Case number 31/2012
On April 9 2013, the Appeals Panel of the Press Council of South Africa conducted an appeal hearing in Johannesburg between the Appellants and the Complainants after the Appellants appealed a ruling by Press Ombudsman Dr Johan Retief.
The hearing was chaired by retired Judge Ralph Zulman, assisted by two panelists, Susan Smuts and Peter Mann.
The Appellants were represented by Advocate Schalk Burger SC, Mr Pieter Conradie and Ms Kelsey Biddulph of attorneys Cliffe Dekker & Hofmeyr, and by Ms Danèl Blaauw, the author of the article complained of. The Complainants were represented by Mr Frik Bossert.
The Appellants appealed against a ruling by Retief delivered on February 21, 2013 on three grounds and against the sanction the Press Ombudsman had imposed on the two titles.
The articles, one published in Afrikaans in Huisgenoot magazine and the other in English in its sister publication, You; were an interview with Mrs Annelise Kriek – described as “one of the first women in South Africa whose husband has been convicted of raping her”.
In the report, Mrs Kriek describes her “brutal” rape at the hands of her then husband Frik Bossert and his conviction for rape and assault and damage to property in January 2012 – 15 years after the rape in 1997. Mr Bossert was denied leave to appeal his conviction, but is currently petitioning the Chief Justice in a bid to have his conviction and sentence overturned.
In the You/Huisgenoot reports the publications and/or Mrs Kriek said, inter alia (and these were the issues ruled on by the Press Ombudsman that were appealed against):
Ø In 2002 Annelise began to suspect that she was being raped at night.
“We were no longer intimate but we shared a room. I would sleep really deeply and when I woke up I wouldn’t be able to open my eyes. I felt tired and knew I was being raped. The first time I thought I was going crazy but the second and third time I knew what was happening”.
Ø She was awarded custody of her (and Frik Bossert’s) son Schalk but the youngster became uncontrollable. “Next thing I knew the police were at my door and he’d charged me with assault. He would change the locks on my house with locks his father had given him or he’d set his room alight.”
She also said: “He (Bossert) told our son to steal documents from me and spy on me. Before the divorce he even sent Schalk to break into my office and go through my desk. My house and car were vandalized.”
Ø Things got so bad that eight years ago Annelise placed Schalk in Bossert’s care. She hasn’t seen him since.
The You/Huisgenoot reports relied on the single source of Mrs Kriek. The only other source mentioned in the reports is an unnamed legal expert “who wishes to remain anonymous” and who is quoted as saying that this is “one of the first cases in South Africa in which a man has been convicted of raping his wife”.
The Complainants complained to the Press Ombudsman, inter alia that:
Ø They had not been contacted for comment prior to publication, saying that even though the article was partly about a court case, the journalist interviewed Mrs Kriek and, therefore, should have listened to the other side as well.
They also raised several issues of fact, including:
Ø Bossert had never been convicted of raping his wife while she was sleeping or allegedly “doped” or “dozed” (sic);
Ø Schalk was not uncontrollable and that he had been assaulted by Mrs and/or Mr Herman Kriek and that this was the reason he had changed the lock on his bedroom in the Kriek’s house; and
Ø that it was a Magistrate, not Mrs Kriek who placed Schalk Bossert in the care of his father.
Retief referred the Bossert’s complaints to You/Huisgenoot for comment before reaching his finding. You/Huisgenoot, in turn, referred them to Mrs Kriek for comment.
The magazines said they had not interviewed the Bosserts because the story was about a legal issue – a man sent to jail for raping his wife; “a rape in marriage and, therefore, of interest to our readers. He has been found guilty and sentenced...” – and that the report “was written from Mrs Kriek’s perspective”. They added that she had given evidence in court about the things that she spoke of in the interview and had documents to support what she said.
In her responses to You/Huisgenoot, Mrs Kriek says, inter alia that:
Ø “Even though the court did not take the rape chemical case forward it does not mean that it did not happen. I was there! I was the victim! I do not take the life of abuse lightly! I will make it my personal goal to protect all woman (sic) against this sexual offender and will do anything in my power to prevent this from happening again. He also drugged his next fiancé and raped her. She told me so herself!!!”
Ø “(Schalk) was uncontrollable. He hardly ever returned home from school in time. We were continuously out searching for him and he refused to answer his cellphone….his marks deteriorated and he was totally irrational in normal, everyday family activities”… She also said that his school had called to complain about his behavior, that he was caught shoplifting and that he had “burned debris” in his bedroom and that he had changed the lock to his bedroom.
Ø Court documents proved that Frik Bossert had been declared an unfit parent. She added: “I sent Schalk to his father as we were awaiting the outcome of the family advocates of the Supreme Court and I expected the Bosserts to adhere to a High Court ruling that it is in Schalk’s best interests to reside with me and be under my care and supervision. Unfortunately…after this incident, the report was finalized, the Bosserts did not adhere to the findings and Schalk never returned.”
Mr Bossert in turn commented on the submissions made by You/Huisgenoot/Mrs Kriek. He said inter alia that:
Ø he was found not guilty on the so-called “chemical” rape charges and You/Huisgenoot had not reported objectively or properly researched their report. They had placed false accusations before their readers. He rejected as “blatant lies” the allegation in the correspondence that he had drugged and raped his next fiancé.
Ø Schalk, at age 14, had been assaulted by Mrs Kriek and her husband, Herman, on the 9th February 2005. As a result he had changed one lock on his door to protect himself from another assault by his mother and Mr Kriek.
Bossert further alleged that Mrs Kriek, herself, had told You/Huisgenoot that the child who she alleged had broken into her office using keys given to him by his father, was his son Frikkie – and not Schalk – although he denied that Frikkie had carried out this act.
Ø Schalk had been placed permanently in his care “by Magistrate Kokwe” on the 23rd August 2007; after Mrs Kriek on the 14th March 2004 had told Schalk that it was better if he went to live with his Dad and had packed his clothes and dropped him 50 metres from Mr Bossert’s gate.
Retief found inter alia that:
Ø Art 1.1: “The Press shall be obliged to report news truthfully, accurately and fairly”;
Ø Art 1.2: “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…”;
Ø Art 4.1: “The press shall exercise exceptional care and consideration in matters involving the private lives and concerns of individuals…”; and
Ø Art 5: “The press shall exercise exceptional care and consideration in matters involving dignity…”
He noted that Mrs Kriek did not deny Mr Bossert’s statement that the court had rejected these allegations (charges); nor did she challenge his use of the word “doze”. He held that the ordinary reader would have interpreted her comments in the report to mean that Mr Bossert had “doped” her before raping her.
He ordered You/Huisgenoot to apologise to Mr Frik Bossert for “unfairly implying that he doped or dozed [Mrs] Annelise [Kriek] before raping her (a few times) and for not reporting the fact that the court rejected these remarks”.
Ø Art 1.3 of the South African Press Code which says: “Only what might reasonably be true, having regard to the sources of the news may be presented as fact…Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition’ it shall be presented in such a manner as to indicate this fairly”.
He reprimanded the magazines for making this statement.
Retief ordered You/Huisgenoot to publish a text provided by him on page 14 or 15 and to use the word “Bossert(s)” and the word/s “apologise/apologies” in the headline.
Hearing:
Despite being informed of the date and time of the Appeal hearing, the Complainants were not present when the hearing began. After telephoning the First Complainant, the panel commenced the hearing without him. He arrived later in the proceedings and the process up until that time was explained to him. He apologized for the lack of attendance of the Second Complainant and said he would represent him.
The Appellants
The Appellants complained that the sanction imposed by the Press Ombudsman included a reprimand, a request to interview the Complainants and a direction to publish their views on all matters relating to the “unfair reporting”, coupled with a lengthy apology.
They acknowledged that the complaints upheld related to the statements that:
Ø she (Mrs Kriek) was awarded custody of Schalk, but that the youngster became uncontrollable;
Ø that she began to suspect that she was being raped at night; and
Ø that she placed Schalk in Mr Bossert’s care.
The Appellants, in their heads of argument, said the gist of the two articles, one in English and one in Afrikaans – was the conviction for rape by a husband of his wife committed during their marriage, and said: “The rest of the article was subsidiary to this main theme”.
It said that Mrs Kriek was “the source” of the articles.
They noted, inter alia, that “the following statements contained in the article elicited no complaint” from the Complainants:
Ø The rape had happened when she (Mrs Kriek) should have felt safest – in her bedroom, in the embrace of the man who was supposed to protect and love her. Instead Annelise Kriek’s husband pinned his wife down on their marriage bed and brutally raped her.
Ø “He choked me and ripped my clothes off. I was devastated afterwards. When he walked out and I was crying he turned, looked at me and said ‘It’s not that bad’. I was so humiliated – and by my own husband,” she recalls.
Ø She was eight months pregnant with their son, Schalk when the abuse started. Bossert slapped, shoved and choked her. He would often spend up to 45 minutes screaming and shouting abuse at her.
Ø It took 13 months and 22 court appearances before she was granted an interdict prohibiting Bossert from coming near her. In the process a Magistrate advised her to reopen the 1977 rape case.
The Appellants argued that the law of defamation and the South African Press Code as well as the defences set out in National Media limited v Bogoshi 1998 (4) SA 1196 (SCA) had reference and said: “The Bogoshi case is accordingly authority for the proposition that merely because information is gathered from a single source, this does not mean that one is not allowed to publish that information”.
It added that Art 2.5 of the South African Press Code which provides that: “A publication shall seek the views of the subject of critical reportage in advance of publication…” and that; “if the publication is unable to obtain such comment this shall be stated in the report”; cannot apply to reporting on a criminal trial”. (our emphasis).
The Appellants added: “The views of the (convicted) accused need not be sought before critical reportage in the context of the court proceedings involving the convicted person is published”. (sic)
They added further:
Ø the (First) Complainant is an individual with a history of violence, evidenced by various criminal convictions;
Ø the articles were written on the strength of information obtained from Annelise. Annelise was interviewed by the magazines, as she was personally involved in the various incidents. In many instances she was the only party who could give a version as to what the (First) Complainant had done. There is no suggestion that Annelise had lied, or that there were grounds to disbelieve her;
Ø the Family Advocate had been involved as far back as 2005;
Ø a clinical psychologist had provided a report to the presiding judge in a court case on the traumas being experienced by the (First) Complainant, Annelise, Schalk and his step-brother; and
Ø a final order in terms of the Domestic Violence Act was granted in 2004, which provided inter alia for the collection of Schalk from his father and the confiscation of firearms or dangerous weapons.
Dealing with the three statements in contention, the Appellants argued as follows:
The Appellants said the suggestion was that it was the court not Annelise who had placed the child in the care of his father. They submitted that this complaint was “technical and frivolous” and said: “The statement was substantially true. It did not amount to a breach of the code.
The Appellants also submitted that the sanction imposed by the Press Ombudsman was inappropriate for two reasons:
Ø “to request the magazines to interview the (First) Complainant and Schalk as soon as Schalk’s (sic) petition was finalized and to publish their views on all the matters relating to its unfair reportage…is misdirected as a sanction and does not amount to a correction of a factual version”; and
Ø “the text of the apology…is overly broad, deals with irrelevant matter and misstates the legal principles to be applied.”
It cites as an example of this misstatement, the statement by Retief that “legally we (the Appellants) should not have asked Frik for comment (as his petition to the court to allow him to appeal was still ongoing), from an ethical perspective we should have refrained from publishing unfair, damaging statements until he was in a position to refute the allegations”.
The Appellants asked for the appeal to be upheld and for the ruling by the Press Ombudsman to be replaced with a ruling dismissing all of the complaints.
The Complainants
The First Complainant held that the report was inaccurate. Inter alia:
Ø he is petitioning the court to have his conviction of rape overturned;
Ø he was found not guilty of charges that he had raped his wife while she was “drugged” or “doped” or “dozed” or “dazed”. Despite this, it was reported as fact by You/Huisgenoot;
Ø Mrs Kriek’s allegations that Schalk was uncontrollable were not true and, in any event, he alleged they did not disclose that his behavior was as a result of him having been assaulted, when he was 14, by her and her husband;
Ø that it was a Magistrate who had placed the child in his care; and
Ø that responses Mrs Kriek had herself provided to You/Huisgenoot demonstrated that the magazines had got their facts wrong.
Just one example of this was that the magazines had reported that he had sent “our son” (i.e. Schalk) to break into her office, but that she had actually told the magazine that it was Mr Bossert’s son (Frikkie) – although he denies that Frikkie ever broke into her office; and
Ø he said that after the articles were published he had called the reporter and offered to tell her his side of the story, Ms Blaauw, said she would discuss this with her superiors and get back to him, but that she did not do so.
Questions from the Panel
The panel explored, particularly with counsel for the Appellants whether the Press Ombudsman had misdirected himself in his finding that the magazines had not been entitled to ask the First Complainant to comment as he was still petitioning the court to be allowed to appeal his conviction and sentence.
This matter turned on whether the case was still sub judice. Counsel for the Appellants agreed with the panel that the matter was not sub judice. This is also evidenced by their statement that Retief had “misstated” the law on this point.
Counsel for the Appellants disagreed with an assertion by the panel that the ordinary reader would interpret Mrs Kriek’s quoted statements about sleeping really deeply and knowing she was being raped; as meaning (as the Press Ombudsman found) that she was being drugged and then raped. The Appellants held to their view that this had not been said, nor could it be inferred from what she had been quoted as saying. (See the full quote above)
Counsel for the Appellants also disputed questions/views from the panel that the report had been one-sided and unfair to the Complainants. He held to his view that the Bogoshi test applied -- that merely because information is gathered from a single source, this does not mean that one is not allowed to publish that information.
He disagreed with the statement that, even had the magazines held to their view that that they either were not entitled to get comment, or did not need to get comment, from the First Complainant because he is a convicted rapist who is in the process of appealing his conviction; that they should have attempted to corroborate what Mrs Kriek had told them and that this had not been done.
He disagreed when the panel put it to him that You/Huisgenoot had simply interviewed Mrs Kriek and published every allegation she made – without the slightest attempt to confirm the veracity of her statements. He said the magazines had “some corroborating documents” in their possession before they published the report.
Ruling
Ø Uncontrollable Schalk:
We find that the article is exaggerated and one-sided in so far as it states that Schalk Bossert is uncontrollable.
(For example the claim in the article attributed to Mrs Annelise Kriel that her former husband. Frik Bossert had sent “our son”, i.e. Schalk, to break into her office was actually a reference to his son, Frikkie; and not to Schalk at all. We note further that the allegations that Schalk had changed the locks on her house with locks his father had given him and that he had set his room alight, were exaggerated. We also note allegations that the youngster was reacting to alleged assaults on him by Mrs Kriek and her new husband.)
Ø Dazed/dozed (sic) when raped:
We find that the Appellants are technically correct in that there is no allegation in the articles that Mrs Annelise Kriel was “dazed/dozed/doped” when raped and that the Press Ombudsman erred in this finding.
However, it appears that Bossert Snr was found not guilty on these charges, but convicted on a different charge of rape. This should have been made clear in the reports.
Ø Annelise placed Schalk in the (First) Complainant’s care:
We find that the Appellant is technically correct but that little turns on this and that, to the extent that the Press Ombudsman erred, this does not take the matter any further.
Ø Article 1.1: The Press shall be obliged to report news truthfully, accurately and fairly.
Ø Art 1.2: 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, material omissions or summarisation.
Ø Art 1.3: Only what might reasonably be true, having regard to the sources of the news may be presented as fact and such fact shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded on opinions, allegation, rumour or supposition, it shall be presented in such a manner as to indicate this clearly.
Ø Art 1.4: Where there is reason to doubt the accuracy of a report and it is practicable to verify the accuracy thereof, it shall be verified. Where it has not been practicable to verify the accuracy of a report, this shall be mentioned in such a report.
Ø Art 1.5: A publication should seek the views of the subject of serious critical reportage in advance of publication; provided that this need not be done where the publication has reasonable grounds for believing that by doing so it would be prevented from publishing the report or where evidence might be destroyed or sources intimidated. If the publication is unable to obtain such comment this shall be stated in the report.
Ø Art 4.1: The press shall exercise exceptional care and consideration in matters involving the private lives and concerns of individuals, bearing in mind that any right to privacy may be overridden only by a legitimate public interest.
Ø Article 5: The press shall exercise exceptional care and consideration in matters involving dignity and reputation, bearing in mind that any right to privacy may be overridden only by a legitimate public interest.
We disagree with that statement and note that had the Complainants been interviewed or, equally, had You/Huisgenoot made effort/s to corroborate the interview given to them by Mrs Kriek, they might well have discovered, as just a single example; that the First Complainant was not convicted of charges that he drugged and raped his wife, or that he had repeatedly raped her while she was sleeping as she avers in the interview.
They might also have discovered allegations which could have located the causes of Schalk’s allegedly uncontrollable behavior – to wit allegations that he had been assaulted by his mother and her new husband when he was 14 years old.
The panel emphasises that it is not necessarily saying that it believes the version given by the First Complainant. It is saying that the report should have been balanced and/or corroborated as required by the articles of the South African Press Code listed above.
Sympathetic as we are to Mrs Kriek’s ordeal at the hands of the First Complainant, it seems self-evident that Mrs Kriek, the victim of a rape by her husband, is an affected, inevitably partisan source. She has absolutely no reason to like or to be fair to the First Complainant.
The South African Press Code, with its reliance and incorporation of the common-law principle of audi altarem partem (listen to both sides) requires the press to exercise extreme caution in such a situation. You/Huisgenoot failed to do so.
Order:
We order You/Huisgenoot to publish the following text, as soon as possible, with equal prominence to the original report. We also order them to use the word “Bossert(s)” and the word/s “apologise/apologies” in the headline.
Further, if the original reports were featured on the cover of the magazines, we order that they publish a cover “strapline” saying “Press Council rules on Bossert – see page XX”.
Text of the apology to be published:
The Appeals Panel of the South African Press Council has ruled that a report published in You/Huisgenoot in February 2012 headlined, I sent my man to jail, Annelise is one of the first women in SA whose husband has been convicted of raping her; breached the South African Press Code as it offered a one-sided version of the dispute between the parties.
You/Huisgenoot has been ordered to apologise to the complainants in the matter, Mr Frik Bossert and his son Schalk Bossert, which we hereby do.
The report arose from an interview we conducted with Mrs Annelise Kriek , former wife of Mr Bossert, and Schalk’s mother, about her ordeal at the hands of her then husband which led to his conviction and sentence for her rape. Mr Bossert who has been refused leave to appeal his conviction and sentence is petitioning the Chief Justice to have the decision overturned.
The Press Appeals Panel, headed by retired Judge Ralph Zulman, assisted by panelists Susan Smuts and Peter Mann, said: “Sympathetic as we are to Mrs Kriek’s ordeal, it seems self-evident that she, the victim of a rape by her husband, is an affected, inevitably partisan source. She has absolutely no reason to like or to be fair to the First Complainant.
“The South African Press Code, with its reliance on, and incorporation of, the common-law principle of audi altarem partem (listen to both sides) requires the Press to exercise extreme caution in such a situation. You/Huisgenoot failed to do so.
“The report was not fair. It failed to report what had happened. It was not presented in a manner which indicated that it was based on one view only; nor did it say that this was only Mrs Kriek’s view of events.
“It did not seek, or report, the views of the complainants – beyond the statement that the First Complainant is petitioning (the Chief Justice) to have his conviction and sentence overturned.
The report did not explain to You/Huisgenoot readers why they felt they could not obtain comment from the complainants as required by the Press Code.
“There was no corroborating information presented in the report. The magazines appeared simply to have taken what Mrs Kriek told them and published it, without questioning its veracity.
“You/Huisgenoot did not display the exceptional care and consideration for private lives, individual concerns and dignity and reputation that are required by the South African Press Code.”
End of text to be published
Ralph Zulman
Chairperson of the Appeals Panel of the Press Council of South Africa
Peter Mann and Susan Smuts
Members of the Appeals Panel of the Press Council of South Africa
April 17, 2013