Alex Mthiyane vs. Daily Sun

SUMMARY

The headline to the story in dispute read, Radio man took my phone!’ (published on 31 January 2017).

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

 

The article said that Alex Mthiyane had spent a night behind bars after he allegedly took someone’s cell phone without his consent. According to a source, Mthiyane did appear in court, but his case was withdrawn because the complainant merely wanted his phone back.                         

The gist of Mthiyane’s complaint was that the story:

• identified him with regards to a criminal case;
• incorrectly stated that he had appeared in court; and
• falsely reported that he had taken a person’s phone without his consent.

Retief said he was suspicious about the source who reportedly told the newspaper that Mthiyane had appeared in court. He said he had phoned this source – who denied that he gave the journalist any information (let alone stating that Mthiyane had appeared in court). He also considered that Mthiyane’s appearance in court was not stated as a fact – which, the Ombud believed, had to serve as mitigation.

Daily Sun was directed to correct and retract the statement that Mthiyane appeared in court – despite reporting that a source alleged that he did.

Retief said the issue confronting him, boiled down to the question:  was it fair to Mthiyane to mention him by name? He dismissed this part of the complaint, inter alia because the mere fact that Mthiyane had been kept behind bars for a night was newsworthy, as he was a well-known public figure. In this case, public interest weighed heavier than Mthiyane’s right to privacy, the Ombud opined.

 

THE RULING ITSELF

This ruling is based on the written submissions of Mr Alex Mthiyane, Gagasi FM presenter, and those of Johan Vos, deputy editor of the Daily Sun newspaper.

Mthiyane is complaining about a story in Daily Sun of 31 January 2017, headlined ‘Radio man took my phone!’

Complaint                                            

Mthiyane’s main complaint is that the newspaper identified him with regards to a criminal case – which was withdrawn without him ever appearing in court.

He also complains that the newspaper incorrectly stated that he had:

·        appeared in court;

·        sworn at the source and took his phone without his consent; and

·        been dressed in a three-piece suit.

The text

The article, written by Mxolisi Mngadi, said that Mthiyane had spent a night behind bars after he allegedly took someone’s cell phone without his consent. According to a source Mthiyane did appear in court, but his case was withdrawn because the complainant merely wanted his phone back.

The complaint in more detail

Explaining his complaint, Mthiyane says it is true that he was in police custody for one night after somebody had approached the KwaMashu police station, alleging that he had robbed and intimidated that person.

However, he says, the complainant withdrew the charges against him within 24 hours – the docket therefore never reached the court. “By law if the suspect has not or did not appear in court, the name should be withheld. My rights were infringed and essentially my character tarnished as a result [of this reportage],” he argues.

Daily Sun responds

Vos says the journalist obtained his information about Mthiyane having appeared in court from a police source – therefore, he argues, the reporter had no reason to doubt this information. The story, he adds, attributed this information to this source. He quotes my finding in the matter of Mr Eugene Mthethwa vs. Sunday World, where I said: “The journalist garnered the information … from the police. I accept that the reporter had no reason to disbelieve such information, and therefore was justified to report it as fact.”

The deputy editor also submits that it was in the public interest to publish the article as Mthiyane is a public figure (a well-known radio presenter), and cellphone theft affects readers on a personal level. “We submit that it was in the public benefit to publish this article as a well-known radio personality ended up in jail after he was arrested for allegedly being in the possession of someone else’s cellphone,” he explains.

Vos also argues that the:

·        story was published after the case against Mthiyane had been withdrawn – which means that the newspaper did not disclose his name while he still was a suspect;

·        source (the complainant against Mthiyane) told the reporter that the latter had sworn at him, took his phone without his consent, and claimed that he had been dressed in a three-piece suit; the story attributed this information to that source (and did not state it as fact); and

·        reporter gave Mthiyane a right of reply – which he declined.

Vos concludes, “We believed the article to be reasonably true at the time of going to print, and in the public interest, and therefore decided to print.”

Mthiyane again

Mthiyane replies it is worrying that the newspaper put its trust in an anonymous source without verifying its information with the Department of Justice. He adds that the newspaper did not take the trouble to look for the relevant records in the court’s files (which did not even exist).

Analysis

I am adjudicating the part of the complaint dealing with incorrect statements first, as it will have a bearing on the gist of the matter.

Incorrect statements

Having appeared in court: The article attributed the statement that Mthiyane had appeared in court to a source.

In its defence against the complaint, Daily Sun informed me that this source was a policeman – which should have made the information reliable and the reportage justifiable.

That being the case, though, I found it strange, and rather unusual, that the journalist did not mention this source’s name or, at least, his designation. Surely, that would have made the reportage even more credible? And what harm could have come to the source if his information was correct?

This bothered me so much that I phoned this source – who denied that he gave the journalist any information (let alone stating that Mthiyane had appeared in court).

This leaves me between the devil and the deep blue sea.

Firstly, I do not have enough reason to believe that the reportage on this issue was correct. Of course I cannot be 100% sure, but given these circumstances I need to give Mthiyane the benefit of the doubt.

Conversely, for that very same reason (not being absolutely sure), I also cannot accuse the journalist of having lied in the story or to this office. I keep in mind that there are other possibilities as well, such as that he could have misunderstood his source and that he made a mistake in good faith. If the journalist indeed understood the policeman to have told him that Mthiyane had appeared in court, he was justified to report it – without having to verify this information elsewhere.

The story did not state Mthiyane’s appearance in court as fact – which, I believe, must serve as a mitigating circumstance.

In the end, then, I need to protect Mthiyane (as I believe the reportage on this issue has caused him some unnecessary harm), but I also have to be careful not to be unfair to the newspaper in that process.

The other issues: Regarding the allegation that Mthiyane swore at the complainant, took his phone without his consent, and was dressed in a three-piece suit, I need to refer to the case of Malema v Rampedi and Others, in which the Johannesburg High Court in 2011 regarded Malema’s failure to adequately respond to questions as an important factor favouring the reasonableness of the publication. The court said that the applicant “was in a position to properly answer and properly set forward facts which would cast a different light upon the issue should he have wished to do so” – and by failing to do so, added credibility to the newspaper’s sourcing.

This goes for Mthiyane’s complaint as well.

I have no way of knowing if this source spoke the truth or not, neither is it my job to determine whether he did. Given the fact that the story ascribed the allegations to a source, and that Mthiyane refused to speak to the newspaper, I am in no position to find for him on these matters.

Mthiyane identified

It is not in dispute that the charge against Mthiyane was dropped; I have also decided that it is reasonable to accept that he did not appear in court.

These considerations, of course, raise the question: at what stage is a newspaper entitled to identify a suspect (from a legal perspective, that is) – at the time of publication in this instance, the charge against Mthiyane had been dropped, there was no court case, and he was not a suspect (anymore).

The issue confronting me, then, boils down to the question:  was it fair to Mthiyane to mention him by name?

Given all of the above-mentioned considerations, there remained no reason for the newspaper to keep his identity from the public. Moreover, the mere fact that Mthiyane was kept behind bars for a night is newsworthy, as he is a well-known public figure. I am convinced that the public interest weighed heavier than Mthiyane’s right to privacy.

Finding

Incorrect statements

Having appeared in court: The quote from a source that Mthiyane had appeared in court is not reasonably true and was unfair, and is therefore in breach of Section 1.1 of the SA Code of Ethics and Conduct which reads, “The media shall take care to report news … accurately and fairly.”

The other issues: These parts of the complaint are dismissed.

Mthiyane identified

This part 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

Daily Sun is directed to correct and retract the statement that Mthiyane appeared in court – despite reporting that a source alleged that he did.

The text should:

·        be published:

o   on the same page as that used for the offending article;

o   online as well, if the offending article was carried on its website;

• refer to the complaint that was lodged with this office;
• end with the sentence, “Visit www.presscouncil.org.za for the full finding”; and
• be approved by me.

The headline should reflect the content of the correction.

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