Appeal Decision: Magistrate Stanley Gumede vs. Sunday Tribune & Sunday Independent

Magistrate Stanley Gumede                                               Applicant

                                                                  Vs

Sunday Tribune/Sunday Independent                          Respondent

                                                                              Matter No 21/2014

Decision: Application for Leave to Appeal to the Appeals Panel

1. The Applicant, Magistrate Gumede, lodged a complaint with the office of the Press Ombudsman against the Sunday Tribune and the Sunday Independent in respect of a story which came out of both papers. The articles are dealt in here together, and reference will, for the sake of convenience, be made only to the Sunday Tribune (“Respondent”). The headline read: “Zuma’s magistrate set criminals free.”  The article said that the Applicant had released two men (whom it described as “dangerous criminals”) charged with attempted murder, despite the fact that their faces had been caught on a CCTV footage. It said that “Gumede released them on free bail because of the allegedly (sic) shaky case against them.”  The story went on to mention that President Zuma had wanted to appoint Mr Gumede head of the National Prosecuting Authority, and also that he was facing a number of charges leveled against him by the Magistrates Commission. The Applicant complained that he was made to look stupid in releasing criminals when there was a strong case against them. He says there was potential damage to his reputation.

2. The respondent says that it wrote the story after the journalist concerned had made six attempts to speak to the Applicant, without success. In saying so, the Respondent actually disputes the Applicant’s version that he told the journalist that he was not allowed to talk about the case and that they should read the court record for their information.

3. The Ombudsman dismissed the Applicant’s complaint relating to the allegation of his release of suspects notwithstanding what was alleged to be a watertight case against them. He, however, found fault with the Respondent saying that the Applivant released “dangerous criminals;” this was on the basis that the suspects were entitled to be presumed innocent until convicted. The Ombudsman then ordered the Respondent to retract reference to “dangerous criminals.” The Applicant now seeks leave to appeal the dismissal of what can really be described as his main complaint, namely, that he released suspects notwithstanding the fact that there was a strong case against them; that is what I understand by his concern about his reputation, which, I take it, is professional reputation as a serving magistrate.

4. The crux of the Applicant’s case is that, had the Respondent read the court record, information would have been found which would have shown that the Applicant acted responsibly. The information, according to the Applicant, included the following: that, even though the accused had been arrested in March 2013, by the time they appeared before him on the date concerned (October 2013?), investigation were not yet complete; that by that time, the CCTV footages had not yet been compared with the photographs of the accused; that, even though normally a case comes to the Regional Court (such as his court) only after investigations are complete, he nevertheless still allowed the state time for further investigation; again, that when the accused came before him, they were not in custody. The Applicant also says (and I am not judging the truth thereof) that it would have been established that whereas the Senior Prosecutor was of the view that the case was ready, the Regional Prosecutor had a different view. To sum up, he says that information would have been gleaned to counter any suggestion that he did not handle the case properly. On the other hand, the Respondent says that, in alleging that the case against the accused was watertight, it relied on the information it had gotten from the private investigator, the complainant, and a police official. On the face of it, these sources would fall in the same camp. The Respondent does not say that it read or tried to read the court record or get the version of the Regional Court Prosecutor in relation to the strength or otherwise of the case (not in relation to the conduct of the Magistrate!).

5. In light of the aforegoing paragraph, and also taking into account that as a matter of law and ethics governing his profession, the Applicant was not allowed to talk to the media about the case before him, I am of the view that the Applicant has reasonable prospects of success before the Appeals Panel. I am doing so without as yet making a finding that what the Applicant says will be found in the record, will indeed be so found.

6. Accordingly, the Applicant is given leave to appeal to the Appeals Panel against the Ombudsman’s Ruling, dismissing the Applicant’s complaint that the story in both the Sunday Tribune and the Sunday Independent has the potential to damage his reputation.

                Dated this 19thnd day of April 2014

                               Judge B M Ngoepe, Chair, Appeals Panel