BEFORE THE PRESS COUNCIL APPEALS PANEL
(Held at Blue Hotel, PORT ELIZABETH)
Before the Chairperson Mr Justice B. Ngoepe,
Date of Hearing: 3 March 2014
In the matter between :
THE HERALD APPELLANT
and
MR DAVRIN SCWARTZ RESPONDENT
________________________________________________________________
Adv Sandi:
INTRODUCTION
THE RELEVANT PROVISIONS OF THE PRESS CODE
THE PARTIES IN THIS APPEAL
7.The Appellant is a widely publicised daily in the Eastern Cape where it enjoys
extensive readership in that area and across the Province.
8.It initiated the appeal against the decision of the Adjudication Panel which was
in favour of the Respondent.
9. The Respondent has for many years resided in Port Elizabeth. He is a former
member of the South African Police Services from which he was discharged
about seventeen years ago. The Respondent’s discharge followed a tragic
incident in which he hacked his wife to death with an axe. Having been
convicted of the crime of murder he was sentenced to five (5) years’
imprisonment, part of which he served and the rest under correctional
supervision.
10. According to the relevant newspaper report which was undisputed by the
Respondent, the crime was committed in front of the couple’s seven (7) year
old son. The spouses also had a daughter aged six (6). Not having seen the Judgment and the transcript of the evidence that was led in court on the matter, I refrain from making any comment as to the propriety or otherwise of the sentence that was imposed. That is not one of the issues we are to deal with and determine in this appeal. However, it is clear from some of the newspapers cuttings that certain sections of the public were of the view that the sentence imposed was very lenient in the circumstances. These were their views which they were entitled to express.
11. It is common cause that some months before the Appellant wrote the story on
the matter, the Respondent was employed by Masakhane Security company on the recommendations of the Nelson Mandela University in Port Elizabeth where the Respondent was to be based. His conviction had also been expunged from the State records. He had also been registered with the security industry watchdog, Private Security Regulatory Authority (Psira), which oversees the industry and enforcement of the relevant regulations. There were no material disputes about these facts and other matters which I think need not be dealt with in this appeal.
“KILLER IN PLEA FOR SECOND CHANCE” and
“EX-POLICEMAN WHO HACKED WIFE TO DEATH HAD RECORD CLEARED, GETS JOB AT NMMU”.
“Notorious newsmakers----where are they now?
LIFE GOES ON: Eastern Cape’s most infamous figures have made new lives for themselves.”
“I also informed Mr Wilson to mention in the article that I do feel aggrieved about the fact that I don’t get a chance, that I feel that by being victimized by keeping on putting my past in the papers, it is jeopardizing my friends and family of my lady-friend in my life, who are not aware of whatever happened 16 years ago and now must read about it in the papers. I told him I was waiting for the right opportunity to tell them. I said my past and the tragedy were kept alive in the newspapers and I felt I was being ostracised and I was not being given the chance to get on with my life. This omission was also omitted.”
COMMON-CAUSE FACTS
27.1. That the Respondent had indeed committed the murder of his wife, for which crime he was convicted and sentenced;
27.2. That he killed her by hacking her with an axe;
27.3. That this was a very serious crime;
27.4. That in court he never denied committing the crime;
27.5. That the story of the murder of the Respondent’s wife had featured prominently in the newspapers during the trial in 1997;
27.6. That the university where the Respondent was working was a public institution performing a public function of providing education to students, and funded with public funds;
27.7. That the parents of the students who were studying at the university had a right to know that the Respondent, a person with “a discreditable history” (using the words of his own legal representatives at the appeal hearing), was working there as a security officer;
27.8. That the public in general had a right to know what was happening at the institution, including the fact that a person previously convicted for hacking his wife to death with an axe was employed there as a security officer;
27.9. That the position in which the Respondent was employed inevitably entailed contact with people for purposes of investigation;
27.10. That the Appellant was not saying the Respondent was a threat to society but only that, caution had to be exercised in view of his previous conviction and the occupation he held at the time, namely working as a policeman;
27.11. That the Appellant, before publishing the article, first investigated the facts by contacting both the university and the Respondent, thereby giving them an opportunity to state their own side of the story, and
27.12. That the Appellant had not employed any illegal means when it set out to gather information about the Respondent’s employment at the university.
FINDINGS
28. I have not been able to find any distortion or exaggeration in the article in question and the editorial comment of which the Respondent complained in this matter. I do not think it is necessary to traverse semantics on the Respondent’s allegation of “factual errors”, “inaccuracies” and “omissions”. I have not been able to find any. .
29. The Appellant’s journalist gathered the information about the Respondent legally and the ultimate report was fair, truthful and balanced in content. So was the editorial opinion which critically discussed the need for society to think carefully about effective and desirable ways and means of reintegrating convicted criminals into society. The comment was an honest but candid appraisal of the past and the present of the Respondent. It conveyed a word of courage to convicted criminals and other ex-criminals not to give up about the future but to pull themselves up and become respected members of the community.
30. During the appeal hearing there was much reference to case law and the Appellant relied on the McBride case which the Respondent said was to be distinguished. A great deal of the cases to which reference was made were defamation cases. This case is not a civil claim for defamation but a complaint that the Appellant’s report was not in accordance with the norms of the Code. This is what we are to decide, in particular whether or not the Adjudication Panel was correct in its decision.
31. I am of the view that we should confine ourselves strictly to what the rules of the Code provide for and the reasons for the existence of this forum should never be forgotten. Whilst these legal precedents are an important guide, caution has to be taken not to operate like a court of law. The Press Code is a covenant of a special type and our task is to interpret and apply its founding principles in specific situations. This is a platform for the resolution of disputes between aggrieved parties and members the press community.
32. The Respondent’s past conviction and sentence were matters of public record, including the fact that his conviction was subsequently expunged from the official records. Publication of the Respondent’s past history and the fact that he had been employed in an educational institution did not in any way violate his privacy. The article dealt with a matter of public interest and these facts were already in the public domain. There was nothing confidential about the fact that the Respondent was once convicted and sentenced for the murder of his wife, including the fact that he had served a term of imprisonment for that crime.
33. The Respondent could not have been prejudiced by the content of the article which was focussing on the fact that he was now making progress in life, his conviction had been expunged from the records and he had obtained employment at the university as a security officer. The nature of the work he was going to do was the reason for the article. It would have been different if he was going to be doing a different kind of work, not investigating cases in which students could occasionally be involved as suspects.
34. In the result, I hold that the appeal succeeds.
Dated this 15th day of April 2014
Advocate Ntsiki Sandi, Member, Appeals Panel
Judge B M Ngoepe:
I concur with the conclusions by Advocate Sandi. Accordingly, by majority:
(a) The appeal is upheld;
(b) The Decision of the Adjudication Panel is set aside;
(c) The complaint filed by Mr Schwartz D against The Herald is dismissed.
It should be mentioned that I do concur, even though I would have written my Decision differently; but, as the results would have been the same, there is no need for me to write, save to make the few points below.
1. The report by The Herald was based on true facts.
2. Notwithstanding the expunging of the conviction, the fact that Mr Schwartz was convicted of murder remains true.
3. He used to be a policeman (which was when he got the stress). Everybody knows that police work involves investigation of crimes and, in the process, the questioning of suspects. Mr Shwartz was once more going to do that kind of work (investigations and the questioning of suspects) at the University. It is a known fact that many suspects, if not most of them, allege that they were ill-treated during investigations and questioning; it is exactly at that stage that the temperament of a policeman or woman is put to the ultimate test. Many of them fail it. No reminder is needed that, sadly, university campuses of today are often marred with violent student protests accompanied by wanton damage to property. Mr Schwartz was not going to work in Utopian land; otherwise there would have been no need for security services in the first place.
4. The University, where he was going to work, is a public institution. Given the nature of the work he was going to do as outlined above, the public had the right to know about Mr Schwartz’s past, however hurting that was going to be to his family. It was up to the public to decide what to make of the information. One shudders to think what the reaction of the public would have been had he been involved in a mishap at the University, and it thereafter came out that the newspaper had decided not to raise the issue with reference to his past (which it knew) despite learning of the nature of his employment at the University. It seems, with respect, the decision of the Adjudication Panel unduly leaned towards the Respondent, and the protection of his relationship with his family. Given the nature of the work he was going to do, the matter was of huge public interest, trumping Mr Schwartz’s right to privacy or the need to protect his relations with his family or their feelings. Consequences of heinous crimes such as murder are always far reaching, and rightly so, because it is the very fear of these consequences which is supposed to serve as a deterrent.
5. Worryingly, it seems Mr Schwartz is still undergoing some treatment (call it anti- depressant treatment); at least that was the case at the time of the story.
6. Finally, and very importantly, The Herald reflected his views, as well as favourable comments from some students. It did its duty; it was for the public to decide.
Dated this 15th day of April 2014.
Judge B M Ngoepe, Chair, Appeals Panel
The dissenting Decision of Mr Sanglay, Member of the Appeals Panel, is attached.
_________________
Chairperson
Judge B Ngoepe
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Panel Member
Mahmood Sanglay