Media Must Respect the Rules Which Govern Legal Fair Play
In these days of mass communication and rapid transfer of information via the electronic media, the internet and other modern methods, it is virtually impossible to withhold or suppress the reporting of events, opinions or allegations against individuals, organisations and, particularly, against public figures.
And this is no more than part of the freedom of the media, which boils down to the freedom of the individual citizen to be informed. However, the time-honoured rule that a person is innocent until proven guilty remains part and parcel of our law.
And this is good and proper, because if we allowed persons to be tried by the media, untested allegations would be treated as fact, and whether they be innocent or guilty, accused people would be judged guilty in the public domain long before a properly qualified court could adjudicate fairly on the issues.
When this happens it is the law of the jungle which reigns, and not the Rule of Law. That is why when one reads in a leading weekly newspaper the headline, "Shaik trial: 'Zuma was bribed' " and then again on the front page of a national Sunday paper the screaming headline, "Secret report nails Zuma", one begins to wonder just what is happening in the South African media in today's world.
The articles below the headlines appear to be based on documents in the court file, and on further documents yet to be presented to the court.
The fact is that one Shabir Shaik is being charged with corrupt practices and that his case has been placed before and will be heard soon by the High Court. The summons has been filed, further particulars to the summons have been provided, and back-up affidavits are yet to be offered as evidence.
None of these documents has as yet been seen by a judge; none of the documents has been judicially scrutinised nor cross-examined; and the facts therein may or may not be accepted as true by the court.
The leading work on media law has for years been Kelsey Stuart's The Newspaperman's Guide to the Law. Under the heading, "Reports of proceedings of courts, parliament and other public bodies", the following, among other things, is written: "Of particular importance is the question of reproducing the defamatory contents of documents such as pleadings, affidavits, notices and exhibits used in court.
"The law on this is clear. Once a document has been brought up in open court, that is to say it has been used, referred to or dealt with in open court, its contents may be published under the protection of qualified privilege, but not before. Thus documents filed in an action, such as a summons or a plea, may not be quoted from until the action is heard and the document is brought up in open court."
Nonetheless, what the two newspaper articles clearly imply is that Deputy President Jacob Zuma, who is not at this time in fact charged with anything, is guilty at least of financial impropriety, and at worst of criminal conduct. This is a serious matter for SA, as the deputy president is an integral part of the presidency, which embodies the spirit and image of our country, both at home and abroad.
It has been held in the past the premature publication of papers before the court, and comment thereon, can constitute the offence of contempt of court, on the grounds that such publication could prejudice the holding of a fair trial. Yet we should not forget that the law does provide remedies to the breach of the media rules.
The court involved can refer the offending reports to the attorney-general for the institution of a prosecution. Surely it is time that either the judge concerned or the prosecuting authority should take action to protect the time-venerated rules which govern legal fair play.
And finally of course, if the deputy president is offended, and he must be, and feels that he has been defamed, he too can sue for defamation and thus move to clear his name which has been so badly sullied by these newspaper reports.
Dalling is a former ANC parliamentary whip.
With acknowledgements to David Dalling and the Cape Times.