Davrin Schwarz vs. The Herald 2

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 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 minority decision, supported by the Ombudsman, and therefore does not represent the panel’s official finding. Groenewald and Sesanti have submitted a majority finding, which is contained in a separate document. The references to “panel” and “we” are therefore purely academic – it would have been in effect had the panel been able to reach consensus.

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 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:

• factual errors; and
• omissions.

Schwarz also complains that the editorial:

• was contradictory to what the newspaper published that same day;
• (its writer) was not qualified to assert that his appointment was “inappropriate”; and
• unfairly compared him to a convicted child molester.

At the hearing, Schwarz wanted to include a complaint about some follow-up questions that the newspaper asked him (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.

The story:

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 and 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 characteristic 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’s central argument was that Schwarz was working in a “similar environment” (read: safety and security) to that of his former position as policeman (when he committed the crime);
• On this basis it then argued that, if Schwarz was working as (for example) a plumber at the university, the matter would not have been in the public interest (because that would not have endangered public security and safety);
• The fact that Schwarz did not carry a weapon on campus did not necessarily mean that he did not pose any threat to safety and security; and
• It was worth opening a debate on this matter as it was in the public interest to discuss the issue – the public had the right to be informed and to be empowered to make its own decisions in this regard.

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” and “may only be overridden by a legitimate public interest”.

Therefore, the Herald needed to show that the story was in the public interest, as well as that it exercised due care and consideration. We shall deal with these issues separately.

Firstly, regarding public interest: 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, The Herald said).

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).

Based on all of the above, we are indeed not convinced that the story was in the public interest – Schwarz posed no threat to people on campus (on the contrary, some students even seemed to welcome his presence), and indeed that also seemed to be the case with regards to the rest of society (quite the reverse, as he seemed to have done his best to positively influence society).

But the matter is not quite that simple – being “not convinced” of something does not necessarily imply that one is “convinced” of the opposite. This is the case here.

The reason is simple: Keeping in mind the extent of the coverage of 16 years ago about a crime that shocked the community to its foundations, there is enough doubt about this matter so as not to come to a categorical decision regarding this matter up-front.

We are therefore hesitant to base our findings on a non-conviction and categorically state that, because we are unconvinced, therefore the newspaper has been in breach of the Code – while there are other factors that we also have to keep in mind.

But let us take one step back, and for a moment play devil’s advocate: If, for argument’s sake, the matter was indeed not in the public interest, would that have constituted a breach of the Code on that basis alone?

The Preamble to the Code states that the press’s word is “guided at all times by the public interest, understood to describe information of legitimate interest or importance to citizens”; the Code itself on several occasions mentions “public interest”.

Yet, there is no specific clause in the Code that prohibits the publication of a story that is not in the public interest.

The (valid) reason for this, of course, is the principle of freedom of expression (as described in Section 16 of the Bill of Rights, and duly quoted in the Preamble to the Press Code).

So: A story cannot be in breach of the Press Code just because it is not in the public interest. The means that the newspaper had the right to report on the matter.

The question is not “if”, but “how” it was reported. We therefore need to ask if The Herald exercised care and consideration regarding Schwarz’s privacy, dignity and reputation in the way in which it presented the story.

In other words: The mere fact that the story was not in the public interest could not have breached the Code – though the manner in which it was done, may have resulted in just that.

This brings us to another rather complicated matter, namely the weighing up of either no public interest or, at best, a possible public interest, against Schwarz’s privacy, dignity and reputation.

We submit that the onus is on a publication to prevent unnecessary harm in all stories, including those that are not in the public interest – but possibly even more so with articles such as this one, as it had the potential of causing Schwarz unnecessary harm of epic proportions.

Note the use of the word “unnecessary”. The implication is clear.

So firstly, the panel has already given the benefit of the doubt to The Herald regarding public interest, which means that we do believe that it had the right to report Schwarz’s appointment at the NMMU. I follows that the publication was justified in recalling his past (to provide context to the story) and to call him a killer, even though his criminal record had been expunged (see Robert McBride vs. The Citizen, where the judge ruled that the newspaper had been justified to call him a murderer even after the Truth and Reconciliation Commission gave him amnesty).

Again: Our question at this stage is not “if” Schwarz’s appointment should have been reported (read: accuracy), but “how” it was done (read: fairness).

This brings us to the question of “care and consideration”, 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 his past:

• the story was presented as a lead on the front page;
• the headline read: Killer in plea for second chance – Ex-policeman who hacked wife to death had record cleared, gets job at NMMU;
• next to the story, substituting a main picture, a copy of the reporting 16 years ago was published, with pictures of both Schwarz and his wife; it was headlined Axe murder horror; and
• the intro to the story read: “Convicted axe murderer and former Port Elizabeth 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.”

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. 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. We believe this argument to be valid.

Taking all of the above into consideration, the panel submits that the newspaper caused Schwarz’s dignity and reputation unnecessary harm, and that it has not exercised care and consideration with regards to his privacy.

We hasten to add that this conviction in no way nullifies the sympathy that we also feel for his ex-wife and children.

Factual errors

Schwarz complains that the journalist erroneously reported (misquoted) that he had said that:

• at the time (of the murder) he did not know what he was doing – he said he instead told Wilson that the court found that he was “nearly insane” (“byna waansinnig”), and adds that he was not looking for exculpatory reasons;
• he had realized in prison he had to forgive himself before he could move on and get others to forgive him – he says that he did not say these words in italics;
• his children “were vacuumed” out of his life – instead, he said that the losing of his children was “a very big vacuum” in his life; and
• his criminal record was expunged months before he was registered as a legal security provider in 2009 – he says that his criminal record was expunged during August 2012 (and showed Wilson the relevant letter).

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:

• How difficult correctional supervision had been and that he had more than 400 sessions with psychologists and psychiatrists in order to understand how he could have done what he did;
• His son, Reynard, had contacted him two years ago and told him that he could forgive him;
• He was in a new relationship with a woman for over eight years, and that she was just discharged out of hospital;
• He was a good policeman who had certificates for good service for 10 and 20 years;
• Some of his qualifications and achievements (amongst which him being a founder member of an organization that assists ex-offenders to get skills in order to re-integrate them into society);
• He explained how the job at the NMMU came about and said that he saw it as a chance “to go forward” (as he had the necessary experience and qualifications);
• He was waiting for the right opportunity to tell his girl-friend and his friends about his past, but now the newspaper kept it alive and he felt that he was being ostracized and not given the chance to get on with his life; and
• If he had his life over, he would not have become a policeman because then he would not have been subjected to such stress (which played a definite role in the tragedy).

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.

The panel has already given the newspaper the benefit of the doubt regarding public interest. The newspaper therefore was within its rights to voice an opinion on this matter and this opinion did not contravene the Press Code in any way (even though the panel does not necessarily concur with the arguments contained in the editorial).

‘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.

Again, the panel needs to give the newspaper space to voice its opinion, even if we do not necessarily agree with the statement in question.

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.”

Again, the panel needs to allow the newspaper its opinion, even if we do not necessarily agree with it.

FINDING

The story

Not in the public interest

The complaint that the story was not in the public interest is dismissed.

However, the newspaper did not exercise care and consideration with regards to Schwarz’s dignity, privacy 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) caused Schwarz unnecessary harm in the following ways:

This is in breach of:

• Section 2.1 of the Press Code: “The press shall take care to report news…fairly”;
• Section 4.1: “The press shall exercise care and consideration in matters involving the private lives and concerns of individuals. The right to privacy may be overridden by a legitimate public interest”; and
• Section 4.2(.4): “The press shall exercise care and consideration in matters involving dignity and reputation. The dignity or reputation of an individual should be overridden only (if)…it was…in the public interest.”

Factual errors

The story inaccurately stated that Schwarz had said that:

• at the time (of the murder) he did not know what he was doing;
• he had realized in prison he had to forgive himself before he could move on and get others to forgive him;
• his children “were vacuumed” out of his life; and
• his criminal record was expunged months before he was registered as a legal security provider in 2009.

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.

The editorial

This part of the complaint is dismissed in its entirety.

SANCTION

The Herald is directed to apologise to Schwarz for:

• the unfair way in which it reported the story, causing him huge unnecessary harm as it did not exercise enough care and consideration regarding his privacy, dignity and reputation; and
• inaccurately stating that he said that he did not know what he had been doing (at the time of the murder).

The newspaper is also asked to admit that it inaccurately reported that Schwarz had said that:

• he had realized in prison he had to forgive himself before he could move on and get others to forgive him;
• his children “were vacuumed” out of his life; and
• his criminal record was expunged months before he was registered as a legal security provider in 2009.

The panel directs 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 NMMU, 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.

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, published on 6 June 2013. The matter was heard by a full Panel of Adjudicators on 30 July 2013.

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).

We also admit that we inaccurately reported that Schwarz had said that:

• he had realized in prison he had to forgive himself before he could move on and get others to forgive him;
• his children “were vacuumed” out of his life; and
• his criminal record was expunged months before he was registered as a legal security provider in 2009.

The panel dismissed that the complaint that the story omitted material information, and that the story as a whole was unbalanced.

Schwarz also complained about an editorial, headlined Caution is key for a second chance. The panel dismissed this complaint in its entirety.

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 [email protected].

Johan Retief (Press Ombudsman)