The PBI party & Virgill Gericke vs. George Herald

SUMMARY

The headline to the story in dispute read, Watermeter-pamflet – Warm debat en klagtes (Water meter pamphlet – Hot debate and complaints). This was published on 19 November 2020.

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

 

The PBI party (PBI stood for Plaaslike Besorgde Inwoners – Local Concerned Citizens) and its president, Virgill Gericke, complained that the journalist:

• did not give them, or any other official of his party, a right of reply;
• portrayed him as having had problems to contain his temper, but failed to report that he was personally attacked and provoked;
• favoured the DA – at his, and the PBI’s, expense; and
• did not distinguish between party and state.

The article was about the installment of pre-paid water meters. It also reported on a radio debate, culminating in a rather lively and quite robust discussion on Eden fm (on November 13). Also prominent in the story was a public statement by the PBI following a complaint lodged by Gericke at the Human Rights Commission. The story said that Gericke had struggled to keep his emotions in check during the radio debate and had to be restrained by the presenter.

Retief said he had listened to the whole interview, and he never got the impression that Gericke could not contain himself – he merely objected to personal attacks and derogatory language used against him. This part of the complaint was upheld. The newspaper was directed to apologise for this unfair statement.

The Acting Ombud dismissed the rest of the complaint.

 

THE RULING ITSELF

Complaint number: 8455

Complainants: The PBI party and its president, Mr Virgill Gericke (PBI stands for Plaaslike Besorgde Inwoners – Local Concerned Citizens)

Lodged by: Gericke

Date of article: 19 November 2020

Headline: Watermeter-pamflet – Warm debat en klagtes (Water meter pamphlet – Hot debate and complaints)

Page: 3

Online: Yes

Author of article: Michelle Pienaar

Respondent: Helene Eloff – Legal Advisor CTP Limited

1. Provisos

1.1 The Human Rights Commission

1.1.1 On 16 November 2020, Mr Virgill Gericke lodged a complaint with the Human Rights Commission (HRC); a week later, on November 23, he lodged a complaint with the Press Council about the same matter.

1.1.2 This was of serious concern to me – Sub-section 1.7.3 of the Press Council’s Complaints Procedures reads as follows: “Where at any stage of the proceedings it emerges that proceedings before a court are pending on a matter related to the material complained about … the Ombud … shall forthwith stop the proceedings and set aside the acceptance of the complaint by the Public Advocate, unless it is shown that the issue complained about is not among those that the court is adjudicating.”

1.1.3 I realise that the HRC is not a “court” – the word used in this sub-section. However, given the spirit of this sub-section, I am interpreting it to incorporate quasi-judicial institutions (such as the HRC).

1.1.4 I have therefore asked for a copy of Gericke’s complaint to the HRC, to satisfy myself that this office does not deal with the same matters that are before another tribunal.

1.1.5 Having studied that complaint, I am satisfied that the vast majority of his complaint to the Press Council does not overlap with his complaint to the HRC. Where there is any possibility that it does intersect with his other complaint, especially regarding his dignity and reputation, I have taken great care not to entertain such parts of his complaint.

1.1.6 In other words, my sole concern is about the newspaper’s reporting on the matter, and not about statements that might, or might not, have been defamatory of Gericke.

1.1.7 I therefore proceed with caution.

1.2 Prepaid water meters vs. water management devices

The question who was right and who was wrong on this issue is not for this office to settle. The Ombud’s sole concern is whether the newspaper was in breach of the Press Code, or not.

1.3 No platform to score political points

1.3.1 The issue, mentioned directly above, was a bone of contention immediately prior to a local municipal election.

1.3.2 I need to state, unequivocally, that this office will not be used to settle political squabbles or to choose sides. If the DA and the PBI disagree on issues, so be it – but the Press Council is not going to be used as a platform to score political points.

2. Complaint                                            

Gericke complains that the journalist:

1. did not give him, or any other official of his party, a right of reply;
2. portrayed him as having had problems to contain his temper, but failed to report that he was personally attacked and provoked;
3. favoured the DA – at his, and the PBI’s, expense; and
4. did not distinguish between party and state.

3. Sections of the Press Code complained about

The media shall:

• 1.1: take care to report news truthfully, accurately and fairly;
• 1.2: present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization; and
• 1.8: seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated.

4. The text

4.1 The PBI is a political party with representation in the George and Garden Route District Municipalities.

4.2 It is important to understand the background to the article in dispute.

4.3 Eloff has outlined such context, on which I now heavily draw. I note that Gericke, in his response to Eloff’s reply to his complaint, does not contest the following:

• On 6 November 2020 the PBI published a pamphlet referring to water meters in the run-up to a George by-election on November 11. In the pamphlet, the PBI alleged that the DA forced municipalities to install pre-paid meters, arguing that if residents do not have money to buy water, their household will not have any water;
• George Herald has reported these statements online on November 10 and in print and online on November 12;
• On November 11, the DA instituted complaints against the PBI at the IEC and the SAPS;
• On November 13, DA members Geordin Hill-Lewis and Tertius Simmers, together with Gericke, had a discussion on the Eden fm radio station (which formed the basis of the article);
• On November 16, Gericke lodged a complaint against the DA with the Human Rights Commission (HRC);
• Meanwhile, the George speaker had taken steps against Gericke in terms of the Councillor’s Code of Conduct, based on his public statements made in writing and on air;
• Also on November 16, the PBI responded publicly to the above by issuing a written statement; and
• On November 19, the article in dispute was published.

4.4 The article itself reported on the radio debate, culminating in a rather lively and quite robust discussion on Eden fm (on November 13).

4.5 Also prominent in the story was a public statement by the PBI following the complaint lodged by Gericke at the HRC (on November 11).

5. The arguments

5.1 No right of reply

5.1.1 Gericke says Pienaar did not contact either him or any other official of his party to verify the facts – while the reporter clearly had direct contact with the DA, who was quoted afresh in the article.

5.1.2 In fact, he submits that the audi alteram partem rule has been grossly ignored in almost the entire story.

5.1.3 He asks why the journalist had to quote the George speaker in the first place, and adds that he was not given an opportunity to respond to this matter – even though he was the subject of this reportage.

5.1.4 Gericke says the same goes for the quote of Hill-Lewis who reportedly said, “[Gericke’s] complaint is laughable. Politics is not for the thin-skinned. He must toughen up.”

5.1.5 He argues that the DA is the thin-skinned one, since “they are unable to stand a debate on service delivery issues and rather opted to personalise the issue”.

5.1.6 Eloff replies that, by quoting from the pamphlet, the newspaper has adhered to the audi alteram partem principle. 5.1.7 She also submits that the publication had to obtain comment from the DA and/or Hill-Lewis in response.

Analysis

5.1.8 The PBI pamphlet was part of the party’s election campaign. This (political) document was about the alleged forced installation of pre-paid water meters by DA controlled municipalities – a matter that was hotly debated on air.

5.1.9 I have studied the article in dispute with non-political eyes, merely trying to establish whether the newspaper adhered to the Press Code or not – with Section 1.8 of the Code in mind.

5.1.10 In a nutshell, the structural sequence of the article tells its own story – the article namely:

• mentioned what the PBI pamphlet said;
• quoted a member of the DA;
• mentioned the radio interview between the two parties;
• quoted a member of the DA again;
• stated Gericke’s position;
• mentioned that Gericke had lodged a complaint with the HRC;
• quoted a member of the DA in this regard;
• reported what the PBI had said in a statement;
• said that Gericke did not back down during the debate;
• quoted George speaker, saying that he took steps against Gericke; and
• ended with a quote from Gericke.

5.1.11 Given this solid to-and-fro structure, I am satisfied that Pienaar was fair in giving each side proper coverage.

5.1.12 I also believe that, even though the journalist did not personally contact Gericke or any official of his party, the PBI’s statement (which was made in reaction to the speaker’s decision to take steps against Gericke) justifiably served as the PBI’s official response.

5.2 ‘Temper problems’;  failing to report that he was attacked, provoked

5.2.1 The story said that Gericke did not back down during the radio debate with Hill-Lewis. Pienaar reported that the presenter restrained him while he struggled to keep his emotions in check. “Don’t come here with your white arrogance”, he reportedly snarled at Hill-Lewis.

5.2.2 Gericke says he merely objected to personal attacks and derogatory language used against him.

5.2.3 He submits, “I was invited to clarify the statement of my party and not to be personally attacked and humiliated. It is very clear in that interview that I was personally targeted and provoked. The reporter dismally fails to emphasise that fact. She opted to present myself in her article as a man with ‘temper problems’, and in so doing, assist the voter or electorate to perpetuate negative perceptions about myself and the PBI.”

5.2.4 Eloff says that, “while George Herald is responsible for thorough newsgathering and fact verification, each step of the newsgathering process need not be reflected in reporting.”

Analysis

5.2.5 Gericke’s complaint in this regard is twofold – (a) that the article portrayed him as having had “temper problems”, and (b) that the journalist failed to report that he was personally attacked and provoked. I shall deal with these issues separately.

5.2.6 Firstly, then, the temper issue. In Afrikaans, this text read as follows: “[Gericke] is op ‘n stadium deur die omroeper stilgemaak en het gesukkel om sy emosies te beteuel. ‘Don’t come here with your white arrogance,’ het hy Hill-Lewis op ‘n stadium toegesnou.”

5.2.7 I have listened to the radio debate from start to finish, and I never got the impression that Gericke had struggled to control his emotions – not even during the isolated incident where the presenter asked him to keep quiet. I strongly believe the statement that Gericke struggled to control his emotions was unfair to him.

5.2.8 Yes, his statement about “white arrogance” could have been an emotional one – but then again, it would be unfair to ask of him to be emotionless about the issues. It is one thing to say someone was “emotional”; it is quite another to state that someone “struggled to control” her or his emotions.

5.2.9 Secondly, I cannot agree with Gericke that the newspaper did not report that he had been provoked. For example, Pienaar reported Hill-Lewis as saying that Gericke was worse than a pig, that he was a liar, a false prophet and a man without integrity. If anything, those were provocative words – which the reasonable reader, I believe, would have understood to be just that. From the article, therefore, it was clear that Gericke had been provoked. There was no need for the newspaper to have used the word “provoked”.

5.3 One-sided reporting

5.3.1 Gericke says Pienaar quoted the DA as having laid charges with the IEC as well as the SAPS. However, while the reporter directly quoted Hill-Lewis, she did not report any statement of either confirmation or denial from the IEC or the SAPS.

5.3.2 He submits this is one-sided reporting.  “By so doing, the reporter is assisting the DA to further aggravate the charges against me, without having confirmation from the relevant authorities. The truth is that up until today, I have not been informed by SAPS or the IEC of any charges against me or the PBI,” he says.

5.3.3 He says this reportage portrayed him as having been in a lot of trouble – “effectively or subtly negatively influencing the political mind of the reader against myself or the PBI. It creates a perception that I am reckless and irresponsible”.

5.3.4 Moreover, he continues, the reporter failed dismally to quote people who called in to say that prepaid water meters had been installed in their towns under DA control.

5.3.5 Gericke says the fact that the journalist contacted the DA and not also the PBI, confirms the level of bias and prejudice against the PBI, as well as the preferential treatment given to the DA in this regard.

5.3.6 Eloff says that, whether the IEC or SAPS has informed the complainant of a charge being laid against him is not the publication’s business. She submits the publication properly verified its information and did not need to answer for the acts, or lack thereof, on the part of the IEC or SAPS. 5.3.7 She adds that residents were deeply confused regarding the difference between pay meters and water management devices. “Regardless, George Herald maintains that it reported fairly on newsworthy statements made during the Eden FM Interview and that it cannot reasonably be expected to publish the contents of the entire interview verbatim,” she argues

Analysis

5.3.8 I have already decided that the journalist treated each part equally. It follows that I cannot uphold this part of the complaint – I certainly do not believe that Pienaar favoured the DA, at the expense of the PBI.

5.3.9 There is one possible exception, though, that does not quite pass muster – the fact that Pienaar did not quote people who called in and stated that water meters had been installed in their towns under DA control.

5.3.10 I have mulled this over for quite some time, asking myself if this omission can constitute a breach of the Press Code. In the end, I am willing to say it would have been better if Pienaar did report on that matter – but the rest of her article is so fair and balanced that I do not believe it would have made a material difference.

5.4 Failing to separate party from state

5.4.1 Pienaar quoted the George speaker as saying that he took action against him. This action was reportedly based on the Councillor’s Code of Conduct, which says that councillors have to act in the best interest of the municipality.

5.4.2 Gericke complains he never acted as a councillor in the entire saga. He argues, “I participated in the radio debate as a party leader and not as a Councillor.”

5.4.3 In this instance, he says, the reporter failed to separate party from state. “The reporter writes as if I have acted as a Councillor, again effectively suggesting to the reader that both myself or the PBI are reckless, irresponsible and insensitive towards those who entrusted their votes to the PBI,” he concludes.

5.4.4 He concludes that the entire article was designed to assist the DA propaganda against him and the PBI.

5.4.5 George Herald denies this allegation.

Analysis

5.4.6 It is beyond this office’s mandate to rule on the correctness of the statement that the speaker failed to separate party from state. Our mandate starts and finishes with what the newspaper reported – not with the correctness of subjects’ arguments.

6. Finding

6.1 The statement that Gericke “struggled to control his emotions” was unfair to him. This was in breach of Section 1.1 of the Press Code that says: “The media shall take care to report news … fairly”.

6.2 The rest of the complaint is dismissed.

7. Seriousness of breaches

7.1 Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

7.2 The breach of the Press Code as indicated above id s Tier 2 offence.

8. Sanction

8.1 George Herald is directed to apologise to Gericke for unfairly stating that he struggled to keep his emotions under control during a radio debate with two DA officials.

1. The newspaper is directed to publish the apology:

• at the top of page 3, with a headline containing the words “apology” or “apologises”, and “Gericke”; and
• online, at the top of the page that carried the article.

8.3 The text should:

• be published at the earliest opportunity after the time for an application for leave to appeal has lapsed or, in the event of such an application, after that ruling;
• refer to the complaint that was lodged with this office;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”;
• be published with the logo of the Press Council (attached); and
• be prepared by the publication and be approved by me.

9. Appeal

The 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

Acting Press Ombud