PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN MS REFILOE MOKOENA (CO-OPTED) MR ARTHUR MAIMANE

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CASE NO: 42/2000 DATE OF HEARING: 01 DECEMBER 2000 In the matter between ADV MONGEZI TSHONGWENI COMPLAINANT and e-tv TRIBUNAL : RESPONDENT PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN

1 CASE NO: 42/2000 DATE OF HEARING: 01 DECEMBER 2000 In the matter between ADV MONGEZI TSHONGWENI COMPLAINANT and e-tv TRIBUNAL : RESPONDENT PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN MS REFILOE MOKOENA (CO-OPTED) MR ARTHUR MAIMANE Adv. Mongezi Tshongweni on his own behalf e-tv represented by Mr. Quraysh Patel, Channel Director and Ms Bronwyn Keene-Young, Regulatory Adviser. SUMMARY Broadcaster conveying during news insert that well-known spokesperson of the President s office had, according to ANC sources, died of an Aids related disease. Issue whether the privacy of the spokesperson had not been invaded upon unjustifiably in this manner.: Issue whether the privacy of the spokesperson had not unjustifiably in this matter. BCCSA Tribunal holding that although many would find such an observation to be in questionable taste, the public life and participation in the Aids debate by the deceased, during his life time, even as spokesperson,

2 justified the Broadcaster in broadcasting ( or to broadcast ) this statement. Broadcaster being willing to confirm under oath that ANC sources conveyed the news item to it. Editorial staff also having discussed the matter with due care before broadcast. BCCSA also holding that, in any case, the right to privacy or dignity of a deceased person was not protected by the Common law, Constitution or Broadcasting Code. BCCSA also taking note of growing sense in the community that greater openness in regard to AIDS could contribute to the campaign against AIDS. Complaint not upheld. JCW van Rooyen JUDGMENT On the 26 th October 2000 the Respondent, a broadcaster which has agreed to the BCCSA s jurisdiction and its Broadcasting Code, which was approved by the Independent Broadcasting Authority (now ICASA) in 1995, broadcast an insert on the death of Mr. Phakamile ( Parks ) Mankahlana in its news bulletin. Reference was made to his prominent role as a freedom fighter and his role as a member of the ANC s Youth League. Mr Mankahlana, as spokesperson for the President, often had to deal with the Media during a controversy about the cause of AIDS. Apparently in the light hereof, the insert also stated that he had been known for his controversial AIDS stance. At the end of the insert, which also screened praise for the deceased by President Mbeki and Ex-President Mandela, the newsreader conveyed that according to ANC sources he had died of an AIDS related disease. In a well-prepared statement, Adv Tshongweni filed a complaint with the Registrar of this Commission. He also addressed the members of this Tribunal at a hearing. He filed the complaint in his personal capacity as a member of the public and intimated that he did not act for the family of the deceased. Our general approach has been that insofar as privacy and dignity are concerned, the person whose privacy or dignity is alleged to have been infringed, should personally file such a complaint or, in the case of a minor, be assisted by his or her parent or guardian. An exception is made in the case where public interest can be shown. Since the deceased held public office and the campaign against AIDS lies within the public domain, we have decided to allow the Complainant to bring the matter before us, and in this manner determine the rights, if any, of the deceased. The complaint reads as follows:

3 IRRESPONSIBLE REPORT ON THE DEATH OF MR.PHAKAMILE MANKAHLANA BY E-TV ON 26 OCTOBER :00 NEWS BULLETIN The recent reports by e-tv on the death of Mr. Mankahlana leaves lot to be desired. The manner in which this story was reported shows no respect to the grieving Mankahlana family whether he was a public figure or not. Whoever was responsible for this lacks humanity but seek s to achieve his or her goals out of others grief. This report is not only an insult to civil society as a whole who have a fundamental right to be informed and freely receive and disseminate opinions but to the entire fraternity of journalists. On the aforesaid date it was reported that Mr. Mankahlana known for his controversial AIDS stance has died. I submit that it is irresponsible of media, in particular e-tv, to report this kind of misleading and sensationalized story since they know very well that Mr. Mankahlana was employed by government. Therefore when executing his duties, he was expressing the policies of the government, not at any stage was Mankahlana expressing his personal views on this subject matter. This is a clear example of media opportunism where they ought to have only reported about the death of Mr. Mankahlana, not his alleged views about HIV AIDS. I will attempt to explain the basis of my concerns below. It is on record that both electronic and print media as a whole has a certain view about the issue of HIV AIDS. This view is of public domain therefore if they argue that they have been reporting in the public interest which public is this? The very public they purport to report on behalf knows the government s stance on the issue of HIV-AIDS. Not only did e-tv report on the above, they went further to say that they have sources who allege that Mr. Mankahlana has died of an AIDS related illness. Should this be the case, what is the view of e-tv with respect to the violation of Mr. Mankahlana s constitutional right to privacy? Is e-tv sending a message that individuals or faceless sources can violate other persons rights under the guise of journalist source relationship. It is the very media that is seen as the watchdog against violations of individuals rights including that of freedom of expression. African Custom teaches us that, in moments like these, the deceased s family gathers to discuss issues ranging from the cause of death, funeral arrangements and so on. If our very media is ignorant of these facts, whom is it representing then? Had e-tv been acting responsibly, they ought to have at least waited for the family to go through this shocking and sad moment and thereafter go to this sensational spree of news reporting. Freedom of expression is recognized as being absolutely central in most democratic societies, South Africa included. Nevertheless, in no country is freedom of expression absolute. Perhaps I am anticipating that e-tv s defence will be based on this right, however, I want to expose and challenge them for their glaring abuse or lack of understanding of this fundamental right. Right of free expression is weighed against many other rights, including the rights to equality, dignity, privacy and so on. In this case I would contend that Mr. Mankahlana s right to privacy and dignity has been violated. If according to e-tv s report, some sources within a particular formation have informed it that he died of an AIDS related disease, was it not expected of a responsible media to weigh between Mr. Mankahlana s right to privacy and that of the public to freely receive news? The right to Mr. Mankahlana s privacy in this case is by no means linked to his political affiliation or public office but personal. Did it ever dawn on the irresponsible e-tv that its alleged sources may have violated the doctor patient relationship and Mankahlana s right to privacy? If yes why did they continue reporting on speculations that may infringe on one s right? It is on record that the South African media

4 including e-tv are against the notion that person s should not be compelled to disclose their HIV status but should do so voluntarily. In this case Mr. Mankahlana is deceased therefore it is arguable whether this right can be attributed to him or not. I would say that disrespect has been shown to the Mankahlana family and they have every right to take e-tv to task on this matter. CONCLUSION As a concerned citizen of this country, I have written this letter in a very emotional state as I am of the view that it is now time to challenge electronic media in general to refrain from reporting their political views under the guise of freedom of expression. I would therefore, humbly request that the Broadcasting Complaints Commission considers my complaint in terms of the Independent Communications Authority Act of There is clear authority that a doctor may not disclose the existence of AIDS in a patient as a result of the doctor-patient relationship which is to be found in the Hippocratic Oath and earlier scripts. See Jansen van Vuuren and Another NNO v Kruger 1993(4) SA 842(A) at 849. Since the Respondent is not a doctor it is obviously not bound by the said oath. There was, in any case, no evidence that the sources were medical sources. The complainant s argument accordingly fails in this respect. A next hurdle, which must be considered, is whether a deceased person has any right to privacy or dignity in law. The Constitution of the Republic, in section 14, provides that everyone has the right to privacy. and in section 10 that everyone has inherent dignity. Although there is authority that a person who is in a coma and unaware of statements attacking his or her privacy or dignity has a cause of action, there is no authority that a deceased person has these rights. The Constitution is, to our minds, also directed at the protection of the privacy and dignity of a living person. In Christian Lawyers Association of SA v Minister of Health 1998 (4) SA 1113 (T) the Court found that the term everyone as used in the Bill of Rights is synonymous with every person. The Court also concluded, at 1121, that person cannot connote a stillborn child, an unborn child, etc. A priori it cannot connote a dead person. Our Constitution, therefore, does not confer a right to privacy or dignity upon a dead person. An USA Court did allow the relatives of a deceased rape victim to file a suit for damages against a broadcaster, who had revealed the deceased s identity, but in that case a statute explicitly provided for persons to file suit. The US Supreme Court, however, held that where the identity of the victim had been available in the Court record of the matter and had not been sealed by the Court, the matter was in the public domain and could be disclosed by a broadcaster. See Cox Broadcasting Co. v Cohn 420 US 469(1975). The action, accordingly, did not succeed. The next question is whether the Broadcasting Code grants this type of protection. The Broadcasting Code provides as follows in clause 5: Privacy

5 The electronic media shall exercise exceptional care and consideration in matters involving the private lives and dignity of individuals, bearing in mind that the right to privacy and dignity may be overridden by a legitimate public interest. We are of the view that this clause also only protects living persons and does not extend the Constitutional or Common law rights to a deceased person. The reference to individuals must be read as a reference to living individuals. In any case, the concepts of privacy and dignity are so closely associated with a person, that it is generally difficult to decide upon infringement or the effect thereof without evidence from the person concerned. The Broadcasting Code provides for an absolute ban on the publication of the identity of a rape victim or other victims of sexual violence see clause 2.7. This limitation on media freedom would also apply to deceased victims. There is no such direct ban on the broadcast of the cause of death, where it is not related to rape. The Complainant referred to the African custom according to which relatives gather after the death of a person to discuss the cause of death as well as the arrangements for the funeral. We do not believe that this is a case where the privacy or dignity of relatives has been infringed upon. The alleged indirect interference with discussions of relatives does not amount to an invasion of their privacy or dignity. Privacy and dignity do not have such a wide meaning in law. Compare the observations of Ackermann J in Bernstein & Others v Bester & Others NNO 1996(2) SA 751 (CC) at paragraphs [67], [69] and [79] as to privacy. As to dignity compare S v Tanteli 1975(2) SA 772(T) where Nicholas J says the following at 775C : In my view, however, there was in the present case no basis for a finding that the complainant s dignitas was impaired at all. The attack was not, and was not understood as being, an attack against the complainant personally. It was an attack upon his language. Undoubtedly, the complainant found that to be hurtful and offensive in a general sense; but it did not, in relation to the person of the complainant, have that degrading, insulting or ignominious character which is a requisite of an injuria. What Nicholas J said in regard to the complainant in that case, is equally applicable to the relatives of the deceased in the present matter. There was no attack on their dignity. In conclusion we wish to state that even if deceased persons were protected by the Broadcasting Code, which we do not find, the Respondent convincingly argued that the present news item was in the public domain. There were rumours about the cause of death; rumours which were investigated by the Respondent. Once the item was obtained from the ANC sources, the matter was fully discussed at editorial level and it was decided to publish the item. The Respondent was prepared to make a sworn statement that such information had been conveyed to it by the said sources. The information was, given the public office of the deceased

6 and his involvement in statements on the matter, even if only as spokesperson, in the public interest. The Tribunal took note of a growing tendency in the community that there should be more transparency about Aids. Such transparency contributes to the campaign against Aids insofar as it increases awareness of this condition and acts as a continuing warning against circumstances which might contribute towards the spreading thereof. Many viewers would regard the item as having been in questionable taste, given the grief of relatives. Editorial teams would be well advised to exercise special care in this field. We have noted the care taken by the Respondent before broadcasting the item. We are unanimously of the view that the complaint cannot be upheld. We, however, accentuate the previous paragraph and direct the Registrar to refer all broadcasters to this judgment and especially the said paragraph. JCW VAN ROOYEN SC CHAIRPERSON 10 January 2001

PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) MR BRIAN MAKEKETA MS GIUSEPPINA HARPER PROF SUNETTE LŐTTER

CASE NUMBER: 02/2015 DATE OF HEARING: 12 FEBRUARY 2015 JUDGMENT RELEASE DATE: 04 MARCH 2015 PHILIP COMPLAINANT vs TALK RADIO 702 RESPONDENT TRIBUNAL: PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) MR BRIAN MAKEKETA