Prof Kobus van Rooyen SC (Chairperson) Mr Ratha Mokgoatlheng (Viewer Listener Representative) Prof Sunette Lötter Dr Linda Venter (Co-Opted Member)

Transcription

1 Date of Hearing: 22 JULY D HATTINGH Case Number: 28/2004 Complainant vs e-tv TRIBUNAL: Complainant: Respondent Prof Kobus van Rooyen SC (Chairperson) Mr Ratha Mokgoatlheng (Viewer Listener Representative) Prof Sunette Lötter Dr Linda Venter (Co-Opted Member) The Complainant did not attend. For the Respondent: Gilbert Marcus SC instructed by Rosin Wright Rosengarten and accompanied by Dan Rosengarten, Mr Olefile Tshweu, Regulatory Affairs Manager e-tv and Ms Debra Patta, interviewer 3 rd Degree Unfair reporting complaint not upheld questions during interview within the ambit of freedom of expression. Procedure complaints procedure discussed. D Hattingh vs e-tv Case No: 28/2004 SUMMARY A complaint was lodged against e-tv for broadcasting an unfair interview with the well known leader of the AWB, Eugene Terblanche. The interview with him was broadcast after he had been freed on parole by the Prison Authorities. It was alleged 1

2 that the interviewer had been unfair to him and also put personal questions to him which contravened the Broadcasting Code. The Tribunal reasoned as follows in rejecting the complaint: The Tribunal is of the view that the interview, in spite of its hard-hitting questions and even personal questions, did not in any way contravene the Code. The incarceration of Eugene Terblanche was a matter of public interest and, in the interest of freedom of expression, an interviewer may ask the questions which are in the public mind. Is he still a racist, what are his plans for the future, has prison life changed him and the like. The allegations of a past relationship between Eugene Terblanche and a female columnist, were well known and were within the public domain and in the newspapers. There was no reason for Ms Patta not to have asked the questions pertaining to that alleged relationship. Complaints Procedure Discussed. JUDGMENT JCW van Rooyen, Chairperson [1] A complaint was received in regard to a news commentary programme, 3 RD DEGREE, regularly broadcast by the respondent, which is a broadcaster within this Commission s jurisdiction. In limine Mr. Marcus argued that this is the kind of case which should firstly not have been entertained by the Registrar and secondly, once entertained, should not have been referred to a Tribunal for adjudication by the Chairperson. [2] Mr. Marcus concern is understandable because, as appears from this judgment, the complaint was dismissed by the Tribunal. What is more, in spite of the complainant s adamant indication that she would put her case before the Tribunal, she did not attend the hearing. [3] I first deal with the point in limine. The Procedure of the BCCSA, as agreed to in 1993 by the National Association of Broadcasters, of which the Respondent became a member in 1999 when it commenced broadcasting as a free-to-air broadcaster in terms of the Broadcasting Act 1999, read with the Independent 2

3 Broadcasting Authority Act 1993, provides that a complaint which is anonymous, or which, in the Registrar s opinion, is fraudulent, frivolous, malicious or vexatious or does not prima facie fall within the ambit of the Broadcasting Code will not be entertained by the Registrar. Initially the requirement that a complainant must, on a prima facie basis, show that the material broadcast amounted to a contravention of the Code, was not a requisite. However, experience showed that it was necessary to add this requirement so as to exclude cases which were clearly not in contravention of the Code. So as to ensure due process, a complainant who is not satisfied by the decision not to entertain the complaint may appeal to the chairperson against such a decision. The Procedure, however, does not contain a provision according to which a broadcaster may appeal to the chairperson against the decision of the Registrar to entertain a complaint. Accordingly, once entertained, a complaint must either be mediated, adjudicated by a Commissioner or referred to a Tribunal. These alternatives must be considered by the Chairperson and he or she must take a decision. Experience has also shown that, at times, it is in the interests of justice to even bring a matter, which does not look that solid, directly before a Tribunal, not as a result of its gravity, but simply because of the approach of the complainant. When it is clear that a complainant is unlikely to take part in mediation or accept the decision of a Commissioner as an adjudicator and is determined to appeal to a Tribunal, it makes little sense to refer a matter to a Commissioner for a mediation or an adjudication. So as to ensure that the broadcaster is not subjected to undue hardship, complaints against a broadcaster are usually placed on the same day. [4] In the present matter it was clear to me that, given the adamant approach of the complainant, it would not be in the interests of justice to first refer the matter to an adjudicator. There was also no manner in which I could interfere with the decision of the Registrar to entertain. I might mention that, in spite of the seemingly determined and rather impatient and critical approach of the complainant, the complaint, as reformulated, would not seem to have been 3

4 disqualified by the rules pertaining to the entertaining of a complaint or not. The Registrar has informed me that she will not, in future, allow a complainant who is vexatious, or mala fide to re-formulate his or her complaint. I agree with this approach. Where a complainant does not make out a case on a prima facie basis, she would however afford the complainant an opportunity to reformulate in the light of the Code. This would have to be done within the time limit of 30 days. [5] The initial complaint which the Registrar received reads as follows: FIRST COMPLAINT: YOUR EPISODE ON EUGENE TERBLANCHE It was with the utmost disgust that I watched 3rd degree on Tuesday night. I have yet in my life to see an episode of 3rd Degree that is truthful and accurate, unbiased and fair, in accordance with your supposed commitment to the Broadcasting Complaints Commission. You are out to insult, irritate and entice, and the poor person in the interview does not stand a chance. The irony of the matter is that I never was a fan of E.T. but you, Deborah, are making no effort to conceal your own views and you are not presenting us a balanced story in perspective, from both sides so that we can make up our own minds. And your final questions about his affair with Janie and the horse incident were so pathetically alien and out of place and a flag for an attack on its last legs... bwahahaha. No Deborah... no help on your part for any reconciliation whatsoever. You are working so incredibly hard making sure no one will ever mistake you for a racist! And on a personal level (since you see fit to do so yourself in interview) from one woman to another what is up with this sex goddess you are trying to portray? You definitely sun bed too much! You are darker than a Congolese! This sexy reporter façade has to stop... (I am referring to that uncanny wink you gave the other day after the news). The Registrar rejected this complaint because of its personal attack, but afforded the complainant a further opportunity to reformulate her complaint. SECOND COMPLAINT: 35.2 Comments shall be an honest expression of opinion and shall be presented in such manner that it appears clearly to be comment, and shall be made on facts truly stated or fairly indicated and referred to. Deborah Patta made a statement that the AWB is the laughing stock of the country. It was not done in such a manner that it appeared clearly to be a comment of own opinion. It was presented as if it was made on facts - On what facts? She did NOT say that it was HER opinion. Neither did she "fairly indicate" where she got that from! 4

5 Other reports on 5FM stated that there were quite a number of black people there to welcome him. Cheering! Even the DJ mentioned that this indeed was strange. So indeed there are other fair reporting on this matter. She asked about his affair with Janie and the horse incident and said in so many words that that makes him a joke in the eyes of the people! Where does she come from saying that? This is ten years ago headlines and slander!! I don t feel that this man has been given a fair interview. Then the question "Would you still call yourself a racist?" If you're going to quote someone, I think it should be true and based on facts and just proved a last ditch effort by Debora to demote him In presenting a programme in which controversial issues of public importance are discussed, a licensee shall make reasonable efforts to fairly present opposing points of view either in the same programme or in a subsequent programme forming part of the same series of programmes presented within a reasonable period of time of the original broadcast and within substantially the same time slot She was constantly expressing personal views and that is not comment that is fair, unpartial, indiscriminate and not in the least presenting opposing points of view to the public. I would like to see the follow up report from the other side! [6] The Response from the Respondent reads as follows: On 18 June 2004 e-tv received a complaint from D Hattingh concerning the Third Degree programme which interviewed former AWB leader, Eugene Terblanche ( Terblanche ), after his release from imprisonment following a conviction for attempted murder. The complaint in question is a scarcely disguised personal attack on Debra Patta, the presenter of the programme. Indeed, it concludes as follows: and on a personal level (since you see fit to do so yourself in interview) from one woman to another what is up with this sex goddess you are trying to portray? You definitely sun bed too much! You are darker than a Congalese! This sexy reporter façade has to stop (I am referring to that uncanny wink you gave the other day after the news). In terms of Clause 1.5 of the procedure of the BCCSA in the mediation and adjudication of complaints, the Registrar shall only accept a complaint which, in his or her opinion is not fraudulent, frivolous, malicious or vexatious. It is evident from the complaint that it is both frivolous and malicious and on that basis alone ought to have been rejected by the Registrar. At the outset, therefore, it will be contended that there has been improper exercise of discretion to admit the complaint at all. Far from rejecting the complaint at the outset, the Registrar, after pointing out that she was not obliged to accept a complaint which was, inter alia, frivolous or malicious gave the complainant the opportunity to re-formulate the complaint. In its re-formulated form, it is self-evident that the complainant has not viewed the programme either accurately or in its proper context. The programme was in two parts. The first part showed extracts from an interview with Terblanche before his imprisonment. In the introduction, Patta refers to Terblanche as the leader of a reactionary neo-nazi movement and a racist who vowed civil war. She stated that he would be remembered more for falling off his horse than for the failed invasion of Bophuthatswana. The footage in question depicts Terblanche falling off his horse and portrays footage of the failed invasion of Bophuthatswana. It also portrays footage of the 5

6 AWB in uniform, armed and waving its nazi-like flag. It portrays children chanting at an AWB rally Hang Mandela. It also portrays footage of the forcible invasion of an armed vehicle at the negotiations in Kempton Park. The prior interview also deals with the scandal involving Terblanche and journalist Jani Allen. Debra Patta states: No longer feared, ET had become South Africa s biggest joke. The AWB was the laughing stock of the new dispensation and the media had a field day with ET and his new role as the country s buffoon. From falling off his horse to being accused of falling into the arms of journalist Jani Allen virtually nobody took ET seriously. Patta then asks: Did the allegations of an affair with Jani Allen affect your reputation in any way? To this, Terblanche replied that the interviewer should ask Bill Clinton or de Klerk since they are better lovers than him. It is manifestly clear that Patta was expressing an opinion and giving Terblanche the opportunity to comment. In the second part of the interview, after Terblanche s release, Patta puts to Terblanche that the majority of South Africans see men in khaki suits with symbols resembling swastikas. She states that they laugh and are not afraid. Once again, Terblanche is given the opportunity to respond. The interview ends with Patta putting to Terblanche the following question: What about yourself. There was the horse falling incident, the Jani Allen scandal that was written up in the papers. That didn t add to the image of a frightening, terrifying organization People laughed again. To this, Terblanche responded that he thought that Patta was a little bit jealous. He then terminated the interview. The complaint also sees some impropriety in the question as to whether Terblanche would still call himself a racist. Once again, it is a perfectly legitimate standpoint to adopt that the leader of the AWB can be termed a racist. It is an organization which espouses racial segregation and exclusivity. More importantly, however, the suggestion was put to Terblanche and he was given a full opportunity to respond. In the circumstances, there has been no contravention of the Code. [7] The Tribunal is of the view that the interview, in spite of its hard-hitting questions and even personal questions, did not in any way contravene the Code. The incarceration of Eugene Terblanche was a matter of public interest and, in the interest of freedom of expression, an interviewer may ask the questions which are in the public mind. Is he still a racist, what are his plans for the future, has prison life changed him and the like. The allegations of a past relationship between Eugene Terblanche and a female columnist, were well known and were within the public domain and in the newspapers. There was no reason for Ms Patta not to have asked the questions pertaining to that alleged relationship. 6

7 The complaint is dismissed. JCW VAN ROOYEN SC CHAIRPERSON Commissioners, Mokgoatlheng, Lötter and Venter concurred 7