Appeal Decision: DD Schwarz vs. The Herald
SUMMARY
The headline to the story in dispute read, 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).
This ruling by the Chair of the Appeals Panel, Judge Bernard Ngoepe, was based on the Press Code that was in effect before 30 September 2022.
The Adjudication Panel was not able to reach consensus on all matters in this case. Its ruling reflected a majority decision.
The story said that convicted axe murderer and former Port Elizabeth police chief superintendent Davrin Schwarz had 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 then asked the question whether Schwarz’s appointment had been appropriate in this regard.
The gist of Schwarz’s complaint was that the story and the editorial did not exercise care and consideration regarding his privacy, dignity and reputation and that the matter was not in the public interest; and that the newspaper did not adequately consider the devastating effects that its story would have had on him, on his relationships, and on his working environment.
His main argument was that he did not carry a weapon in the line of his duties and was therefore not a security risk to anybody; The Herald mainly argued that Schwarz was working in a “similar environment” (read: safety and security) to that of his former position as policeman.
The Panel directed The Herald to apologise to Schwarz for:
- the unfair way in which it reported the story and for its editorial comment, causing him huge unnecessary harm; and
- inaccurately stating that he said that he did not know what he had been doing (at the time of the murder).
The newspaper was also asked to admit that it inaccurately reported on several issues.
The Herald then applied for leave to appeal.
Judge Ngoepe granted the application, without going into the merits of the case.
THE RULING ITSELF
The Herald Applicant
Vs
Schwartz D D Respondent
(Matter Number 201/2013)
Application for leave to appeal to the Appeal Panel: Decision
1. Applicant applies for leave to appeal the Ruling of the panel of three given on 11 September 2013. The Ruling found that applicant had, in its publication of 6 June 2013, violated articles 2.1, 4.1 and 4.2 of the Press Code in relation to the respondent. A sanction was then imposed.
2. Applicant now seeks leave to appeal the above Ruling, and the sanction imposed. After considering the matter carefully, I am of the view that leave to appeal should be granted; that being the case, it is not practice to go into the merits or even details of the matter, lest one prejudges issues still to be argued during the appeal itself. Suffice to say that, in coming to the conclusion that the appeal has reasonable prospects of success, I have, amongst others, taken into account the fact that the panel was not unanimous on certain aspects; one member had a different view.
3. In the circumstances, leave is granted to the applicant to appeal to the Appeals Panel against the Ruling dated 11 September 2013 that the applicant violated the following articles of the Press Code:
(a) Article 2.1
(b) Article 4.1
(c) Article 4.2
Dated this 19th day of October 2013.
Judge B M Ngoepe, Chair, Appeals Panel.
