Revision of Press Code complaints procedure urgently needed and Mark Povey’s response to Judge Ngoepe
The final chapter, for the Cape Times but not for the families of the Tiger Tiger Five has been written. The newspaper has been ordered by the Press Council to publish an apology on page three with a front page reference to this apology.
My initial submission to the Press Council and my subsequent appeal for stronger sanctions against the Cape Times have now been published on this website.
They outline my concerns about the complaints procedure as presently articulated in the Press Code.
I believe that if my concerns are addressed the complaints procedure can be improved to the benefit of everyone who treasures media freedom and I am very encouraged by the positive feedback I have had in this regard from the Council
The enduring havoc that the reporting by Carlo Petersen and his colleague on the Argus, Kieran Legg, brought into the lives of the falsely accused youths and the lives of their families is indescribable.
My initial complaint to the Press Council about Petersen’s reporting was upheld but by then the damage had been done and it will be long-term damage - damaged personal and commercial reputations, damaged psyches – all in conflict with a fundamental and age-old tenet of ethical journalism – do least harm.
I and the families of the Tiger Tiger Five have incurred significant expense, by our standards, to obtain justice for the boys falsely vilified as racists.
To employ senior counsel like advocate William Booth and the country’s top private investigator, Christian Botha, is not inexpensive and, unlike the owner of the Cape Times and the Argus, Dr Iqbal Survé, we are not billionaires.
Threats, vicious abuse
The five youths experienced such threats, such vicious abuse for a crime they did not commit that they took down their Facebook pages.
I considered the Press Council ruling that this harm deserved no greater sanction than a published apology, involving no more than a few sentences in a single edition of the increasingly notorious Cape Times to be unduly lenient. It did not negate the serial damage inflicted on the Tiger Tiger Five over seven months or adequately compensate them. I asked, on appeal, for this to be considered a tier 3 breach of the Press Code – serious misconduct. I also asked that the online articles be removed and that the apology should also be reflected on the IOL website. I was encouraged in this regard by a comment made by retired judge, Bernard Ngoepe - who was scheduled to adjudicate in my Tiger Tiger Five appeal – in a ruling published on the Press Council website on 5 May this year
The complainant was Helen Zille and SAPA was the respondent.
In clause 5 of his ruling he states: ‘… in fact, in this country, accusing someone of racist remarks can have detrimental consequences to them, given our unfortunate history.’
This entirely justifiable sentiment was echoed in a subsequent judgment.
In early October, Pretoria High Court Acting Judge Bantubonke Tokota ordered the Daily Sun to pay R80 000 in compensation to a Pretoria man, Bekker du Plessis, for defaming him. The newspaper was also ordered to pay Du Plessis’s court costs. Her judgement echoes the views expressed by Judge Ngoepe in his Zille vs SAPA ruling.
Bekker told the court that the reporting of the newspaper was untrue, defamatory and sought to portray him as a ‘cruel racist bigot.’
In finding for the complainant Judge Tokota said: “Once a serious allegation is made against you, even if you are subsequently cleared by a court of law, members of the public often stick to the original allegation and ignore the fact that you have been found not guilty. The stigma of a lie may therefore be indelible."
I thus read with incredulity the learned Judge’s findings in dismissing my appeal. I complained about not having been able to lodge a complaint during the trial and factually proceeded to find fault with all the articles relating to this trial up to and including the 29th June 2015 article in the Cape Times which I was forced by the Press Council complaints structure to make the sole focus of my initial complaint.
In dismissing my appeal Judge Ngoepe said: ‘I am of the view that the applicant has an exaggerated perception of the severity of respondent’s misdemeanour. He keeps on repeating that respondent cast the boys as racists, proven attackers, potential murderers, etc. I am afraid these are pretty strong statements. I do not think what appeared in the story is anything near that. I also don’t think there was any malice as alleged.’
The last sentence baffles me, particularly in the context of Judge Ngoepe’s remark in the Helen Zille vs SAPA ruling on 5 May and the ruling by Judge Bantubonke Tokota. In my subjective opinion, his dismissal of my request for a stronger sanction does not stand up to critical analysis.
Keep in mind that the accused were never asked to plead, no evidence was led and all charges were withdrawn before the matter came to trial because there was absolutely no evidence to back up those charges of racism and yet they still ended up in Pollsmoor Prison. They also endured relentless vilification as a Google search of the Cape Times and Argus articles on the IOL website reveals.
Malice
In dismissing my appeal Judge Ngoepe says my claim of malice is unfounded. What proves malice beyond any shadow of doubt, however, was the way in which the Cape Times and the Argus dropped the story immediately after charges were withdrawn.
This was a story which cried out for second-phase journalism with specific reference to the criticism by advocate William Booth who represented the accused, of the decision by prosecutor Nathan Johnson to deny bail. This decision resulted in entirely innocent people being incarcerated in Pollsmoor Prison for two days and nights.
Furthermore, in this submission, I provided evidence of the malice which I contend was constantly manifest in the reporting of Carlo Petersen with specific reference to censorship by omission which is forbidden in terms of section 2.2 of the Press Code.
I now ask Judge Ngoepe to re-assess his statement about lack of malice in the light of the following:
Racially divisive
News 24 and Business Day recently followed international trends by taking down the comments feature below online articles. Dr Iqbal Survé, who now owns the Cape Times and the Argus was allegedly so disturbed by the racially divisive nature of many of the comments on the IOL website that he set up a special advisory panel to investigate the matter.
On 15 October IOL announced that it would follow the lead of Business Day and News 24 and disallow comment from readers below its online articles. When I read this I checked. The the hate speech below the Carlo Petersen/Tiger Tiger Five articles on the IOL website remains and it was still there at the time of writing – the early morning of 20 October. Dr Survé, if he is to retain credibility, needs to explain this.
Advocate William Booth, quoted in the Daily Dispatch after his clients were exonerated said:
“It has been so traumatic for the boys and their families.
“Their names and photos were in the media and all over social media so it has been an emotional strain on them.
“But they have been vindicated because they should never have been prosecuted in the first place.
“The boys and their families are overjoyed that justice has been done, yet the damage has also been done because their names and photos are out there.”
The hate speech remains out there thanks to the malice of the Sekunjalo company. I am told that such abuses targeting the country’s white community did not occur before the Sekunjalo takeover of the Independent News Media company and, judging by the experience of the Tiger Tiger Five, I have no reason to disbelieve that.
Bias
If one doubts the bias and censorship by omission which was a constant factor in the reporting by the Cape Times and the Argus in regard to the false accusations levelled at the Tiger Tiger Five consider this:
In her second statement which was part of the case docket and was dated after the Breaking Newspaper articles, Delia Adonis specifically states: ‘I have never spoken to the newspaper people. I have only stated my story to Mr Johnson at court and nobody else.’
Furthermore, the allegations she levels in her statements were virtually replicated in the original articles carried by the Cape Times and the Argus which leads me to believe her statements were leaked to these newspapers – but not to Die Burger.
This would seem to indicate close liaison between Carlo Petersen and Kieran Legg of the Argus and the prosecutor, Nathan Johnson.
I recently discovered that Johnson has been moved from the Wynberg court to the Paarl magisterial district and a phone call confirmed this.
Spectacular collapse
Given the reputational damage suffered by the NPA with the spectacular collapse of three ‘racial assault’ cases in quick succession this is understandable. On 26 March charges were dropped against Monique Fuller, on 26 June against the Tiger Tiger Five and three weeks later against Talana Jo Huyshamer.
Carlo Petersen and Kieran Legg reported constantly on the court appearances of the Tiger Tiger Five and my question is this: If they are capable reporters they must have known about Johnson’s apparent demotion. If they are ethical reporters why has this very salient information been withheld from the readers of the Cape Times and the Argus?
What further disturbed me about the learned judge’s dismissal of my concerns was this passage: ‘One point should also be raised in passing. Article 1.1 of the Complaints Procedures requires the aggrieved person to be the complainant herself/himself, but allows another person to do so on their behalf. In the present case, none of the boys accused is the complainant. Mr Povey is bringing the complaint on the basis that he is a relative to one of the boys. This is a very thin statement; nobody knows what the nature of the relationship is, or why the boy or boys could not complaint (sic) themselves. The Ombudsman, in the spirit of trying to resolve the matter, did not raise this issue; but a person purporting to be a complainant on behalf of another needs to substantiate the basis of such acquired capacity.
Had I been asked I would have provided affidavits from the boys and their families. They were all traumatised by the incarceration of the Tiger Tiger Five in a notorious prison for a crime they never committed and the hate they experienced as a result of the venomous media campaign launched against them by the two Sekunjalo newspapers. This campaign was duly reflected in the other newspapers belonging to Sekunjalo in all major cities.
Race hoax
I, and the other parents had the money to employ senior counsel like William Booth and the country’s top private investigator, Christian Botha to pursue justice on their behalf and I represented the boys at their specific request. Had I and the other parents not funded this investigation this nefarious race hoax might well have succeeded. My question, thus, to Judge Ngoepe is simple and obvious: ‘How would you have felt if Chad de Matos was your son?”
Judge Ngoepe nevertheless raises an important point about a glaring lacuna in the Press Council complaints procedure as it is presently structured. If ordinary members of the public who are not personally affected by the abuse of media power and influence - as the Tiger Tiger Five were - but are concerned about media freedom, cannot raise these concerns with the Press Council, then 99.9% of the population is disempowered in this regard.
I had hoped that Judge Ngoepe would take cognisance of this fact and the fact that we were prevented by restrictions imposed by the Press Code complaints procedure as presently articulated from complaining about sustained media calumny by the two newspapers which continued for seven months. As I pointed out in my initial complaint, there seems to be a strong perception that the reporting of the Cape Times is motivated by an animus against whites which is unequivocally forbidden by the Press Code: This animus, I wrote,: … unjustifiably ratchets up racial tensions in contravention of section 2C of the preamble to the Press Code: ‘Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’
I can personally testify the reputational harm suffered by the Tiger Tiger Five and the enduring emotional and psychic damage they sustained.
Censorship by omission
The first deficiency in the complaints procedure of the Press Code as currently structured relates to the fact that one may not raise concerns with the Press Council about injurious reporting during a trial until the conclusion of the trial. For seven interminable and agonising months the families of the accused had to watch the Tiger Tiger Five being relentlessly and falsely reviled by the Cape Times and the Argus and there was nothing we could do about it.
The second deficiency is the conflict between the first deficiency and the fact that one only has 20 working days in which to raise concerns and this normally means a single article as a perusal of the rulings of the Council on its website indicates.
The third deficiency in the current complaints procedure of the Press Council relates to censorship by omission which is forbidden in terms of section 2.2 of the Press Code. In its reporting of the Tiger Tiger Five trial the Cape Times (editor Aneez Salie) and the Argus (editor Gasant Abarder) simply withheld from their readers and the readers of the IOL website information which did not comply with the central theme of their reporting - that the accused were thuggish racists who would attempt to murder an elderly woman because she comes from a different ethnic group. This was most evident in the failure by the two newspapers to fully reflect the concerns of advocate William Booth about the conduct of prosecutor Nathan Johnson in denying bail and sending three innocent boys to Pollsmoor prison for a crime they did not commit.
As I pointed out the two newspapers suffered no sanction from the Press Council for this censorship by omission which deliberately withheld salient information from their readers in contravention of their constitutional right to access to information and their right to know.
I concluded my appeal for heavier sanctions to be levied against the Cape Times thus:
Special request: I ask the Press Council to reassess the Complaints Procedures as they relate to:
The 20 working day time limit on complaints
The restriction on complaints relating to trials in progress
The difficulties in raising concerns about deliberate censorship by omission.
I also requested that the hate-filled comments below articles on the IOL website by reporters Carlo Petersen and Kieran Legg be removed because their retention is in conflict with the instruction in the preamble to the Press Code that newspapers and journalists should strive to inflict minimum harm. This has also not happened. I also request that the apology also appear on the IOL website as the offending articles will forever be in cyberspace.
The Press Code is clearly a living document given its regular revision and I have no doubt that my concerns will be addressed. I express my sincere gratitude for the empathy and assistance I experienced from the Press Council staff I dealt with. I am not alone in my appreciation of the vital service they render.
The Press Council provided me with a medium through which I could bring to the attention of the public the abhorrent and shameful miscarriage of justice which occurred in Cape Town and I am indebted to it for that.
I would also like to thanks Barbara Hollands, a court reporter of integrity who writes for our local newspaper, the Daily Dispatch. She fully reflected the concerns by William Booth about the jailing of three of the boys and has, as a follow up, interviewed them, their families and private investigator Christian Botha. I have asked the newspaper to make her interview available on its online website.
I leave till last the most disturbing facet of this appalling saga which I outlined in my appeal to the Press Council against the leniency of its sanction against the Cape Times.
Alexander (Sasha) Chernikov appeared in the Wynberg Magistrates Court Number 2 on 3rd August 2015 charged with assaulting Duncan Ross Hendry and the case was postponed until 20 November 2015. The case number is 340/10/2014.
The testimony under oath of Duncan Ross Hendry absolutely destroys the carefully constructed case of Nathan Johnson, Carlo Peterson and the Cape Times which links the Tiger Tiger Five to the assault on Hendry. But what is even more sinister is that William Booth’s clients were brought to trial within two months but the trial relating to another assault on the same date and at the same location – Hendry - is only brought to court for the first time almost nine months later. How come?
Three questions:
Do we now have the ultimate expression of race-based justice – separate court dates for identical charges laid on the same date and relating to the same venue?
Will Carlo Petersen and Kieran Legg be at the Wynberg court on 20 November for the appearance of Sasha Chernikov and will they report proceedings with the same zeal that they did when the Tiger Tiger Five were the accused.
Or does assault only become newsworthy for these two newspapers when the alleged victim is not white but the alleged assailant is?
Conclusion
It is thus my respectful request that the Press Council review the complaints procedure of the Press Code to address my concerns, most specifically about the way the IOL website continues to retain the hate-filled responses to false accusations of racism in the comments section below the articles by Carlo Petersen and Kieran Legg. Should the on line articles that are so offensive be allowed to remain on the IOL on line website then I request that the apology from the Cape Times should also reflect there with the offending article dated 29th June 2015.
It is with equivalent deference that I request Judge Ngoepe to reconsider his suggestion that I exaggerated the severity of the sustained attack over seven months by Carlo Petersen on the characters of the Tiger Tiger Five who were innocent of any crime.
Given that context and in the light of the statement made by Judge Ngoepe in the Zille vs Sapa ruling and the subsequent ruling about false claims of racism by Judge Bantubonke Tokota, I believe the comments by Judge Ngoepe about me were unfair and condescending.
Dr Iqbal Survé needs to take tangible steps to repair the damage incurred by two once reputable newspapers as a result of the reporting on the Tiger Tiger Five.
Should that happen and should the Press Code complaints procedure be revised then perhaps some good will have come from the media demonisation of Chad de Matos and the Tiger Tiger Five.
I again thank the Press Council for providing me with the platform to highlight the injustice endured by the Tiger Tiger 5 boys and their respective families and friends.
Mark Povey
