Appeal Hearing Decision: The Citizen vs Brenda Wardle

Decision: Application for leave to appeal

Applicant: The Citizen

Respondent: Brenda Wardle

Matter No:1238/07/2015

Hearing: 13 November 2015

Mr Willem de Klerk appeared for the Appellant

No appearance for the Respondent, who declined to appear

DECISION

[1]     The Citizen (“appellant) appeals a Ruling of the Press Council Ombudsman dated 26 August 2015 in which he ruled in favour of Brenda Wardle (“respondent”).  The latter had filed complaints against the appellant, following three stories published by appellant about the respondent.  I repeat a summary of the facts I gave in my Decision on the application for leave to appeal:  The first story was on 10 July 2015, headlined: “Wardle up for fraud charges again. Convicted: Legal analyst faces three new accusations”. At the same time, a second story, similar but not identical, appeared on the appellant’s website headlined: “Brenda fingered in alleged fraud spree”. The third appeared on 14 July 2015, headlined “Bank moves on Wardle accounts – In court tomorrow: Brenda’s money frozen”.  As can be gleaned from the headline, the stories were reporting on certain alleged criminal activities by the respondent.

[2]     Any findings by the Ombudsman in his Ruling against the appellant were on the premise that the appellant violated articles 2.1 and 2.4 of the Press Code in that the appellant identified the respondent before the respondent pleaded in court. A sanction was then imposed. All other complaints were dismissed. The appellant sought, and obtained, leave to appeal the Ruling.

[3]     Both parties were not happy with the Ombudsman’s findings to the extent that they were based on the fact that the appellant should not have identified the respondent before she pleaded in court. The respondent’s reaction was that it was never her complaint that she was named before pleading. One of the complaints she had raised was that no “publication has the right to publish the identity of an accused against whom charges have been laid, who is yet to be charged and who is yet to appear in Court”.  From this, it is apparent that there is indeed no reference to the question of being identified before pleading. For its part, the appellant argued that in any case, there is no law or rule of the Press Code prohibiting the naming of an individual before pleading.  As said earlier, whatever other complaints respondent had were dismissed by the Ombudsman.  The only real issue before us is therefore whether or not the Ombudsman was correct in finding some wrongdoing on the part of the appellant for naming respondent before she pleaded in court.

[4]     Both in his heads of argument and oral submissions, Mr de Klerk, for the appellant argued extensively about issues relating to the identification of a person either before being arrested and/or charged.  He referred to a few decided cases, and concluded that the naming of the respondent, given the facts and circumstances of this particular case, was not offensive.  He was, therefore, essentially dealing with respondent’s complaint cited in paragraph 3 above. But we need not deal with that, at least not in detail. That complaint was not specifically dealt with, or upheld, by the Ombudsman. It would therefore be sufficient to merely sate that, given the history of the respondent, her activities in collecting monies from the public, her presenting herself in the media as a legal analyst, her alleged previous criminal records, justified naming her, whether before being charged or arrested.  Her complaint that she should not have been named until arrested and/or charged would not have succeeded before us anyway.

  [5]  Turning to the Ombudsman’s Ruling, whatever finding he made against the appellant, was always on the premise that the appellant was not supposed to have named the respondent before the latter had pleaded. The result is that, as said earlier, the main issue before us is whether or not the finding by the Ombudsman that the appellant violated articles 2.1 and 2.4 in naming the respondent before she pleaded, is correct.  The finding cannot stand because there was never such a complaint by the respondent. The existence and lodging of a complaint is a prerequisite for any adjudication by the Press Ombudsman; it is a jurisdictional requirement. In any case, while articles 2.1 and 2.4 of the Press Code deal with accuracy, fairness and truthfulness, they do not specifically deal with naming individuals who have not yet pleaded in court. Naming a person who had not yet pleaded could only, possibly, be a breach of the Press Code if it was unfair in the context of the story. It could not on its own amount to a breach as the Code does not have a specific provision proscribing the naming of suspects yet to plead

[6]     Mr de Klerk also asked us to pronounce ourselves on certain issues, which he described as ancillary.

6.1    Firstly, the appellant asks that the Press Appeals Panel rule, in no uncertain terms, that there is no general rule in law or the press code, that an accused person may not be named until such time as he or she has pleaded to the charges”.  Given what is really before us, it is not necessary for us to do as appellant asks.  However, we do have severe reservations that, with statutory exceptions, such a blanket prohibition exists.

6.2    Secondly, the appellant asks that the Appeals Panel issue a caution that the ambit of the so-called sub judice rule not be used in a generalised and unjustified way to limit lawful reportage.  The Press Ombudsman’s extraordinary statement that ‘the mere happenstance that some sources give information to a publication – whether these sources are police spokesmen or not – is irrelevant. The fact remains that the suspect should not be identified at this stage of the process.  Even if the police ask a newspaper to publish, the publication should still deny such a request.  The Citizen should have upheld the sub judice rule – it is there for a reason’ cannot be left to stand unchallenged”.  Mr de Klerk raised a number of points against the above statement by the Ombudsman.  There is a lot to be said for his argument.  Again, it is not necessary for us to pronounce ourselves as requested by the appellant, given the limited scope of the appeal.

[7]     For the reasons given above, the appeal is upheld, and the following order is made:  The finding by the Press Ombudsman, dated 26 August 2015, that The Citizen acted in breach of articles 2.1 and 2.4 of the Press Code by identifying Brenda Wardle before she pleaded in court, is hereby set aside.

Dated this 17th day of November 2015

Judge B M Ngoepe, Chair, Appeals Panel

Mr  P van der Merwe, Public Representative

Ms S Smuts, Press Representative