Reporting on gender-based violence
At a meeting between the NPA, Sanef, the Press Council and AIP, the former recognised the freedom of the press, but also stated its concern over the way in which the media sometimes report on gender-based violence. This concern was about the possible trampling of individuals’ human rights, as well as interference with aspects of a crime that may lead to a mistrial.
The NPA has provided the following information:
- identify an accused / complainant if under the age of 18 – not even when a minor has appeared in court;
- solicit interviews from a complainant regarding the details and merits of a case – not during or even before a trial; and
- solicit interviews from eye-witnesses, as they are likely to be called as witnesses in court;
- The media should:
- consider the high risk of jeopardising a case when applying to broadcast a sexual offences trial, as it may lead to a mistrial, or even to the acquittal of the accused on a technicality; and
- know that judges or magistrates will stipulate the conditions of reporting of a court case.
Code of Ethics and Policy Directives
The NPA is accountable to the public regarding its prosecutorial decisions. However, we can communicate a prosecutorial decision through the media only after the person who is affected or a suspect was advised accordingly in writing. This is to protect the fair-trial rights of an accused person, which accrue from the inception of the investigation.
Section 35(3)(c) of the Constitution
This section entrenches the principle of open justice and provides that every accused person has a right to a fair trial, which includes the right to a public trial before an ordinary court. This reaffirms the fundamental importance of the maxim “Justice must not only be done but manifestly be seen to be done”. The media’s access to the courts concerns the right of South Africans to know and understand the manner in which civil and criminal proceedings is conducted.
Section 153 of the Criminal Procedure Act
This section provides an exception to the general rule and outlines following circumstances in which criminal proceedings shall not take place in an open court. These are where;
- an accused person or a complainant is below the age of 18;
- the evidence is of a sensitive nature;
- the dignity of a witness would be compromised;
- there is a likelihood that the complainant or witness will be harmed; and
- the identification of an accused is likely to reveal the complainant’s identity (e.g. when the accused is related to the complainant).
NPA Policy Directives on Sexual Offences
Regarding a complainant, who is above the age of 18, in sexual offences matters: The prosecutor should apply to the court for the testimony of a complainant to be held behind closed doors – unless the latter indicates in consultation that she or he wants to testify in open court.
Section 154 of the Criminal Procedure Act
The particulars of an accused person must not be published before she / he appears in court.
If the proceedings are held behind closed doors in terms of Section 153, reporters may only publish information relating to the name and personal particulars of the accused, the charge against him or her, the plea, and the verdict and sentence – unless the publication of such information will reveal the identity of the complainant in sexual offences matters.
Section 154(2) (b) prohibits the publication of any information relating to a charge of rape or sexual assault after an accused person has appeared in court, but has not yet pleaded. This section does not prohibit the publication of the identity of the accused person who is above the age of 18. Reporters may not publish information relating to how the offence was committed, the names of witnesses, and their versions of what happened. A person who contravenes sections 153 and 154 may be charged and, if found guilty, shall be liable for fine or for imprisonment for a period not exceeding three years.
State v Zululand Observer
The newspaper published information relating to a rape charge before a specific suspect had been charged. The report read as follows: “A 17 year-old former Empangeni school girl, who may not be identified, who had just completed her end-of-year matriculation examination, reported to police last Thursday that she had been raped by two men while walking in a forest near Mthunzini. She later reported to police that after walking about two kilometres she noticed two Black men following her”.
The Attorney-General prosecuted the paper for publishing information relating to the charge of rape before the accused had pleaded, in contravention of section 154 (2) (b). On appeal, Judge Page held that the said section was not contravened because no one had been charged and appeared in court in relation to the said offence.
Section 335A of the Criminal Procedure Act
This section was enacted to address the lacuna created by Zululand Observer judgment. In terms of this section, no person shall publish information relating to the charge of rape or sexual assault from the date on which the offence in question was allegedly committed. It also prohibits publication of information that may reveal the identity of a complainant – unless the publication of such information is authorised by a magistrate. Consequently, the prohibition of publication of information relating to a charge of rape or sexual offence commences on the date the alleged offence is committed.