Department of Correctional Services vs Mail & Guardian

This ruling is based on the written submissions of Mr Logan Maistry, Deputy Commissioner of the Department of Correctional Services (DCS), and those of the Wits Justice Project (WJP) – which the editor of the newspaper has presented as her official response to the complaint.

Complaint

The DCS is complaining about an article on page 8 in the Mail & Guardian (M&G) of 4 – 10 September 2015, headlined Prison inmate ‘tortured to death’ – Chilling new claims of inmate abuse at the embattled Mangaung prison are emerging. A sidebar, reporting the DCS’s response, was headlined Slow progress in leaving ‘no stone unturned’.

Two similar articles were also published by the M&G. These were headlined Mangaung prison inmate ‘tortured to death’, and G4S torturing inmates to death and covering it up.

The Department complains that, despite its various responses, the story was presented with intentional, and negligent, departures from the facts (details below).

The text

The article, written by Ruth Hopkins of the WJP, said that chilling new claims of inmate abuse at the Mangaung Correctional Centre (MCC) in Bloemfontein had emerged. She reported that Mr Isaac Nelani (47), an inmate who had been HIV positive, had been kept in isolation – before he died “under suspicious circumstances” on 18 May 2015. He was reportedly not the only one who had met this fate.

“Documents that were recently provided to the WJP and eyewitness accounts contain shocking allegations that inmates were tortured before they died, while the prison registered their deaths as either ‘natural’ or ‘suicide’.” Hopkins added that the DCS had been aware that record-keeping of deaths in custody by the contractor running the prison, G4S, were not up to standard and that deaths through torture might go undetected. “Despite that knowledge, it has not held G4S accountable.”

The complaint in more detail

The DCS says the following were either omitted in the article or misrepresentative of its response:

The story	CDS’s response to Hopkins (prior to publication)
One: “[slow] progress in leaving ‘no stone unturned’.”	Reasons for the delays were provided – which the journalist conveniently neglected to report. CDS said that it had completed a preliminary investigation, and the draft report flowing from that inquiry “confirmed the necessity for further investigation into a number of areas”.
Two: “He could not, however, indicate when the investigation’s report will be finalised or if it will be made public.”	CDS was doing everything possible to ensure that the investigation was finalised as soon as possible. Maistry added, “However, the Department has to also ensure that, as part of the investigation process, all legal provisions are fully complied with. It is unlikely that the report will be made public if there is a potential for litigation between the parties as per the PAIA. However, this will be assessed and a decision will be made once all related matters are completed.”
Three: “He said both Isaac Nelani’s and Tebogo Bereng’s deaths have been referred to the South African Police Service…”	DCS has provided a CAS (docket) number in respect of Nelani. It repeated, “As stated in our previous response regarding Tebogo Bereng, the National Commissioner has appointed a Task Team to look into all unnatural deaths at MCC. In this regard, all necessary documents have been requested from the Contractor. Where these documents have not been submitted…the matter is referred to the Supervisory Committee in terms of the Contract. Any possible criminal investigation will be referred to the SAPS.”
Four: “Despite the evidence that it uses force and torture, and incorrectly handles deaths in custody, G4S was handed back control of the prison a year ago.”	DCS responded to the effect that, “Until investigations have been completed, DCS is unable to comment in this regard. DCS certainly takes any allegations of deaths in custody seriously. Hence, the appointment of the Task Team. However, the non-availability of documentation cannot always be said to be the fault of the Contractor, and, hence, the need for an investigation.”
Five: The allegations were not new claims that “formed part of the justice project’s investigation into allegations of abuse at the Bloemfontein prison…”	The draft report mentions that these allegations also formed part of the DCS’s investigation. Wits Justice Project stated in the inquiry that the WJP had the draft report in its possession – yet there was no mention in the story of that being the case.
Six: The story said nothing about the issue raised by the DCS (see a summary of this part of the complaint next to this text).	DCS stated that Section 112 of the Correctional Services Act was instituted against the contractor. Should there be a finding that the contractor failed to adhere to the procedures/policies in terms of the contract, the DCS would refer the case to the Supervisory Committee for a ruling on penalties against the contractor. It can only act in terms of the contract and cannot initiate a criminal investigation. However, if it became aware of possible criminal liability, the matter would be referred to the SAPS.

Response by the M&G

Background

The WJP says it has been publishing results of a multi-year investigation (by its senior journalist Ruth Hopkins) into the treatment of inmates at the Mangaung Correctional Centre since October 2013.

Hopkins investigated allegations that the prison, run by private security company G4S, had been placing inmates in isolation cells for unlawful periods ranging from three months to four years, had been forcibly injecting inmates with anti-psychotic medication, and had been using electric shocks and torture. She conducted interviews with approximately 100 inmates, 30 warders and a range of other sources, including DCS and G4S officials, in order to corroborate the allegations during the course of a methodical investigation which received local and international attention. The investigation yielded multiple folders of hard evidence as well as many hours of filmed footage.

After the initial allegations were uncovered, the then minister of correctional services, S’bu Ndebele, committed to a full investigation and a report to be made public within 30 days.

Since then, the WJP has done regular follow-up stories regarding both the investigation and the report.

In addition, the WJP continued to investigate the information and evidence it was receiving regarding current and past circumstances at Mangaung. It was able to collate a full dossier on the deaths of two inmates, Nelani and Tebogo Bereng. Having satisfied the requirements of the WJP editorial guidelines, and having sought input and advice from the head of the Wits journalism department, Prof Anton Harber, as well as a media lawyer, it was in a position to publish the results in the M&G and the London Telegraph newspapers.

Before publication, the WJP sought and received answers from the DCS (Maistry) to specific questions arising from the investigation.

The word limit given to the WJP for the print edition of the M&G story was 1500. The online version was not limited and the full version of the piece could be placed there, along with the full responses from the DCS (568 words) and G4S.

Responses to the complaint

I am summarizing the newspaper’s response in the same order as the complaint (above):

1. The WJP says it clearly mentioned in its response that DCS had completed a preliminary investigation, and that the preliminary investigation draft report confirmed the necessity for further investigation into a number of areas.

Shortly after the M&G had broken the story on 25 October 2013, Ndebele announced an investigation into the allegations, which he said would take 30 days. Now, nearly two years later, DCS remained unable to inform Hopkins what the findings had been, when the report would be published and if it would be made public. Hopkins reported that there was an ongoing investigation aiming to “leave no stone unturned”. That covered the preliminary investigation and the need for further investigation mentioned by the Department.

2. Hopkins asked DCS when the report would be finalised and if it would be made public. Their response did not provide an answer to those questions.

3. After a request to specify the police department looking into the deaths mentioned, DCS said these were referred to the detective services at national headquarters. Hopkins contacted the spokesperson for the SAPS, Solomon Makgale, who asked for a CAS number (a police docket number). DCS then provided her with a 2005 CAS number from the Bloemspruit police station (which is nearest to the prison in Bloemfontein). In 2005, the Bloemspruit police arrived at the prison and transported a body to the state pathologist. Their investigation in 2005 is mentioned in the 2010 magistrate’s inquest.

However, Hopkins asked DCS for further information on the current investigation into Nelani’s death – which they failed to provide.

Furthermore, Hopkins sent Makgale an e-mail with follow-up questions about Nelani’s and Bereng’s cases. The questions included whether the cases had been referred to the SAPS, and the status of any current investigation into their deaths. Makgale did not respond to Hopkins.

She also asked Maistry and Makgale whether Bereng’s death was part of an SAPS investigation. Both failed to confirm such an investigation or to produce any leads by which Hopkins could corroborate the DCS’s assertion.

In her article Hopkins refers to the task team into unnatural deaths at the prison. However, Bereng’s death was registered by G4S as a natural death, so the WJP was unable to confirm that it was part of the unnatural deaths investigation.

4. Being aware of all the allegations of illegal use of force and despite that knowledge, DCS decided to hand back control of the prison to G4S. The task team on unnatural deaths was mentioned in the article, as was the ongoing investigation that aimed to “leave no stone unturned”.

5. WJP was first told about Nelani’s death when Hopkins began her investigation in 2012. She heard about Bereng’s death during her research, after he died in March 2013. WJP did not go to print about these deaths at the time as there was not enough proof to justify such serious allegations. The claims were “new” in the sense that WJP had only recently (about a month before the article went to print) been provided with supporting documents and eyewitness accounts that corroborated the allegations and provided the extra evidence needed to go to print.

WJP does have in its possession a section of a draft DCS report, leaked by an anonymous source. This section specifically refers to Nelani’s death and generally to unnatural deaths in prison. However, the claims contained in this section were not included in the newspaper article because of space constraints. This section of the draft report was included in the online version.

6. It was not possible to include the entire DCS response verbatim in the newspaper. However, its full response was carried online. Hopkins selected the most compelling part, referring to an ongoing investigation that aimed to “leave no stone unturned” and G4S officials possibly facing the might of the law. Other parts of the DCS response were included. Section 112 was mentioned in the article, as this is the legal basis for the take-over by DCS (it invoked section 112 of the Correctional Services Act when it took control of the prison in October 2013). Hopkins specifically asked Maistry in a follow-up question for details about the nature and amounts of any fines faced by G4S. His response, “DCS refers the case to the Supervisory Committee for a ruling on penalties against the Contractor”, did not provide any concrete facts, as requested, and therefore it was omitted from the story.

Conclusion

There has been no departure from the facts, whether intentionally or negligently. The investigation took place over a number of years and WJP has only gone to print when it could support the allegations with hard evidence.

The nub of the DCS complaint is that the newspaper failed to carry every element of the department’s lengthy response, even though parts of it were vague and would not assist the reader to understand what had happened.

WJP returned to the DCS for clarification on these vague elements, but received no satisfactory clarification.

By offering a 568-word response, DCS ensured that some editing had to take place. The WJP states, “We acted with due care to ensure that the important points were carried in print, carefully summarised, and the full DCS statement was carried online. We believe, therefore, that within the constraints of the media we are working with, we have gone to great lengths to be fair to DCS and to cover their point of view as fully as possible, as required by both the Press Code and our own editorial guidelines… [Every] reasonable step was made to both verify and seek fair comment from DCS.”

Analysis

I am dealing with the six issues as tabled above:

1. The question is whether the newspaper was justified in stating that the DCS was making slow progress after saying that it would leave no stone unturned to address the issue.

The complaint is that the story did not include reasons for the delay as provided by DCS to Hopkins.

I am convinced that the story reasonably reflected Maistry’s response, for example in reporting that DCS had instituted a task team to look into unnatural deaths in the prison, and that this investigation had yet to be finalised. It also encapsulated the department’s response extensively in the sidebar.

I note that Ndebele announced the investigation almost two years ago – which does justify the statement on slow progress.

2.      DCS questions the statement that Maistry could not indicate when the investigation’s report would be finalised or whether it would be made public.

However, Maistry did not deny the newspaper’s response. Also, Hopkins asked DCS when the report would be finalised and whether it would be made public, but did not receive an answer to those questions. As a result, I believe it is reasonable to accept that the reportage on this matter was justified.

3. The newspaper states that SAPS spokesman Solomon Makgale did not respond to the question whether the Bereng case had been referred to the SAPS, or to the question whether Bereng’s death had been part of the police investigation.

WJP also states that Bereng’s death was registered by G4S as a natural death, so it “[was] unable to confirm that it is part of the unnatural deaths investigation. DCS did not provide this evidence.”

I am satisfied that the newspaper’s response to this matter was mainly backed up by e-mails which have been presented to me – save for any thread of evidence that Bereng’s death was referred to the SAPS.

The story stated this as fact which, according to the evidence (or the lack thereof) before me, was unsubstantiated.

4. The DCS does not deny that it handed back control of the prison to G4S a year ago (“despite evidence that it uses force and torture, and incorrectly handles deaths in custody”).

The DCS’s defence in this regard, as recorded above, is rather thin.

5. The statement that the allegations were not new claims that formed part of the WJP’s investigation into allegations of abuse at the Bloemfontein prison, is in question.

The M&G’s defence on this matter is credible – WJP knew about the allegations for quite some time, but only recently received some evidence to back up these accusations. I have no reason to disbelieve this.

The complaint that Hopkins did not refer to the draft report is neither here nor there – there is no way that, within the context of the article, this can amount to a breach of the Press Code.

6. The question is whether the M&G should have reported Maistry’s comment (stating that Section 112 of the Correctional Services Act was instituted against the contractor, and that the matter would be referred to the Supervisory Committee should there be a finding that the contractor had not adhered to the procedures/policies in terms of the contract) and, if it became aware of possible criminal liability, the DCS would refer the matter to the SAPS.

While the DCS’s full response was carried online, it was indeed not possible (as the M&G argues) to include the entire response in the printed version. The reference in the hard copies to the institution of a task team to investigate unnatural deaths in prison, and the statement that the investigations had yet to be finalised, were material enough.

Finding

The complaint is dismissed, save for the statement of fact that the DCS referred Bereng’s death to the SAPS. This is in breach of Section 2.3 of the Press Code that says, “[Where] a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”

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 breach of the Code as indicated above is a Tier 2 offence.

Sanction

The M&G is directed to publish a retraction of the statement that Bereng’s death had been referred to the SAPS, with an explanation that this had not been confirmed by either the DCS or by any other source. The text should appear on its website.

The newspaper is free to mention the parts of the complaint that were dismissed.

The text, which should be approved by me, 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.

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