Ruling by the Deputy Press Ombudsman

September 14, 2010

This ruling is based on the written submissions of Executive Director of Communications Gareth van Onselen, for the DA, and the Sowetan newspaper.

Complaint

The DA complains about a story in Sowetan, published on July 28, 2010 and headlined DA man up for shooting at two kids.

The DA says there are "fundamental factual inaccuracies" in the following sentences:

· "In his judgment Van Tonder says Van Dalen and two metro police officers ‘without any cause or warning, started firing rubber bullets at the boys [aged 6 and 7]. The boys fled and [the group] laughed.'"

· "Van Tonder also said it would be in the public interest for Van Dalen to be disciplined."

· "A DA member of parliament is accused of opening fire on two small black children who were playing soccer on an empty piece of land in Cape Town."

The DA also complains that the headline is inaccurate and truthful and says that it misrepresents and distorts the facts. In doing so, it adds, the headline does not reasonably reflect "the true nature of the events".

Analysis

The story is based on a report by Adv Pierre van Tonder, a commissioner in the South African Local Government Bargaining Council, who adjudicated in the matter of an appeal by a metro police officer against his alleged unfair dismissal by the City of Cape Town. The report concerns an incident in 2008, when xenophobic attacks took place in Khayelitsha, Cape Town. The story says DA MP Pieter van Dalen (a ward councilor in the City of Cape Town at the time of publication), together with two metro police officers, shot rubber bullets at two black children who were playing soccer late at night. Van Dalen was said to be trying to help to control the situation. The story continues: "But no action was taken against Van Dalen. A few months later the DA promoted Van Dalen to the national assembly. He is now the DA's deputy shadow minister of public enterprises." (Both metro police officers were fired - one appealed, and lost.)

We now turn to the merits of the complaint:

"In his judgment Van Tonder says Van Dalen and two metro police officers ‘without any cause or warning, started firing rubber bullets at the boys [aged 6 and 7]. The boys fled and [the group] laughed.'"

The DA's complaint centers around two aspects: the use of the word "judgment" and the part of the sentence that is used as a quote.

Firstly, the DA says that the document on which the story is based is an arbitration award, not a judgment (as in a court of law) - the word "judgment" is therefore inaccurate and misleading.

As far as the quote is concerned, the DA says that:

· there is no such "judgment" (in which van Tonder supposedly found as a matter of fact that van Dalen had fired rubber bullets at children and then laughed) at all - in other words, the journalist fabricated the quote; and

· van Tonder merely summarized the untested testimony of a witness (Mr Isak Williams).

Sowetan does not comment on the use of the word "judgment".

The newspaper does, however, say that:

· the quoted phrase is true, it is in the public interest and it is based on the testimony of Williams as well as on the findings of the arbitrator;

· the DA's allegation that Williams' evidence is untested is inaccurate "as the arbitrator made his findings based on such evidence";

· it is clear that the arbitrator endorsed Williams' evidence and accepted that van Dalen was involved and participated in the incident;

· the sting of the disputed quote is materially the same as that of the arbitrator's finding - therefore, there was no fabrication; and

· immediately after the disputed sentence the story mentions the arbitrator's statement that van Dalen did not appear before him and that he therefore could not make a definite finding (that he was guilty or not) - it says this is fair and objective reporting.

On the use of the word "judgment": The DA is correct - strictly and technically speaking, it is a legal term. However, the finding of this office in this case (which is also not based on a court procedure) can also be described as a "judgment". People sometimes say: "In my judgment..."

Enough said.

On the quoted phrase: The gist of the complaint is that the quote was fabricated. That is not true. Under the heading "Factual Finding" van Tonder says: "I find that...applicant and others, without warning or cause fired rubber bullets at two defenseless young boys aged approximately 6 or 7... I also find that applicant laughed after this incident." (emphasis added) The quote is clearly not a summary of a witness - untested or not. It indeed is van Tonder's finding.

The only words in the quote that are not used in van Tonder's finding are "any" (cause) and "the boys fled".

To be able to make a decision on this, it has to be taken into account what van Tonder has to say about Williams as a witness:

· [28] "Applicant wants me to believe that Williams is a racist liar. I do not believe this."

· [28] "I find that Williams had no motive to lie and did not."

· [29] "...I reject the version of applicant and Kiewitz where it conflicts with the version of Williams."

Van Tonder clearly accepted Williams' version - who testified that the boys had fled (and that van Dalen did participate in the shooting).

This makes this omission of the words "the boys fled" in the quote not material enough to warrant a finding against the newspaper (the word "any" [cause] is also not substantial enough). The quote is a true reflection of van Tonder's finding and therefore it is found to be acceptable.

"Van Tonder also said it would be in the public interest for Van Dalen to be disciplined."

The DA says that this sentence is inaccurate and untruthful.

Sowetan admits that van Tonder did not make a specific finding regarding whether van Dalen should be disciplined "and hence the inaccuracy of the statement to that effect".

The newspaper, however, argues that:

· the only reason that the arbitrator did not make such a finding against van Dalen is because the City of Cape Town did not have the jurisdiction to discipline him;

· the arbitrator did rule that there was a prima facie case against van Dalen and against somebody else that was with him - and, as the City of Cape Town had the jurisdiction to discipline this other person, it would be in the public interest to do so; and

· it is reasonable to infer that the arbitrator would have made the same finding regarding van Dalen if it had the jurisdiction to do so.

This explanation may be reasonable. However, no explanation can make good the fact that van Tonder never said those words regarding van Dalen. What Sowetan did, was to draw (admittedly reasonably true) conclusions and then put those conclusions in van Tonder's mouth.

This erodes the credibility of the press in general and the newspaper in particular.

Sowetan says it would be happy to publish the following correction:

"On 28 July 2010, Sowetan published an article in which it was alleged that van Dalen had been accused of shooting at two kids with rubber bullets and that in a judgment handed down by Advocate Pierre van Tonder, a commissioner in the South African Government Bargaining Council, it was found that it would be in the public interest for van Dalen to be disciplined in relation to this allegation.

"It has now come to the attention of Sowetan that such a finding was not made by the arbitrator. However, the arbitrator did find that in regard to former ward Councillor van Dalen's alleged involvement in the abovementioned incident, it is important to understand that a municipal council (consisting of councilors) and a municipality are not synonymous concepts. Van Dalen was a councillor in the municipal council and not an employee of the City of Cape Town. Accordingly, the City of Cape Town in its capacity as municipality did not have jurisdiction to discipline him and that it was the responsibility of the municipal council of the City of Cape Town to take action against him."

I suggest a shorter wording:

"On 28 July 2010, Sowetan published an article in which it was alleged that van Dalen had been accused of shooting at two kids with rubber bullets. The story said that in a judgment handed down by Advocate Pierre van Tonder, a commissioner in the South African Government Bargaining Council, it was found that it would be in the public interest for van Dalen to be disciplined in relation to this allegation.

"It has now come to the attention of Sowetan that no such a finding was made as the municipality had no jurisdiction to discipline him - it was the responsibility of the city's municipal council to take action against him."

"A DA member of parliament is accused of opening fire on two small black children who were playing soccer on an empty piece of land in Cape Town."

The complaint is about the use of the word "black".

The DA says that:

· at no point anywhere in van Tonder's report mention is made of the race of the two young boys allegedly shot at; and

· as there is no way the journalist could have known the race of these children, the journalist fabricated it.

Sowetan says the journalist was informed by a certain Khumalo that the children involved were black. The newspaper adds that it is common knowledge that Khayelitsha is not a racially integrated area (it is a black township). Therefore, Sowetan continues, it would be reasonable - and not a fabrication - to conclude that the boys who were shot at were black. It is doubtful "that one would find unaccompanied white children of the ages 6 and 7 playing in an open field in Khayelitsha late at night".

Based on Khumalo's evidence as well as the fact that Khayelitsha is a predominantly black area, the use of the word "black" can be accepted as reasonable. The justification for using the word "black" lies in the well-kown fact that the DA at the time realized the importance of getting black votes in order to strengthen its hand.

The headline: ‘DA man up for shooting at two kids'

The DA says the headline is inaccurate and untruthful.

In support of its complaint, the DA argues that van Tonder's report does not concern van Dalen at all - he was neither the applicant nor the respondent in the case. This, the DA says, was evidenced by van Tonder, who wrote that van Dalen never appeared before him, that van Dalen never had an opportunity to defend himself, and that he (van Tonder) was therefore unable to make a definite finding about van Dalen's guilt. The DA concludes the statement that the "DA man" that was "up for shooting two kids" is wrong - the party says he is "not up for anything".

Sowetan says that the headline indeed describes the gist of the story, as the Press Code requires in Art. 5.1 (where it says headlines should give a reasonable reflection of the contents of the report in question). The newspaper says the phrase "up for" implies that a person has been accused of something or that a person was involved in a particular incident. It says that, as van Dalen was implicated for participating in the incident, the phrase "up for" was appropriate.

The DA's argument that van Dalen was neither the applicant nor the respondent does not hold water - he was mentioned in van Tonder's report and Sowetan therefore had reason enough to report on him. Van Dalen was a public official at the time and the newspaper was squarely within its rights to hold him accountable for his alleged role in this incident.

The real question is what the words "up for" (the rest of the headline is not in dispute) mean. A thesaurus search reveals, amongst others, the following alternatives: "due for", "expected/likely to get", and "in for". The headline therefore implies that somebody or some organisation is holding van Dalen responsible or accountable for whatever activity or action he is accused of.

Yet nobody seems to be holding him responsible for the incident.

The words "up for" can therefore not be described as giving a reasonable reflection of the contents of the story.

Finding

"In his judgment Van Tonder says Van Dalen and two metro police officers ‘without any cause or warning, started firing rubber bullets at the boys [aged 6 and 7]. The boys fled and [the group] laughed."

The use of the word "judgment" was justified; so was the quote in dispute. This part of the complaint is dismissed.

"Van Tonder also said it would be in the public interest for Van Dalen to be disciplined."

The words in dispute were put in van Tonder's mouth. It is in breach of Art. 1.1 of the Press Code that states: "The press shall be obliged to report news truthfully, accurately and fairly."

"A DA member of parliament is accused of opening fire on two small black children who were playing soccer on an empty piece of land in Cape Town."

The reference to "black" children is reasonable and justified. This part of the complaint is dismissed.

The headline

The headline implies that someone or some organization is holding van Dalen accountable for the incident. As this is not reflected in the story it is in breach of Art. 5.1 that says: "Headlines...shall give a reasonable reflection of the contents of the report...in question."

Sanction

Sowetan is:

· directed to publish a summary of this finding and sanction (not the whole ruling);

· directed to publish the suggested correction of the sentence that attributes the words to van Tonder that it would be in the public interest for van Dalen to be disciplined; and

· reprimanded for the misleading headline.

Please add the following sentence at the end of the text: "Visit www.presscouncil.org.za (rulings, 2010) for the full finding."

Our office should be furnished with the text prior to publication.

Appeal

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

Source:www.presscouncil.org.za, September 14 2010

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