Appeal Decision: The Herald vs DD Schwarz

Decision: Application for leave to appeal

Applicant: The Herald

Respondent: DD Schwarz

Decision

Adv Sandi:

INTRODUCTION

  1. This is an appeal against the decision of the Adjudication Panel. The appeal was heard on 3 March 2014 in Port Elizabeth. After the hearing, I undertook to fellow members of the Appeals Panel that I would produce the Decision within two weeks; however I was not able to do so. I apologize to my Colleagues and to the parties.
  1. For the sake of brevity, I propose not to comment and make pronouncements on each and every submission that was made by each party but to set out how in my view the complaint should have been approached. I think the nature of the Respondent’s complaint calls for a closer discussion and examination of some of the key provisions of the South African Press Council Code (“the Code”). These provisions are an important starting point in dealing with any complaint by a member of the public against a newspaper. I am not suggesting that members of the Adjudication Panel did not have regard to these provisions. This is just the way I intend approaching the matter at hand, my point of departure so to speak.

THE RELEVANT PROVISIONS OF THE PRESS CODE

  1. Article 4 of the Code states that, “The press shall exercise care and consideration in matters involving private lives and concerns of individuals.” However, the right to privacy may be overridden by a legitimate public interest.
  1. Article 5 not only confers the right on the press to report and comment on all matters of legitimate public interest, but it also imposes a duty on the press to do so. In other words, if the press ignores matters in which the public has a legitimate interest, it would be failing in its duty to promote public discourse in society on the issues of the day. The press should give members of the public a platform through which they can express their views on the vexing issues of the day. But in doing so it should always  endeavour to act in an unbiased and non-partisan way.
  1. Consistent with Section 16 of the Constitution of the Republic of South Africa (Act No. 108 of 1996), the Code limits the right to publish and disseminate information. Articles 1 and 2 state that in gathering and reporting on information the press should do so legally, honestly and fairly, unless public interest dictates. It should report news truthfully, accurately and fairly.
  1. I now proceed to examine the facts and the genesis of the Respondent’s complaint. I begin with a description of the parties.

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.

  1. It is clear from the Respondent’s complaint letter dated 2 July 2013 and addressed to the Press Ombudsman that after paying his debt to society for the crime he had committed, he was trying very hard to rehabilitate himself and move forward in life. He had accepted and regretted what had happened in the past. However, the Appellant’s editorial opinion was that, as commendable as the Respondent’s progress was, it could not be taken at face value. There was a need for social engagement on the issue of reintegrating ex-convicts back to the community, in particular, whether or not the Respondent was suitable for the position, given his past history of violence at a time he was a peace officer. It is my view that this was a fair comment, an invitation for a robust debate on an important social matter..
  1. The Respondent had mentioned in his letter of complaint that his son had after a long time telephoned him and said he wanted to put the past behind. He had forgiven him. However, his daughter had not made any contact with him since he was released from prison. He hoped that she would do so one day. After the tragedy the Respondent had undertaken  some  studies to further his education in the field of security. He had passed certain courses. He also had a lady-friend with whom he had an intimate association. Broadly speaking, he had accumulated a circle of friends who did not know everything about his past, in particular the tragic death of his wife.
  1. The Respondent says he was not comfortable about his past being revealed and discussed in public. He was concerned that he could be rejected by his friends who were not aware of that side of his past. So much for the Respondent’s apprehensions and reservations about his past being a subject of public discussion.
  1. The Respondent’s complaint had arisen as the result of an article which was published by the Appellant on 6 June 2013. The main heading read:

KILLER IN PLEA FOR SECOND CHANCE” and

EX-POLICEMAN WHO HACKED WIFE TO DEATH HAD RECORD CLEARED, GETS JOB AT NMMU”.

  1. There was also a secondary story with photographs of persons whose stories in the past were headlines in the newspaper and other newspapers in the Appellant’s area of circulation. These people were reported to have made some progress in their respective stations in life and were once more trying to live uncontroversial lives in society. The respondent’s portrait with a brief reference to his discredited past, was amongst the pictures. The article carried the heading:

Notorious newsmakers—-where are they now?

 LIFE GOES ON: Eastern Cape’s most infamous figures have made new lives for themselves.”

  1. The Editorial Comment on the Respondent’s story read: “Caution is key for a second chance”.
  1. In his letter to the Ombudsman the Respondent raised quite a number of complaints about the manner in which the information relevant to the story was obtained from him and from NMMU personnel, in some instances  implying that somehow he was tricked or misled by the Appellant’s journalist to destroy his job prospects in life. The Respondent asserted that he had taped the interview he had had with the journalist but the battery got flat before the interview was terminated. Both the Respondent and the journalist concerned (Mr Gareth Wilson) attended the hearing. Significantly, the Respondent told the appeal hearing that during his murder trial his case was reported in one hundred and thirty four (134) articles.
  1. I do not think it is necessary to cite all the Respondent’s reasons for objecting to the article and to the editorial comment. His objections are far too numerous to tabulate and evaluate them all. However, the gravamen and the essence of the Respondent’s complaint is succinctly stated in the sixth paragraph of his letter of complaint to the Press Ombudsman. It reads,

“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.”

  1. He went on to complain that, “to commence the articles in the Appellant’s newspaper with the heading, “KILLER IN PLEA FOR SECOND CHANCE, EXPOLICEMAN WHO HACKED WIFE TO DEATH HAD RECORD CLEANED, GETS JOB AT NMMU together with an old heading entitled “AXE MURDER HORROR” together with the photographs  of me and my wife, the Herald newspaper showed its callous and hurtful and brutal attitude towards me. Was it necessary for the Herald to be so callous in their effort to gain maximum sensationalism on the first page? They could have used a softer more human approached and refrain from using words like “AXE MURDER HORROR “, “KILLER IN PLEA” “EX POLICEMAN WHO HACKED WIFE TO DEATH” AND “WIFE KILLER” in the second paragraph.”
  1. He complained of quite a number of inaccuracies and omissions in the article such as the fact that his previous conviction had been expunged from the records, and the fact that he was a founder-member of an organisation which assists ex-offenders to obtain skills and reintegrate themselves into community. I will not mention them all.
  1. During the appeal hearing a number of reasons were given to motivate the submission that the article was not in the public interest. For example, it was said that the Respondent was not a danger in society and that it was not as if he was continuing with his past behaviour as was the case in Yusaf vs Bailey 1964 (4) SA 117 (W).
  1. The Appellant’s reliance on the Constitutional Court Judgment in The Citizen vs McBride (2011 (8) BCLR 816 (CC) was criticized and it was argued that  the Respondent was not a public figure who, by virtue of the power they wielded in society, should be subjected to free, open and robust criticism. It was argued that this was not the case when it came to the case of private individuals such as  the Respondent.
  1. Our attention was drawn to the fact that at NMMU the Respondent was not going to occupy a senior position and was not going to be in charge of any person and would work under supervision; he did not “physically combat crime” and also did not carry any weapons but merely conducted investigations.
  1. This was just the gist of the Respondent’s concern who believed that the Appellant was trying to make it impossible for him to obtain gainful employment and make a living. In fact, he was of the view that the article had destroyed his chances with its “unequitable, unfair and irresponsible journalism”.
  1. In defence, the Appellant had advised the Press Council’s Advocate for the Public that the murder was one of the most high profile criminal cases its readership in Port Elizabeth had ever been exposed to. The Appellant said it could understand why the Respondent was objecting to the article, it was because he did not want his past to be known by those who did not know it. Appellant denied that it had been hounding the Respondent and said members of the public felt that the sentence was too lenient. In regard to the accusation that factual errors and omissions had been made, the Appellant stated that due to space constraints it was not possible to include everything that was said by the Respondent. In any event, the alleged omissions were not material as it was physically impossible to mention every word and statement the Respondent had uttered during the interview. The substance of the Respondent’s story was captured in the article, so went the Appellant’s argument.

 

COMMON-CAUSE FACTS

  1. Having regard to the very extensive record and bundle of documents that were made available to the Appeals Panel, it immediately became apparent that there were quite a number of material facts which were  common cause between the parties. I think I should only mention the most important for purposes of the finding in this appeal:-

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.

 

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Chairperson

Judge B Ngoepe

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Panel Member  

Mahmood Sanglay