Nampree vs. Sunday World

SUMMARY

The headline to the story in dispute read, Details of Euphonik and Fresch ‘rape’ emerge (24 January 20201, print; 25 January 2021, online); and Rape accuser apologises to Euphonik – ‘I am sorry for what I did to you and DJ Fresh, I’m scared’ (28 February 2021, print; 1 March, online).

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

 

Regarding both articles, Ms Nampree complained she had never given consent to the newspaper to publish her sworn statement to the SAPS. This, she argued, infringed on her right to privacy, confidentiality and her right of protection under the law.

She added that the second article:

• falsely said that she had apologised to Euphonik and DJ Fresh for accusing them of raping her (she says she has denied this on Twitter, yet the newspaper still went ahead to publish);
• victimised her as a victim of sexual assault; and
• tarnished her dignity and reputation.

She also complained that the reporter did not seek her views prior to publication.

The first article was about Nampree’s allegation that she had been raped by DJ Fresh and DJ Euphonik – information that was obtained in a statement recorded at the Sunnyside Police Station. The second article said that Nampree allegedly had alcohol-fuelled sex in a car with a Diepsloot man before the alleged rape incident.

Regarding the first article, the questions were if the newspaper should have asked Nampree for her consent to publish her sworn statement to the SAPS, and if the publication thereof had infringed on her right to privacy, confidentiality and her right of protection under the law. Retief dismissed this complaint.

The second article: The journalist did try to get Nampree’s comment. After examining the documentation, this part of the complaint was dismissed.

However, the Acting Ombud said it was problematical that it was reported, as fact, that Nampree had apologised that she had fabricated the allegation against Euphonik and DJ Fresh. He added that he had no evidence that the reporter had tried to verify the authenticity of the tweet that he had relied upon.

Sunday World was directed to apologise to Nampree for:

• unfairly stating, as fact, that she had apologised to Euphonik and DJ Fresh for falsely accusing them of raping her, without any verification to this effect;
• neglecting to report her repeated denials that she was the author of the “apology”; and
• not exercising care and consideration in matters involving dignity and reputation.

 

THE RULING ITSELF

Number of complaints:  8535 and 8545

Headlines and dates of articles:

• Details of Euphonik and Fresch ‘rape’ emerge (24 January 20201, print; 25 January 2021, online); and
• Rape accuser apologises to Euphonik – ‘I am sorry for what I did to you and DJ Fresh, I’m scared’ (28 February 2021, print; 1 March, online).

Author of article: Ngwako Malatji

Respondent: Wally Mbhele, editor

1. Complaint                                            

1.1 Regarding both articles, Ms Nampree complains she never gave consent to the newspaper to publish her sworn statement to the SAPS. This, she argues, infringed her right to privacy, confidentiality and her right of protection under the law.

1.2 She also wants to know how the newspaper obtained a sworn statement in possession of the SAPS.

1.3 Nampree also complains that the second article:

• falsely said that she had apologised to Euphonik and DJ Fresh for accusing them of raping her (she says she has denied this on Twitter, yet the newspaper went ahead to publish);
• victimised her as a victim of sexual assault; and
• tarnished her dignity and reputation.

1.4 She also asks why the reporter did not seek her views prior to publication.

1.5 She asks for a reprimand and an apology.

2. Relevant sections of the Press Code

2.1 Regarding the first article, these are:

• 1.4: “The media shall obtain news legally, honestly and fairly, unless public interest dictates otherwise”; and
• 3.1: “The media shall exercise care and consideration in matters involving the private lives of individuals. The right to privacy may be overridden by public interest.”

2.2 Regarding the second article, these are:

• 1.1: “The media shall take care to report news truthfully, accurately and fairly”;
• 1.2: “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions …”;
• 1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such”;
• 1.4: “The media shall obtain news legally, honestly and fairly, unless public interest dictates otherwise”;
• 1.7: “The media shall verify the accuracy of doubtful information, if practicable; if not, this shall be stated”;
• 1.8: “The media shall seek, if practicable, the views of the subject of critical reportage in advance of publication…”;
• 3.1: “The media shall exercise care and consideration in matters involving the private lives of individuals. The right to privacy may be overridden by public interest”; and
• 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation.”

3. The texts

3.1 The introductory sentence to the first article says it all. It reads, “Details of how a Pretoria-based woman was allegedly raped by DJ Fresh and DJ Euphonik were laid bare in a statement recorded by the police at the Sunnyside Police Station last week.”

3.2 Malatji wrote that the statement was in the newspaper’s possession.

3.3 The statement reportedly showed that although the woman did not remember what happened afterwards (at an after-party), she apparently passed out and her body was sore when she woke up in the wee hours of the following day.

3.4 “She could feel that she was penetrated, however, there was no blood,” according to the woman’s statement.

3.5 The statement also reportedly said the two men started laughing and joking about how they were “blacking out one after the other and that they had to take them to bed”.

3.6 The woman reportedly claimed that she had been a virgin when she had been violated.

3.7 Malatji also wrote this woman ignored the questions he had sent to her prior to publication.

3.8 Gauteng police spokesperson Mavela Masondo reportedly confirmed a woman opened a case of rape against the DJs, adding that a police investigation was underway.

3.9 In the second article, Malatji reported that DJ Fresh and Euphonik’s rape accuser, who claimed to have lost her virginity when she was raped by the two, allegedly had alcohol-fuelled sex in a car with a Diepsloot man before her alleged rape incident.

3.10 “These startling details are contained in a police statement, which the National Prosecuting Authority (NPA) is understood to have taken into account when it decided not to prosecute the two entertainment moguls for rape,” the article said.

3.11 Malatji added that the woman had apologised for “falsely accusing them of rape”.

3.12 The message reportedly read, “Themba, I’m sorry for what I did to you and DJ Fresh. The people who made me do this are turning away from me bc the lawyers want to push this further and the truth will come out but it was all a lie and I don’t know what to do bc nyani I’m scared I’m going to be arrested. Journalist are calling me everyday [sic]. Please forgive me.”

3.13 The journalist also reported that the newspaper had tried in vain to solicit comments from the woman, “but her cellphone rang unanswered and she did not respond to a message sent to her”.

4. The arguments

4.1 The newspaper

4.1.1 Wally Mbhele submits there is no requirement in journalism or in law that prescribes that journalists or the media should obtain permission from an alleged rape victim before publishing a story based on a police statement.

4.1.2 He argues, “Police statements are public records that could be accessed by anyone. The only rule pertaining to rape or alleged rape victims is that the media or journalists cannot reveal their identities without seeking a written permission from them. In all our published articles, we have not revealed [the woman’s] identity. On the contrary, it is [the woman] herself, who has revealed her identity on Twitter not the Sunday World.”

4.1.3 The editor also submits that no compelling argument has been put forward as to why the complainant suggests that the information was obtained illegally, or dishonestly and unfairly. He says obtaining statements from the police records has never been proven to be illegal nor unethical. “We submit that the information was not obtained through dishonest means … as we did not obtain the statements under disguise or coerced anyone to provide us with information relating to her alleged rape case.”

4.1.4 He adds:

• Sunday World was justified in obtaining these statements as the story was in the public interest, more especially as it involved two prominent television and radio personalities who were accused of rape at the time when gender-based violence had even been declared a pandemic by the President of South Africa;
• The complainant has waived her constitutional right to privacy when she unmasked her identity on social media platforms. “We have at no stage infringed on her right to privacy as we did not reveal her identity in [any of] our articles”; and
• An individual’s right to privacy cannot supersede the right of the public to access information, especially in criminal proceedings.

4.2 The complainant

4.2.1 Nampree says she believes it was unethical to leak a statement to the media – in her case, even before her docket was taken to the NPA.

4.2.2 She says it is not true that Malatji and/or Sunday World did not know that she had disputed authenticity of the WhatsApp message. She says that in less than 30 minutes of Euphonik posting the tweet, she disputed the content thereof.

4.2.3 “Any journalist who has the intention of reporting news that are true, and fair would have seen these tweets. Also, in less than an hour of Euphonik’s tweet, people were already showing discrepancies of his WhatsApp screenshot and again, a journalist who has the intention of reporting truthful and fair news would have looked in[to] this,” she submits.

4.2.4 Nampree also says to use the excuse that she did not pick up Sunday World’s calls on the day when her number was leaked by Euphonik in his tweet is not only antagonizing but also “very unrealistic” – she says she had over 200 calls logged after its publication.

4.2.5 Moreover, she continues, Malatji sent her a WhatsApp messages together with hundred other people, that simply read, “Good morning mam. Ngwako Malatji Sunday World newspaper. Please revert. Thank you.” She argues she did not know what she was expected to revert to. “In fact, if the Sunday World were in fact driven by ethical values and principles, they would have in the article published indicated that they attempted to get hold of me by calling and texting that the call/s and text were not responded.”

4.2.6 Nampree says Sunday World was forced to publish an apology “for being insensitive”. This apology, she indicates, was prompted by a letter written to them by Wise4Afrika and the subsequent protest by gender activists at their offices.

4.2.7 However, “Not once did they acknowledge writing lies about me which subjected me to a lot of abuse. Euphonik deleted the tweet not only because he illegally posted my number but because he realized that people saw how fake it was and we have supporting documents from IT specialists proving that.”

4.3 The newspaper again

4.3.1 In response to the above Mbhele says that, “on the balance of probabilities”, he agrees that Malatji should have been able to pick up Nampree’s denial of the WhatsApp message she purportedly sent to Euphonik, “if indeed her denial was trending on twitter”.

4.3.2 However, he says he disagrees with Nampree that she did not respond to the enquiry because she did not see it.

4.3.3 He also says Nampree was quoted as telling a Times Live journalist that she does not speak to the Sunday World. “Even if I want to venture into giving her any benefit of the doubt, the latter raises a very important question of whether she would have responded even if she had seen the enquiry,” he argues.

5. Analysis

5.1 The first article

5.1.1 The questions are if the newspaper should have asked Nampree for her consent to publish her sworn statement to the SAPS, and if the publication thereof has infringed on her right to privacy, confidentiality and her right of protection under the law.

5.1.2 Mbhele’s arguments, as documented above under Sub-sections 4.1.1, 4.1.2 and 4.1.3 are correct and do not need any elaboration.

5.1.3 My office has also obtained legal advice to the effect that it is not unlawful for a newspaper to publish the contents of a statement made by a person lodging a complaint at a police station.

5.1.4 As it was not unlawful or unfair to have obtained the relevant document, it really is irrelevant just how the newspaper got hold of it.

5.2 The second article

I have already dealt with the issues of consent and privacy, as well as with the newspaper having obtained a sworn statement to the SAPS.

5.2.1 Views not sought

5.2.1.1 Certainly, the newspaper should have tried to get comment from Nampree prior to publication.

5.2.1.2 It is not in dispute that Malatji did try to do so – the question is if he did so adequately.

5.2.1.3 On February 27 he sent Nampree the following WhatsApp message: “Good morning mam. Ngwako Malatji Sunday World newspaper. Please revert. Thank you.”

5.2.1.4 Let me recap Nampree’s arguments in this regard. In short, she argues as follows (documented above under Sub-sections 4.2.4 and 4.2.5):

• It was unrealistic to have expected her to respond to Malatji as she had over 200 calls logged after the publication of the article; and
• She did not know what Malatji expected her to respond to.

5.2.1.5 I find these arguments not convincing, for the following reasons:

• The reporter would not have known that Nampree was inundated with calls;
• Even if he did, that was not his problem – his job was to try to get hold of her. I have no reason to believe that he did not do so via phone calls, and Nampree admits that she received his WhatsApp message; and
• I agree that Malatji’s message was abrupt, to put it mildly. However, after the publication of the first article a mere month ago, as well as the number of calls logged on her phone, Nampree must have had an idea what the subject Malatji’s questions would be.

5.2.1.6 Based on the above, I have no reason to uphold this part of the complaint.

5.2.1.7 As such, I believe it is irrelevant whether Nampree has previously said, or not said, that she did not speak to Sunday World.

5.2.1.8 Nampree’s complaint that the story did not indicate that the newspaper attempted to get hold of her also does not hold water. This is what Malatji published: “Sunday World tried in vain to solicit comments from the woman, but her cellphone rang unanswered and she did not respond to a message sent to her.”

5.2.1.9 Having said all of this, it is not the end of the matter, as the reader will see immediately below.

5.2.2 No ‘apology’

5.2.2.1 The first major problem is that Malatji reported, as fact, that Nampree had sent the WhatsApp message which contained the apology, admitting that she had fabricated the allegation that she had been raped by Euphonik and DJ Fresh.

5.2.2.2 I am quoting the article in this regard: “The woman trended on social media platforms this weekend when she sent Euphonik … a WhatsApp message apologising for falsely accusing them of rape.”

5.2.2.3 I have no evidence that the reporter has tried to verify the authenticity of the tweet that he relied upon – which he should have done, especially in view of Nampree’s consistent denials that she had posted the tweet.

5.2.2.4 In response to the above Mbhele says that, “on the balance of probabilities”, he agrees that Malatji should have been able to pick up Nampree’s denial of the WhatsApp message she purportedly sent to Euphonik “if indeed her denial was trending on twitter”.

5.2.2.5 As I had to establish whether or not Nampree has indeed denied that the message came from her, I asked her for a screenshot of her alleged denial. I also asked the editor for a screenshot of the alleged apology. In both cases, I was interested in the date and time of these alleged messages.

5.2.2.6 I have established that Nampree sent several tweets around 09:30 on Saturday, February 27, denying that she had sent any messages in this regard and specifically that she had apologised for accusing the two TV and radio presenters falsely of raping her. These were hours before the publication went to print with the second story. The online story was only published on Monday, 1 March.

5.2.2.7 I therefore agree with both Mbhele and Nampree that Malatji should have taken note of those tweets – he was largely relying on social media for his story anyway, and it is not reasonable to believe that he did not take note of some of her denials.

5.2.2.8 I consider these denials as the comment that Malatji was seeking from her – which, for some reason, he did not publish.

5.2.2.9 To be blunt: I simply do not accept that he did not take cognisance of her tweets. Alternatively, if he did not, he was negligent not to do so. Either way, he was in the wrong – and seriously so, as Nampree’s tweets contained information material to his story.

5.2.2.10 For the record: It goes without saying that this office cannot pronounce on the veracity of Nampree’s accusations against Euphonik and DJ Fresh – ours is not a court of law.

5.2.3 Victimised as victim of sexual assault; dignity and reputation

5.2.3.1 Malatji reported that the same woman who accused Euphonik and DJ Fresh of raping her, had sex with a man from Diepsloot some three months before the alleged incident. He wrote this man said they had “alcohol-fuelled sex” in a car and that he could see she was not a virgin as “she was experienced”.

5.2.3.2 This rather graphic account provided the context for the second story, as in the first one the woman was quoted as saying that she had lost her virginity when she had been raped by Euphonik and DJ Fresh.

5.2.3.3 In this, I agree with the editor that the:

• story was in the public interest, as it involved two well-known TV and radio presenters “who were accused of rape at the time when gender-based violence had even been declared a pandemic by the President of the Republic of South Africa”; and
• the complainant has waived her constitutional right to privacy when she unmasked her identity on social media platforms.

5.2.3.4 I therefore accept that the newspaper was justified to publish the allegations made by the man from Diepsloot, as it put context to the first article.

5.2.3.5 My concern, though, is not that his allegations were published, but rather the way in which it was done. The graphic descriptions of the allegations (alcohol-fuelled sex in a car, the woman having been “experienced”), which the editor admits was untoward and in fact has apologised for, could only have damaged her reputation – and unnecessarily so. Of that I have little doubt.

5.2.3.6 To his credit, Mbhele stated the following in an editorial, published on March 7: “We can never be part of the silence against [gender-based violence]. It was not our intention to offend anyone. This is why I apologised – which I still do again today – for the tone of the article. We could have done better. We have subsequently removed the article from our website.”

5.2.3.7 However, I do not agree with Nampree that Mbhele was “forced to publish” an apology “for being insensitive”. I have no reason to doubt the editor’s sincerity in this regard – the tone of his editorial speaks for itself.

5.2.3.8 Kudos also for deleting this article from the internet.

6. Finding

6.1 The first article

The complaint regarding this article is dismissed in its entirety.

6.2 The second article

6.2.1 Views not sought

This part of the complaint is dismissed.

6.2.2 No ‘apology’

The newspaper was in breach of the following sections of the Press Code:

• 1.1: “The media shall take care to report news truthfully, accurately and fairly”;
• 1.2: “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions …”;
• 1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such”;
• 1.7: “The media shall verify the accuracy of doubtful information, if practicable; if not, this shall be stated”; and
• 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation.”

6.2.3 Victimised as victim of sexual assault; dignity and reputation

6.2.3.1 The publication of the graphic, and demeaning, descriptions of the allegations made by the Diepsloot man was in breach of Section 3.3 of the Press Code that reads, “3.3: “The media shall exercise care and consideration in matters involving dignity and reputation.”

6.2.3.2 The complaint about the invasion of Nampree’s privacy 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 breaches of the Press Code as indicated above are all Tier 2 offences.

8. Sanction

8.1 Sunday World is directed to apologise to Nampree for:

• unfairly stating, as fact, that she had apologised to Euphonik and DJ Fresh for falsely accusing them of raping her, without any verification to this effect;
• neglecting to report her repeated denials that she was the author of the “apology”; and
• not exercising care and consideration in matters involving dignity and reputation.

8.2 The newspaper is directed to publish the apology, as outlined directly above on the same pages and platforms that the second story was published, with a headline containing the words “apology” or “apologises”, and “Nampree”.

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