Mark Povey vs Cape Times

This ruling is based on the written submissions of Mr Mark Povey and those of Ms Aneez Salie, on behalf of the Cape Times newspaper.

Complaint

Povey, a relative of one of the men in the incident as described below, is complaining about a front-page story in the Cape Times of 29 June 2015, headlined Dropping of charges incenses victim.

He complains that the article was biased and “above all censorship by omission” to bolster the central theme, namely that the five accused were brutal racists, prone to violence and were potential murderers, adding that the word “allegedly” had never been used – even though no charges were ever put to them and they were never asked to plead.

Povey says the families of the accused hired highly respected private investigator Christian Botha, who found that the accuser, Ms Delia Adonis (52, from Manenberg) had been the aggressor rather than the victim and that it was not a racial incident. Povey argues that the journalist deliberately withheld this information from the public (while these findings were part of Botha’s testimony in court, amongst many other matters).

He adds the inclusion of (only) one sentence to indicate the reason for the withdrawal of charges was insufficient. (The sentence reads, “The DPP’s decision came after [defence attorney William] Booth had made submissions that there was no prospect of a successful prosecution.”) He continues, “Even though the senior public prosecutor in the province, Rodney de Kock, no longer accepted that Adonis [was a victim], the entire thrust of the…article continues to portray the accused in a negative light.”

Povey notes that:

·         the newspaper did not question the conduct of Adonis in a follow-up story;

·         the accusations were unproven; and

·         no evidence was ever produced to justify the reportage – which has “reduced their standing in the community and will haunt them for the rest of their lives”.

He also complains about the use of the word “victim” in the headline, which clearly referred to Adonis (he claims she was the aggressor, and that the men were the victims).

Povey also complains about a series of articles which preceded the story, but our Complaints Procedures do not allow me to adjudicate them (as they had been published longer than 21 days before the complaint was lodged). I have therefore treated those stories merely as background information. This is also why I was forced to ignore many of the complaints raised by Povey.

The text

The story, written by Carlo Petersen, said Adonis was upset because charges of attempted murder against three young men who had allegedly attacked her in October 2014 had been withdrawn. The men had also faced charges of assault with intent to do grievous bodily harm and crimen injuria. The alleged incident happened outside the Tiger Tiger nightclub in Claremont.

Two other men were reportedly implicated in the incident, but they had not been charged. The five men became known as the Tiger Tiger Five.

Responses

Oliver says the story in question was a reaction piece in which the alleged victim strongly decried the dropping of charges against the men, questioning how this could have been done without anyone even consulting her. “As such, we did not need Mr Booth’s statement, whether made in court or outside, that the charges had been dropped. That was old news (as the charges had been dropped on June 24).”

She argues that the story gave a voice to a poor woman (a cleaner). “Each person deserves a voice, not only accused persons but also victims.”

Oliver concludes that there was no bias on behalf of the newspaper, but “[m]erely the publishing of diverse viewpoints rather than slanted reporting”.

Povey replies, “Although the prosecutor, Nathan Johnson, had the collective statement of all five youths who were falsely accused of the ‘attempted murder’ of Delia Adonis and at least three other independent witnesses, the only evidence which Carlo Petersen presented to readers of the Cape Times was the unsubstantiated account by…Adonis and her son and her improbable list of ‘injuries’, an account which was not supported by witness statements, a medical report from the District Surgeon, CCTV footage or photographs.”

He also argues that the dropping of charges was old news to readers of Die Burger, TimesLive and the Daily Dispatch, which carried the news on June 26 – “[b]ut it was not old news to the Cape Times readers because the Cape Times carried no mention of this story on June 26…a Google search proves that.”

In addition, Povey notes that the (front-page) story in question was not put online, “[p]recisely because it embarrassingly destroyed the carefully constructed case by the newspaper and this reporter that the accused were murderous racists and the moral and legal equivalent of the Waterkloof Four”.

He adds that at no stage did the newspaper ask the accused to state their side of the story.

Analysis

From the information at my disposal, it is clear that the court decided to drop the charges against the so-called Tiger Tiger Three on the basis of Botha’s testimony. This information was therefore material and it should have been reported.

The headline was wrong to refer to Adonis as a victim, as this was not reflected as fact in the story.

There is nothing in the story in dispute to suggest that it was biased and that it has bolstered the “central theme”, namely that the five accused were brutal racists, prone to violence and were potential murderers. The word “allegedly” was indeed used in this article.

However, the newspaper should have asked the three men for their comment, especially given that the story identified them. The fact that it reported the view of Adonis’s son, who had supported his mother’s case, made this omission even more serious.

Povey is therefore correct in that the story did unnecessarily portray the three men in a negative light – in the process causing them some serious, unnecessary harm.

Finding

The story did not report the reason for the dropping of the charges. This was in breach of Section 2.2 of the Press Code which says, “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

If the journalist did ask the three men for comment, this was not reflected in the story. This neglect or omission was in breach of Section 2.5 of the Press Code: “A publication shall seek the views of the subject of critical reportage in advance of publication… If the publication is unable to obtain such comment, this shall be stated in the report.” This breach was aggravated by the fact that the views of Adonis’s son were reflected in the story.

The headline falsely referred to Adonis as a victim, which was in breach of Section 10.1 of the Code which states, “Headlines…shall give a reasonable reflection of the contents of the report…in question.”

The story unnecessarily portrayed the three men in a negative light – causing them in the process some serious, unnecessary harm. This was in breach of Section 2.1 of the Press Code which says, “The press shall take care to report news … fairly.”

The rest of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breaches of the Press Code, as described above, are all Tier 2 offences.

Sanction

Cape Times is directed to apologise to Povey and the three men for:

·         not reporting the reason for the dropping of charges against the latter;

·         not asking the men for comment (while that of Adonis’s son was included);

·         referring to Adonis as a victim, regardless of the court’s decision; and

·         unnecessarily and unfairly portraying the three men in a negative light – causing them in the process some serious, unnecessary harm.

The newspaper should publish a kicker on its front page, immediately underneath the masthead, referring to the apology which should be carried either on page 2 or 3 (above the fold).

The text, which should be approved by me, should refer to the complaint lodged with this office and should end with the sentence, “Visit www.presscouncil.org.za for the full finding.”

The headline should reflect the content of the text. A heading such as “Matter of Fact”, or something similar, is not acceptable.

If the offending story appeared on the newspaper’s website, the text should go there as well.

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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman