Gavin Lewis vs. Daily Sun

SUMMARY

The headline to the story in dispute read, Farmers force us out! (published on 26 October 2016).

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 Gavin Lewis (on his Brakspruit farm near Klerksdorp) had allegedly dug a trench two meters deep around 314 houses, making it impossible for people living there to walk freely or to feed their animals.

Lewis complained that the:

• journalist neglected to ask for and to report his side of the story, despite having been provided with a proper response by his attorneys;
• article misleadingly classified him as part of the collective referral “farmers”; and
• story falsely portrayed him in a negative light, with the intention of promoting hatred towards farmers, contributing towards an expansion of rural conflict against farmers (who were “already vulnerable targets for farm attacks”).

Daily Sun was directed to apologise to Lewis, without any reservation, for unnecessarily and unfairly portraying him in a bad light by omitting material information which had been provided to the journalist by Lewis’s attorneys.

HOWEVER

Retief later rescinded this finding, because his judgment against the Daily Sun rested solely on the information which Lewis initially claimed his attorneys had provided the newspaper with and which the story omitted to report. It came to light, though, that the relevant information had never been sent to the newspaper.

He then dismissed the complaint in its totality.

The Ombud added that the information which never reached the newspaper was of such a nature that it necessitated a follow-up story.

 

THE RULING ITSELF

Dear all,

I hereby rescind my finding of 18 January 2017, for the following reason:

My judgment against the newspaper rested solely on the information which Lewis initially claimed his attorneys provided Daily Sun with (which, incidentally, was not denied by Vos at the time) and which the story omitted to report.

It came to light, though, that the relevant information was never sent to the newspaper.

This means that I have no reason to find that the publication has breached the Code, which includes the finding that the story was unnecessarily negative towards Lewis.

The complaint is therefore dismissed in its totality.

However, I need to remind Daily Sun of Section 1.9 which reads, “Where a news item is published on the basis of limited information…the reports should be supplemented once new information becomes available.

I submit that the information which never reached the newspaper is of such a nature that it necessitates a follow-up story.

Regards

Johan

 

THE RULING ITSELF

Ruling by the Press Ombud

18 January 2017

This ruling is based on the written submissions of Mr Gavin Lewis, owner of Lewis Landgoed Trust, and those of Johan Vos, deputy editor of the Daily Sun newspaper, as well as Dulile Sowaga (the publication’s North West bureau chief).

Lewis is complaining about a story in Daily Sun of 26 October 2016, headlined Farmers force us out!

Complaint                                            

Lewis complains that the:

·         journalist neglected to ask for and to report his side of the story, despite having been provided with a proper response by Lewis’s attorneys (details below);

·         article misleadingly classified him as part of the collective referral “farmers”; and

·         story falsely portrayed him in a negative light, with the intention of promoting hatred towards farmers, contributing towards an expansion of rural conflict against farmers (who are “already vulnerable targets for farm attacks”).

Lewis says his engagement with the affected community, represented by Cosatu, and the Department of Rural Development and Land Reform “was bona fide and an endeavour to avoid a cruel process of eviction by means of court orders”.

The text

The article, written by Sowaga and Matshidiso Legwale, said that Lewis (on his Brakspruit farm near Klerksdorp) had allegedly dug a trench two meters deep around 314 houses, making it impossible for people living there to walk freely or to feed their animals. The inhabitants reportedly also claimed that the farmer (a “new owner”) had cut off their water supply, closed off a graveyard, and that he had been making those people suffer so as to force them off his farm.

The story mentioned another farm, where a similar situation allegedly existed.

Lewis’s attorneys reportedly said that Cosatu had not consulted either Lewis himself or the Department, adding that an inspection would have shown that the allegations in question were false.

Daily Sun responds

Vos replies that Sowaga visited the site (on October 21), where he had witnessed the trench and that the water had been cut off. He adds that two witnesses corroborated Sowaga’s observations, and that the newspaper did give Lewis an opportunity to reply (his attorneys spoke on his behalf).

The article, he argues, was therefore reasonably true.

Sowaga argues that the story was about two farms, and not about farmers in general. He denies that the story was based on any documentation involving Cosatu or otherwise, and attests that he witnessed the situation himself.

The journalist adds that he did not have Lewis’s contact details, but only those of his attorneys – so he contacted them, asking them:

·         for the farmer’s side of the story, as well as his contact details; and

·         alternatively, to put to Lewis the specific allegations in question.

The attorneys, Sowaga attests, did not respond to specific questions, but merely pointed the newspaper to letters written by them and directed to Cosatu and to the Department “where they made numerous legal positions and threats”. He adds, “Their further response that legal action could ensue from the letter, made us to focus on our eye witness account, and the farmer’s response.”

The reporter denies that the newspaper aimed to create hatred towards farmers. “There is not a single word, phrase or sentence that can support this assertion,” he attests.

Lewis replies

Lewis says that, from Sowetan’s response, the newspaper clearly discarded the content of his attorneys’ letter ostensibly “by virtue of the fact that it was … provided to them on a law firm’s letterhead”.

He says this letter clarified that the “witness account of what was seen on the farm” was preceded by extended negotiations between himself, the Department and representatives of the occupiers of the farm.

He adds:

·         The ditch was created “to curtail further unlawful land invasions” – a “final and desperate attempt … to curtail land invasion on his property”;

·         There was no fencing left in the proximity of the necessary homestead, and that made it impossible for him to make use of parts of the land belonging to him;

·         The graves in question were directly adjacent to the main road between Ventersdorp and Klerksdorp, with no barrier between them which would prevent people to access the site;

·         No house occupied by any person was demolished; the ruins of rubble (in the picture which was published) were the remains of a well-known shop (at the corner of the intersection of the Eleazer / Hartbeesfontein road and the Ventersdorp / Klerksdorp road). This building belonged to him and he was within his rights to demolish it, adding that Daily Sun did not ask about this issue.

Lewis: “I hereby and unequivocally deny that I ever evicted any person from their house or demolished any structure as per the heading of the newspaper report. I also deny that these allegations were ever communicated to [me] or [to my] legal representatives.”

He says he is still waiting for the Department to intervene and facilitate the revisit of an agreement that had already been reached – a fact the newspaper chose to ignore. Daily Sun also did not contact the Department (especially Mr Ronett Veli “who could have given them a full background to this matter”) for comment.

Lewis questions the objectivity of the newspaper’s sources. He states, “I am specifically of the view that a person who is unlawfully occupying land, have (sic) a very definite motive to tarnish the image of the landowner.”

Analysis

The issues are the following:

·         Should Daily Sun have asked Lewis himself about the situation?

·         Did the story reflect his attorneys’ responses – and if not, were the omissions material?

·         Was the journalist justified to “classify” Lewis with the collective term “farmers”?

·         Did the story falsely portray Lewis in a negative light?

·         Was it the newspaper’s intention to promote hatred towards and conflict with farmers? If not, could the reportage have had this effect anyway?

General comment: In correspondence to this office, issues such as (illegal) evictions and the demolishing of a building were mentioned. As these matters do not feature in the disputed story, and therefore fall outside the scope of the complaint, I have largely omitted them.

Asking Lewis himself?

It was not necessary to ask Lewis himself, as his attorneys spoke on his behalf. Besides, the newspaper did try to get hold of him. If Lewis wants to blame anybody for not personally being afforded an opportunity to respond, he should look at his own attorneys, and not at Daily Sun.

Attorneys’ response properly reflected?

In order to rule properly on this matter, I need to take cognisance of the correspondence between the parties prior to publication.

This was the gist of Sowaga’s e-mail to Lewis’s attorneys:

He intended to write a story about the allegation regarding a ditch surrounding the homes of the farm dwellers, so as to evict them. Lewis had allegedly been making life difficult for the dwellers by digging the trenches, cutting off their water supply, closing off graveyards (and making them seek permission to bury their loved ones, giving them trouble when they seek permission, and trying to stop burials). As soon as one dweller left, Lewis demolished a brick house (instead of giving it to others living in a shack on the farm). The farm was “under the DA”, but “now it is under the ANC” – hence this ill-treatment. He asked for Lewis’s side of the story or, alternatively, for his contact details. “We have seen letters you have written to Cosatu and the Department of Land Affairs but we need authorized comment to be used in our story,” he stated.

In a rather detailed response, Ms Clarissa Pienaar (on behalf of the relevant law firm and also of Lewis) inter alia told Sowaga the following:

Apart from the permanent structures that were erected prior to Lewis’s purchase of the farm, several corrugated-iron shacks (“almost” 32) were erected on the property without his consent and as a result of an illegal land invasion; ·         Some dwellers who were beneficiaries of Land Reform and who were supposed to relocate to alternative land purchased for them by the State, opted to remain on Lewis’s property and even allowed others to occupy that land – but instead of litigating, the farmer engaged the Department to facilitate meetings with those who were supposed to relocate; ·         Following discussions between Lewis and representatives of the community, the following were inter alia agreed: o   No new houses will be built on his property without his permission; o   No additional people will be permitted to reside on and occupy property; o   No additions will be made to any existing structure on the farm; o   When any house or existing structure is vacated, Lewis is entitled to demolish such a place after the removal of all reusable building material; o   Lewis will assist any person wishing to relocate from his farm; o   People who wish to bury a deceased family member within the boundaries of an existing area demarcated and fenced for burials, need to get written permission from Lewis; family members have to provide a valid death certificate; burials will only be permitted until the demarcated area is fully utilized; o   The occupied area would be fenced with a proper fence, together with a ditch to be constructed by Lewis around that area – but allowing the occupiers full access from the main “tarmac” road; and o   Lewis will not intimidate or force any person to relocate from the farm. Pienaar singled out the following issues: Trenches: In accordance with the above-mentioned agreement, Lewis was in the process of constructing a trench around the area where existing, lawful occupiers were permitted to stay, as well as the area occupied by unlawful occupiers. “Any person visiting the site will note that there is no fence or boundary left in proximity of the homesteads and same … is the result of the removal and selling of such fences to third parties. The trench … was a final and only solution to demarcate the area … and to prevent further unlawful occupiers from invading [Lewis’s] property unlawfully and without [his] permission. [Lewis] was stoned during the construction of the trench and what is to be found on the premises is the unfinished result of what [Lewis] believed the parties to have agreed to. The information about unlawful occupation of the land can independently be verified by comparing Google Satellite maps from 5 years ago with the status quo.” Graves: There were no graves on the property where the occupiers, lawful and unlawful, were residing, but there was a burial site next to the main road between Ventersdorp and Klerksdorp. The burial site in question was established with the assistance and facilitation of the local municipality and was extended in size at the insistence and request of the occupiers. There was no barrier between this burial site and the main road, and it was accessible at any time, night or day. No water, electricity, toilets: Lewis did not cause the discontinuation of these services – in fact, he had not interfered in any service existing prior to his ownership of the property. As none of the occupiers was employed (by the farm) or paid compensation for use of the farm or any services, there was no legal duty on Lewis to provide these services and “any enquiries in this regard should be directed to the local authority”.

Having studied the correspondence mentioned above, and comparing that to what was published in the Daily Sun, I conclude that the:

·         article reflected none of these issues – from Lewis’s side, that is;

·         these omissions were material to the story – and, in fact, they should have changed the nature of the text (if published at all).

The newspaper’s argument that the attorneys did not respond to specific questions, which is why it did not report the response given by the law firm, cannot hold water – the questions were specific, and so were the matters raised in the documentation which the attorneys provided to Daily Sun. There was no reason at all to ommit the information given in those documents from the news report – except, of course, if the journalists felt that the information should not stand between them and a good story.

I note that the story did not state the allegations as fact, but consistently portrayed them as accusations. However, a journalist is not at liberty to publish an allegation just because someone has made it – if accusations are serious (as the ones in question are), resulting in critical reporting on the subject, the SA Code of Ethics and Conduct requires a newspaper to publish that subject’s side of the story as well – which Daily Sun failed to do, even though Lewis’s attorneys did send the journalist a detailed response.

That, I am afraid, is poor journalism.

Justified to ‘classify’ Lewis with the collective term ‘farmers’?

This part of the complaint has no legs to stand on – Lewis owned the farm (as well as other land), and there is no reason to refrain from calling him a “farmer”. Also, the editor is correct that the story did not aim to report on “farmers” in general – only two farm(ers) were mentioned, and the article did not generalize the matter.

Did the story unnecessarily portray Lewis in a negative light?

Given the fact that the journalist omitted so many material information regarding the crux of his story, my only conclusion can be that the article indeed did portray Lewis in a negative light – and unnecessarily so, given the information at the newspaper’s disposal, which would have put the matter in a different light.

Section 3.3 of the Code, which speaks about dignity and reputation, is relevant here. I note that none of the exceptions, as documented in 3.3.1 – 3.3.4 is applicable in this instance.

Hatred, conflict?

I have no evidence of any kind to convince me that it was either the newspaper’s or the journalist’s intention to promote hatred towards and conflict with farmers.

The question of whether the reportage could have had such an effect on members of the public is much more complex, though. Consideration has to go beyond what was printed and the story has to be read against the background of attacks on farmers, which are quite common and widespread.

I am not aware of any violent conflict that has erupted as a result of the reportage – but this does not mean that it could not have occurred (and still may). The very serious question is: Who is to take responsibility for an attack on Lewis or his family, should it happen?

If Daily Sun had ensured that it got its facts right and properly reflected Lewis’s side of the story, it would not be to blame if its reportage led to violence. In such a case, the newspaper would be merely the messenger, doing its duty. But if it reported the story as seen from one party’s side only, it would be a different kettle of fish.

Which is what happened in this case.

Finding

Asking Lewis himself?

This part of the complaint is dismissed.

Attorneys’ response properly reflected?

The story omitted material issues which were covered by Lewis’s attorneys in their response to questions by the journalist – issues which would have balanced the story, or sunk the story.

The text was in breach of the following sections of the Code of Ethics and Conduct:

·         1.1: “The media shall take care to report news truthfully, accurately and fairly”; and

·         1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions…”

Justified to ‘classify’ Lewis with the collective term ‘farmers’?

This part of the complaint is dismissed.

Did the story unnecessarily portray Lewis in a negative light?

Having omitted material information from the attorneys’ response to the reporter’s questions, and only stating (negative) allegations against him, the story did indeed unnecessarily portray Lewis in a negative light

The text was in breach of Section 3.3 of the Code which reads, “The media shall exercise care and consideration in matters involving dignity and reputation.”

Hatred, conflict?

The complaint that the newspaper / journalist intended to promote hatred towards and conflict with farmers is dismissed.

The argument that the reportage could have led to violence is an arbitrary one, as it has not happened (at least, not yet). I have already ruled on the fact that the story was unbalanced.

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 are all Tier 2 offences.

Sanction

Daily Sun is directed to apologise to Lewis, without any reservation, for unnecessarily and unfairly portraying him in a bad light by omitting material information which was provided to the journalist by Lewis’s attorneys.

The apology should include the full response by Pienaar as summarized above.

The text should:

·         be published on the same page as that used for the offending article;

• start with the apology;
• 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 contain the words “apology” or “apologises”, and “Lewis”.

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