Nico Nel vs. Sandton Chronicle

This ruling is based on the written submissions of Mr N. Nel and the Sandton Chronicle newspaper, as well as the testimony of a central figure in the story and another witness.

Mr Nico Nel complains about an article in Sandton Chronicle published on March 26, 2010 and headlined Dumping fiasco.

Unlike what is stated in the article, Nel says he:

He also complained that a copy of the article has not been sent to him prior to publication.

The story is about “illegal dumping” in Linbro Park, Johannesburg, allegedly facilitated by Nel. Mr JP Botha from a construction company reportedly said that Nel gave him permission for the dumping. The story also says Nel – a resident of Linbro Park and a former member of the Linbro Park Community Association (LPCA) – was years ago “kicked off” the LPCA because of his “rebellious behaviour”.

The newspaper argues that the story is a true reflection of the events. Sandton Chronicle says Nel was on three occasions offered an opportunity to give it his side of the story, which he refused to do.

I asked Botha if he was willing to testify in this matter. His testimony was extremely enlightening.

Of interest is not only what Botha told the gathering of people at the site of the dumping, but also a telephonic conversation between Botha and Nel after the latter had left. Botha’s phone was on speaker tone, so there were witnesses to at least a part of that conversation.

We shall now look at the merits of the complaint:

The allegation that Nel facilitated the dumping deal is the heart of the story and it is also the core of the complaint.

In the story, Botha is quoted as follows by reporter Abed Ahmed: “Nel gave us permission to dump…” It is also stated (as a fact) that it became apparent that Nel had facilitated the dumping deal.

Nel has good reason to feel aggrieved by these statements, as neither of them represents the truth. After a telephonic conversation with Botha and myself it became clear that Nel in fact tried to stop him from dumping at the site. Botha says Nel then phoned the owner/s, who gave the necessary permission for the dumping. According to Botha Nel then said to him: “If the owners gave you permission, I cannot stop you.”

When I asked Botha if he had been quoted correctly by Ahmed, he replied in the affirmative – he clearly believed that Nel did give him permission or, at the least, he went ahead with the dumping because Nel did not try to stop him anymore (Botha’s misleading interpretation of events was therefore not deliberate).

In the meantime, Nel never gave Botha permission (he could not, he had no authority to do so) – all he did, was to convey the message from the owners to Botha. This is the crux of the matter: According to Botha himself, Nel’s intention was not to facilitate the deal, but rather to stop it. After the owners gave their permission, there was nothing Nel could do to stop the dumping.

Here are a few conclusions:

But that is not all. The story also says Botha had “revealed the way in which Nel had dealt with the situation”. That statement is apparently also not true. According to an emphatic Botha, he never gave the background information to the reporter (if he did, the situation is even worse, as it was then not reported).

But there is still more: Nowhere in the story does it say that Nel denied that he had facilitated the deal. This becomes even more questionable, as the following words on a copy of the notes that the reporter took on the scene read like this: “Nico Nel… claims he’s had nothing to do with dumping decision. Owners gave permission.”

The omission of this information is highly questionable and adds to the negative, harmful effect of some already unethical reportage.

The telephonic conversation between Nel and Botha now refers. According to the witnesses and the reporter Nel said something to this effect: “Don’t cause me any more shit…” The reporter says that the use of the word “more” implied wrongdoing by Nel in the first place.

That is not necessarily the case. Nel’s explanation that he had already experienced trouble and did not want any more, is reasonable.

Two witnesses both said they did not hear Nel utter the words “controversial nemesis”. According to the story Nel uttered the phrase in dispute as he left the scene. It is therefore possible that he did say those words and that only the reporter heard it.

Given the years of apparent tension between Nel and the LPCA (this is clear from several e-mails that were forwarded to our office), it is both possible and probable that he indeed say those words. The benefit of the doubt should therefore go to the reporter.

The story has already created the false impression that Nel had facilitated the deal; now it furthers the notion that Nel “facilitated” the deal for financial gain.

Given the fact that Nel never facilitated the deal, it follows that he also did not “do” it for money.

Here are only two possibilities:

In both instances the newspaper reported unethically.

Within the context, it is reasonable to accept the second alternative. Nel had not facilitated the dumping, but in fact had tried to stop it – so why would he say the words in dispute?

The sentence in dispute reads like this: “During LPCA public meetings in the past Nel had admitted that he was corrupt.” No source is quoted to substantiate this statement.

When asked about this issue, a former chairman of the LPCA, Mr Joao Azevedo (one of the witnesses), said he had never heard Nel saying anything of this sort. One would assume that Azevedo, who has played a huge role in the LPCA for many years, would either personally have heard Nel making this statement (if he did say it), or someone who heard it would have told him about it.

Moreover, it is not reasonable to believe that Nel would have admitted in public that he was corrupt. Very few people would.

The story is cleverly structured – first the (false and misleading) interpretation of events is accepted as truth; from there the impression is created that Nel facilitated the deal for financial gain; and now the ludicrous statement is made that Nel admitted in public to being corrupt.

The story is really going from bad to worse.

The newspaper said it had, after publication, asked Nel three times to put his case, but that he had consistently refused to do so (after initially having agreed to it).

That may be the case, but the newspaper is missing the point. Nel’s complaint is not about that – it concerns the sentence in the story where it is stated that he had refused to comment while he was at the scene of the dumping.

This matter is simple: Nel is indeed quoted in the story. The statement that he refused to comment is therefore untrue. If Nel had refused to comment any further, it should have been stated as such.

The newspaper says it is against the editorial policy of Caxton Johannesburg North Community Newspapers to send material out prior to publishing.

Newspapers are indeed under no obligation to do that.

The newspaper accepted a wrong interpretation of events as the truth. This would have been avoided if it did enough to establish the truth (if Nel refused to talk to the newspaper, there was always still Botha to talk to). This is in breach of:

The fact that Nel’s denial that he had facilitated the dumping deal was not published, amounts to a breach of Art. 1.2 of the Press Code which 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…”

This part of the complaint is dismissed.

If is improbable that Nel uttered these words. He was therefore wrongfully quoted, adding to the false interpretation that he had facilitated the dumping. This is in breach of Art. 1.2 of the Press Code which states: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation…”

The statement that Nel admitted in public that he was corrupt is not reasonably true. This is in breach of Art. 1.3 of the Press Code which states: “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or suspicion, it shall be presented in such manner as to indicate this clearly.”

The statement that Nel refused to comment is inaccurate and untrue. It is therefore in breach of Art. 1.1 of the Press Code which states: “The press shall be obliged to report news truthfully and accurately…”

This part of the complaint is dismissed.

Sandton Chronicle is directed to publish a summary of this finding, together with a suitable apology, giving the story the same prominence as the one in dispute enjoyed. Our office should be furnished with the text 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