Appeal Hearing Decision: Motaung Julegka vs Sunday Sun & Daily Sun

Fri, Oct 12, 2018

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter of

MOTAUNG JULEGKA                                                                                        APPELLANT

AND

1. This is an appeal by Mrs Julegka Motaung (“appellant”) against the Ruling by the Press Council Ombud in a complaint which the appellant had brought against Sunday Sun (“respondent”) and Daily Sun.  We will not refer to Daily Sun in this Decision because soon after protest by the appellant, Daily Sun removed the article complained about from its website. The appellant’s complaint was against an article which appeared in the respondent on 6 May 2018 and in the Daily Sun online. The essence of the story was that the appellant had been robbed of some money, jewelery and a vehicle, to the value of R2,500,000.00 at her home.
2. The appellant raised several complaints: that her privacy was intruded upon and her dignity impugned as she was not a public figure; that an impression was created that she carried huge amounts of cash on her person, thus exposing her to danger. She also complained that the article inaccurately stated that the robbery was recent, whereas it had happened some 17 months earlier. The appellant demanded an apology. The respondent refused and persisted that the publication was justified and that the incident was recent.  According to the respondent, the incident took place some five months prior to the publication of the story. In his Ruling, the Ombud dismissed all the complaints. The appellant then applied for leave to appeal the Ruling in its entirety, but was only given leave to appeal in respect of the complaint that the story inaccurately stated that the incident was recent.
3. In our view the article was in violation of clause 1.1 of the Code of Ethics and Conduct for South African Print and Online Media, which says that news must be reported truthfully, accurately and fairly. We also find that the reportage was done in a manner that amounted to some distortion or misrepresentation in violation of clause 1.2. Even though it was not stated in the body of the article as to when the robbery took place, the article wrongly and deliberately gave the impression that the robbery was recent. We say so for the following reasons:

3.1    There is a photo of the appellant and her husband; above them, the following words appear: “Soccer boss Kaizer Motaung and his wife Julegka who was recently hijacked at her home.” (Own emphasis).  The underlined word speaks for itself.

3.2    The appellant’s version is that the incident took place some 17 months prior to the date of the publication, and was reported to the police station. If it happened five months earlier as the respondent contests, the appellant would either be genuinely mistaken or lying. No victim of such a traumatic incident would have the date, let alone the month and the year, genuinely wrong especially with such a wide margin. There is no room for a genuine error on her part. It is highly improbable that the applicant would come up with a wrong date because she would be aware that insurance claims for lost items would reflect the correct date; also, the date of the recovery of the car would easily be established. In any case, for what conceivable reason would she lie about the date? It defies common sense. The date she gives can therefore safely be accepted as the correct one.

3.3    The body of the article studiously avoided mentioning the date. The word “studiously” is used because it would not be normal practice to refrain from mentioning a date when reporting on an incident like that. In an instance where the date is genuinely not known, the article would say so.  The conclusion is unavoidable that the date was deliberately not mentioned with the intention to present the story as a recent scoop. If the journalist was told the incident had taken place some five months earlier, why was that not mentioned? To this date, no explanation has been given for what amounts to be a deliberate omissiom.  

 4.     Subsequent to the hearing, respondent’s attorneys sent to us a letter purporting to constitute proof that the robbery took place in December 2017. The letter turned out to be nothing more than a restatement of what the anonymous source said. It gave the Case No as 226/12/2017. On the contrary and in response, the appellant’s attorneys submitted  a copy of an extract from the South African Police Crime Administration System at the Randburg police station, dated 21 September 2018. The document says the incident happened on 13 January 2017, and was reported on 14 January 2017, the complainant being Mrs J Motaung, Case NO 226/01/2017.  The authenticity of the document and its contents admit of no doubt: for example, it has the police station’s date stamp and, importantly, the name and rank of the police officer who pulled out the extract; the person can therefore be contacted for verification. We have highlighted the case numbers given in order to lay bare what appellant’s attorneys say is an uncanny resemblance between these case numbers. All that happened is that the “01” in the appellant’s case number was turned into “12”  in the respondent’s case number. It is too kind a statement to speak of an uncanny resemblance; it is nothing less than a plainly shameful and dishonest distortion detrimental to the interests of the media because it provides ammunition to critics of the otherwise salutary principle that anonymous sources should be protected.

5.      In any case, even on the respondent’s own version that the robbery took place some five months prior to the publication, the appeal would still succeed. In the context of this story, it is absurd to argue, as the respondent does, that the incident is recent. Confronted with this difficulty, the respondent sought to argue that the matter came to the attention of the journalist only around the date of publication.  Even so, if the intention was not to mislead, the date given by the informer should have been mentioned and the reader told that the matter had only recently come to the attention of the journalist; none of these two things was mentioned. Therefore, on either the appellant’s version or the respondent’s, the article inaccurately reported that the robbery had taken place “recently”.  It is therefore unnecessary even to interrogate the reliability of the sources.

6. The use of the word “recently”; the failure to mention the date of the incident (be it some 17 or 5 months prior to the publication); were designed to create a false impression that the incident happened close to the date of publication.  It is poor journalism, indicative of an attempt to give the impression of a so-called scoop. A scoop cannot be achieved by resuscitating an old incident and masquerading it as a “recent” incident.  The respondent has breached clauses 1.1 and 1.2 of the Code.
7. Counsel for the appellant has asked that it be pointed out in terms of clause 7.3 of the Complaints Procedures that the respondent is a repeat offender.  In support of its request, the appellant referred us to the following previous Rulings by the Ombud against the respondent:

7.1 Amanda Manku vs Sunday Sun (Ruling of 6 June 2017). The respondent was found to have breached clauses 1.1 and 3.3 and 11.2 of the Press Code. The breach was found to be a Tier 2 offence (serious). It is worth mentioning that in this case the Ombud was of the view that the false allegations against the complainant unfairly caused some serious damage to her reputation and perhaps also her future.

7.2    Shaka Sisulu vs Sunday Sun (Ruling of 11 September 2017).The initial story was found to have been in breach of clauses 1.2, 1.8 and 3.3 and the follow-up story breached clauses 1.2, 1.10, 1.11 and 3.3; all of which were Tier 2 offences (serious).

7.3    SARS vs Sunday Sun (Ruling of 15 December 2017). The following clauses were breached: 1.1, 1.2 and 1.3. The breach constituted a Tier 3 offence (serious misconduct). In this matter, the implicated journalist was the same as the one presently before us.                                                                                                     

8. As it can be seen, all the above Rulings were made during 2017; prior to the article before us being written. None of the breaches was a Tier 1 offence (minor); they were all from serious breaches to serious misconduct. A reading of these Ruling shows that they carry a message not heeded to by the respondent and the journalist concerned, Mr Mduduzi Nonyane.
9. The media is presently resisting attempts by the Government to introduce legislation to regulate it. This is because there are those who say that the media in the country is, as it were, a law unto itself; that people are not adequately protected against abuse by it. Self-regulation has over the years been the potent weapon by the media to fight off government sponsored regulation.  But the argument only becomes convincing if there is indeed an effective regime of self-regulation in place. Any conduct by the media to disregard or undermine this mechanism must be frowned upon. The respondent’s practice, and that of its journalist, to repeatedly act in this manner must attract censure because they undermine the effectiveness of the mechanism of self-regulation. This emboldens the call for government intervention.  A declaration in terms of clause 8.3 of the Complaints Procedures against the respondent and Mr Mduduzi Nonyane is therefore amply justified; we cannot go through the same motions and make the same findings time and again without any consequences being visited upon a repeated offender.
10. For the reasons given above, the appeal succeeds, and the following Order is made:

10.1    The appeal is upheld.

 10.2   The Ruling of the Ombud, dated 12 June 2018 dismissing the appellant’s complaint that the respondent inaccurately reported on 6 May 2018 that she was recently robbed, is hereby set aside and replaced by the Order in paragraph 10.3 below.

 10.3   The respondent, inaccurately and misleadingly, reported that the applicant was “recently” robbed, and has thus breached Clauses 1.1 and 1.2 of the Press Code.

 10.4 The respondent and Mr Mduduzi Nonyane are hereby found to be repeat offenders in terms of Clause 8.3 of the Complaints Procedure of the Press Code.

 10.5   The respondent must publish an apology to the appellant above the fold on page 5.

 10.6   The draft apology must be submitted to the Director of the Press Council for his/her prior approval before publication within five days of this Decision.

 10.7   The final version for publication, as approved by the Director, shall be published in the edition of the first Sunday following the approval of the version by the Director, unless an alternative date for publication is approved by the Director which shall not be beyond the two consecutive Sundays following the date on which the Director approved of the final version.

10.8    The appellant or her legal representative shall be informed by the Director of the date on which the apology will be published.

10.9    In the published apology, the fact that the respondent and Mr Mduduzi Nonyane have been found to be repeat offenders, shall clearly be mentioned.

Dated this 12^th day of October 2018

Judge B M Ngoepe, Chair, Appeals Panel

Ms P Fray, Public Representative

Mr T Makhadi, Media Representative