Asylum Seeker Refugee and Migration Coalition vs BloemNews
BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA
In the matter between
Asylum Seeker Refugee and Migration Coalition Applicant
and
BloemNews Respondent
Matter no: 32070/10/2024
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DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
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- This is an application by the Asylum Seeker Refugee and Migration Coalition (applicant) for leave to appeal the Ruling of the Deputy Press Ombud dated 6 January 2025, dismissing the applicant’s complaint about an article published by BloemNews (the respondent), which is part of the group Media24. The article was published on 25 October 2024 with the headline “Illicit cigarettes worth an estimated R1,9m confiscated in Bloemfontein”. The part of the article which the applicant objected against was this:
“SAPS reacted to information about a warehouse used to store illicit cigarettes and arrested a 41-year-old foreign national in the Bloemfontein CBD”. The applicant objected in particular against the description of the person arrested as being a “foreign national”. It says by mentioning that the person was a “foreign national” was in breach of clause 5.1. The respondent disputed this. In his Ruling, the Deputy Press Ombud dismissed the complaint; the applicant is now seeking leave to appeal the dismissal of the complaint. I must now determine whether there are reasonable prospects of success on appeal.
- As said earlier, the objection was against the part “foreign national”; it was alleged that article 5.1 was breached, which reads:
“The media shall
5.1 avoid discriminatory or denigratory references to people’s race, … ethnic or social origin … 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 it is in the public interest”.
- The applicant argued that the person’s dignity was violated in that by referring to him as a foreign national, injured his dignity in connecting him to a crime. Secondly, it was argued that the article “presents the details as if they are facts, with no qualifying language to temper any misconceptions.” The Ruling correctly summed up the complaint: Firstly, that the applicant “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’ ….. The complainant argues that doing so is in breach of Clause 5.1 of the Press Code… 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’”.
- The respondent defended the article. The gist of its defence was this:
“The report was based on an official statement by the SAPS that referred to the arrested person as a ‘foreign national’. We argue in light of section 5.1 of the Press Code that this statement is not a discriminatory or denigratory reference to the arrested, but merely stating the fact that he is 41-years old and a foreign national. It is also not pejorative or prejudicial by stating a fact taken directly from a police statement”.
- The difficulty with the complaint seems to be that the applicant is of the view that the mere reference as a “foreign national” inherently carries negative connotations which are discriminatory or denigratory. I say so for three reasons. Firstly, this appears from the way the complaint is formulated; secondly, from the way the applicant presents its case, and thirdly, from its misplaced reliance on the Goss matter[1]. But it is wrong to perceive reference to “foreigner” or “foreign national” as being inherently “discriminatory or denigratory”. More is needed in the form of context; for example, reference to a “foreign national” in the following context cannot be said to be discriminatory or denigratory: “ A foreign national who only arrived this year in the country to do Grade 12 topped the entire country.” Far from anything, context suggests a huge compliment, the use of the words “foreign national” There are many people living in this country who would openly and proudly admit to their foreignness with no interest whatsoever in being a citizen of the country. Ask them if they are foreigners, and the answer would be a ready and proud “Yes, I am a foreign national.”
- That said, one understands the applicant’s concern. There have been statements made about foreigners which in some cases were clearly xenophobic. We cannot countenance such statements. When reference is made to a foreigner, the nature of the statement and the context are therefore important. In other words, even though the reference “foreign national” is not inherently discriminatory or denigratory it can, in a given case, be unacceptable. The question before the Deputy Ombud was whether the present was such a case. This remains the question in determining the application’s prospects of success on appeal.
- The Deputy Ombud dealt in minute details with both the nature of the statement and the context. Amongst others he, to use his words, said that it was 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. Such information is deemed official; that being so, the media cannot be expected to qualify every single report from the police. The Deputy Press Ombud also makes this point: “Furthermore, the SAPS comments relate to the illicit cigarettes allegedly found in the warehouse and not to the individual arrested”. In other words, the thrust or focus of the statement was about the finding of illicit cigarettes than the individual. He also made the point, correctly, that the issue of illicit cigarette dealing, together with its impact on revenue collection and on the economy, was widely reported and was a matter of public interest; and he pointed out that foreign nationals have been arrested and convicted of illicit cigarette dealing, and also referred to such illicit dealings across the border. The complaint was therefore correctly dismissed.
- While ill-considered reference to a foreign national should be deplored, the Deputy Ombud says it cannot be so “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”. He points out that either of the two extremes would give a very distorted picture of the reality we live in. While positive things about foreign nationals should and are often times mentioned (and they are many), the other reality is that there are also many foreign nationals in South African prisons. Recently, in her interview on national television, the Chair of the Portfolio Committee on Correctional Services said there were about 25,400 foreign nationals behind bars in the country, up from 22,000 last year. That is the reality.
- There are times when the truth may cry to be told. Imagine this statement in an article written in South Africa: “A 47-year old South African man was arrested for drugs in Bloemfontein”. Since Bloemfontein is in South Africa anyway, the addition “a South African” would raise some eye-brows, as would a statement in an article written in Nigerian stating that a Nigerian has been arrested in Lagos (Nigeria) for, say, shoplifting. (Emphasis made to drive the point). This is because once an article written in South Africa says a 47 year old man was arrested in Bloemfontein, it would be assumed, as a default position, that the person is a South African as opposed to being a foreign national. But what happens if the person is not a South African but a foreign national? Shouldn’t that be mentioned? The problem with the applicant’s demand that that should not be mentioned is that the populace would automatically be left in the default position to assume, incorrectly, that the person is a South African; that is, as the Deputy Ombud says, they would remain with the incorrect picture. To save the populace the incorrect picture, if the arrested person is not a South African, it would have to be stated that the person is a foreign national. Why should the public be denied the truth when (as indicated above) the words “foreign national” are not inherently discriminatory? It borders on the absurd to suggest that if the person arrested is a “foreign national”, the media should not reveal that truth to the public. It must be born in mind that the public are in any case aware that there are some foreign nationals who get arrested, found guilty and sentenced; this is the truth and the reality the public live with. While gratuitous and ill-considered reporting should be deplored, a stage should never be reached where the media is prohibited from informing the public that a foreign national has been arrested, if indeed that is the truth and provided they report so in an acceptable manner. In an open and democratic society, it is not for anybody to try to determine or question what the public would do with a truthful information, or question the relevance of the truth honestly and fairly reported. As the Deputy Ombud correctly says, this is not a case where there has been ill-considered and derogatory reference to a foreign national.
- The application has no reasonable prospects of success; it is therefore dismissed.
Dated this 17th day of February 2025.
Judge B M Ngoepe, Chair, Appeals Panel
[1] Goss v News24, Matter NO 8524/02/2021 (Appeals Panel Decision)
