Decision: Application for leave to appeal
Respondent: Nadine Hamman
Matter No: 441/2014
Decision: Application for Leave to Appeal to the Appeals Panel
1. The Applicant applies for leave to appeal to the Appeals Panel of the South African Press Council against the Ruling of the Ombudsman handed down on 12 December 2013. The Respondent opposes the application.
2. The Ombudsman’s Ruling followed a complaint that had been lodged by the Respondent. The complaint was prompted by what had appeared on the cover page of the Applicant’s publication of 14 November 2013. The heading read “Oom Bennie Oor Seun: Moet niemand dan lief wees vir hom?” The sub-heading read “Griekwastad: Huisgenoot by Don Steenkamp se voog.”
3. It is necessary to give a brief background of the complaint in order to understand it. Don Steenkamp, a 17 year old, was charged with the murder of members of his family. He was the sole survivor. The incident, as well as the fact that he was charged and appeared before court, was covered widely in the media. The crux of the complaint is that Applicant, on its cover page, identifies (by mentioning his name) a minor child who has been charged with a crime. Respondent complains that the cover page, even though does not expressly states that the child has been charged with a crime, is nevertheless in violation of section 8.3 of the Press Code which reads: “The press shall not identify children who have been …………….charged with a crime unless a public interest is evident and it is in the best interest of the child.” It should be stated at the outset that whatever appeared on the cover page was neither in the public interest or in the child’s interest. It is common cause that the complaint relates only to the cover page, and not to the content of the story; in other words, the matter falls to be resolved without reference to the inside story. The picture of the minor, and his name and surname, appeared on the cover page. Applicant argued before the Ombudsman that it did not violate the section because, even though it identified the child, the cover page did not state that the minor was charged with a crime.
4. I need not deal with the reasons given by the Ombudsman any further, nor to refer to section 8.1. However, I do want to comment on the interpretation of section 8.3 of the Code. There is a difference between identifying a child as having been charged with a crime, on the one hand (which would be an offensive conduct), and, on the other hand, identifying a child who has been charged with a crime, but without disclosing that fact (an innocuous conduct). The latter appears to be the literal meaning of section 8.3, which could not have been what was intended, as aptly demonstrated by the hypothetical case given by the Applicant: the Applicant argues that if a child is charged with a crime, one can report about and identify such a child in circumstances where one for example talks about the child’s sporting achievements only, without making any reference or linkage whatsoever to a crime the child might be charged with. Clearly, section 8.3 cannot be interpreted as prohibiting this, and the example given by the Applicant must be correct. What the section prohibits is to identify a child and then go on to disclose that the child has been charged with a crime; that would amount to an offensive conduct. This must surely be the correct interpretation of section 8.3, notwithstanding its wording. The Ombudsman too, correctly, understood the section this way. A literal interpretation would lead to the kind of absurdity demonstrated in the example given by the Applicant. It is against the above background that I now proceed to consider whether or not the Ombudsman came to a correct conclusion in his finding that section 8.3 has been violated by the cover page, and whether, in the circumstances, the Applicant has reasonable prospects of success before the Appeals Panel.
5. In my view, the cover page has clearly disclosed to all and sundry that the identified child has been charged with a crime, namely, the family murders in Griekwastad. Applicant’s argment to the contrary is disingenuous. True, it did not expressly mention that the child was charged with a crime; however, what it did was to cleverly plant some very clear clues for any average reader to tell that Don Steenkamp, the child on the cover page, was the child charged with the murder of members of his family. I have come to that conclusion as a result of what follows below.
5.1. As both parties agree, the incident had received wide coverage prior to the Applicant’s publication, it being specifically mentioned that the murders had taken place in Griekwastad. What the Applicant did, was to simply take advantage of this publicity (the Griekwastad family murders made national headlines), fully aware that it was going to be very easy for anybody to know that the child depicted on the cover page was the one reported in the media as having been charged with the murders.
5.2. The fact that the minor was charged with the murders, and that he had appeared in court, had also received wide media coverage.
5.3 The murders took place in the area of Griekwastad; and “Griekwastad” was mentioned in the cover page as the place where the child lived; a clear lead.
5.4 The name and surname attached to the picture on the cover page, especially the family name, which was the family name of the victims, were meant to be a dead giveaway.
5.5 “Oom Bennie” rhetorically asks whether nobody should then not have some love for the boy (simply because he is charged for murdering members of his family?). What stands in parenthesis is not mentioned specifically; but, given the known history of the matter, there can hardly be any other context for the rhetoric question. This question by “Oom Bennie” clearly says to the reader: somebody should still love this poor boy even though charged with murdering his family. That is the plain reason for the call by “Oom Bennie.” If you leave out of account the underlined import (context) the call would not make sense at all! Indeed, the rhetoric question was framed in such a way as to inevitably lead the reader to the import.
5.6 Reference is made to the role of a guardian (“voog”). A child under guardianship is normally a child without natural parents. To an average reader, once you present a child in Griekwastad, with that surname, as being under a guardian (parents being no more) there would be no need to expressly state that the child has been charged with a crime, because it is known that the Griekwastad child who has allegedly killed his own parents has been charged. The cover page was saying nothing less than this: this is the picture of the child who has been charged with a crime.
6. The disclosure that the child on the cover page has been charged with a crime might have been subtle and not express, but it was a disclosure nonetheless, and has violated section 8.3 of the Press Code.
7. For the above reasons, even though the Ombudsman could have reached his conclusion through a different path, I agree with his conclusion, and I hold that the Applicant has no reasonable prospects of success before the Appeals Panel against the Ombudsman’s finding.
8. Regarding the sanction, the Applicant raises two issues. Firstly, that Huisgenoot being an Afrikaans publication, they may not be made to publish the text prescribed by the Ombudsman in English. I do not understand the Ombudsman as saying they should necessarily publish the English version. In fact, he provided the Afrikaans version to pre-empt this problem. Secondly, the Applicant argues that, publishing the sanction would cause it to violate the provisions of the Code and the Criminal Procedure Act. It is hard to understand this argument. The very reason the sanction is meted out is precisely because a finding has been made that the Applicant has already done just that, although the Ombudsman preferred not to express himself regarding the provisions of the Criminal Procedure Act. Whatever results flow from the publican of the sanction ordered by the Ombudsman would be the direct consequence of the Applicant’s own conduct in violating section 8.3 of the Code. Infractions attract consequences, which, normally, are not palatable; that is what the whole notion of a “sanction” is about. You lie in the bed you prepare.
9. For all the reasons given above, I also hold that the Applicant has no reasonable prospects of success in respect of the sanction either.
10. The application for leave to appeal to the Appeals Panel is therefore turned down.
Dated this 14th day of March 2014
Judge B M Ngoepe, Chair, Appeals Panel.