Appeal Hearing Decision: Vernon Seymour vs Sunday Times

SUMMARY

The headline to the story in dispute read, Some shady characters on August party lists (published on 15 May 2016).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The article said that the DA and the ANC had given the green light “to some of Cape Town’s most controversial politicians” to contest seats as councillors in the municipal elections due to take place in August that year.

Candidate for an official position Vernon Seymour complained that the:

• article was untruthful, unbalanced and defamatory of him; and
• headline sought to discredit him and compromise his reputation.

Citing a few arguments by the newspaper, the Ombud concluded that Sunday Times had been justified in raising questions about Seymour’s suitability for public office. He dismissed the complaint, mainly because the story did not:

• focus on, or delve into, the merits and demerits of the events that gave rise to the controversies, but that it rather listed the politicians and gave a brief overview of the controversies casting doubt over the suitability of these candidates to hold public office; and
• state as fact that Seymour had sexually harassed a victim.

The complaint about the headline was also dismissed.

Seymour then successfully applied for leave to appeal.

The Appeals Panel said the issues before them were whether the headline was justified and whether the newspaper should have reported that Seymour had denied the allegations of sexual harassment.

The Panel said: “Bearing in mind that [Seymour] was a candidate for a public office, and given the nature of the allegations, the headline and the contents of the story – with which it was consistent, were justified.”

The Panel added that, as the matter was still under investigation, the appeal was dismissed and the Ombud’s ruling was upheld.

THE RULING ITSELF

In the matter between:

SEYMOUR VERNON                                                                                  APPELLANT

and

[1]     Mr Vernon Seymour (“appellant”) lodged a complaint against the Sunday Times (“respondent”), complaining about an article which appeared in the respondent’s edition of 15 May 2016.  The headline read: “Some shady characters on August party lists”.  The party lists contained names of candidates submitted by political parties to contest the 3 August 2016 Local Government Elections. Five people were specifically mentioned by name as candidates for the African National Congress and the Democratic Alliance; three for the former party, and two for the latter. The first person mentioned was the appellant (for the ANC).

[2]     The opening sentence of the article read: “The DA and the ANC have given the thumbs up to some of Cape Town’s most controversial politicians to contest seats as councillors in August”. Thereafter followed a generalized statement that the lists “feature men who have been in court or found guilty at disciplinary hearings”.  The article then zoomed onto the appellant. “An arbitrator found Seymour guilty of sexually harassing an intern at the SAFA offices in 2013 and recommended a life ban from soccer.  Seymour reportedly ‘persistently harassed [the victim] by paying her a cash sum of money by, touching her; by offering to buy her a T-shirt’.  He resigned but took SAFA to court last year and the matter is pending”.  There was also a photograph of the appellant.

[3]     The appellant lodged a complaint with the office of the Press Ombud.  He complained that the “article contains distortions of the truth about me, a confuscation of the facts, as well as deliberate material omissions.  It is misleading and defamatory.  The headline seeks to discredit me and compromise my reputation”.  He contended that articles 2.1 and 2.2 of the Press Code had been breach.  “Although the article refers to five individuals, the lead story line to substantiate the ‘shady characters’ is about me.  I am the main target.  They also have a photograph about (sic) me, presumably making me the prime example of a “shady character’ in the eyes of the public”.  Appellant says that words describing his conduct did not appear in the arbitration award.  He says its headline “does not meet the requirement of reporting news accurately”.

[4]     The appellant complained that the article was not balanced.  All it said, after making the allegations, was that he “resigned but took SAFA to court and the matter is pending”.  He says material information was omitted to balance the story, (e.g certain e-mails which he says were vindicating him).  “These documents are … in the Court file and therefore (the journalist) could easily gain access to it.  However, he decided not to consult those documents and proceeded to brand me a ‘shady character’”.

[5]     The appellant also argued that article 2.3 of the Code was breached.

[6]     The respondent asked for the complaint to be dismissed in its entirely.  It argued that the story was about “controversial politicians”, of whom, it says, appellant was one.  It argues that “the fact of the matter is that Mr Seymour was accused of sexual misconduct”.  The article was not the place to go into the merits or demerits of the allegations.  Regarding the issue of lack of balancing, respondent says that it was mentioned that he had taken SAFA to court and that the matter was pending. This “makes it clear that Mr Seymour contests the findings and his guilty.  His denial of the allegations should be inferred from his subsequent actions”.

[7]     In his Ruling dated 8 June 2016, the Press Ombud dismissed appellant’s complaint in its entirely.  The appellant sought, and was granted, leave to appeal the Ruling.

[8]     There are really two issues before us.  Firstly, whether the headline was justified; secondly, appellant’s complaint that it was not reported that he denied the allegations of sexual harassment.

Whether the headline (“shady characters”) was justified.

[9]     The respondent argued that this was based on the arbitration award, which was a final instance overriding all other tribunals which had previously found in favour of the appellant (on appeal).  We are inclined to agree with the respondent because, until set aside, the arbitration award remains operative.  Bearing in mind that the appellant was a candidate for a public office, and given the nature of the allegations, the headline and the contents of the story – with which it was consistent, were justified.  The complaint against the headline must therefore fail.

The complaint that appellant’s denial of the sexual harassment allegations was not reported.

[10] The respondent accepts that there was a need to convey a message to the reader that the appellant denied allegations of sexual harassment. It was therefore never respondent’s case that, merely because there was a finding by the arbitrator, there was no need to record appellant’s denial of the sexual harassment allegations levelled against him. What the respondent argues is that the appellant’s denial was conveyed inasmuch as it could be inferred by the reader from the appellant’s “subsequent actions”.  This argument is, of course, an attempt to remedy respondent’s failure to simply say in the report: “The appellant denied the allegations of sexual harassment”.  No explanation is given by the respondent why it did not simply say so.  Once it is conceded, as the respondent does, that there was a need to inform the reader that the appellant denied the allegations the question arises whether the respondent is correct to say the denial can be inferred from the “subsequent actions”.  We must therefore examine those “subsequent actions” to see whether a reader can indeed infer such a denial from them.  As it turns out, there are in fact only two “subsequent actions” from which it is argued that the denial could be inferred.

[11]   The first subsequent action mentioned was appellant’s resignation; that is, respondent says that the fact that the appellant resigned should tell a reader that the appellant had denied the allegations. However, during argument, counsel for the respondent conceded that the fact that appellant resigned was a neutral factor.  This was a correct concession, because a reader could just as well have interpreted the resignation as an admission, rather than denial, of the damning allegations. The argument was therefore a non-starter and was correctly abandoned; it falls far too short of even beginning to tell a reader that the appellant, by resigning, was denying the allegation.  In fact, it is more likely to achieve the very opposite of what the respondent was seeking to argue.

[12]      Only one leg on which the argument of inference remains; namely, that the appellant “took SAFA to court and the matter is pending.” It is the respondent’s argument that from this, a reader will infer that the appellant took the matter to court because he was challenging the correctness of the arbitrator’s findings of sexual harassment against him, and that the matter has not yet ended as it is still pending before the court. While such an inference is not necessarily that obvious, it is nonetheless a reasonable one; the benefit of doubt should therefore be given to the respondent. A reader may appreciate that notwithstanding the arbitrator’s finding, the final word is yet to be spoken on the matter.

[13]      For all the reasons given above, the appeal is dismissed and the Ombud’s Ruling is upheld.

Dated this 3rd day of September 2016.

Judge B M Ngoepe, Chair, Appeals Panel

Prof L Clowes, Member, Public Representative

Mr J Jeffreys, Member, Media Representative