ASRM Coalition vs BloemNews
6 January 2025
Finding: Complaint 32070
Headline:
Illicit cigarettes worth an estimated R1.9 million confiscated in Bloemfontein
Date of publication: 25 October 2024
Author of article: No byline
Particulars
This finding is based on a written complaint by Mr Muchengeti Hwacha on behalf of the Asylum Seeker, Refugee and Migrant Coalition; a written response on behalf of BloemNews by Dr George Claassen, Public Editor of News24 and Media24 Community Press; and a written response by Mr Hwacha along with three annexures.
Complaint
The complainant submits that the article transgresses Clause 5.1 of the Press Code:
“The media shall:
“5.1. avoid discriminatory or denigratory references to people’s race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or other status, and not refer to such status in a prejudicial or pejorative context – and shall refer to the above only where it is strictly relevant to the matter reported, and if it is in the public interest; …”
- Summary of article
1.1. According to the article, a tactical response team of the SAPS arrested a foreign national after it received information about a warehouse in the Bloemfontein CBD that was allegedly used to store illicit cigarettes.
1.1.1. When the SAPS team searched the warehouse, it reportedly found an estimated 97 boxes of illicit cigarettes worth an estimated R1.9 million.
1.1.2. The suspect, who was arrested for possession of illicit cigarettes, was due to appear in the Bloemfontein Magistrates’ Court.
1.1.3. Free State police commissioner Baile Motswenyane reportedly said that such illegal activity negatively affected South Africa’s economy and he commended the police for responding to illegal activities.
- Arguments
ASRM Coalition
2.1. The Asylum Seeker, Refugee and Migrant (ASRM) Coalition objects to crime reporting that specifies the nationality of alleged offenders “in circumstances where such a description is irrelevant, and has the potential of propagating harmful stereotypes about non-citizens”.
2.1.1. The complainant argues that doing so is in breach of Clause 5.1 of the Press Code.
2.1.2. It further argues that the article in question presents certain details as if these are facts and that it does not provide any “qualifying language to temper any misconceptions”.
2.2. The complainant notes that the right to dignity is enshrined in Section 10 of South Africa’s Bill of Rights, which states that everyone has inherent dignity and that this must be respected and protected.
2.2.1. It also refers to the Press Council’s appeal hearing decision in Goss Marlon vs News24[1] and regards it as “the authoritative precedent with respect to the anti-denigration clause”.
2.2.2. The ASRM Coalition submits that, according to this decision, discriminatory and denigratory references to certain characteristics are prohibited; that it is always unacceptable for such references to be made in a prejudicial or pejorative context; and that such references are prohibited unless they are strictly relevant and in the public interest.
2.3. In support of this argument, the complainant refers to academic research, a 2009 report by the South African Human Rights Commission, the 2023 version of the Press Council publication Decoding the Code and the 2022 version of the South African National Editors’ Forum publication Reporting the Courts: A guide for South African journalists.
2.3.1. The ASRM Coalition also refers to a reporting guide published by civil society organisations working in the field of migration which sets out “a discrimination test”.
2.4. The complainant then proceeds to apply the Goss Marlon vs News24 test to its complaint and submits that the references to nationality in the BloemNews article breaches the anti-denigration clause.
2.4.1. It submits that the first requirement of this test is that there should be no discriminatory and denigratory references to characteristics such as nationality, and that such references are prohibited except in certain strict circumstances.
2.4.2. It argues that the second requirement of the test is that references to certain characteristics must not be made in a prejudicial or pejorative context. It repeats its argument that harmful stereotypes are perpetuated by depicting “non-citizens” as criminals.
2.4.3. It contends that the third requirement of the test is that references to such characteristics must be strictly necessary and in the public interest. It submits that both of these “sub-elements” must be satisfied.
2.4.4. The complainant submits that the Press Ombud addressed the issue of the relevance of references to nationality in its ruling of Timothy Omotoso vs Drum magazine.[2] In that case, it was found that reference to country of origin was relevant as there was a criminal charge that the complainant was in South Africa illegally. However, the ASRM Coalition argues, there is no immigration-related charges in the BloemNews article; as a result, it says, reference to nationality is not relevant.
2.4.5. Regarding the question of public interest, the complainant submits that it is difficult – if not impossible – to conclude that mention of the nationality of alleged criminals is in the public interest. Conversely, it says, there is evidence that such references are detrimental to the public interest by causing rifts that lead to violence against migrants.
2.5. The complainant concludes by stating that, when the test in Goss Marlon vs News24 is applied, the reference to nationality in the BloemNews article is in breach of the anti-denigration clause.
2.5.1. The ASRM Coalition adds that the article fails to adhere to any of the crime reporting best practices in the various industry guides that it enumerates. In view of the power of the media to shape societal perceptions, it submits, it is inappropriate not to adhere to industry best practices.
2.5.2. To remedy this, it calls for a prominently displayed apology and a correction in line with Tier 2 of Clause 8.1 of the Press Council’s Complaints Procedures.
BloemNews
2.6. In response, the respondent notes that the complaint is specifically directed at the reference in the opening paragraph of its article to the arrest of “a 41-year-old foreign national”.
2.6.1. It states that the article was based on an official statement by the SAPS that referred to the arrested person as a “foreign national”.
2.6.2. It argues that, in light of Clause 5.1 of the Press Code, this statement is not a discriminatory or denigratory reference to the arrested man and merely states his age and the fact that he is a foreign national. It adds that it is not pejorative or prejudicial to state a fact that is taken directly from a SAPS statement.
2.7. The respondent further submits that Clause 5.1 requires such references to be strictly relevant to the matter reported and contends that it is indeed relevant “that a foreign national’s arrest was linked to illicit cigarette trading”.
2.7.1. It refers to extensive references in Jacques Pauw’s book, The President’s Keepers, to the involvement of foreign nationals in illicit tobacco smuggling and, in particular, to his revelations that illicit tobacco smuggling cost the country millions in tax avoidance.
2.7.2. BloemNews also refers to Pauw’s subsequent book, Our Poisoned Land, in which he writes extensively about the illegal tobacco smuggling industry and its strong links to Zimbabwe.
2.7.3. In addition, the publication cites former South African Revenue Service (SARS) executive Telita Snyckers’ book, Dirty Tobacco: Spies, Lies and Mega-Profits, in which she draws links to the involvement of foreign nationals in smuggling in the tobacco industry.
2.7.4. BloemNews refers as well to various media reports about the link between the involvement of foreign nationals in illicit tobacco smuggling (for example, https://www.timeslive.co.za/news/south-africa/2023-10-13-pay-r5m-or-spend-more-time-in-jail-court-tells-foreign-national-found-smuggling-illicit-cigarettes/).
2.7.5. Lastly, it quotes from a SARS news statement on 27 February 2023 that “on average, over 500 people cross the border on any given day, with each person smuggling at least two master cases of illicit cigarettes on their backs” (https://www.sars.gov.za/latest-news/media-release-joint-operation-nets-illicit-cigarettes-worth-millions/).
2.8. The respondent concludes by stating that its article does not breach Clause 5.1 of the Press Code.
2.8.1. It reiterates that the article was based on a SAPS statement; that it was merely stating facts about the arrest and was not in any way derogatory or denigratory towards foreign nationals; and that mentioning that the arrested person was a foreign national was relevant in light of the involvement of foreign nationals in tobacco smuggling.
ASRM Coalition
2.9. The complainant addresses each of the reasons offered by the respondent in point 2.8.1 above.
2.9.1. Firstly, it dismisses the argument that the article is based on a SAPS statement as “an attempt to distance itself from responsibility for [the] use of denigratory language”.
2.9.2. It reiterates that the article presents certain details as facts without any qualifying language to moderate any misconceptions. For example, it says, the article does not preface details of the arrest by reporting that “it is alleged” or that it is “according to the SAPS”.
2.9.3. As a result, it argues, the respondent assumes full responsibility for the statement that “… Parkweg SAPS … arrested a 41-year-old foreign national”. It therefore rejects “[a]ny attempt to obfuscate responsibility and place it on a SAPS report with denigratory language”.
2.9.4. It claims that the respondent “avers that so long as its source material is a government entity, its republication of derogatory language is defensible”. It likens this to the days when the SABC was used as a propaganda tool to advance the views of the apartheid government.
2.9.5. It adds that BloemNews is held to a higher standard than the SAPS in the form of the Press Code. As such, it suggests, basing its article on a SAPS statement is not a defence for using denigratory language that could potentially cause harm.
2.10. Secondly, the complainant addresses the issue of whether or not the reference to nationality in the article is discriminatory and denigratory.
2.10.1. It refers to the Constitutional Court ruling in Labri-Odam v MEC for Education (North-West)[3] that held that differentiating on the basis of nationality has the potential to impair the fundamental dignity of individuals.
2.10.2. In addition, the ASRM Coalition refers to the Press Council ruling in Jesse Myburgh vs Roodepoort Record,[4] in which the Press Ombud held that references to certain characteristics “only need scrutiny in terms of the Press Code”. On the other hand, it says, Myburgh wanted the context of such references to be taken into account as well.
2.10.3. In relation to the BloemNews article, the ASRM Coalition submits that there are numerous instances where the publication specifies that an alleged criminal is a foreign national, yet other articles – which presumably involve South African citizens – do not mention their nationality.
2.10.4. The complainant claims that such “disproportionate treatment” perpetuates negative stereotypes against non-citizens. As such, it argues, the issue of context justifies the conclusion that the reference to nationality in the BloemNews article is discriminatory or denigratory.
2.10.5. The ASRM Coalition further submits that, when applying the test of the reasonable reader, it is important not only to consider “what the words expressly say”, but also to consider what they imply – “that non-citizens are prone to this particular type of criminality”.
2.10.6. The complainant contends that BloemNews itself says so in its response by “mentioning the fact that the arrested person was a foreign national, was relevant in light of the facts that foreign nationals are involved in tobacco smuggling” (see point 2.8.1).
2.10.7. It regards this as a sweeping statement and argues that there is in fact no evidence that the matter in the article involves smuggling. Instead, it raises the possibility that the illicit cigarettes were produced in South Africa for domestic distribution.
2.11. Thirdly, the complainant submits that the respondent is missing the point by stating that non-citizens have been linked to the smuggling of illicit cigarettes and that mentioning the nationality of the alleged criminal offender in this instance is therefore relevant.
2.11.1. It notes that the BloemNews article never mentions smuggling (which the ASRM Coalition defines as illegal cross-border trade with the effect of evading taxation).
2.11.2. Instead, it claims, many credible sources have established that the vast majority of illicit cigarette sold in South Africa are manufactured locally.
2.11.2.1. As an example, it points to the Tobacco Institute of Southern Africa and its presentation to the Parliamentary Portfolio Committee on Police of 6 March 2019 (annexure “A”). It flags the reference in the report that the “bulk of illegal cigarettes sold in SA are manufactured locally”.
2.11.2.2. It also cites a technical report on the illicit tobacco trade in Southern Africa by the World Bank Group, which reports that “most of the illicit packs in South Africa are believed to originate from domestic illicit manufacturing” (annexure “B”).
2.11.2.3. Lastly, it refers to a report of the Tobacco Control Data Imitative, which notes that “most illicit cigarettes in South Africa are produced domestically” (annexure “C”).
2.12. The complainant submits that, in the circumstances, mentioning the nationality of the alleged criminal offender cannot in any way be relevant to the BloemNews article.
2.12.1. It reiterates that, based on the evidence of credible sources, it is conceivable that the illicit cigarettes found by the SAPS were manufactured in South Africa and were for local consumption. Accordingly, it argues that any reference to nationality is irrelevant.
2.12.2. The ASRM Coalition suggests that the respondent jumps to the issue of smuggling whereas it is not present in the article in question and that this “only serves to underscore the lack of care taken when reporting on the alleged crimes of non-citizens”.
2.13. In conclusion, the complainant repeats its call for an apology and a correction.
- Analysis
3.1. The gist of the complaint is that the reference to a “foreign national” in the first paragraph of the BloemNews article is irrelevant and that it has the potential to propagate harmful stereotypes about non-South African citizens.
3.1.1. The ASRM Coalition starts off by claiming that the article presents certain details as facts and that it does not qualify these details. In particular, it notes that the article does not report that these details are allegations or that these details are “according to the SAPS” (see points 2.1.2 and 2.9.2).
3.1.1.1. It argues that BloemNews merely accepts the information offered by the SAPS as proven facts. By doing so, it claims, the publication accepts full responsibility for these details.
3.1.1.2. However, it is standard practice in crime reporting to report on an account or statement provided by the SAPS. It is only when information to the contrary is available that routine police reports are interrogated or qualified.
3.1.1.3. In the absence of such information, the media cannot reasonably be expected to interrogate or to qualify each and every single claim made by the SAPS.
3.1.1.4. In the case of the BloemNews article, the first paragraph is based on an official statement by the SAPS and there was no reason at the time to qualify the information contained in it.
3.1.1.5. The publication was also entitled to report elsewhere in the article on the SAPS comments on the illicit cigarettes that were allegedly found in the warehouse. These comments are clearly attributed to the police provincial commissioner.
3.1.1.6. Furthermore, the SAPS comments relate to the illicit cigarettes allegedly found in the warehouse and not to the individual arrested. It is therefore unclear how the complainant can draw the conclusion that the SAPS comments are derogatory or denigratory.
3.1.1.7. In light of the above, this aspect of the article is not in breach of Clause 5.1 of the Press Code.
3.2. The ASRM Coalition further argues that a reference to nationality in crime reporting can reinforce or perpetuate certain harmful stereotypes of non-citizens (see point 2.1).
3.2.1. In general terms, ill-considered or gratuitous references to the nationality of non-South African citizens can indeed play a destructive role in generating hostility among South Africans towards non-citizens.
3.2.1.1. Xenophobia has certainly become a problem of increasing concern in South Africa as can be seen, for example, in the violent attacks on foreign nationals in May 2008, which claimed the lives of at least 19 people from other countries.[5]
3.2.1.2. Nevertheless, it is far-fetched to suggest that, in and of itself, the reference in the first paragraph of the BloemNews article to a “foreign national” either denigrates or stereotypes non-citizens.
3.2.1.3. It is a one-off reference and does not appear anywhere else in the article. The complainant therefore appears to be making a vastly overstated claim about the extent to which this article casts aspersions on foreign nationals.
3.2.1.4. There is no truth in the complainant’s claim that the article “refers to the nationality, or foreignness of the alleged perpetrator in the body of the text”. The only reference in the article to the nationality of the man arrested by police is in the first paragraph.
3.2.1.5. As a result, there are insufficient grounds in relation to this aspect of the complaint to conclude that the article is in breach of Clause 5.1 of the Press Code.
3.3. The complainant goes on to cite the Press Council’s appeal hearing decision in Goss Marlon vs News24 as “the authoritative precedent with respect to the anti-denigration clause” (see point 2.2.1 above), and makes specific reference to the requirements regarding the relevance and public interest of certain statements.
3.3.1. A key issue at stake in the ASRM Coalition’s complaint is, of course, whether it was relevant in the first place to refer to the man who was arrested at the warehouse as a “foreign national” – whether or not this detail was indeed accurate.
3.3.1.1. With regard to the Goss Marlon vs News24 appeal hearing decision, the complainant refers to the Mirriam Webster dictionary meaning of the word “denigrate” as “to attack the reputation of”, and submits that “[i]t is obvious therefore that any reference to criminal allegations will be denigratory” (my emphasis).
3.3.1.2. Such an interpretation of the appeal hearing decision is unreasonable. This implies, for example, that there should not be any reference to nationality even when those arrested in South Africa are allegedly involved in international crime syndicates.
3.3.1.3. Conversely, such an interpretation of the appeal hearing decision implies that a reference to nationality should only be made when a foreign national is involved or associated with an activity that is deemed to be positive.
3.3.1.4. However, to engage in such selective reporting would be almost as misleading as gratuitously referring to the nationality of individuals who are the subject of crime reporting. Both practices would provide a very distorted picture of reality.
3.3.1.5. It is unlikely that this is the intention of the Goss Marlon v News24 appeal hearing decision.
3.3.1.6. With regard to the BloemNews article, the publication submits that it was relevant to refer to a “foreign national” in light of the involvement of non-citizens in the smuggling of illicit cigarettes.
3.3.1.7. The complainant’s submission that the illicit cigarettes allegedly found in the Bloemfontein warehouse may have been produced in South Africa is certainly valid – in other words, these cigarettes were not necessarily smuggled across the country’s border.
3.3.1.8. However, quite frankly, the complainant makes far too much of this aspect (see points 2.10.7, 2.11 to 2.11.2.3 and 2.12.1 and 2.12.2). So, too, for that matter, does the respondent (see points 2.7.1 to 2.7.5).
3.3.1.9. The key issue is not whether the illicit cigarettes were produced in South Africa or whether they were smuggled across South Africa’s border. The fact remains that foreign nationals have been involved in and convicted of activities related to the trade in illicit cigarettes.[6]
3.3.1.10. In the case that is the subject of this complaint, the SAPS itself declared in its official statement that the individual arrested was a “foreign national”, presumably because it deemed this aspect to be relevant in this particular instance.
3.3.1.11. To reiterate, there was no reason to question or to qualify the official statement of the SAPS in the BloemNews article (also see points 3.1.1.2, 3.1.1.3 and 3.1.1.4). As such, there is no breach of Clause 5.1 of the Press Code.
3.3.2. In line with Clause 5.1, the appeal hearing decision in Goss Marlon vs News24 also refers to the requirement of public interest that must be met in order to justify referring to certain characteristics of an individual.
3.3.2.1. The preamble of the Press Code describes public interest as “information of legitimate interest or importance to citizens”.
3.3.2.2. As BloemNews notes in its response to the complaint, there is already much information available in the public domain about the involvement of foreign nationals in illicit activities in the tobacco industry and it refers to various sources as examples.
3.3.2.3. This is by no means to suggest that only foreign nationals are involved in such activities. Nevertheless, in light of the information already available in the public domain, there is certainly a case to be made that South Africans have a legitimate interest in knowing about the involvement of foreign nationals in illicit activities in the tobacco industry when this does occur.
3.3.2.4. In fact, to suppress information about the alleged involvement of foreign nationals in such criminal activities may turn out to be counterproductive and lead to wild and uninformed speculation about the scale and nature of their involvement, thereby potentially aggravating animosity towards non-citizens.
3.3.2.5. The complainant does have a point when it argues that there is evidence that references to the nationality of alleged criminals are detrimental to the public interest by causing rifts that lead to violence against migrants (see point 2.4.5).
3.3.2.6. However, with specific reference to the BloemNews article, it is once again necessary to point out that it is a gross exaggeration to claim that a single reference to a foreign national in the article stereotypes all foreign nationals as criminals and thereby harms the reputation of all foreign nationals.
3.3.2.7. On balance, the requirement of public interest is arguably best met by publishing reliable information on the alleged involvement of foreign nationals in crime, based on an assessment of the merits of each particular case.
3.3.2.8. Based on the considerations set out above in points 3.3.2.1 to 3.3.2.7, the BloemNews article sufficiently complies with the public interest requirement of Clause 5.1 of the Press Code.
3.4. The complainant refers as well to the Press Ombud ruling in Timothy Omotoso vs Drum magazine in its submission. This ruling found that the reference to an individual’s country of origin was relevant in that instance as there was a criminal charge that the complainant was in South Africa illegally (see point 2.4.4. above).
3.4.1. However, it is unreasonable to use this finding to suggest that a reference to the nationality of an individual is relevant only in circumstances when he or she is charged with “immigration-related” offences.
3.4.1.1. As argued earlier, there cannot be a blanket ban on references to the alleged involvement of foreign nationals in crime reporting. Each reference must be assessed on its own merits.
3.4.1.2. To suggest that a reference to nationality should only be made in a positive context would be almost as misleading as a gratuitous reference to the nationality of individuals who are the subject of crime reporting. Both practices would result in a skewed picture of reality.
3.5. The ASRM Coalition further refers to the Jesse Myburgh vs Roodepoort Record ruling in its complaint and submits that Myburgh wanted the context of references to certain characteristics to be taken into account (see point 2.10.2. above).
3.5.1. However, as noted earlier, it is quite a leap of logic to suggest that the single reference to a “foreign national” in the BloemNews article denigrates or stereotypes non-citizens (see 3.2.1.2 and 3.2.1.3).
3.5.1.1. It is unlikely that a reasonable reader would understand the reference in question as implying or suggesting that non-citizens are more likely to be involved in criminal activities than South Africans.
3.6. The ASRM Coalition also refers to the Constitutional Court ruling in Labri-Odam v MEC for Education (North-West) in relation to the potential that differentiating on the basis of nationality has to impair the dignity of individuals (see 2.10.1 above).
3.6.1. As stated in previous Press Ombud rulings, the Press Council is not a court of law and does not engage in interpreting the law.[7] The role of the Press Ombuds is confined to upholding and enforcing the Press Code.
3.7. In conclusion, it is necessary to emphasise that there cannot be a blanket ban on references to the alleged involvement of foreign nationals in crime reporting. Each instance must be weighed up and assessed on its own merits.
3.7.1. And, when doing to, the media must exercise due care and consideration to avoid careless and gratuitous references to the alleged involvement of foreign nationals in criminal activities. Failing to do so would not only be reckless and even dangerous, but in disregard of the Press Code.
- Finding
The complaint that the article is in breach of Clause 5.1 is dismissed for the reasons set out in points 3.1.1.2 to 3.1.1.7; 3.2.1.2 to 3.2.1.5; 3.3.1.1 to 3.3.1.11; 3.3.2.2 to 3.3.2.8; 3.4.1 to 3.4.1.2; and 3.5.1 to 3.5.1.1 of my Analysis.
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]
Tyrone August
Deputy Press Ombud
6 January 2025
[1] https://presscouncil.org.za/2021/06/11/appeal-hearing-decision-goss-marlon-vs-news24/
[2] https://presscouncil.org.za/2018/07/31/timothy-omotoso -vs-drum-magazine/
[3] See Larbi-Odam and Others v Member of the Executive Council for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745 (26 November 1997)
[4] https://presscouncil.org.za/2021/11/08/decision-to-adjudicate-jesse-myburgh-vs-roodepoort-record/
[5] A Human Rights Watch report states that “the attacks are indicative of growing xenophobia in South Africa, where isolated incidents of violence against foreign nationals have been documented since the mid-1990s. Intolerance of migrants partly provoked by competition for resources and by increasing numbers of migrants, particularly from Zimbabwe, has created a volatile situation in poor communities, with foreign nationals becoming easy targets.” See https://www.hrw.org/world-report/2009/country-chapters/south-africa
[6] See, for example, https://www.saps.gov.za/newsroom/msspeechdetail.php?nid=51358# and https://www.saps.gov.za/newsroom/msspeechdetail.php?nid=55716
[7] See, for example, https://www.presscouncil.org.za/2024/07/04/raymond.j.paola-vs-daily-maverick/