Ruling by the Press Ombud
8 June 2016
This ruling is based on the written submissions of Mr Vernon Seymour and those of Susan Smuts, legal editor of the Sunday Times newspaper.
Seymour is complaining about a story in the Sunday Times of 15 May 2016, headlined Some shady characters on August party lists.
Complaint
Seymour complains that the article:
· contained distortions of the truth about him;
· deliberately omitted material information; and
· was defamatory of him.
He adds that the headline sought to discredit him and compromise his reputation.
The text
The article, written by Aphiwe de Klerk and Philani Nombembe, said that the DA and the ANC had given the green light “to some of Cape Town’s most controversial politicians” to contest seats as councilors in the municipal elections due to take place in August this year.
The journalists reported that the lists featured men who had been in court or had been found guilty at disciplinary hearings.
The story mentioned Seymour first, stating: “An arbitrator found Seymour guilty of sexually harassing an intern at the Safa offices in 2013 and recommended a life ban from soccer. Seymour reportedly ‘persistently harassed [the victim] by paying her a cash sum of money; by touching her; by offering to buy her a T-shirt’. He resigned but took Safa to court last year and the matter is pending.”
The report used “Safa” as abbreviation for the SA Football Association (SAFA). It then focused on other candidates.
The arguments
Seymour says that although the article referred to five individuals, the lead story line to substantiate the claim of “shady characters” was about him, as “the main target”. This was exacerbated by the publication of a photograph of him, presumably making him the prime example in this matter.
He argues that the basis of the description as “shady character” was “deeply flawed”, and gives a list of synonyms for the word “shade”.
Seymour adds that the article failed to mention that he had consistently denied the allegations, and that those allegations were part of a campaign to smear, victimise and eliminate him from SAFA. He says the journalist knew about this, and argues that the reporter’s neglect to mention it contributed significantly to the lack of balance in the story.
He denies that the arbitrator, Adv Nassir Cassim SC, stated that he had “persistently harassed the victim by paying her a cash sum of money, by touching her, by offering to buy her a T-shirt”.
Going into some detail, Seymour also challenges the legality and legitimacy of that hearing, and elaborates on the four appeal hearings and his resignation from SAFA preceding the hearing.
He adds that other legal issues arose from the alleged “arbitration award” which will be dealt with by the Cape High Court, such as:
· what constituted sexual harassment in terms of our law;
· whether the arbitrator applied the Code on the Handling of Sexual Harassment in arriving at his finding;
· whether a complaint was ever filed against him by anyone;
· issues relating to the violation of the constitution of SAFA and the SAFA Disciplinary Code; and
· whether it was an appeal hearing or an arbitration hearing.
“Those issues will be ventilated in the Cape High Court. I don’t think it is reasonable to expect a journalist to delve into these legalities.”
He argues that eighteen months have elapsed since the “arbitration” finding, so the journalist could have enquired whether the arbitrator’s recommendation had been approved by SAFA, as required by its Constitution – if not, he could have enquired why this had not been done after such a long time, especially since the journalist was aware that some members had misgivings about the allegations. “I submit that in these circumstances it is reasonable to expect the journalist to have conducted that exercise because it goes to the credibility of the allegations and the entire case.”
He attests that the arbitrator’s report had not yet been brought to the members for approval – because those behind the allegations were afraid the members would reject the arbitrator’s report as many of them had commented that they were very suspicious of the case against him.
Seymour says he accepts that it is not for the journalist to establish whether the guilty finding is well-founded or not. “However in circumstances where the destruction of a person’s dignity is a strong likelihood, I submit it was incumbent on them to read the arbitration award thoroughly, understand its context and report on it accurately and fairly on what it actually is.”
He submits that, in reporting the alleged arbitration hearing as fact, the journalist and the newspaper failed to meet the requirement of reporting what may reasonably be true as stipulated in the Code of Ethics and Conduct, and argues that the breach of this requirement was due to the journalist and the newspaper’s failure to appropriately contextualise the document purporting to be an “arbitration award” made by an arbitrator pursuant to an arbitration hearing.
Seymour concludes that the article was written with the express objective of discrediting and of defaming him.
Smuts replies that the story was about controversial politicians who were being fielded in the upcoming local government elections. “The story did not focus on, or delve into, the merits and demerits of the events that gave rise to the controversies. Instead, it listed the politicians and gave a brief overview of the controversies that raised questions over the suitability of each of the candidates to hold public office,” she argues.
The legal editor says the newspaper accepts that Seymour’s case is complex, politicised and ongoing. “However, the story we wrote was not the place to air all the issues or examine the merits. In fact, apart from naming Mr Seymour along with the other candidates, we wrote only one paragraph about him.”
She argues it was a fact that Seymour had been accused of sexual misconduct, that a disciplinary hearing had been held in his absence, and that the findings had been confirmed in an award by an arbitrator.
“Our story made it clear that he has taken Safa to court and that the matter is pending. We submit that this makes it clear that Mr Seymour contests the findings and his guilt. His denial of the allegations should be inferred from his subsequent actions. We submit that our readers would have made such an inference.”
She submits that this cloud was hanging over Seymour’s head, and the newspaper was justified in its raising of questions about his suitability for public office. Moreover, “Everything we wrote is a matter of public record. An arbitrator did find him guilty of sexual harassment and recommended a life ban from soccer. He has resigned from Safa, and has taken Safa to court.”
Smuts also points out that the article did not state as fact that he had sexually harassed the victim, as the word “reportedly” was used. “This summary of the accusation was made in an affidavit by Nomonde Dlakana, the general secretary of SAFA Cape Town, in an interlocutory application arising from the case.”
She says it is true that this sentence is not to be found in the arbitrator’s award. “However, we did not claim that it was. The arbitrator endorsed the findings of the disciplinary hearing, in which Ms Dlakana’s evidence was found to corroborate that of the complainant in material respects. The arbitrator said he associated himself with the findings of the chair of the disciplinary panel, and said: ‘Mr Seymour is guilty of serious misconduct namely sexual harassment, breaching the terms of his suspension and of falsely accusing Safa (Cape Town) General Secretary of lying’.”
Smuts denies that Seymour was the main target of the story – his photograph was used because he was one of the better-known people mentioned in the story.
She also submits that:
· the use of the word “shady” in the headline was a fair reflection of the story, as none of the individuals mentioned in the article was beyond reproach, on account of the controversies in which they were embroiled;
· several of the meanings included as synonyms for “shady” in the complaint would easily cover the circumstances under which Seymour found himself, including “suspicious”, “suspect”, “questionable”, “dubious”, etc. “Until the cloud over his head in relation to the sexual harassment is removed, these descriptions will be applicable to him.”
The legal editor argues that the issues Seymour contests in respect of the arbitration award, its legality and legitimacy are matters for a court to decide, and not this office. “The fact of the matter – and what we reflected in our story – is that the award was made, and Mr Seymour is contesting it. We do not deal with Mr Seymour's complaint insofar as he raises matter which should properly be put before a court. If the Press Ombudsman wishes us to make submissions on these matters, we ask for a further opportunity to do so.”
Smuts says she accepts that the arbitration award followed four appeal hearings and a resignation – however, the arbitration was the most recent event and the one that must stand until the high court is seized with the matter.
She also accepts that if the story had been about whether or not Seymour was guilty of the charges, or whether he was the victim of political machinations, these would have been relevant, untested though they are. “However, the story was about candidates whose suitability for public office was in question.”
Analysis
These are my considerations:
· Smuts is correct in stating that the story did not focus on, or delve into, the merits and demerits of the events that gave rise to the controversies, but that it rather listed the politicians and gave a brief overview of the controversies casting doubt over the suitability of these candidates to hold public office. However, the newspaper still was obliged to get those contexts right;
· To state, as the legal editor does, that the story contained only one paragraph about Seymour, is to minimise the issue – he was mentioned first in the list of five, and his was the only picture used. Even if the article mentioned him in one paragraph only, that text should in any case be accurate and in context;
· Having said that, the story was indeed not the place to air all the issues or examine the merits, as Smuts argues;
· The story did not deter from the fact (which was a matter of public record) that Seymour had been accused of sexual misconduct, that a disciplinary hearing had been held in his absence, that the findings had been confirmed in an award by an arbitrator, and that the matter was pending;
· The article did not state as fact that Seymour had sexually harassed the victim;
· The reasons given by Smuts regarding the headline, Seymour as the “main target” of the story and the use of his picture are all reasonable;
· It is indeed beyond my mandate to make statements about the legality and legitimacy of the arbitration award, and about matters which should properly be put before a court; and
· The arbitration award was the most recent decision in this matter, and it was beyond the scope of the story for the journalist to enquire why this matter had not yet served before SAFA.
In light of these arguments, I conclude that Sunday Times was justified in its raising of questions about Seymour’s suitability for public office.
Finding
The complaint is dismissed.
Appeal
Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud