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

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1 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 MS GIUSEPPINA HARPER PROF SUNETTE LŐTTER FOR THE COMPLAINANT: Tribunal. The Complainant was invited but did not attend the FOR THE RESPONDENT: Ms Khahliso Mochaba, Group Human Capital and Regulatory Affairs Executive, Primedia Broadcasting, accompanied by Mr Tebogo Mokoena, Regulatory Affairs Officer. Negative comment on pending application for discharge in a murder trial held to have been a permissible comment Phillip vs Talk Radio 702, Case 02/2015(BCCSA) SUMMARY A complaint was received from a listener in regard to a comment made by presenter John Robbie on Radio 702 concerning the application in State v Dewani, which was 1

2 before the Cape High Court at the time, for the discharge of Mr Dewani after the close of the Prosecution s case. Mr Dewani was accused of having hired persons to murder his wife while they were on honeymoon in Cape Town a few years ago. The wife was indeed murdered, and after protracted litigation in the United Kingdom, Mr Dewani was extradited to South Africa to stand trial. After the application for discharge had been lodged, Mr Robbie reacted by saying, I think he is guilty as hell Held (1) that the comment was permissible within the ambit of clause 12 of the Broadcasting Code. It amounted to an honest expression of opinion and was presented in such manner that it appeared clearly to be comment, and was based on facts fairly indicated and referred to, although the Court came to a different conclusion; (2) that a complaint based on defamation, made by Mr Dewani, might have led to a different result. However, no such complaint was lodged; (3) that the News clause sets a higher standard and that had this comment been part of a newscast, a different decision might have followed. The Complaint was not upheld. JCW VAN ROOYEN JUDGMENT [1] A complaint was received from a listener in regard to a comment made by presenter John Robbie on Radio 702 concerning the application in State v Dewani, which was at the time before the Cape High Court, for the discharge of Mr Dewani after the close of the Prosecution s case. Mr Dewani was accused of having hired persons to murder his wife while they were on honeymoon in Cape Town a few years ago. The wife was indeed murdered, and after protracted litigation in the United Kingdom, Mr Dewani was extradited to South Africa to stand trial, based on his allegedly having hired the murderers. The Prosecution s case did not appear to be strong, and consequently an 2

3 application for the discharge of Mr Dewani followed. This application stems from section 174 of the Criminal Procedure Act 1977 which provides as follows: If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty. It is common cause that the observation by Mr Robbie was made before the Court had decided the issue and that, thereafter, the application was acceded to and Mr Dewani found not guilty. [2] The complaint reads as follow: I would like to lodge a complaint against the John Robbie show, as broadcast today, 8 Dec 2014, at approx He mentioned the Shrien Diwani case, and stated "I think he is guilty as hell" - yet today, the court is thrown out. I believe he has breached the code, and is providing an atrociously biased viewpoint. [3] The Respondent broadcaster was requested to respond to the complaint in terms of clause 12(2) of the Broadcasting Code. The sub-clause provides as follows: Comment must be an honest expression of opinion and must be presented in such manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to. The Respondent broadcaster argued that the presenter s observation was in line with the sub-clause. It clearly amounted to comment, and referred to facts that were fairly indicated and referred to. [4] The Complainant replied as follows: For a statement to be judged as comment in terms of clause 12 (2) of the Code it has to comply with three elements namely: Must be an honest expression of opinion; Must be presented in such a manner that it appears clearly to be comment; and Must be made on facts truly stated or fairly indicated and referred to I am in agreement that part a and b were complied with - the statement was clearly an honest expression of opinion, and was indicated as comment. However, I do not believe that the statement was made on facts truly stated or fairly indicated. If I may be given the opportunity to quote from the dictionary - the word "fact" is defined in the Merriam-Webster dictionary as follows: : something that truly exists or happens : something that has actual existence : a true piece of information Let s revisit the statement made by the presenter: right from the start I smelt a rat in that and I think the guy is as guilty as but obviously it has to do with legal procedures. Their response states: The opinion by the presenter was informed by facts in the public domain I would like to know exact what FACTS the presenter used to form his opinion. If such FACTS were available, then I would be interested to know why the court did not take such FACTS into 3

4 account in forming the judgment. Or perhaps Mr Robbie had access to FACTS which the court were not aware of? It is my respectful submission that the comment WAS in breach of clause 12(2) of the code, as it has not fulfilled all three elements. In particular, the comment was not based on fact, but on emotion and tabloid-fuelled hearsay. I trust you will take appropriate action on this. EVALUATION [5] It should, first of all, be pointed out that this is not a defamation case. Only Mr Dewani himself could have lodged such a complaint, and he did not do so. The matter is, accordingly, to be decided within the ambit of clause 12(2) of the Broadcasting Code. [6] Had the comment been included in a newscast, it might have been found to amount to an unfair rendition of the news. However, the comment clause, i.e. clause 12, leaves a broadcaster with a wide discretion as to what may be broadcast. The only proviso is that the comment should amount to an honest expression of an opinion and at least be based on facts which were either truly stated or fairly indicated and referred to. As matters turned out the presenter s statement was eventually gainsaid by the Court, which acquitted Mr Dewani. It would thus be surprising if any observation made after the verdict to the effect that Mr Dewani was guilty would not, in general, have amounted to defamation. In any case, that is not the matter before us. The Broadcasting Code does not include a contravention which is similar or identical to the criminal offence of contempt of court known as the sub judice rule. The rule has, in any case, since the adoption of the 1994 Constitution of the Republic of South Africa ( followed upon by the 1996 Constitution), been substantially limited by the Supreme Court of Appeal, as evidenced in Midi v Director of Public Prosecutions. 1 [7] I have studied the recent judgment of the Constitutional Court 2 on comment, and have come to the conclusion that clause 12 of the Code may in a sense be compared to the statutory crime created by the Election Act that was before the Court in the judgment I have cited. In the latter, the Court clearly stated that the matter before it did not amount to a defamation case, but instead related to a statutory crime. Although the consequences (5) SA 540(SCA); compare Challenges to the sub judice rule in South Africa HTS Teologiese Studies/Theological Studies 70(1), Art # i Democratic Alliance v African National Congress and another [2015] JOL (CC). 4

5 of a finding that the Broadcasting Code has been transgressed are much less severe than a finding that the said Electoral Act had been contravened, the BCCSA is also permitted to impose a fine that could amount to a maximum of R Clause 12 must, accordingly, be approached with an open mind. In fact, this Tribunal has, in the past, often held that, in so far as clause 12 requires balance, balance must be defined narrowly, so that ample criticism may be lodged on matters of public importance. Clause 12 should, accordingly, not be approached with anxiety by broadcasters. When a genuinely held belief is broadcast, it must be approached with what may be termed a section 16 frame of mind. 3 In my opinion, this result accords with the thinking of the Constitutional Court, cited above, which gave a wide latitude to claims made in an election SMS of the Democratic Alliance, claims which were and are disputed by the ANC. [8] Our conclusion is that the opinion broadcast was genuinely held, and was not broadcast as absolute fact or truth that is obvious but as a genuinely held opinion on facts fairly indicated and referred to. Facts should, in this context, be regarded as facts as genuinely perceived by the person who made them. The facts, as held by the Court, however, turned out to contradict the opinion of Mr Robbie, but he was, nevertheless, entitled in terms of clause 12 of the Code to express a view on what he sincerely seemed to perceive the facts to be. The Dewani matter has become a matter of public interest 4 in 3 Section 16 guarantees freedom of expression. 4 See Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another 1993 (2) SA 451 (A) Corbett CJ said in delivering the majority judgment (at 464C-D): (1) There is a wide difference between what is interesting to the public and what it is in the public interest to make known...(2) The media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; and they are peculiarly vulnerable to the error of confusing the public interest with their own interest... Quoted with approval by Hoexter JA in Neethling v Du Preez; Neethling v The Weekly Mail 1994 (1) SA 708 (A) at 779 and Hefer JA in National Media Ltd v Bogoshi & Others 1998(4) SA 1196(SCA) at 1212 where reference is made to Asser Handleiding tot de Beoefening van het Needelands Burgerlijk Recht (9th Ed vol III at 224 para 238:... In practice the public interest is especially employed in matters concerning views expressed via die printed media and television: public interest is, within this context, based on freedom of expression, as guaranteed by the Constitution and by treaties, to expose alleged abuse (and or evil in society).in deciding whether the defence of public interest was lawful usually depends on a balancing of interests the outcome of which is dependent on the facts of each case. (translated from the Dutch) 5

6 recent years, and it is permissible to have a view and to broadcast such a view, even before the Court has decided the matter. Of course, if there had been a real possibility that the Court could have been influenced by what was broadcast, the matter might have fell foul of the sub judice rule. But even that rule, as interpreted in the Midi matter, has become so vague that it would not be surprising were the Constitutional Court, when confronted with the definition of this particular offence, to re-define it to ensure that the parameters are clear. Vagueness in the definition of a contravention or crime has led to setting such crimes and contraventions aside, or to their being redefined with more clarity by the Constitutional Court. 5 The Complaint is, accordingly, not upheld. JCW VAN ROOYEN SC CHAIRPERSON Commissioners Harper, Makeketa and Acting Commissioner Lötter concurred with the judgment of the Chairperson. 5 See De Reuck v Director of Public Prosecutions 2004(1) SA 407(CC); Islamic Convention v Independent Broadcasting Authority and Others 2002(4) SA 794(CC) at par [114]; Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996(3) SA 617 (CC) at par 69. 6