Ruling by the Press Ombudsman
April 10, 2013
This ruling is based on the written submissions of Mr Andrew Boerner (from Jurgens Bekker Attorneys), for Mr Neil Diamond, and The Star newspaper, as well as on an informal hearing that was held at our offices on 27 March 2013. This meeting was attended by Boerner; Janet Smith and Angelique Serrao represented the newspaper.
COMPLAINT
Mr Neil Diamond, a businessman, an Ekurhuleni ANC councillor and the chairman of the municipality’s finance portfolio committee, complains about a story on page 2 in The Star on 28 December 2012 headlined Councillor accused of forging signature on will to gain R5m.
Diamond complains that the following statements or insinuations in the story are untrue, namely that:
· “calls” were made for his resignation;
· he had received a court application and that he responded to this document;
· allegations of forgery and theft were made against him in court; and
· the story misrepresented the chronology of events to create the impression that the matter was an ongoing saga.
He also complains that the newspaper did not provide him a right of reply, and concludes that the story was malicious and vexatious.
ANALYSIS
The story, written by Angelique Serrao, said that calls were made for Diamond to resign following allegations in court that he had forged a signature on a will and stole more than R5 million from a friend’s estate (Mr Jannie van der Walt). This allegation was reportedly made by Mrs Melissa Naidu, a forensic consultant at Paul O’Sullivan & Associates. The article said that she had been hired to investigate the suspected theft. Serrao also wrote that Diamond had applied for an urgent interdict to restrain O’Sullivan and Ms Annelien van der Walt (Jannie’s wife) from threatening, harassing, intimidating or abusing him (which is what the court case was about).
‘Calls’ for resignation
The story says that “calls” were made for Diamond to resign following allegations made in court that he had forged a signature on a will and stole more that R5 million from van der Walt’s estate.
Diamond complains that the story did not clarify who made those calls and to whom they were made. He argues that, given his public position, the story implied that the calls came from the public. He also says that the correct person to receive such a call would be the Speaker or him directly – but states that neither of these happened. He also argues that the allegation about theft has nothing to do with his position of public office.
The Star responds that the DA published a press release on 11 December 2012 in which the party called on Diamond “to step aside as the Chairman of the Council’s Finance Committee until, and if, serious allegations of fraud brought against him are proved not to be true”.
In its reply to this response, Diamond says that the:
· story never mentioned the DA – which would have provided clarity to the vague allegation;
· DA called on him to “temporarily step aside” as “chairman of the Council’s Finance Committee” – while the story stated that he, in his capacity as Ekurhuleni Councillor, has been called upon “to resign”; and
· story inaccurately used the plural (“calls”).
So, here is the situation: One political party (singular, not plural) called upon Diamond (one such call, again singular) to temporarily step aside (not to “resign”) as chairman of the Finance Committee (not as councillor).
At the meeting, the newspaper conceded the above.
A more proper, accurate introductory sentence may therefore have read: “The DA called upon…Diamond to temporarily step aside as chairman of the Finance Committee after…”
This reportage probably caused Diamond some unnecessary harm.
Application: received, responded
The story referred to Diamond’s “responding affidavit”.
Diamond complains that:
· the reporter confused his founding affidavit with a responding affidavit (which he says does not exist); and
· he had received not “any application and/or demand in respect of any allegation regarding the estate of Mr Van der Walt”, and argues that the use of the content of his founding affidavit created the false impression that he had received an application, and that he had responded to that document.
At the meeting, it became clear that at least a part of the heart of the complaint lies in the alleged lack of distinction in the story between Diamond’s urgent interdict against O’Sullivan and van der Walt (not to threaten, harass, intimidate or abuse him), and allegations of theft, forgery and uttering against him.
The Star concedes that the story wrongly described Diamond’s founding affidavit as a “responding affidavit”. However, it argues that, when read as a whole, the story accurately described his application. The newspaper says: “…one mistaken reference to a ‘responding’ as opposed to ‘founding’ affidavit would not have materially affected this understanding, and is an immaterial inaccuracy”.
While the use of the word “responding” affidavit is technically inaccurate I accept that this mistake was made without any intention to harm Diamond. It therefore merely calls for a correction.
The second bullet: In O’Sullivan’s responding affidavit (dated December 4) to Diamond’s founding affidavit (dated November 30), the former referred to a letter by the attorney who acted on behalf of van der Walt’s estate. In this letter, dated 29 November and addressed to Diamond, the attorney stated that at least five transfers from the estate account “were unauthorized and unlawfully transacted by you”. An amount of approximately R3.2 million was then claimed back.
This letter was received by an official in the office of Diamond’s attorney on November 30. On the same day, WF Bouwer Attorneys, for Diamond, responded to this demand in writing, denying that the latter owed the estate any money.
O’Sullivan stated that the letter to Diamond’s attorneys was delivered seven hours prior to him signing his founding affidavit and that Bouwer’s response was received two hours before Diamond swore under oath that no such demand had been made by the Estate.
The newspaper concludes that Diamond’s denial that he had received any application and/or demand in respect of any allegation regarding the estate of van der Walt “is clearly false”.
Diamond responds that the:
· story alleged that the demand was made in court via an application – it is this application that he denies having received;
· court action concerned an application for his interdict against O’Sullivan and not an application against him for allegations of theft from van der Walt’s estate; and
· newspaper’s arguments that a demand was sent out was confusing, as it “cannot use information omitted from the story to justify its own inaccuracies” – referring to the “demand document” that mentioned an amount of R3,2-million, while the story referred to R5,57-million.
I’ll respond to each bullet above separately:
· The story did not say that demands had been made in court (against him) “via an application”; the article only mentioned an application from Diamond himself. “Court papers” were indeed referred to, but they were not necessarily an application against him;
· It is true that the court action was about his interdict and was not about an application against Diamond for allegations of theft – yet O’Sullivan’s responding affidavit was also tabled, in which this matter was mentioned (and he also referred to Naidu’s affidavit, which was about the same matter);
· It is true that the reference to a “demand” was confusing, as different amounts were in play – but the mentioning of the amount of R5.57 was justified as it was founded on Naidu’s affidavit (although it would have been better if Serrao also referred to the R3.2-million).
One issue remains outstanding, namely that of the validity of Naidu’s document. I have noted that this document was typed out (it should have been hand-written), that it had not official stamp on it and that it did not contain a CAS number. It was also withdrawn by the auditor firm (although O’Sullivan apparently disputed this withdrawal).
However, Boerner did not complain about this issue. Besides, the story presented the document as allegations and not as the truth, and merely said that it was an “investigation”.
Allegations made in court
The story says that allegations (of forgery and theft) were “made in court”.
Diamond complains that he has no knowledge of such allegations in court, nor has he been served with any court papers that made such allegations.
The Star responds that Diamond himself expressly referred to allegations of wrongdoing and improper conduct in his administration of the van der Walt estate and that O’Sullivan also dealt with these in his answering affidavit. “These allegations…were therefore made and addressed in court.”
However, the newspaper admits that the story incorrectly referred to Naidu’s sworn statement in the criminal complaint against Diamond as “an affidavit in the Johannesburg High Court” – but says that this was an “unintentional error”.
The issue in court was Diamond’s urgent interdict against O’Sullivan. In the latter’s responding affidavit, he did mention several allegations of theft by Diamond. The statement in dispute is therefore materially correct.
Also, it may be true that Diamond never received “court papers” that made “such allegations”. However, this is nothing more than hair-splitting – even if the allegations were not from “court papers”, they surely were from an attorney’s document as it had been presented in court.
Secondly, I accept that the mistake about the reference to the Johannesburg High Court was inaccurate, but unintentional – and indeed without real potential to cause Diamond unnecessary harm.
Ongoing saga
Diamond complains that Serrao misrepresented the chronology of events to create the impression that this was an ongoing saga (where affidavits had been exchanged between the parties and that he had responded in an affidavit to an application brought against him).
The Star says that Diamond did not refer to any specific error other than the mistaken reference (that I have already dealt with) and denies that the story contained any error of chronology. Besides, it was correct that affidavits had been exchanged and the substance of the allegations made in the story was addressed in those affidavits.
Diamond notes that the story stated that the allegations were made by Naidu, and then falsely continued to say that he “in turn” applied for an urgent interdict – he says that the interdict application was brought before court (in November 2012) before Naidu’s statements were signed (during December 2012). He adds that this mistake was “material”.
At the meeting, Boerner withdrew the words “to create the impression that this was an ongoing saga” – he did maintain the complaint that Serrao got the chronology of the story wrong.
Here are a few general remarks:
· Journalist should be concerned with both content and chronology;
· However, the latter is often of lesser importance – reporters are not in the first place historians, they are story-tellers (who weigh up matters of material importance and portray them in that order, which is not necessarily a chronological one); and
· The above does not make chronology unimportant.
The story indeed said that Diamond “in turn” applied for an urgent interdict (immediately after it referred to Naidu’s affidavit). “In turn” means “sequentially” or “afterwards” – which is indeed wrong here, as Diamond’s interdict is dated November 30 and Naidu’s affidavit was dated December 6. The “in turn” could also not have referred to the court case, as the interdict preceded and led to the case.
I therefore accept Serrao got some of the chronology in the story wrong – which, in a sense, brings me back to the alleged lack of distinction in between Diamond’s urgent interdict and allegations against him of theft, forgery and uttering.
But again, this was not likely to cause Diamond any serious harm. It is merely a mistake that needs to be corrected.
No right of reply
Diamond complains that:
· The Star did not give him a right of reply on the issue of these allegations (yet it reported on them); and
· by quoting the founding affidavit, Serrao created the false impression that he did provide comment to the allegations contained in the story.
When The Star first contacted Diamond, it only asked questions regarding his interdict. At the time, the newspaper did not know about allegations of fraud, theft and uttering against him – which is why it did not ask him about these matter when Serrao interviewed him.
It also says that, when Serrao wrote the story, Diamond was in the United States. She then included his version of events in the story (based on his founding affidavit) and argues that no prejudice was suffered by him as a result. “He was fairly treated because his response was incorporated in the article.”
Diamond replies that he could have been reached via email and cellphone. He adds that the story did not state that he was unavailable for comment, nor did it qualify the “quotes” as coming from his founding affidavit.
At the hearing, Serrao testified that she had made one phone call to Diamond, could not get hold of him, and did not leave a message. She then used his application as a source of information.
I accept the latter as it is normal journalistic practice. Yet this did not exempt the reporter from trying harder to get hold of Diamond – one telephone call, and none to his legal representative, were certainly not enough.
Besides, the story did not state that he could not be reached for comment (as it should have done).
Secondly, the complaint that the story did not qualify the “quotes” as coming from Diamond’s affidavit has no legs to stand on. The story indeed made it clear that Diamond “in his responding (which should have read ‘founding’) affidavit” made some statements. It certainly did not create a false impression that he was personally commenting on the reporter’s questions. The ordinary reader would have understood that the remarks from Diamond came from this document, when read in context (even though the quotation marks at the end of the story are somewhat removed from the initial statement as referred to above).
Malicious, vexatious
Diamond complains that the story was untrue “in its entirety” and that Serrao was vexatious and malicious.
At the meeting, Boerner withdrew this part of the complaint.
I take this as an implicit acknowledgement that the few mistakes that crept into the story were not intended to harm Diamond in any way – which I have accepted all the way.
FINDING
‘Calls’ for resignation
The statement that “calls” were made that Diamond should “resign” (from council) were inaccurate, unfair and exaggerated.
This is in breach of the following articles of the Press Code:
· 1.1: “The press shall be obliged to report news truthfully, accurately and fairly”; and
· 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…”
Application: received, responded
The reference in the story to Diamond’s “responding affidavit” was inaccurate. This is in breach of Art. 1.1 of the Code that states: “The press shall be obliged to report news…accurately…”
The part of the complaint that he had received an application and/or demand in respect of any allegation regarding the estate of van der Walt is dismissed.
Allegations made in court
This part of the complaint is dismissed.
The statement that Naidu’s affidavit was presented to the Johannesburg High Court was inaccurate and therefore in breach of Art. 1.1 of the Code.
Ongoing saga
The part of the complaint about an ongoing saga is dismissed.
The story did partly get the chronology wrong. This was inaccurate and in breach of Art. 1.1 of the Code.
No right of reply
The reporter should have done more to get comment from Diamond and she should have stated in the story that she was unable to do so. This is in breach of Art. 1.5 of the Press Code that states: “A publication should seek the views of the subject of serious critical reportage in advance of publication… If a publication is unable to obtain such comment, this shall be stated in the report.”
The part of the complaint that Serrao created a false impression that Diamond did provide comment to the allegations contained in the story is dismissed.
Malicious, vexatious
This part of the complaint is dismissed.
SANCTION
‘Calls’ for resignation
The Star is:
· directed to apologise for the statement that “calls” were made that Diamond should “resign” (from council) as these were inaccurate, unfair and exaggerated;
· cautioned for not doing enough to get comment from Diamond or his legal representative prior to publication, and for not stating in the story that it was unable to get hold of him; and
· directed to retract and correct the reference in the story to Diamond’s “responding affidavit”, the reference that Naidu’s affidavit was presented to the Johannesburg High Court, and to state the correct chronology.
The newspaper is directed to publish the following text on page 2:
Beginning of text:
The Star apologises to businessman and Ekurhuleni ANC councillor Neil Diamond for inaccurately and unfairly stating that “calls” were made for him to “resign” (from council) as this exaggerated reporting probably caused him some unnecessary harm – the call was merely for him to temporarily step aside as the chairman of the municipality’s finance portfolio committee until an investigation has been completed.
Diamond lodged a complaint with the Press Ombudsman about our story on 28 December 2012, headlined Councillor accused of forging signature on will to gain R5m.
The story, written by Angelique Serrao, said that calls were made for him to resign following allegations in court that he had forged a signature on a will and stole more than R5 million from a friend’s estate (Mr Jannie van der Walt). This allegation was reportedly made by Mrs Melissa Naidu, a forensic consultant at Paul O’Sullivan & Associates. The article said that she had been hired to investigate the suspected theft. Serrao also wrote that Diamond had applied for an urgent interdict to restrain O’Sullivan and Ms Annelien van der Walt (Jannie’s wife) from threatening, harassing, intimidating or abusing him (which is what the court case was about).
Press Ombudsman Johan Retief directed us to apologise; he also cautioned us for not doing enough to get comment from Diamond or his legal representative prior to publication, and for not stating in the story that we were unable to get hold of him.
He also found that the reference in the story to Diamond’s “responding” affidavit was wrong, as it should have read “founding” affidavit. However, he accepted that this was an honest mistake – as was the fact that we partly got the chronology of events wrong (he first applied for the interdict before Naidu’s affidavit was released, while we suggested that it was the other way around).
The same went for the reference that Naidu’s affidavit was presented to the Johannesburg High Court (which it was not).
He merely asked us to retract these matters and to put forward the correct facts, which we have now done.
Retief dismissed the parts of the complaint that:
· Diamond said he had not received an application and/or demand in respect of any allegation regarding the estate of van der Walt;
· allegations of forgery and theft was not made against him in court;
· the matter between him and O’Sullivan was not an “ongoing saga”;
· the story created a false impression that Diamond did provide comment to the allegations contained in the story; and
· the reporter was malicious and vexatious.
At a meeting between the Ombudsman and the parties, Diamond’s legal representative withdrew this last part of the complaint. “I take this as an implicit acknowledgement that the few mistakes that crept into the story were not intended to harm Diamond in any way – which I have accepted all the way,” Retief commented.
Visit www.presscouncil.org.za for the full finding.
End of text
APPEAL
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman