James Evans vs. Rapport

This ruling is based on the written submissions of the president of Athletics South Africa (ASA), James Adams, and by the internal ombudsman of the Rapport newspaper, Jacob Rooi.

COMPLAINT

Evans complains about a story headlined Atletiek SA skop sy president uit (ASA axes its president), published in Rapport of 1 December 2013.

He complains that the story incorrectly reported that:

• the Western Cape High Court had ruled against him, and failed to point out that the order recently obtained was temporary pending a return date in February; and
• he afforded himself powers which he did not have.

He adds that:

• the journalist did not verify his information; and
• he was not asked for comment.

THE TEXT

The story, written by Sarel van der Walt, reported that ASA had axed Evans and that the whole council had been dissolved.

ANALYSIS

I note that Rooi offered Evans a right of reply in the form of a letter, not exceeding 250 words. The latter declined this offer.

High Court ruling; order temporary

Van der Walt reported that the Western Cape High Court had set aside the suspension by Evans of five athletic councils (in Boland, Central Gauteng, South-Western Districts, KZN and WP) and that the High Court in Johannesburg had later ratified this decision (which Evans had opposed).

In Afrikaans, the passage read: “Die hooggeregshof in Kaapstad het dié skorsings (van die vyf atletiek-unies) Vrydag tersyde gestel en dit is later in die hooggeregshof in Johannesburg bekragtig. Evans wou dié beslissing gister ongeldig laat verklaar.”

Evans denies that this is correct – he says that the Cape Town Court in fact ruled in his favour. He adds that the reporter failed to point out that the Court Order recently obtained was without notice to him and that it was temporary, pending a return date in February. (This order, by Judge Victor, said that the suspension of the athletic unions were unlawful, and therefore set it aside.)

Rooi refers me to a letter from Mr Dev Maharaj & Associates, who represented the applicants (the athletic unions) against Evans. This letter was dated December 4, 2013, and was addressed to Evans.

He argues: “It ought to be remembered that the earlier application was dismissed only on the basis that the Cape Town court lacked jurisdiction.”

Evans replies: “Nowhere does the attached letter confirm that the Cape Town High Court did anything other than dismiss their application (ie it ruled in my favour)… It is disgraceful that Rapport is trying to defend itself [on this matter].”

What is relevant at this stage is not what the motivation was behind the ruling of the Cape Town Court. By Rapport’s own admission the application was dismissed – this certainly made the statement in the story that this court had set aside the suspensions inaccurate.

Even if the decision by the Cape Court was about its jurisdiction or its lack thereof, and not merit, the fact remains that the Court dismissed the case and did not “set aside” the suspensions.

It follows that this made the use of the word ratified (“bekragtig”) by the Johannesburg Court also inaccurate.

Maharaj stated in his letter that he had evidence that the application papers were served electronically to Evans and that this confirmation was placed before court. I therefore tend to give the newspaper the benefit of the doubt on this particular issue.

However, the order was indeed not final as Judge Evans adjourned the matter until 3 February 2014 to enable the parties to file further affidavits. The omission of this fact misleadingly left the reader with the impression that the matter had been finalised.

I now have to consider how much unnecessary harm this inaccurate reporting and the above-mentioned omission caused Evans – not all inaccuracies and/or omissions are of the same serious nature.

I take into account that the Court Order indeed overturned the decision of the Cape Court (even though the matter was still pending). Therefore, the Court’s latest decision, as it stood at the time of publication, was against Evans (as portrayed by the story).

Surely, this limited the unnecessary harm that the incorrect reporting may have caused him. In this case, an apology would therefore be inappropriate – instead, a correction would suffice. Added to this correction, the temporary nature of the matter should also be reported.

Powers over and above

Van der Walt wrote that Evans was very unpopular in ASA circles, inter alia “because he allegedly (Afrikaans: ‘glo’) gave himself too much power”.

Evans denies that he afforded powers to himself which he should not have had.

Rapport does not reply to this part of the complaint.

The word “allegedly” is not always strong enough to warrant a statement. However, in this case Evans’s dismissal was an undisputed fact, and there had to be some reason for this action. In this context, “allegedly” was probably correct – it did not state as fact that he was guilty of unduly affording himself powers, but only that some people have speculated to this effect (which, again, is reasonable to accept).

Information not verified

Evans complains that the journalist did not verify his information.

Rapport again does not reply to this part of the complaint.

I take into account that Van der Walt reported on what happened at a meeting – if he did so adequately, no further verification was necessary.

Not asked for comment

Evans complains that the reporter did not ask him for comment as he should have, as he was the subject of critical reportage – as required by Section 2.5 of the Press Code.

Rooi says that the reporter did get comment from Evans, but “it seems it was in another story which was not used due to lack of space”. He adds that the newspaper tried to correct this matter “by adding that article to our website-article”.

Evans replies that:

• Rapport’s reporter at the High Court asked him for comment on that matter alone;
• the “lack of space” should not justify the omission of obtaining and publishing his comment; and
• the online “rectification” was not sufficient as readers would not necessarily go online to read the story again.

He concludes: “In fact, this [Rapport’s response] does seem to be an admission that the Press Code was violated.”

While I have no way of knowing if his argument under the first bullet (immediately above) is correct, I certainly agree with his arguments under the next two ones – and I do believe that this does not need any further argument. The Press Code is clear enough about the need to obtain (and to publish) comment from a subject of critical reportage.

FINDING

High Court ruling; order temporary

The story incorrectly stated that the Western Cape High Court had set aside the suspension by Evans of five athletic councils and that the High Court in Johannesburg later ratified this decision. It also omitted to state that the matter in court had yet to be finalised.

These are in breach of:

• Section 2. of the Press Code that says: “The press shall take care to report news truthfully, accurately and fairly”; and
• Section 2.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

Powers over and above

This part of the complaint is dismissed.

Information not verified

This part of the complaint is dismissed.

Not asked for comment

Rapport is in breach of Section 2.5 of the Press Code that states: “A publication shall seek the views of the subject of critical reportage in advance of publication…”

SANCTION

The newspaper is reprimanded for not obtaining and publishing Evans’s comments in the story that is in dispute.

Rapport is directed to:

• correct its inaccurate reporting of the decisions of both the courts in Cape Town and in Johannesburg, and to incorporate a statement to the effect that the matter has not yet been finalised;
• ask Evans for his comments and to report on these views (should he still want a right of reply); and
• publish the text below on the same page on which the offending story was carried.

(in Afrikaans, as that is the language of the newspaper)

In die berig onder die opskrif Atletiek SA skop sy president uit (1 Desember 2013) het ons verkeerdelik berig dat die hooggeregshof in Kaapstad skorsings van vyf unies deur die voormalige president van Atletiek Suid-Afrika (SA), James Evans, tersyde gestel en dat die hooggeregshof in Johannesburg later hierdie tersydestelling bekragtig het.

Die Kaapse hof het in werklikheid die aansoek van die unies om hul skorsing op the hef van die hand gewys (omdat dit nie die jurisdiksie gehad het om oor die meriete van die saak te beslis nie). Die hof in Johannesburg kon daarom nie hierdie besluit “bekragtig” het nie. Dié hof het wel beveel dat die unies se skorsing onwettig was en het daarom dit self tersyde gestel.

Ons het ook nagelaat om te noem dat die saak tot 3 Februarie 2014 uitgestel is – terwyl ons storie die indruk geskep het dat die saak afgehandel is.

Die Persombudsman, Johan Retief, het ons berispe omdat ons nie in daardie storie Evans se kommentaar gerapporteer het nie.

(EVANS SE KOMMENTAAR MOET HIER INGEVOEG WORD, SOU HY DIT WOU GEE.)

Hy het Evans se klag dat hy glo te veel magte aan homself toegeken het, en dat ons verslaggewer nie sy feite geverifieer het nie, van die hand gewys.

Besoek www.presscouncil.org.za vir die volledige bevinding.

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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman