Adrian Nel vs. TygerBurger

This ruling is based on the written submissions of Mr A. Nel and the TygerBurger newspaper.

Mr Adrian Nel complains about a story in TygerBurger, published on March 2, 2011 and headlined Jaagduiwel meld aan. The story was written by Marana Brand van Hulsteyn.

The complaint is that the following statements were materially incorrect, namely that Nel:

Nel also complains that the following elements were omitted:

To this, he adds that the story is biased towards Scott.

The story is about a man (Nel) who “handed himself over to the police” after he allegedly drove into Ms Tracey Scott’s car and then chased away. It says that Nel’s car hit the side mirror of Scott’s vehicle, but that he just continued on his way. Scott and her friend, Mr Jonathan Barnard, then reportedly followed Nel and, at a stop street, got out of his car to confront Nel. The story says that Nel then reversed his car into Scott’s vehicle, after which he drove off. The story adds that Nel was arrested after he had reported the accident at a police station; it also says that he was discharged and warned to appear in court for reckless and negligent driving.

We shall now consider the merits of the complaint:

Nel complains that the story incorrectly states that he lives in Kraaifontein.

The journalist admits that this was a mistake, but says that she got this information from a police officer. She argues that she had no way of verifying this, nor did she have any reason to doubt the veracity of the information.

I have no reason to disbelieve the journalist and have no ground to challenge her argument – if that is what the police officer told her, that was what he said. She indeed had no reason to doubt this statement. It was therefore reasonable for her to have reported that Nel is from Kraaifontein, even though it was false.

However, more needs to be said. Once a newspaper realizes that it has made it mistake, it should be corrected. Art. 1.6 of the Press Code states: “A publication should make amends for publishing information…that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction, correction or explanation.”

I shall come back to this under the headings “finding” and “sanction”.

The story says that Nel “allegedly” damaged the side mirror of Scott’s car with his own. From the context of the story (read: the next sentence) it is clear that this information was gained from Scott.

Nel complains that this is not what happened. He says that Scott’s car was illegally parked and that it was difficult for him to drive his car through the narrow gap that her car had left. He therefore folded the mirror of Scott’s vehicle in order to give him more space to drive his car through. He says that the mirror “allegedly” broke in the process.

TygerBurger argues that it does not matter whether Nel broke the mirror by driving his car into it, or by folding it. The journalist says that Scott saw Nel driving his car close to hers and that the mirror was broken afterwards, adding: “A very logical conclusion is that it was hit by his car.” (Freely translated)

The journalist’s argument that it “does not matter” is cause for concern. It should matter. The Press Code is clear about this. Art. 1.1 states: “The press shall be obliged to report news…accurately…”

However, there are two reasons why it was justifiable for the newspaper’s reportage on this matter: It is the opinion of an eye-witness, and from the context it is presented as such; and it is not stated as a fact, as the word “alleged” (“glo”) is used.

The story states that Nel, after he had chased away from the scene, “handed himself over to the police”.

Nel complains that this statement is not true. He says that he merely reported the matter to the police and that that was his choice to do so.

TygerBurger says that a police officer told her that Nel had reported the matter, adding that his statement that he “chose” to report the matter is merely wordplay.

The phrases “reported to” and “handed over” clearly have different meanings. The first one is what every responsible citizen should do after an accident; the second one carries a negative meaning as it either implies that the police are looking for that person (for whatever reason), or that the person thinks that he is guilty and that the police should know about it.

Consider the following:

From this, the reportage that Nel has “handed himself over” to the Police is not reasonably true. Given the negative connotation to this phrase, it was therefore also not fair to Nel. It is also noteworthy that the statement is stated as a fact, but that it is not attributed to a source. Therefore, there was no verification (as the Press Code requires).

The story says that Nel, after having reported the case, was arrested.

Nel denies this. He says: “At no point was I not allowed to leave the offices of the SAPS Bothazig.”

The journalist says she got this piece of information from the police.

Note that the disputed sentence does attribute the statement to a police officer. The journalist was therefore within her rights to report what the officer told her.

The intro says that Nel “chased away” from “the scene”. Although the words “the scene of the accident” are not used, it is clear from the context that that is exactly what is meant.

Nel denies that he “chased away” from “the scene of an accident”.

TygerBurger says it got its information from the police, adding that Scott corroborated this – and that Nel admits in his statements that he drove off. The journalist also says that it is a matter of semantics whether Nel “drove off” or “chased away”.

The following remarks are important:

Besides, Nel himself admits to having chased away. In one of his affidavits, he describes what steps he took to avoid confrontation with the people in the car that he drove his vehicle into. He says: “…I rammed my vehicle backwards into the Opel, and immediately fled the scene.” (own emphasis)

Clearly, Nel was indeed in a hurry to get away – and understandably so.

The story does not state that Scott’s car was illegally parked; it just says that her car was parked in the street.

Nel complains that the story omits the “fact” that Scott’s car was illegally parked.

The journalist argues that this matter is irrelevant as far as the story is concerned.

Note that the newspaper does not deny Nel’s claim that Scott’s car was illegally parked; also not that he had trouble to drive his car through the narrow gap between two cars that was caused by Scott’s parking (according to his first affidavit).

The question whether or not Scott’s car was parked illegally does indeed not have a direct bearing on the story, as the journalist correctly says. What matters, is how her car was parked (legally or illegally).

The same, therefore, does not go for Nel’s allegation that Scott’s car was parked in such a way as to make passing through difficult. This would have added to the context of the story as it would have given an explanation for subsequent happenings (this is not to say that anybody’s action is hereby condoned).

The next question is whether it was reasonable for the journalist to have omitted this aspect from her story. Was she supposed to have known about this matter?

After having talked to Scott, Scott’s father as well as to the police (as she states elsewhere), I would think that she should have known. And this matter is important, as the mirror incident gave rise to the subsequent “accident” – and was therefore central to the story; the parked car in turn led to the mirror incident.

Nel complains that the newspaper did not ask him for his side of the story. He adds that the journalist could easily have traced him, as he was on Facebook. He also says that the journalist did not make an attempt to verify the story. He says: “I am not sympathetic to the possibility (in fact, it might be called a conclusion) that she was misled. As far as I understand matters, it was (is) her responsibility to verify a story to a reasonable degree before publishing the cursed thing.”

TygerBurger argues that it could not put Nel’s side of the story – there was a court case going and the police would not give the journalist his contact details. The journalist adds that the internet is not reliable enough; she also argues that it was difficult to trace the right Adrian Nel. She concludes that even if she succeeded to trace the right person, it was doubtful if he would respond to someone whom he does not know.

As far as verification goes, the newspaper says that its journalist spoke several times to Scott, as well as to the police and to Scott’s father.

While I am not entirely satisfied that the journalist did enough to try to get Nel’s contact details, I also cannot expect journalists to trace sources via Facebook. How was this journalist to know that Nel was on Facebook in the first place?

However, the newspaper should have mentioned the fact that it was not able to contact Nel for his side of the story. Art. 1.4 of the Press Code is clear about that.

The journalist’s sources (Scott, Scott’s father and the police) were sufficient.

Now this is interesting:

The two parties therefore agree on this point, at least.

I shall come back to this matter under the heading “sanction”.

Nel complains that the story does not mention the “fact” that he is disabled. This was important, he argues, as he would therefore not be inclined to get involved in a physical confrontation “with an obviously aggressive, younger man”.

The journalist admits Scott told her she had heard that Nel was “a cripple”. She says that she then asked the police about this, who allegedly denied this allegation. The journalist says that the police told her that Nel had had a stroke. She adds that she did not find it necessary to publish this piece of information.

The journalist did well to ask the police about this issue, for if it was true, it would have added context to the story. However, it was reasonable for her not to mention this allegation after having heard what the police said as this scenario would have had no bearing on the story.

Note that this is not a decision on whether or not Nel is disabled; this is only to say that it was reasonable for the journalist to omit this allegation.

Nel complains that the journalist is obviously sympathetic towards Scott. He links his argument to the fact that the story does not mention that he was disabled. He adds that it is funny that it was also not mentioned that he was merely taking his 71-year old mother home, on public roads, and in a roadworthy, licensed car.

The journalist argues that, even if the story may give the impression that she is more sympathetic towards Scott that does not make the story inaccurate.

Given the nature of the story as well as the fact that Nel was not asked for comment, it is nearly inevitable that some sort of sympathy for Scott may be conveyed. There is nothing wrong with that – on condition that a follow-up story be done in which Nel has a chance to tell his side of the story.

It is reasonable to believe that the police officer told the journalist that Nel was from Kraaifontein; and also that she had no reason to disbelieve him. It is therefore also reasonable for her to have published this information, even though it was false. However, although this is not in breach of the Press Code, the newspaper is under a moral obligation to rectify this.

The newspaper reported this as the opinion of an eye-witness; and it used the word “alleged” (“glo”). This part of the complaint is dismissed.

The statement in dispute is stated as a fact (one that is hotly denied by Nel), but it is not attributed to a source and therefore there was no verification. This is in breach of Art1.4 of the Press Code that states: “Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.”

The statement is also not reasonably true, as Nel clearly did not believe that he was guilty and the Police could not have been on the lookout for him (as Nel immediately reported the incident). This is in breach of Art. 1.3 of the Press Code: “Only what may reasonably be true…may be presented as fact…”

Given the negative connotation to the statement in dispute, it is also unfair to Nel. This is in breach of Art. 1.1 that states: “The press shall be obliged to report news…fairly.”

The sentence in dispute does attribute the statement to a police officer. This part of the complaint is dismissed.

The newspaper’s sources gave the journalist enough reason to have used the words “chased away”. The intro also does not state it as a fact that Nel chased away – it clearly says that he allegedly chased away. Besides, in Nel’s first affidavit he says: “…I rammed my vehicle backwards into the Opel, and immediately fled the scene.” (own emphasis) This part of the complaint is dismissed.

The story should have mentioned the (undisputed by the newspaper) fact that Scott’s car blocked Nel’s way to such an extent that he had difficulty in passing through. This is in breach of Art. 1.2 of the press code that states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by…material omissions…”

The journalist could not be expected to trace Nel via the internet. This part of the complaint is dismissed.

However, the newspaper should have mentioned the fact that it was not able to contact Nel for his side of the story. This is in breach of Art. 1.4 of the Press Code that states: “Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such report.”

The journalist did enough to verify the story as she spoke to Scott, Scott’s father and the police. This part of the complaint is dismissed.

It was reasonable for the journalist to omit the allegation about Nel’s disability, given the comment on this by the police. This part of the complaint is dismissed.

This part of the complaint is dismissed, as a follow-up story in which Nel’s side of the story will be told should rectify any possible bias towards Scott.

Regarding the statement that Nel handed himself over to the police, TygerBurger is reprimanded for:

The newspaper is also reprimanded for not mentioning the fact that:

TygerBurger is directed to publish a summary of this finding (not the whole ruling) and the sanction, beginning with what it was reprimanded for. Please add the following sentence at the end of the text: “Visit www.presscouncil.org.za (rulings, 2011) for the full finding.”

The newspaper is directed to do a follow-up story in which Nel gets a chance to state his side of the story. This will give the newspaper a chance to rectify its reportage that Nel was from Kraaifontein.

The newspaper is asked to furnish our office with both these texts prior to publication.

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be reached at [email protected].

Johan Retief

Deputy Press Ombudsman