94.7 HIGHVELD STEREO 1ST RESPONDENT TALK RADIO 702

Transcription

1 CASE NUMBER: 26/2012 DATE OF HEARING: 5 JUNE 2012 DATE OF ISSUE OF JUDGMENT: 13 JULY 2012 NAICKER COMPLAINANT vs 94.7 HIGHVELD STEREO 1ST RESPONDENT TALK RADIO ND RESPONDENT TRIBUNAL: PROF JCW VAN ROOYEN SC (CHAIRPERSON) PROF V BRONSTEIN DR N MAKAULA MR B MAKEKETA For the Complainant: Advocate Willie de Beer, Mr Mark George, Attorney and Mr Silvanus Naicker, the Complainant For the Respondent: Ms Khahliso Mochaba: Group Human Capital and Regulatory Affairs Executive, Primedia Broadcasting. Defamation implicating a person in crime not acceptable on the facts. Naicker vs 94.7 Highveld Stereo& Talk Radio 702; Case No: 26/2012(BCTSA). SUMMARY The Broadcasting Tribunal held that the facts available to the Respondent radio stations did not justify their implicating the complainant in a murder on the meager facts available to it. This amounted to a contravention of the rules pertaining to News and defamation. A

2 passage in judgment reads as follows: In the result we hold that the Broadcasting Code has been contravened. We do not think that the broadcasters acted with the intention of defaming the Complainant. But in South African law negligence is sufficient for a finding of defamation by the media. Clause 11(3) of the Code is also based on reasonableness. We have no doubt that the Radio stations were negligent in broadcasting the material. A broadcaster, which reaches a very large audience, cannot be heard to say that, on the meager evidence available, it had the right to broadcast the damaging item. In our view a reasonable broadcaster would not have published the item with the scanty evidence at its disposal, as was the case in this matter. A fine of R25000 was imposed on each radio station for the contravention. PROF JCW VAN ROOYEN SC JUDGMENT [1] I referred the present matter to a Tribunal because of the importance of establishing whether the Complainant had been defamed in a broadcast which identified him as a possible accomplice in a case where a person had been convicted of the murder of a young girl. The person so convicted has in recent months unsuccessfully applied for the re-opening of his murder trial on the basis that accomplices had been involved. [2] The Complaint reads as follows: RE: COMPLAINT AGAINST Radio Stations 702 AND 94.7 SILVANUS NAICKER I hereby wish to lay a formal complaint against the following Radio Stations: Radio Stations: 702 and 94.7 as they have wrongfully implicated me in having information about the Leigh Matthews case without verifying any details or communicating such with the SAPS. This wrongful allegations/rumours were aired on the following dates and times. Date: 2012/04/02, Times: 6:00am.7:00am and 5:00pm, Date:2012/04/03, Times:6:00am and 7:00am

3 I have had to endure a complete media onslaught for the past 2 days without receiving a call from the SAPS requesting to question me on this matter. It appears from the radio news reports that the relevant Radio Stations and or there journalists had not confirmed the actual source of the information in that Accreditation of the information is given to a Mr Andre Snyman the web host and owner of the eblockwatch website. Mr Andre Snyman claims that the source is anonymous and could even be Silvanus himself I confirm that I did not contact Mr Snyman or his website with respect to this matter or of any other matter. There are no other sources identified in the various articles. They identified that Silvanus Naicker was a friend of Donovan Moodley who played volleyball with him. I confirm that I did play volleyball with Donovan Moodley but unreservedly confirm that I had nothing to do with the Leigh Matthews case. From the above it is clear, that the source of the rumour has not been confirmed and therefore the information cannot be deemed as reliable or reasonable. The Radio Stations have not acted with due diligence in this matter and have caused my family and myself undue stress. They have also disrupted my home and working environment. Reporting of this manner is unfair, unjust and unreasonable and I should not be subject to such blatant rumours and the ultimate defamation of my character and good name. It is therefore that I humbly request that the commissioner intervene on this matter and bring the reporting of this matter to an immediate stop. I also request that the various Radio Station and their affiliates, publish and broadcast a retraction of the news reports and an apology. I trust that this is in order and look forward to receiving your urgent response hereto. Please note that I reserve my legal rights in this matter. [3] The Broadcaster responded as follows: Please find below the news scripts. The audio clips and written response will come tomorrow. You will note that some of the things referred to in the complaint were not in our news bulletins and I suspect they might have been in the print media reports. EYEWITNESS NEWS UNDERSTANDS THE MAN LEIGH MATHEWS PARENTS BELIEVE COULD HOLD THE KEY TO THE MYSTERY AROUND HER MURDER - WAS IDENTIFIED EARLY ON AS A PERSON OF INTEREST IN HER CASE. COMMUNITY POLICING ORGANISATION E-BLOCKWATCH SAYS THE NAME 'SILVANUS' WAS BROUGHT TO THEM BY AN ANONYMOUS PERSON WHO BELIEVES THIS INDIVIDUAL HAS INFORMATION ABOUT THE STUDENTS MURDER. MANDY WIENER REPORTS... SILVANUS NAIKER WAS A FRIEND OF LEIGH MATHEW'S CONVICTED MURDERER DONOVAN MOODLEY - THE TWO GREW UP TOGETHER AND PLAYED VOLLEYBALL ON THE SAME TEAM.

4 NAIKER IS THE BROTHER IN LAW OF MOODLEY'S FORMER FIANCE YESHIKA SINGH. BOTH NAIKER AND MOODLEY WERE ALSO FRIENDS WITH KOOGAN REDDY - RETIRED INVESTIGATOR PIET BYLEVELD HAS SAID HE COULD PLACE REDDY ON A BRIDGE OVER THE RANSOM DROP OFF POINT VIA HIS CELLPHONE RECORDS. EYEWITNESS NEWS ALSO UNDERSTANDS THAT MOODLEY AND SILVANUS NAIKER SMS'D AND CALLED ONE ANOTHER ON THE NIGHT LEIGH MATTHEWS BODY WAS DUMPED. BYLEVELD SAYS HE DID INTERVIEW NAIKER AND REDDY SOON AFTER THE MURDER BUT HE HAS ALWAYS MAINTAINED HE WOULD NOT ARREST SUSPECTS ON THE BASIS OF PHONE RECORDS ALONE. WHEN EYEWITNESS NEWS ATTEMPTED TO PHONE NAIKER YESTERDAY - HIS PHONE WENT DIRECTLY TO VOICE MAIL. MW Another bulletin read out on the day in question: THERE COULD FINALLY BE SOME ANSWERS IN THE LEIGH MATTHEWS MURDER CASE - WITH A NEW SOURCE CLAIMING TO HAVE INFORMATION ABOUT THE 2005 KIDNAPPING AND MURDER OF THE SANDTON STUDENT. THE STAR NEWSPAPER IS THIS MORNING SAYING THE ANONYMOUS SOURCE HAS CONTACTED COMMUNITY CRIME NETWORK -- E-BLOCKWATCH. ANDREA VAN WYK REPORTS... ACCORDING TO THE STAR, THE ANONYMOUS SOURCE, WHO CALLS HIMSELF SILVANUS, TOLD EBLOCKWATCH HE WANTS TO CLEAR HIS CONSCIENCE BY REVEALING MORE INFORMATION ON THE LEIGH MATTHEWS CASE. DONAVON MOODLEY IS THE ONLY PERSON WHO HAS BEEN CONVICTED OF HER MURDER. BUT EARLIER THIS YEAR HE APPLIED FOR A RETRIAL, SAYING HE HAD ACCOMPLICES. HIS APPLICATION WAS DENIED. MATTHEWS' PARENTS HAVE WELCOMED THE NEWS OF A NEW LEAD. In addition to the news clips scripts, I have sent through the audio clips. In his complaint, Mr Naicker states that we have wrongfully implicated him without verifying any details or communicating with the SAPS. Mr Naicker s statement that the details reported on were not verified is incorrect. The story was first published in print media. However, we found the story vague and as a result, one of our reporters investigated the story further to see if there was any validity to it. Investigators who initially worked on the Leigh Matthews case were then contacted to verify the story. Retired policeman Piet Byleveld who was the senior investigator on the Leigh Matthews case was also contacted. While it is a fact that the news bulletins do refer to eblockwatch and its

5 Evaluation anonymous source, the bulletins go further and make reference to Piet Byleveld and what his comment on the story is. It is therefore incorrect to allege that we did not verify the details. In addition to having verified the details with Piet Byleveld, one of our reporters sourced Mr Naicker s phone number and attempted to contact him in order to inform him about the story and offer him right of reply, however Mr Naicker was not available. Our reporter then left a message for Mr Naicker clearly stating her name, our organisation and her phone number but Mr Naicker did not respond. This is also explicitly stated in the bulletins. For the reasons stated above, we dispute Mr Naicker s allegations that we ran the story without having verified the details. The facts as given in our news bulletins are factual and have been verified as such. In fact, Mr Naicker himself does not allege that any of our statements is factually incorrect. We strongly believe that our reporting was in accordance with the Code and of acceptable journalism standard and ethics. We also note that Mr Naicker is requesting the Commission to order a retraction, taking into account that none of our statements in the news bulletin has been alleged to be factually incorrect, we are not clear as to what it is that could be a subject of the retraction. O this end, we await guidance from the Commission. Please do not hesitate to contact me should you have any queries. [4] The result of the broadcast is that the Complainant has been drawn into the murder, though there has been no actual trial. That this has been enormously damaging to his reputation is absolutely clear. The question is whether the radio stations involved acted in the public interest by identifying him. [5] Our law is clear on this matter. Truth plus public interest are defences to a claim of defamation. The defence is that Piet Byleveld, a renowned detective, told the Respondent radio stations that a Silvanus Naicker had been on his list as a possible accomplice at the time, but that he had not had him prosecuted since he did not regard phone records as a sufficient source to involve a person in a murder trial. A further defence on the part of the Respondents is that a member of their team had left a message on the phone of the Complainant, but the latter had not phoned back. [6] To have broadcast the name of the complainant based on this scanty evidence is astounding. It amounts to a blatant and unfounded impairment of his reputation. If Byleveld was not even prepared to have a person with the name of the Complainant prosecuted, the media, most certainly, are not permitted to implicate him. This rule also

6 applies to creating a mere suspicion of his possible involvement. It would be no defence to suggest that he might have been involved. The mere mention of a possibility is already extremely invasive. No one has the right to usurp the power of a Court and implicate a person in a crime. The mere mention of a possibility of involvement is sufficiently damaging to the Complainant s reputation, not to speak of his dignity. There might be circumstances where the evidence is so compelling that publication would be acceptable. However, this is, most certainly, not such a case. Truth plus public interest is accordingly not a defence in this case. [7] The next defence is that of reasonableness. I shall refer to two judgments of the Supreme Court of Appeal to illustrate the kind of thinking that is relevant in a defamation case. In Mthembi-Mahanyele v Mail & Guardian Ltd & Another 1, the low performance grade awarded by the Mail & Guardian to a cabinet minister, based, inter alia, on a claim that she had granted a state contract to a friend, was found to have been defamatory of her by Lewis JA (Howie JP concurring). [ Why is she still in the Cabinet? She has shown she cannot deliver in one of our key delivery ministries. Her award of a massive housing contract to a close friend and her sacking of her former director general, Billy Cobbett, continue to haunt the public perception of her. Prognosis: A coupé on the gravy train would do nicely, thank you very much. ] The newspaper s statement was untrue since the contract had in fact been awarded by a board. The statement implied that the minister was corrupt. However, the said two judges held that, given the political nature of the comment and the surrounding circumstances, it was reasonable (thus, lawful) for the newspaper to have made the error. The two judges therefore held in favour of the Mail & Guardian. Ponnan AJA (as he then was) agreed with the result reached, but held that the statement had not been defamatory and that, in his view, the Minister had over-reacted. Mpati DJP (as he then was) and Mthiyane JA, however, held that the statement by the newspaper was not saved by any defence. In the result, the Mail & Guardian won the case by way of a majority of votes. In Nehawu v Tsatsi 2 it was held that the appellant s statement that the respondent embraces fraudsters was defamatory. In so far as the (6) SA 329(SCA) (6) SA 327 (SCA).

7 present matter before this Tribunal is concerned, we have no doubt that the radio stations involved have also not shown any basis on which we might find that the alternative defence of reasonableness could be applicable. The facts in the first of the judgments of the Supreme Court of Appeal mentioned above pale into insignificance when compared with the facts before us. One unanswered phone call plus Piet Byleveld s confirmation that a person with that name was on his suspicion list, do not suffice as grounds upon which a case of reasonableness could be based. We are also of the view that, in the alternative, the Respondents contravened clause 11(3) of the Code, which is also based on reasonableness and which we have discussed above. [8] In the result we hold that the Broadcasting Code has been contravened. We do not think that the broadcasters acted with the intention of defaming the Complainant. But in South African law negligence is sufficient for a finding of defamation by the media. Clause 11(3) of the Code is also based on reasonableness. We have no doubt that the Radio stations were negligent in broadcasting the material. A broadcaster, which reaches a very large audience, cannot be heard to say that, on the meager evidence available, it had the right to broadcast the damaging item. In our view a reasonable broadcaster would not have published the item with the scanty evidence at its disposal, as was the case in this matter. [9] In so far as sanction is concerned, the parties filed the following in mitigation: Complainant: RE: S NAICKER/ 94.7 HIGHVELD STEREO & TALK RADIO We refer to the abovementioned matter and to the draft judgment handed down by the BCCSA on the 18 June We confirm that we act for the Complainant in this matter, Mr S Naicker and place on record the Complainants instructions regarding the sanction to be imposed. 3. The Complainant is of the view that a strict sanction should be imposed upon the Respondents in light of the findings of the Commission, namely that: this (broadcast) has been enormously damaging to his reputation

8 And To have broadcast the name of the Complainant based on this scanty evidence is astounding a blatant and unfounded impairment of his reputation. 4. The Complainant is an honest and responsible family man, a breadwinner and an active member of his community. The effect of the actions of the Respondents has caused him great stress in that his reputation and name have been tarnished in the tight-knit community in which he lives. The Complainant and his family have undergone great stress as they have been bombarded with unwarranted speculation from members of their community and friends. 5. The Complainant holds a highly skilled position at a reputable company and the actions of the Respondents have negatively affected his reputation within his workplace, having had senior management and other staff members questioning him with respect to the reports by the Respondents. This has caused the Complainant a great deal of stress at the workplace. 6. The Complainant has had to, since the broadcasts, constantly defend himself and explain to his employer and co-workers that the reports were not true. 7. The Complainant suffered great reputational damage and emotional stress (to himself and his wife, who at the time had just given birth to their first child) as a result of the actions of the Respondents. 8. The Complainant is of the view that the following sanctions should be imposed by the BCCSA against the Respondents: 8.1 Imposition of a fine R , payable to the BCCSA; 8.2 An order directing the Respondents to broadcast a formal apology ; and 8.3 An order directing that the Respondents in future, when intending to report on the matter and more particularly when intending to mention the Complainant, contact either the Complainant or his attorney of record. 9. The Complainant is of the view that the actions of the Respondents have severely prejudiced him and that the imposition of strict sanctions are fully warranted.

9 10. The Complainant trusts that the Commission shall take into consideration the mitigation factors mentioned in its decision. Respondent: We have looked at the draft judgment and believe that it is important to note the Tribunal s finding, namely that while a contravention of the Code has been established, it cannot be said that the Broadcaster had the intention to defame the complainant. While we appreciate the Tribunal s finding, we also respectfully ask that the Tribunal pay some consideration to our submission, namely that in our view, we were under the impression that we had acted responsibly, more so when one considers the fact that we investigated the Print Media reports further. We believe that our news bulletin should also be looked at within the context of other media reports on the same subject matter. Of course, we are alive to the fact that the other media reports are not before the Tribunal and that we are the ones before the Tribunal. But we believe that context is paramount. We believe that in the circumstances, having found that the station has contravention the Code but unintentionally so, the appropriate sanction would in our respectful view, be for the Tribunal to reprimand the Station as well as to may be in its judgment set out parameters to be followed in such instances so that there are clear guidelines for the future. Our view on the appropriate sanction, is based on the fact that the complainant made it very clear at the hearing that he would not want the matter to be given any more publicity than it already has. Were this not the case, we would recommend a reprimand and that the Tribunal direct that a correction and/or a summary of the findings of the Adjudication Committee be broadcast by the respondent in such manner as may be determined by the Committee however, we need to take into account and respect the views of the complainant. The Respondent stations added the following submission after having read the submission by the Complainant. We respectfully reiterate our submission that a reprimand would be appropriate in the circumstances for the reasons we state in our initial submission on what would constitute an appropriate sanction. We note that the fine that the Applicant is asking for is the maximum fine that the Tribunal can impose. We submit that taking into account that there was no malice or any intention whatsoever on our side to harm the Applicant, something that the tribunal itself makes a finding on at Paragraph 8 of its Draft Judgment; this fact to some extent mitigates the offence and the sanction. In addition, we have taken the Tribunal s statements at the hearing seriously to this end, we completely! understand the negative effect this has on our excellent reputation a nd credibility. We have used it as a learning, both with the reporter concerned and with the team. We have discussed it at length, including ways of preventing anything like this from happening

10 again. Mandy Wiener, the reporter in question is extremely remorseful about what has transpired. It is also worth noting that Ms Wiener is one of our more senior reporters and this is an issue she has taken seriously. We would also like to re-iterate that there was never any malice involved and at no point did we seek to go out and purposefully destroy Mr Naicker s reputation. Our source on the story was impeccable and while we do apologise for airing the piece without having spoken to Mr Naciker himself (although as we mentioned in our response we did try his cell number before going on air as we reported in our news bulletins)! we stand by the facts given to us by Mr Piet Byleveld who is not an unknown person to our newsroom. It is also worth noting that Mr Piet Byleveld has provided us with information for many years now and none of that information has ever been incorrect. We also ask that the tribunal also looks at our record before it in terms of our news bulletin and the type of offence in question. This is the first time that we are found guilty of such an offence which we respectfully submit goes to how careful we are with our news stories. Taking all the above into account and our previous submissions, we submit that a reprimand would be appropriate in the circumstances. With regard to the public apology, we had not raised it! as an option as at the hearing Mr Naicker s lawyer had express ly stated that this would not be an option as they would not want to raise the story again in the public domain. Our news bulletins go on air as well as online. In light of Mr Naciker s aforementioned view expressed at the hearing, we feel that it is appropriate that we put this on record. [10] In F v SABC 3 this Tribunal fined the SABC R for each of two programmes in which it implicated the complainant as a pedophile, in spite of the Prosecuting Authority s having decided not to prosecute F. In the present matter the effect was the same. A person is implicated in a murder even if only as a possible accomplice on the meagre evidence set out above. This is a serious contravention, which justifies a fine. It would not be appropriate to order an apology, since that would simply resurrect the whole matter on air. We have taken into consideration that the broadcasters were not acting with malice or with knowledge of unlawfulness or of contravening the Broadcasting Code. However, we are of the view that they acted in a grossly negligent manner. To publish a person s name on the meagre evidence set out above is unacceptable within the Broadcasting Code and also within our Constitutional dispensation. The dignity of a person, which includes her or his reputation, is one of the central values of our Constitution. It is also necessary, from a Constitutional perspective, 3 Case No: 01/2009, Case No: 24/2009

11 that the information broadcast to the public must be true or at least based on reasonable grounds. As is apparent from the reasoning above, both these elements were not present. We have taken into consideration that the information was already, to a certain extent, in the public domain, and that both stations have a clean record in so far as news is concerned. That is why we have decided not to impose the maximum sanction of R We have noted the concerned approach of the Respondents as to the contravention (see their second response on sanction). Whilst a fine of R would have been appropriate, given the approach in the F case, we have decided to impose a sanction of R for each station in the light of its approach to the matter. In the result the complaint is upheld and the sanction imposed in regard to each of the two respondents is R25 000, which must be paid in to the Registrar on or before 30 July PROF JCW VAN ROOYEN SC CHAIRPERSON Commissioners Bronstein, Makaula and Makeketa concurred in the above judgment.