Appeal Hearing Decision: Seymour Vernon and Weekend

Decision: Application for leave to appeal

Applicant: Seymour Vernon

Responded: Weekend Argus

Date of Hearing

Monday 7 December 2015, Belmont Conference Centre, Rondebosch, Cape Town

DECISION

A. The Complaint, Ruling of the Ombud and Application for Leave to Appeal

  1. On 13 June 2015 the Weekend Argus (Respondent) published a story headlined “‘Sex scandal’ Seymour seeks reinstatement”. The article, written by Weekend Argus journalist Fatima Schroeder, is essentially a court report on an application at the Western Cape High Court by Vernon Seymour (Appellant) to challenge internal disciplinary proceedings at the South African Football Association (Safa). However, much of the article relied on papers filed during the course of internal proceedings at Safa since 2013.
  2. The journalist reported that Appellant, then Vice-President of Safa Cape Town, had been banned for life from football following a sexual harassment scandal. The article further stated that Seymour turned to the Western Cape High Court in a bid to return to the sport and that Safa responded to Seymour’s application by asking the court to dismiss his application as internal processes at Safa were available to resolve the issue.

[3]          In essence, the contents of the article reflect that Seymour denies the sexual harassment allegations, that he claims the allegations were part of a campaign to victimize him and “eliminate” him from Safa, that despite his resignation from Safa, disciplinary proceedings against him continued and that the proceedings against him were flawed and in breach of Safa statutes.

The Complaint

  1. On 22 June 2015 Seymour complained to the Office of the Press Ombud that the article
    1. was inaccurate in stating that he had been banned for life
    2. labelled him as “Sex scandal” Seymour in the headline
    3. was inaccurate in stating that he had been seeking reinstatement
  2. Seymour further complained that the newspaper did not ask him for comment and that the journalist failed to report that
    1. it was possible that the General Council of Safa, which had not yet been forwarded the recommendation, might well reject it
    2. he had on four occasions successfully appealed against Safa’s internal disciplinary hearings

 

The Ruling of the Ombud

[6]          The Ombud considered the matter and made a ruling on 17 September 2015. For the purposes of this appeal the relevant points in the Ombud’s ruling may be summarised as follows:

  1. In respect of the complaint that he was banned for life, the Ombud relied on a letter dated 20 November 2014 (two months after Seymour had resigned), stating that Seymour “had been life banned for life from football activity in terms of both a Safa arbitration award issued by an independent senior council (Adv N Cassim SC), and a recent SAFA National Disciplinary Committee decision. Both decisions are valid and legally binding until set aside in accordance with SAFA processes.” The Ombud added: “Given Dlakana’s quite explicit statement…there is no way that I can find that Schroeder was not justified to state that Seymour had been banned for life – if the General Secretary made such a statement, surely the journalist should not be held responsible for reporting it, even if it may later prove to have been false. Schroeder is a reporter, not a fortune-teller.”
  2. In respect of the headline: ‘‘ ‘Sex Scandal’ Seymour” the Ombud quoted and relied on the arbitration hearing finding of Adv Cassim: “[Mr] Seymour is found guilty of serious misconduct namely sexual harassment…” The Ombud concluded: “Given that statement, the newspaper was justified to state it. Again, Weekend Argus did not make the news, it merely reported it.”
  3. In respect of seeking reinstatement the Ombud considered the question “why did Seymour went to court if he did not seek re-instatement.” In his assessment of the submissions of both Applicant and Respondent the Ombud was finally swayed by a letter by Nomonde Dlakana in which she stated that “Seymour had e-mailed all the clubs to lobby support for his preferred presidential candidate”. Hence, the Ombud concluded, he “find[s]it hard to believe that he [Seymour] wanted a clean break with the sport”. The Ombud was thus persuaded to give the benefit of the doubt to the journalist.

Application for Leave to Appeal

[7]          Seymour was dissatisfied with the decision of the Ombud and on 29 September 2015 applied for leave to appeal. The Chair of Appeals granted him leave to appeal on 2 November 2015 and directed both Appellant and Respondent to confine their arguments to the following points:

  1. whether the Respondent’s reportage, although based on court papers, was fair, accurate, balanced etc, inasmuch as it did not cover versions favourable to the Applicant contained in the papers
  2. whether it was fair/accurate/correct to say that Appellant wanted to be reinstated
  3. whether the reportage should not have stated that the ruling of Advocate Joseph, confirmed by Advocate Cassim SC, that the Appellant be banned for life from all soccer activity, was a mere recommendation still to be confirmed by the appropriate body or bodies.
  1. Heads of Argument were submitted by both parties prior to the hearing of the appeal.

B. The Hearing before the Appeals Panel

Both the Appellant and the Respondent made oral submissions, highlighting key points in their Heads of Argument.

Fairness, balance and accuracy of the article in respect of coverage favourable to Appellant

Appellant’s Argument

[9]          Appellant argued that the empirical approach in terms of word count is a “numbers game” and that selecting aspects of proceedings that appear to be favourable to him in the manner argued by Respondent did not constitute balance.

[10]      He said appropriate balance should be reflected in the article as a whole in a fair coverage of significant developments in proceedings. He added that all relevant information that would have reflected fair balance in the article was available in the court papers, but the newspaper chose not to use this information.

  1. Appellant further submitted that the omission in the article of the four successful appeals against the internal disciplinary hearings at Safa contributed significantly to the lack of balance in the article.
  2. “Without these appeal hearings I don’t have a case,” he said, “because they show the disciplinary hearings were conducted without due regard to proper procedures or the rules.”
  3. Two other important developments omitted in the article, according to Appellant, are: that a majority of the Regional Executive Committee members of Safa expressed misgivings about the process and that although there is a recommendation for a life ban it would still have to be adopted by the members in a General Council meeting.

[14]      Appellant argued that despite the large volume of court papers that required perusal over a short time, the journalist must accept responsibility for her action.

  1. He concluded this point by saying that the journalist was selective in the ethical standards she upheld, hence the lack of balance in her article.

Respondent’s Argument

[16]      In reply, counsel for Respondent, Mr Jacques Louw, again adopted an empirical approach. He argued that “generous” coverage was given to Appellant, in respect of word count in the article, of his High Court application as opposed to that of the Safa application and that of the background information.

[17]      He further submitted that much of the article’s content reflects favourably on Appellant. He proceeded to quote a number of instances in the article in which a synthesis of extracts from court papers reflecting negatively on Appellant were counter-balanced by a synthesis of extracts reflecting favourably on him. In this respect he concluded that the journalist gave greater prominence to the deposition of Appellant than that of Safa.

[18]      Louw also pointed out that the journalist was particularly fair to Appellant in that she avoided making any reference to the details relating to the allegations of sexual misconduct as contained in the 13 September 2014 disciplinary ruling of Adv Brenton Joseph.

[19]      In response to Appellant’s allegation that the journalist had failed to report on his four successful appeal hearings, Louw said that these appeals preceded Adv Cassim’s ruling and that of the Safa Disciplinary Committee and were therefore no longer relevant to the application brought by Appellant to the High Court, “save that Mr Seymour wants the interlocutory appeal to be the final say on the matter.” In concluding this point, Louw argued that the journalist had “less than an afternoon” to write an article based on 407 pages of court papers. Given this background, he questioned whether there was indeed any “lack of balance” and what else the journalist could have written to balance the article.

[20]      When asked why the journalist had not reported the outcome of the interlocutory High Court application on 10 October 2015, Louw said that the journalist was subject to the imposition of a pending appeal hearing in this matter following the ruling of the Press Ombud on 17 September 2015 and that she was therefore precluded by her editor from reporting on the matter. In addition, Louw submitted he and the journalist had been unable to obtain a copy of the interlocutory judgment from the attorneys of Safa until three weeks prior to this Press Appeal hearing. According to Louw the judgment had till the date of this hearing also not been posted online on the Saflii online repository. Louw also said he had not yet passed on the interlocutory judgment to the journalist and that the editor would decide whether or not to report on this court decision.

Was it fair/accurate to state that Appellant wanted to be reinstated?

[21]      The matter of whether Appellant sought reinstatement was the subject of sustained deliberation at the hearing of this Appeal. Much of the parties’ submissions turned on the motive of Appellant behind his High Court application.

[22]      In justifying the journalist’s use of the word “reinstatement,” counsel for Respondent argued that “a word had to be sought to summarise what Mr Seymour had done” and that he “thought long and hard of what different words could have been used.” He asked if “Mr Seymour tries to have his life ban reversed” was a suitable substitute for the word “reinstatement”. “But is that not a reinstatement to the sport?” asked Louw.

[23]      In defending the statement in the article that Seymour wanted “to return to the sport” Louw argued that the article does not say he sought to return to his former position in the sport. He added that “reviewing the applications related to his life ban one would assume it’s a bid to return to the sport”.

  1. In reply Appellant submits that nowhere is it stated in the court papers that he is seeking reinstatement; neither has he made any public statement that he wishes to return to Safa Cape Town to resume his membership.

[25]      Appellant submits the journalist “went beyond the scope of the court papers and speculated on reasons why Appellant went to Court”. He furthermore submits that the Press Ombud failed to recognize this and that the latter himself explored the issue of “why did Seymour went (sic) to Court”.

[26]      Appellant’s argument is that the intention behind his application was to clear his name. Counsel for Respondent disputes this and in turn insists he was motivated by an intention to be reinstated to the sport.

[27]      In support of his argument, Appellant points out that in paragraph 39 on page 17 of his Founding Affidavit he states: “However the disciplinary finding and recommendation had a negative impact on my character and standing in society.”

[28]      In a rejoinder Louw submits that such intent is not “pertinently” stated in his affidavit. He further submits that because Appellant’s High Court application does not deal with the sexual harassment charges, but rather with allegations of victimisation and procedural and constitutional issues, his application will have no effect in clearing his name.

[29]      Another point argued is the presumed effect of Appellant’s High Court application. Counsel for Respondent says:

  1. “Reinstatement is a de facto effect of the order the Appellant is seeking before the Cape High Court.”
  2. “this is not a matter of him seeking reinstatement to an office, but reinstatement to be involved in the sport”
  3. “…if he succeeds with the Court case, the status quo as at 2 November 2013 (before Seymour was suspended) would prevail”
  4. the “1 July 2014 determination is of effect to set aside the Appellant’s suspension as Vice- President of SAFA Cape Town and to re-instate         his position as Vice-President”

[30]      Appellant submits the above reflect a “a misrepresentation of the facts and a lack of understanding of SAFA Cape Town membership processes because he who has voluntarily resigned from SAFA Cape Town cannot hold office thereafter until he first becomes a member of the organisation.”

[31]      Finally, Appellant argued that the Press Ombud had erred in his reliance on Dlakana’s letter of 20 November 2014 and in concluding that the journalist had cause to report that Appellant sought reinstatement. Referring to this letter, the Applicant states the following in his Founding Affidavit: “First Respondent has committed a grave injustice to the Applicant by circulating a public statement that he has been life banned from football for life when they failed to comply with the SAFA Cape Town statutes by not tabling the recommendations of the Arbitrator before a General Council which has to approve it by a 2/3 majority.”

Should the article have stated that the ruling of Adv Joseph, confirmed by Adv Cassim SC were mere recommendations of a life ban, yet to be confirmed by the appropraite bodies?

[32]      Appellant asserts that “whether a life ban was imposed on the Appellant after receipt of a recommendation, is a factual question. It is either true or false.” He pointed to three clear instances in the article where the life ban is reported as fact.

  1. In defending the journalist’s use of the phrase “banned for life” counsel for Respondent submitted that
    1. other publications such as Kickoff also stated that Appellant had been banned from football for life
    2. “what the journalist can’t do is make a judgement as to whether Mr Seymour is correct or whether that [the letter of Dlakana]is correct, but the fact of the matter is what the journalist sees is that Safa Cape Town confirms that a life ban has been imposed on Mr Seymour”.

[34]      Appellant insists that the Panel should note the clear distinction between a recommendation of a life ban and a decision imposing a life ban. The recommendation, he argues, was never tabled for approval to the General Council of Safa and a life ban was therefore never imposed by this body. He further submits that this fact is undisputed by counsel for Respondent.

[35]      Finally, Appellant submits that the journalist needed only to have pointed out that the recommendation was subject to approval by a two-thirds majority of the Safa General Council, before a life ban could be imposed.

C. Analysis by the Appeals Panel

[36]      The findings of this Panel are set out consistent with the sequence of the three points specified by the Chair of Appeals. The Panel will concomitantly address and assess the relevant and corresponding points in the ruling of the Press Ombud.

Analysis: Fairness, balance and accuracy of the article in respect of coverage favourable to Appellant

The empirical approach

[37]      The Panel considered the empirical approach argued by Louw, and Appellant’s problem with this approach. The empirical approach has merit and is useful for the purpose of measuring the extent of coverage of a given perspective in quantitative terms. It appears this is what counsel for Respondent had done in this instance.

[38]      However, the empirical approach also has limited merit in that a strict word count cannot measure or convey substance and the qualitative value of a given perspective. There is no objective measure of the quality of coverage in this respect.

[39]      A word count cannot measure meaningful and relevant favourable coverage of Appellant’s position in the court papers. The Chair of Appeals observed that, in this instance, meaningful favourable coverage of Appellant that reflects fairness, balance and accuracy should relate to the “sting” in the article and not mundane matters that are meaningless.

Ommission of four successful appeals

[40]      The disciplinary rulings of Adv Joseph and Adv Cassim SC in their guilty finding of sexual harassment and their recommendation of a life ban are the key aspects reflecting negatively on Appellant in the court papers. Conversely, the appropriate aspect of Appellant’s response reflecting favourably on him is evidently his four successful appeals against these rulings. However, the article reported none of this. This is underscored by the fact that the substance of the appeals, which essentially challenge procedure by Safa Cape Town, are consistent with the application brought by Appellant to the Cape High Court, namely to set aside an arbitration award and a disciplinary ruling. In addition, the journalist had access to these documents which were part of the court papers in this application.

[41]      Therefore the Panel finds that the material omission of any reference to Appellant’s four successful appeals contributed significantly to the lack of balance in the article. In this respect the Panel finds that the article does not meet the requirements of section 2.2 of the Press Code which reads:

2.2 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.

[42]      Counsel for Respondent defends the above omission by arguing that the appeals preceded Adv Cassim’s ruling and that of the Safa Disciplinary Committee and were therefore no longer relevant to the application brought by Appellant to the High Court, “save that Mr Seymour wants the interlocutory appeal to be the final say on the matter.”

[43]      The Panel finds that this defence holds no merit because the four internal Safa appeals as well as Appellant’s Cape High Court application deal with allegations of victimisation and regulatory and procedural issues related to the sexual harassment charges brought against Appellant.

[44]      Furthermore, counsel for Respondent admitted that he had been in possession of the interlocutory judgment since 10 October 2015 (that is for three weeks as at the time of the hearing of the appeal), but had failed to forward same to the journalist in order to report on the decision of the court. The Panel finds it unacceptable that the editor of the newspaper is yet to decide on whether to publish the report. This approach is inconsistent with the prescription of the Press Code in section 2.6:

2.6. A publication shall make amends for publishing information or comment that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction, correction or explanation.

[45]      The Panel also notes that this aspect of Appellant’s complaint is recorded, but not dealt with, by the Press Ombud in his ruling.

[46]      Counsel for Respondent argued that the journalist took care to balance both favourable and unfavourable reporting on Appellant. The Panel is of the view that simply counterbalancing two opposing positions does not necessarily constitute balanced reporting.

Finding: Was it fair/accurate to state that Appellant wanted to be reinstated?

Motive of Appellant in his High Court Application

[47]      The Panel carefully considered the argument of Counsel for Respondent justifying the use of the word “reinstatement”. The Panel cannot but conclude that there is no basis for imputing motive to Appellant for seeking reinstatement.

[48]      Nowhere does Appellant state that he seeks reinstatement. Nor can Appellant’s recourse to the Cape High Court be reasonably construed in this way. This is adequately emphasised by Appellant in his submission.

[49]      In addition, Counsel for Respondent’s argument that “Mr Seymour tries to have his life ban reversed” is a suitable substitute for the word “reinstatement” and that such a substitute is effectively a reinstatement to the sport, is without merit. The argument is a non sequitur, both in respect of the hypothetical substitute and in respect of its conclusion.

[50]      Appellant’s response to Louw’s presumed effects of the High Court application (in paragrahs 29.1 to 29.4 above) are correct. It is significant that Counsel for Respondent has not disputed that the conclusions in the paragraphs are founded on a “misrepresentation of the facts and a lack of understanding of Safa Cape Town membership processes”.

Accuracy of the use of the word “reinstatement”

[51]      Given that the Weekend Argus is responsible for publishing the headline, the Panel therefore cannot but place the first burden of proof on Respondent. The latter fails, and therefore the Panel must find in favour of Appellant. The headline does not meet the requirement of reporting news accurately as stipulated in section 2.1 of the Press Code:

2.1. The press shall take care to report news truthfully, accurately and fairly

[52]      The Panel concurs with Appellant that the Press Ombud had erred in relying on the letter of Dlakana to question whether Appellant “wanted a clean break with the sport”. The letter was the source for the Ombud’s finding that it was accurate to state that Appellant sought to be reinstated. The Panel is of the view that even if Appellant had, as alleged in Dlakana’s letter, “e-mailed all the clubs to lobby support for his preferred presidential candidate” this in no way suggests he sought reinstatement.

[53]      Apart from everything else said above regarding the issue of the alleged desire to be reinstated, it is important to note, in favour of the Appellant, that he had already written a letter resigning from Safa Cape Town before launching the court application. That being the case, even if the court were to find in his favour, he could not be reinstated as a member, let alone as an office bearer. The statement that he wanted reinstatement by going to court just does not wash. The desire to be reinstated could not be reconciled with the fact of resignation.

Finding: Should the article have stated that the Joseph and Cassim rulings were mere recommendations, yet to be confirmed?

What were we to reasonably expect from the journalist?

[54]      The Panel is of the view that the distinction between the recommendation of a life ban and a decision of actually imposing a life ban is particularly important. It can reasonably be expected of the journalist to know that the disciplinary rulings had gone only to the extent of recommending, and not imposing, a life ban on Appellant.

[55]      It is further reasonable to have expected the journalist to recognise an evident inconsistency between the letter by Dlakana, dated 20 November 2014 and her affidavit deposed to on 20 May 2015, in which she recognizes in at least seven instances, without any inconsistency, that there was a mere recommendation of a life ban. The Panel is of the view that the journalist, in her discretion, ought to have treated Dlakana’s affidavit as the more reliable source of information, both due to its currency, deposed six months after the letter, and its legal standing as a statement administered under oath. Instead, the journalist relied only on the letter, which is the sole source and one that evidently contradicts every other source in which Appellant’s life ban is consistently recorded as a mere recommendation.

[56]      Finally, it is reasonable to expect any journalist to avoid errors, omissions, unfair and unbalanced reporting when dealing with large volumes of paper such as in court reporting. Counsel for Respondent appears to expect that a short period of available time to deal with such volumes should mitigate the breaches of the code committed due to the rush to meet a deadline. The Panel is, however, of the view that such breaches are not mitigated by the large volume of court papers.

Reporting the life ban as fact

[57]      The journalist reports the life ban as fact, in three instances, and fails to clarify that this ‘life ban’ emanates from a letter by Dlakana, and not from a disciplinary ruling. Only after the third instance does the journalist offer a direct response from Appellant. This imbalance in the article thus creates the impression that Appellant’s assertions are his opinion, contesting the fact of an imposed life ban.

  1. In reporting the life ban as fact the journalist fails to meet the requirement of reporting what may reasonably be true as stipulated in the Press Code. Breach of this requirement in this instance is due to the journalist’s failure to appropriately contextualise the life ban in relation to it being a mere recommendation. Thus the article is in breach of section 2.3 of the Press Code:

2.3 Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance.

D. Conclusion

[59]      The Panel finds that the Weekend Argus is in breach of the following sections of the Press Code:

59.1Section 2.1

            The press shall take care to report news truthfully, accurately and fairly.

 59.2 Section 2.2

            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.

59.3 Section 2.3

            Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance.

  1. Section 2.6

            A publication shall make amends for publishing information or comment that is found to be inaccurate by printing, promptly and with appropriate prominence, a retraction correction or explanation.

Seriousness of the breaches

  1. Under the headline Hierarchy of sanctions, Section 8 of the Press Council’s Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breaches of the Press Code as indicated above are Tier 2 offences.

  1. For all the reasons given above, The Weekend Argus article of 13 July 2015 on Vernon Seymour was in breach of the following sections of the Press Code: 2.1, 2.2, 2.3 and 2.6. The appeal therefore succeeds, and the following Orders are made:

61.1 The Ruling of the Ombud dated 17 September 2015 is set aside in its entirety.

    61.2 The Weekend Argus is ordered to publish, in the edition following receipt of this            Decision, on the same or an equally prominent page as the offending article, the              following apology:

            The Weekend Argus of 13 June 2015 published a story headlined “‘Sex scandal’ Seymour seeks reinstatement”. The article, written by Weekend Argus journalist Fatima Schroeder, carried a headline that was inaccurate and unfair to Vernon Seymour. In addition, the material omission of any reference to Seymour’s four successful appeals against Safa contributed significantly to the lack of balance in the article.

            The article further reported as fact that Seymour was banned for life from football. The article should have stated that such a ban was merely a recommendation by the disciplinary hearing, which still had to be approved by the competent authority of Safa Cape Town.

            We apologise for the inaccurate, unfair and unbalanced reporting and any harm it may have caused Seymour.

            61.3 The Weekend Argus is further ordered to publish, adjacent to the apology or on    the page before or the page after the apology, a report on the court proceedings and outcome in respect of the interlocutory hearing in the Cape High Court in the matter between Appellant and Safa.

Dated this  29th day of December 2015

Judge B M Ngoepe, Chair, Appeals Panel

Mr Mahmood Sanglay, Member, Press Representative

Mr Neville Woudberg, Member, Public Representative