dismissed.

The statements in dispute are all attributed to sources. This part of the complaint is dismissed.

The DFA is:

Please add the following sentence at the end of the text: “Visit www.presscouncil.org.za (rulings, 2010) for the full finding.”

Our office should be furnished with both texts (a possible right of reply and the summary) prior to publication.

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 reached at [email protected].

Johan Retief

Deputy Press Ombudsman