Association of Regional Magistrates of Southern Africa and others vs. Sunday Times

This ruling is based on the written submissions of Ms Delize Smith, president of the Association of Regional Magistrates (ArmSA) as well as Vincent Ratshibvumo, Leonie Heyns, Dawn Neethling, Alice Swanepoel, Elvis Morolong and John Baloyi, and the Sunday Times newspaper.

Complaint

ArmSA and others complain about a front page lead in Sunday Times, headlined Magistrates: drunks, thieves and killers – Four have been kicked out this year alone as the credibility of the courts suffer (published on 1 September 2013).

The complaint is that both the story and the headline were misleading, sensationalist, out of context, defamatory and a generalization, which resulted in unfair reporting.

Note: In later correspondence, one of these complainants raises doubts as to the veracity of the facts of the story. I cannot entertain these issues as they were not part of the original complaint.

Analysis

The story, written by Aarti J Narsee, said that magistrates countrywide were under fire for breaking (instead of applying) the law. Cases cited varied from sexual harassment, drunken driving, assault, gambling, fraud, theft and even murder. The journalist reported: “Statistics provided by the Magistrates’ Commission this week reveal that 258 complaints were made against magistrates last year, whereas 222 complaints have been received in 2013 so far.”

The story

ArmSA quotes the following from the story: “Magistrates around the country are under fire for breaking – rather than applying – the law… The seriousness of some of the cases has raised doubt about the magistrates’ ability to mete out justice and has broad impact on the credibility of the courts.” (emphasis by ArmSA)

It complains that these statements were an insult to the professional integrity of its members, and constituted “a baseless generalization and [misleadingly] paints Magistrates as a collective with one brush as drunks, thieves and killers…”

Some complainants explain that these statements were out of context and held the potential to mislead readers in accepting that all the complaints were of a criminal nature.

They say that there are more than 1 700 judicial officers (regional as well as district magistrates) who serve in South Africa’s lower courts. They argue that these courts deal with a substantial number of criminal and civil matters, and that they are considered to be the front line of the justice system. “It is therefore imperative that public confidence in the justice system (and in particular in this context the Lower Courts) be maintained.”

Some complainants state that, while the facts of the article were true, the story did not mention that the cases were spread out over an extended period of time (the murder case of Magistrate Mxolisi Matereke concerned an incident that took place more than seven years ago), that the number of magistrates who were complained about were a small fraction of the number of sitting ones, and that the number of complaints were very small “if considered in light of the huge number of cases that are heard in total”. (One complainant says that the total number of “rotten apples” was not more than ten, in comparison to 1 400 magistrates with clean records.)

Another complainant says: “It is not mentioned that the incidents occurred over an extended period of time, and some have been long finalized. The impression is created that the incidents are current.”

Others add:

• “It is also regrettable that the journalist included convictions that have been set aside on appeal…and suspensions that have been set aside… The article creates the impression that misconduct by magistrates is rife”; and
• “Why does [the newspaper] have to quote complaints as alleged by the complainants [while] ignoring the outcomes of the hearings after disciplinary inquiries and trials?” (This complainant refers to the following sentence: “A Pretoria magistrate who was convicted of stealing…, although this was later overturned.” – emphasis added by complainant)

Sunday Times replies that the:

• story was based mostly on parliamentary briefings and reports by the Magistrates Commission over the past the years;
• complaints, in the main, do not contest the facts in the story;
• story did not, at any point, say or imply that all magistrates were guilty of all or any of the crimes and misdemeanours mentioned, neither did it imply that all complaints were criminal in nature – instead, the article referred to the number of complaints received in 2012 and those so far this year, as well as the number of formal investigations (“This alone would indicate that it is only a portion of magistrates who bring their profession into disrepute”);
• number of complaints should not influence this office, especially since they mostly do not allege breaches of the Code and they have been “the result of a campaign to get magistrates to complain to your office”;
• fact that some complainants experienced the story (and the headline) as an insult, is immaterial – “how [they] received it is not a test of what the words mean or imply”;
• story was not responsible for public perception of the lower courts – instead, the actions of the delinquent magistrates were;
• accusation that the story was sensationalized, improper and scandalous had no supporting evidence; and
• conviction of a magistrate in a murder case (Matereke) was referred to in parliament’s justice portfolio Committee in 2011 as an illustration of delays in dealing with delinquent magistrates by the Magistrates Commission – “It took three years from his first court appearance before the commission charged him with misconduct. We submit that it was fair and reasonable for us to refer to this case.”

My considerations are:

• The story did distinguish, and adequately so, between accusations or complaints on the one hand, and convictions on the other;
• The newspaper is not to be blamed for reporting those complaints;
• The story did report statistics about (alleged) transgressions – from these it was clear that the percentage of possible wrongdoings were small in comparison with the total number of magistrates;
• The story did not explicitly state that the alleged transgressions occurred over a long period of time, which would have made the “problem”, quantitatively speaking, less serious;
• However, the:
  • “long period of time” was implied in the story, as the article made it clear that the newspaper had garnered its information from a report by the Magistrates’ Commission (which included statistics from 2012);
  • story included earlier examples, such as one in 2010, as well as that of Matereke (which, according to the story, took place several years ago); and
  • extended period of time does not take away the seriousness of some of these issues, together with the impact that that should have on the profession at large (even if these statistics were small in comparison to the total number of magistrates).
• The issues raised against magistrates were clearly not all of a criminal nature, eg. the sending out of pornographic material, gambling, and the instruction to “do her hair” – all during office hours;

Given all of the above, I conclude that Sunday Times cannot be blamed for its reportage in general and for stating that these matters eroded the credibility of the lower courts’ ability to mete out justice in particular. (Please note that I am not necessarily concurring with the newspaper’s conclusion – all I am saying, is that the publication was justified in its reportage on this matter with the information that was available at the time.)

The headline

ArmSA complains that the headline was an insult to the professional integrity of its members, and constituted “a baseless generalization and paints Magistrates as a collective … as drunks, thieves and killers…”

Some complainants add that the headline created the impression that most, if not all magistrates were described as in the headline, and that those persons who were facing disciplinary action have not all been found guilty of any offence. Some say that the headline was defamatory.

Sunday Times says that the headline fairly and accurately reflected the content of the story (as required by the Press Code). “None of the complaints has suggested that it did not.”

I have already argued that the story did not generalize and create the impression that most or all magistrates were corrupt; also that the article adequately discerned between complaints and verdicts. This concerns the “macro view”.

Therefore, all I now need to establish (“the micro view”) is if the newspaper was justified in using the words “drunks, thieves and killers”. (Section 10.1 of the Code says: “Headlines…shall give a reasonable reflection of the contents of the report…in question.”)

Please note that the mention in the story of accusations or complaints to this effect will not do, as the headline stated these matters as fact. Therefore: Did the story support the use of the words “drunks, thieves and killers”?

Drunks: The story mentioned one magistrate who had been charged with ten counts of misconduct, including driving under the influence. According to a psychologist, this person’s work was affected as a result of alcohol abuse – to such an extent that he was later removed from office.

I note that the story:

• did not say that he was found guilty on a charge or charges of driving under the influence; however, the fact that he was removed from office speaks for itself; and
• mentioned only this one case – the use of the plural in the headline can therefore not be justified.

Thieves: The article mentioned one specific case of alleged theft (his case was still pending), and another who was convicted on such a charge, but this verdict was later overturned. However, the story also stated: “Reports to parliament reveal numerous delays in finalizing investigations against magistrates. Some receive a pay cheque after being convicted of such crimes as murder, fraud and theft”. (emphasis added) I give the newspaper the benefit of the doubt for interpreting this “theft” in the plural.

Killers: The story mentioned only on example of a killer. Because this transgression is very rare (unlike theft), I am not giving the newspaper the benefit of the doubt regarding the quote mentioned above (the expression: “such crimes as murder, fraud and theft”). In this case, another concrete example of murder was needed to justify the use of the plural in the headline.

General comment: Unlike the story, the headline was not balanced as it contained over-statements, which (when seen as a collective) may very well have resulted in unnecessary harm to the integrity and credibility of the profession.

Finding

The story

This part of the complaint is dismissed.

The headline

The use of the plural “drunks” and “killers” in the headline were not justified as the story provided only one example of each. This is in breach of Section 10.1 of the Press Code.

Sunday Times was justified in using the word “thieves”, and this part of the complaint is therefore dismissed.

Sanction

Sunday Times is directed to:

• apologise to the complainants  for the headline that contained over-statements (read: “drunks” and “killers”), which may very well have resulted in unnecessary harm to the integrity and credibility of the profession; and
• publish the text below on its front page.

Sunday Times apologises to magistrates for a headline that contained over-statements (“drunks” and “killers”), which may very well have resulted in unnecessary harm to the integrity and credibility of the profession.

The lead story on our front page was headlined Magistrates: drunks, thieves and killers – Four have been kicked out this year alone as the credibility of the courts suffer (1 September 2013). The story said that magistrates countrywide were under fire for breaking (instead of applying) the law. Cases cited varied from sexual harassment, drunken driving, assault, gambling, fraud, theft and even murder.

Press Ombudsman Johan Retief found that the complaint about the story was baseless, as  we could not be blamed for our reportage in general and for concluding that these matters eroded the credibility of the lower courts’ ability to mete out justice.

However, he said: “Unlike the story, the headline was not balanced as it contained over-statements, which (when seen as a collective) may very well have resulted in unnecessary harm to the integrity and credibility of the profession.”

Visit www.presscouncil.org.za for the full finding.

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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 [email protected].

Johan Retief

Press Ombudsman