Manki Ndarana vs. Die Son /Luzuko Mdila

SUMMARY

The headline to the story in dispute read, Bandiet ontsnap uit tjoekie (Bandit escapes from prison). This was published on 19 January 2016.

This ruling by Press Ombud Johan Retief was based on the Press Code that was in effect before 30 September 2022.

 

The article reported on an escape from the Drakensberg maximum security prison by an inmate who had been found guilty of murder and had been sentenced to 25 years. The article mentioned a “story” by wardens that black colleagues had helped the prisoner (who was also black) to escape.

Manki Ndarana complained the statement that “black officials assisted the inmate to escape” had the potential to exacerbate the already existing racial tensions in management, without verifying the statement with the relevant authorities – and by doing so, not only tainting his dignity as a black African (as well as those of his black colleagues), but also putting in the public domain the perception that he as a black person could not be trusted.

Dismissing large parts of the complaint, Retief said he believed that the newspaper had been justified in publishing the allegation that:

• wardens had assisted the convict to escape, mainly because of the public interest; and
• the wardens were “black”, as the escapee was also black.

He added that:

• the story did not refer to Ndarana at all;
• he did not expect Die Son to withhold information from the public just because there was tension amongst management at the prison; and
• it was not “prudent” of the newspaper to disclose the identity of its source(s).

Die Son was:

• reprimanded for not having asked the relevant prison authorities for comment on the allegation that black wardens might have been involved in the escape of the convict; and
• directed to obtain such comment and to report it.

 

THE RULING ITSELF

This ruling is based on the written submissions of Mr Manki Ndarana and those of Andrew Koopman, editor-in-chief of Die Son newspaper.

Ndarana is complaining about a story in Die Son of 19 January 2017, headlined Bandiet ontsnap uit tjoekie.

Complaint                                            

Ndarana complains the statement that “black officials assisted the inmate to escape” had the potential to exacerbate already existing racial tensions in management, without verifying the statement with the relevant authorities – and by doing so, not only tainting his dignity as a black African (as well as those of his black colleagues), but also putting in the public domain a perception that he as a black person could not be trusted.

The text

The article, written by Tracy-Lynn Ruiters, reported on an escape from the Drakensberg maximum security prison by an inmate who had been found guilty of murder and sentenced to 25 years. The article mentioned a “story” by wardens that black colleagues helped the prisoner (who was also black) to escape.

The arguments

Koopman denies the article said that “black officials assisted the inmate to escape”; he says the newspaper reported that the story being told amongst wardens was that black colleagues had helped the inmate to escape – this was not stated as fact, but as an allegation. He argues, “We just used the information given to us by a worker at the prison. Only an investigation would verify whether there was any truth in the allegation… I therefore do not see any reason to apologise.”

Ndarana says he understands that the story reported the allegation as an allegation, but he adds that the newspaper relied on unnamed sources “to peddle lies” and create false perceptions.

He reiterates that the article exacerbated the already fragile race relations in management “as there is a lot of mistrust and resentment that is currently existing amongst the two dominant groups”.

Ndarana also refers to a previous story in Die Son (published on 21 February 2016), and argues that the latest article is creating the impression that the newspaper serves the interests of a particular race at the expense of the others – “Both articles attack the black officials whilst creating the perception…that the other races (and more especially the coloured race) are perfect” and did not play any role in the escape.

He also says he suspects the newspaper was using the same source in both articles – it would therefore be “prudent” for Die Son to disclose the identity of this source so that this person could be exposed “for the fraud that he / she is”.

Analysis

The publication of an allegation is an issue – but more than that is at stake.

The questions are whether Die Son:

·         was justified in publishing the allegation that:

o   wardens assisted the convict to escape;

o   those wardens were black;

·         unnecessarily tarnished Ndarana’s dignity as a black person (as well as those of his colleagues);

·         might have exacerbated the existing racial tensions amongst management at the prison;

·         has used a credible source; and

·         neglected to ask the relevant authorities for comment.

Publishing the allegation

A newspaper is not at liberty to publish an allegation just because someone has made it. Remember, for example, that an allegation can be defamatory – and the repetition of defamation is also defamation. The argument that information was published not as fact but as an allegation can therefore not serve as a defense by default.

This does not mean, of course, that no allegation may be published. Several factors should be considered in this regard, such as the credibility of a source (read: the likelihood that there may be some truth to the allegation, and the possibility that a subject may unnecessarily be harmed), as well as the public interest.

In this case, I believe that the newspaper was justified in publishing the allegation (that wardens assisted the convict to escape) – the public interest is of overriding importance in this case.

Wardens were black

The next question, though, is whether the newspaper was justified in stating the allegation that “black” wardens were involved in the escape.

Section 5.1 of the SA Code of Ethics and Conduct reads, “Except where it is strictly relevant to the matter reported and it is in the public interest to do so, the media shall avoid discriminatory or denigratory references to people’s race…nor shall it refer to people’s status in a prejudicial or pejorative context.”

I take into account that the escapee was black, which made the reference to black wardens “relevant to the matter reported” – even though this might have been painful for some people at the prison.

Tarnishing blacks’ dignity, credibility

While I can fully understand Ndarana’s unease with the publication of the allegation in question, I also need to take the arguments mentioned above into account – as well as the fact that the allegation did not state that “all” black wardens might have been involved. Also, the story did not refer to Ndarana at all.

Exacerbating racial tensions

Section 5.2 of the Code states, “The media has the right and indeed the duty to report and comment on all matters of legitimate public interest. This right and duty must, however, be balanced against the obligation not to publish material that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

While it is true that the reportage might have exacerbated the existing tensions between people of different ethnic backgrounds in the prison’s management, I do not believe that the reportage could be categorised as “propaganda for war”, or “incitement to cause harm”, etc. I do not expect of Die Son to withhold information from the public just because there was tension amongst management at the prison.

Credible source

Section 11.1 of the Code reads, “The media shall protect confidential sources of information – the protection of sources is a basic principle in a democratic and free society.”

I therefore disagree with Ndarana that it is “prudent” for Die Son to disclose the identity of its source(s).

Not asked for comment

The newspaper should have taken the sensitivity of the matter into account – and, for the sake of fairness and balance, should have asked the relevant authorities for comment.

Yes, the story did quote an official at the prison, but that did not specifically cover the allegation in question. That allegation was indeed serious, and it did affect a section at the prison – and therefore that matter should have been put to management. There is no excuse for failure to do so (or, if the journalist did ask, failure to report it).

Given the fact that Die Son has made use of an anonymous source, it should have taken care to corroborate its information – of which I have no evidence.

Finding

The neglect to ask prison authorities about the allegation in question, or to report their comments on this issue, is in breach of the following sections of the SA Code of Ethics and Conduct:

·         1.8: “The media shall seek the views of the subject of critical reportage in advance of publication …”; and

·         11.2: “[Care] should be taken to corroborate the information (garnered from anonymous sources).”

The rest of the complaint is dismissed.

Seriousness of breaches

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

The breach of the Code of Ethics and Conduct as indicated above is a Tier 2 offence.

Sanction

Die Son is:

·         reprimanded for not having asked the relevant prison authorities for comment on the allegation that black wardens might have been involved in the escape of the convict; and

·         directed to obtain such comment and report it in the text it is asked to publish.

The text should:

·         be published prominently, and on the same page as that used for the offending article (or close to it);

• start with the reprimand;
• refer to the complaint that was lodged with this office;
• mention the prison’s comment on the matter;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and
• be approved by me.

The headline should properly reflect the content of the text (read: the reprimand). If the story was published online, the above-envisaged text should be published 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 Ombud