Majority ruling by an Adjudication Panel
11 September 2013
This ruling is based on written submissions of Mr Davrin Schwarz and The Herald newspaper, as well as on a hearing that was held on 30 July 2013 in Port Elizabeth. Samantha Smith and two other journalists acted for the newspaper; Schwarz represented himself and was assisted by the Public Advocate, Latiefa Mobara, and a friend. The two members of the Panel of Adjudicators who assisted the Press Ombudsman (Johan Retief) were Fanie Groenewald (press representative) and Simphiwe Sesanti (public representative).
Please note: The panel was not able to reach consensus on all matters in this case. The ruling that follows is a majority decision, supported by Groenewald and Sesanti, and therefore represents the panel’s official finding. All references to “we” and the “panel” should therefore be interpreted in this light – Retief has submitted a minority finding, which is contained in a separate document.
COMPLAINT
Mr Davrin Schwarz complains about a front page story, headlined Killer in plea for second chance: Ex-policeman who hacked wife to death had record cleaned, gets job at NMMU, published in The Herald on 6 June 2013, as well as an editorial column on the same day headlined Caution is key for a second chance.
The gist of his complaint is that the story and the editorial column did not exercise care and consideration regarding his privacy, dignity and reputation and that it was not in the public interest; and that the newspaper did not adequately consider the devastating effects that its – sensationalistic – story would have on him, on his relationships, and on his working environment.
He adds that the story contained several:
Schwarz also complains that the editorial:
At the hearing, Schwarz wanted to include a complaint about some follow-up questions that the newspaper asked NMMU (after the publication of the above). The panel could not entertain this, as it was a new complaint, nothing had been published and most of the questions were “normal” follow-up ones.
ANALYSIS
The intro to the story, written by Gareth Wilson, said: “Convicted axe murderer and former Port Elizabeth police chief superintendent Dave Schwarz has pleaded to be given a second chance and to be forgiven for one of the city’s most gruesome killings in 1997.” This came after he was appointed as an investigator on the campus of the Nelson Mandela Metropolitan University (NMMU).
The editorial said that convicted criminals deserve a second chance to become productive, law-abiding citizens, and applauded the rehabilitation of ex-inmates. It stated that reintegration should not be above scrutiny and that public safety should be paramount, and also questioned if Schwarz’s appointment had been appropriate in this regard.
Not in the public interest
Correspondence prior to the hearing
Schwarz denies that the story was in the public interest.
He says that he told Wilson that the newspaper should think of the effect that its story would have on him and other people. “You get knocked down and your past comes back. It is like when your legs get pulled out from under you, 16 years after the incident. [The reporter] was aware of what this article would do to me, that it would destroy me and my character.”
Schwarz argues that the headline on the front page, together with an old heading (Axe murder horror) and photographs of him and his ex-wife testified to the newspaper’s callous, hurtful and brutal attitude towards him. “Was it necessary for the Herald to be so callous in their effort to gain maximum sensationalism on their front page?” He adds that the newspaper could have used a softer, more human approach and have refrained from using the above-mentioned headlines, as well as words such as “wife-killer” in the body of the story.
He states that the newspaper “did not consider the psychological damage (to him), the damage to my friends and the effective destruction of present and future job opportunities” when publishing this story. “They were fully aware what devastating effect this article would have on my life, my lady-friend and her children and my relationship with my children and that it would effectively rule out any opportunity in the employment sector, as I am now viewed as a reputational risk by any company.”
He concludes that it has taken him 16 years to rebuild his life (getting employment, building up a new CV and a relationship with a woman, and making new friends) – which the newspaper has deemed it to be in the public interest to destroy all of that. “I have paid my debt to society, my record has been expunged, so why does the Herald have to once again meet out punishment to me, by rekindling the emotions and hatred of people who had forgotten about the tragedy or people who had now read the article for the first time and once again give judgment on me.”
The Herald “passionately” refutes this claim – the public had the right to know that criminals can apply to have their records expunged. It adds that the students attending NMMU, and their parents, also had a right to know that Schwarz was working at the university – especially because his crime was of a violent nature and given the interactive nature and level of authority that his position carried.
The newspaper argues that it was in the public interest to question whether Schwarz should be entrusted with such a senior security position. Providing some context, the publication reminds this office that the murder of Schwarz’s wife was one of the most high profile criminal cases that “Port Elizabeth has ever seen” and that his conviction and sentencing were controversial at the time.
It states: “We believe that it is fair, and in the public interest, to question whether or not Schwarz should be entrusted with such a senior security position and…from the letters sent in by readers, public opinion varies on this.”
It also denies that it intended to be purposely hurtful toward Schwarz “and we specifically regret any pain the article may have caused his family and friends”. However, it says it also believes that it should not lose sight of what had happened to his ex-wife who did not get a second chance. “It would be remiss to underplay this violent event.”
The publication says that the layout, illustrations and headlines were the responsibility of a team of production staff, working closely under the editor’s instructions.
The Ombudsman asked the NMMU what Schwarz’s work entailed and if he carried any form of weapon in the execution of his duties.
The NMMU said that he was involved in the investigation of incidents such as theft on campus. As such he had to make direct contact with and take statements from plaintiffs, witnesses and possible suspects. The university pointed out that Schwarz was not in its service, but that he was working for a security company. The NMMU stated that he did not carry any kind of weapon while on duty.
At the hearing
The matter of public interest was debated at quite some length.
Schwarz and his team argued that he did not carry a weapon in the line of his duties and was therefore not a security risk to anybody. They reiterated that he was duly qualified for the work, that he had the necessary qualifications, and that he was not employed in a senior position.
These were the salient issues put forward by The Herald (to justify why it thought that the publication was in the public interest):
The newspaper added that Schwarz’s qualifications were not in dispute.
The panel
At the centre of our deliberations was the requirement, as voiced in Section 4 of the Press Code, that matters involving the private lives and concerns of individuals and their dignity and reputation should be handled with “care and consideration”.
The right to privacy may be overridden by a legitimate public interest (Section 4.1) and the dignity or reputation of an individual can be overridden if the facts reported are true or substantially true and in the public interest (Section 4.2.1) or it amounts to fair comment (Section 4.2.2 - see also Section 7) for which public interest is a prerequisite.
As the report and editorial clearly invades Schwarz’s privacy and lowers his dignity and reputation, for The Herald not to be in breach of Sections 4.1 and 4.2, it would have to prove that what they had published was in the public interest.
Normally, the Press Ombudsman’s office is hesitant to question a newspaper editor’s judgement on a matter of “public interest” what they report on and especially comment on.
The Herald argued very “passionately” that it was in the public interest to question whether Schwarz should be entrusted with such a “senior” security position – especially because his crime was of a violent nature and given the interactive nature and level of authority that his position carried.
The newspaper argued that the story was written after “local police officers and members of the university’s security team voiced their concerns to the newspaper”. However, this “concern” was not even mentioned in the published story. In fact the NMMU spokesperson stated to The Herald that they were not aware of any avoidance by SAPS members. She stated: “If any, possibly individual officers may feel the need to not want to work with him, his contact with them in any event being limited, says a lot about such officers and their understanding of the Police creed, ‘To Protect and Serve’ not judge”. The Herald ignored this in its report. They did however report that students and a SRC spokesperson did not have any problem with Schwarz’s employment.
In fact, the front page report’s emphasis was on Schwarz’s “plea for [a] second chance” – a plea towards The Herald? – and no mention was made of “concerned” members of the police, security services, students, academic staff or public questioning his appointment.
The newspaper’s central argument rested on the conviction that Schwarz was appointed in a “similar environment” to the one that he occupied at the time of his crime, and in a “senior position” at that.
This is not correct. He did not do police work on campus at all – he did not physically combat crime, chased after suspects and arrest them (etc.). To be true, his work did not involve any physicality of any nature, as he merely investigated thefts and other forms of crime on campus. Besides, he was not in charge of anything – he was appointed on a month-to-month basis and worked under supervision.
We do believe that The Herald jumped to conclusions when it heard that Schwarz was going to occupy a “security” position… (which sometimes, in general, involved the carrying of arms and entailed a possibility of physical action in line of duty – but which was not the case in this instance).
The panel notes in this regard that the newspaper’s argument about Schwarz not carrying a weapon in the line of his duty (which, according to the publication, did not necessarily mean that he did not pose any threat to safety and security), contradicted its conviction about him working as a plumber (the matter would then not have been in the public interest, because that would not have endangered public security and safety).
We fail to see why Schwarz may have been a threat to safety and security on campus as an investigator (without a weapon or the reasonable possibility of a situation of violent conflict), but not as a plumber (also without a reasonable possibility of a situation of violent conflict).
Although Schwarz’s trial and conviction was very much in the public interest 16 years ago, it is no longer the case now. It is trite law that sins of the past or embarrassing facts cannot be published years later, except if it would be in the public interest. Taking into account that Schwarz was found guilty of murdering his wife “while his accountability was seriously affected”, was sentenced to five years in prison but spent most of the time under correctional supervision, had received registration from the Private Security Industry Regulatory Authority (PSIRA) to work in the security environment, has had his conviction expunged, was appointed by a security company at the NMMU in an ad-hoc, month-to-month position “to provide assistance in respect of some investigation work as well as assist in supporting NMMU in-house security officers tasked with investigations” (according to NMMU) and that there were no indications that he posed any threat to society, it is clear that The Herald’s publication was not in the public interest.
It should be noted that The Herald emphasized that, in its editorial comment, “it is fair, and in the public interest, to question whether or not Schwarz should be entrusted with such a senior security position” and “the public had the right to know that criminals can apply to have their records expunged”. However, the panel, after very careful deliberation, has come to the conclusion that in this case Schwarz’s right to privacy and also dignity and reputation outweighs the public interest.
We now come to the question of “care and consideration” mentioned in Section 4 of the Press Code, which has everything to do with the avoiding of unnecessary harm (as mentioned in the Preamble to the Code).
We note that, in addition to the information about Schwarz’s past:
Regarding these bullets: The message that the newspaper thought to be of public interest could have been projected in a much less dramatic and potentially harmful way. The panel submits that these presentations did indeed cause Schwarz unnecessary harm. At the hearing, he testified at length to the enormous harm that this reportage has done to him on a personal, social and economic level.
Factual errors
Schwarz complains that the journalist erroneously reported (misquoted) that he had said that:
The Herald maintains that its story was accurate. “However, even if Mr Schwarz were to refute this…the alleged permutations do not in any way alter the context of Mr Schwarz’s comments”.
The newspaper says that Schwarz’s claim that his criminal record was expunged in 2012 and not in 2009 was contrary to PSIRA records, as well as to the law which states that a person with a criminal record can only be registered with the Security Office Board once that record is expunged – and adds that Schwarz was registered with PSIRA in 2009. “We cannot comment on why the paperwork in Mr Schwarz’s possession might contain a later date – perhaps his formal paperwork was delayed. However, PSIRA will confirm that his record was expunged in 2009, following which he was registered with the Authority.”
At the hearing, The Herald defended its reportage, but explained that Schwarz made the statements in dispute as part of a summary – but this had happened when the battery of the tape recorder went flat.
The panel listened to a tape recording provided by Schwarz which in fact substantiated his complaint; we conclude that it is not reasonable to believe that he uttered those statements as reported by Wilson as we do not have any evidence to substantiate his reporting.
Some of these mistakes are more serious than others.
The first bullet is a case in point. There is a marked difference between reporting that he did not know what he was doing (at the time of the murder) and being “nearly insane” (“byna waansinnig”) and/or “not fully accountable” (“sy toerekeningsvatbaarheid was erg aangetas”). Schwarz explained that Wilson’s version boiled down to him arguing that he was not responsible for his act or, at the least, wanted to diminish his guilt – an impression that he did not want to create.
While Wilson’s reporting on this specific matter was nearly correct, the slight variance in his reporting had huge implications for Schwarz.
The information in the other bullets may not seem to be important. However, they are significant to Schwarz – and should therefore be treated as such by the panel.
We also note that the documents provided by the newspaper to substantiate that Schwarz’s criminal record was expunged in 2009 did in fact not prove that this date was correct.
Omissions
Schwarz complains that the story omitted the following information:
At the hearing, Schwarz and his team argued that these omissions, together with the inaccuracies as pointed out above, led to an unbalanced (unfair) story.
The Herald replies that space constraints made it impractical and unwarranted to include every word of the 76-minute interview. “It is part of a reporter’s job to choose the strongest and most relevant parts of the interview and use them in his or her story.” The newspaper says that it believes that the story was fair and balanced and that there were no glaring omissions that would have changed the tone of the story had they been included.
The publication adds that the majority of the story was taken up with Schwarz’s comments and that both the heading and the intro highlighted his plea to be given a second chance. “No attempt was made to skew, manipulate or downplay his comments or the angle of the story.”
After having had a close look at the omissions that Schwarz complains about, the panel has to agree with the newspaper – these pieces of information may have been nice to know, but there was no need to know (given the angle of the story).
So, was the story unbalanced because of some inaccuracies and omissions? We do not believe so – the few mistakes (in quite a long story) cannot be labeled as “unbalanced”, and the omissions were fair.
The editorial:
Contradictory to what the newspaper published
The editorial stated: “Having served his time behind bars, we fully support Schwarz’s desire – and his rights as a citizen – to put his past behind him, get on with his life and find gainful employment.”
Schwarz complains that the newspaper destroyed exactly that which the newspaper had said that it was supportive of.
‘Clearly inappropriate’
The sentence in dispute read: “But the decision to hire him in a security capacity on campus was clearly inappropriate given that when he committed a shockingly brutal crime he was a top ranking police official – a man whose responsibility it was to protect, not endanger, human life.” (Emphasis added)
Schwarz complains that the editor was not qualified or correctly advised to make such an assertion, and that s/he did not take relevant findings of the High Court and Appeal Court into consideration (namely, that he was virtually insane and that he did not plan the murder).
The Herald defends its right to highlight “a debatable and topical issue”, reiterating the importance of ensuring that the rights of former criminals are balanced by the right of the public to safety and security.
Unfair comparison
The editorial said: “Just as a known convicted child molester, who is once again a free citizen, would for obvious reasons be prevented from pursuing any type of job that entailed working with children, the same approach should surely be adopted with other former offenders.”
Schwarz complains that the newspaper had not justification for comparing a convicted child molester with the merits of his case. “I have been rehabilitated and am not a serial murderer or child molester which is difficult to rehabilitate.”
As the panel has already found that the editorial was in breach of Section 4.1 and Section 4.2, it does not need to make a ruling in this regard.
However, had the comment been on a matter of public interest, the panel would have dismissed these complaints, taking into account the Constitutional Court’s ruling in 2011 (The Citizen vs. McBride) which stated: “Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true.” This is in line with Section 7 of the Press Code.
FINDING
Not in the public interest
The story and editorial comment were not in the public interest, neither did the newspaper exercise care and consideration with regards to Schwarz’s privacy, dignity and reputation. The presentation of the story (the lead on the front page, the headline, the reproduction of the story 16 years ago, and the intro) also caused Schwarz unnecessary harm.
The report is in breach of:
The editorial comment is in breach of:
Factual errors
The story inaccurately stated that Schwarz had said that:
This is in breach of Section 2.1 of the Code that states: “The press shall take care to report news…accurately…”
Omissions
This part of the complaint is dismissed.
The complaint that some inaccuracies and omissions boiled down to an unbalanced story is dismissed.
SANCTION
The Herald is directed to apologise to Schwarz for:
The newspaper is also asked to admit that it inaccurately reported that Schwarz had said that:
The panel directs The Herald to publish the following text on its front page:
The Herald apologises to Mr Davrin Schwarz for the unfair way in which we reported the news that he was appointed in a security position at the Nelson Mandela Metropolitan University (NMMU), as well as for our editorial comment, causing him huge unnecessary harm on a personal, social and economic level. We did not exercise enough care and consideration regarding his privacy, dignity and reputation, as required by the Press Code, and neither were the story and editorial comment in the public interest.
We also regret that we inaccurately reported that he said that he did not know what he had been doing (at the time of the murder).
Schwarz lodged a complaint with the Press Ombudsman about a front page story, headlined Killer in plea for second chance: Ex-policeman who hacked wife to death had record cleaned, gets job at NMMU and an editorial, headlined Caution is key for a second chance published on 6 June 2013.
The matter was heard by a full Panel of Adjudicators (Johan Retief, Press Ombudsman, Fanie Groenewald, Press Representative and Simphiwe Sesanti, Public Representative) on 30 July 2013. The panel could not reach consensus on all matters, with Retief being in the minority.
The (majority) panel found that although Schwarz’s trial and conviction was very much in the public interest 16 years ago, it was no longer the case.
“It is trite law that sins of the past or embarrassing facts cannot be published years later, except if it would be in the public interest. Taking into account that Schwarz was found guilty of murdering his wife ‘while his accountability was seriously affected’, was sentenced to five years in prison but spent most of the time under correctional supervision, had received registration from the Private Security Industry Regulatory Authority (PSIRA) to work in the security environment, has had his conviction expunged, was appointed by a security company at the NMMU in an ad-hoc, month-to-month position ‘to provide assistance in respect of some investigation work as well as assist in supporting NMMU in-house security officers tasked with investigations’ (according to NMMU) and that there was no indication that he posed any threat to society, it is clear that The Herald’s publication was not in the public interest,” the panel found.
We also admit that we inaccurately reported that Schwarz had said that:
The panel dismissed the complaint that the story omitted material information, and that the story as a whole was unbalanced.
Visit www.presscouncil.org.za for the full finding.
End of text
APPEAL
Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chair of Appeals, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Fanie Groenewald (press representative)
Simphiwe Sesanti (public representative)