Stanley Gumede vs. Sunday Tribune, Sunday Independent

This ruling is based on the written submissions of Greg Arde, deputy editor of the Sunday Tribune on behalf of the Sunday Tribune and the Sunday Independent newspapers, and that of Pinetown magistrate Stanley Gumede.

Complaint

Gumede complains about a story that was published in Sunday Independent on January 6, headlined Zuma’s magistrate set criminals free, and about a similar article in the Sunday Tribune on the same day, headlined Courtroom scandal Magistrate let dangerous suspects out on free bail – Case of Hillcrest armed robbery ‘was watertight’.

He complains that the stories contained inaccuracies on the reasons for the court (read: he) releasing suspects, as well as on charges that he himself reportedly faced – and adds that this had the potential to harm his reputation.

The text

The story, written by Jeff Wicks, started as follows: “The man once tipped by President Jacob Zuma to become the top prosecuter (sic), has been accused of allowing dangerous criminals to walk free, despite an overwhelming (sic) strong case against them.”

Gumede reportedly released two men who were charged with attempted murder. Wicks wrote: “Despite high-quality CCTV footage that identified the attackers, witnesses that positively pointed them out, as well as their own confessions, Gumede released them on free bail because of the allegedly shaky case against them.” The story also said that Gumede himself still faced twelve counts of misconduct, and went on quite extensively to quote an anonymous source who believed that the case against Gumede was watertight.

Arguments from both sides

Gumede says he told the Sunday Tribune that he was not allowed to speak to the media about court cases, and asked the journalist to instead procure the case record in question. However, he purports that the publication went against his advice and instead listened to an anonymous source – which resulted in the publication of incorrect information on his reasons for releasing the suspects.

The magistrate explains that the case record will show that:

• the court was informed in October 2013 that the CCTV footage had not been analysed and compared with photos of the suspects when that case was brought from the District Court to his court (the Regional Court) for a trial date to be decided;
• while the senior prosecutor said the case was ready for trial, the Regional Court prosecutor believed that the matter had not been properly investigated;
• no bail application was heard in his court; the suspects were released after the court had found that there had been an unreasonable delay in the investigations;
• he was never informed that the case was watertight, nor did he know anything about confessions (he says he later learnt that there were no such confessions in the docket);
• despite the fact that the case should not have been in the Regional Court, he granted the prosecutor’s request for a postponement pending investigations; and
• when the newspaper stories were published, the case had been postponed to January 23 for further investigation and the suspects had appeared twice “coming from their home after their release”.

Gumede also argues that the:

• stories referred to “dangerous criminals” so that he would look stupid, while they should have been presumed innocent until proven guilty; and
• references in the stories that he faced charges of sending a police officer to jail and of using strong language against a prosecutor were incorrect.

The magistrate concludes that the stories were not based on court documents, but on the mere “say so” of a disgruntled anonymous source who could easily have embellished the story. He says: “That I had told the Sunday Tribune to refer to the case record should negate any excuse they may proffer for publishing incorrect information. That the reports have the potential of damaging my reputation is beyond doubt.”

Arde contests Gumede’s version of events. He says that Wicks never managed to make contact with the magistrate, “so he is incorrect in saying that he referred the journalist to the court record”. He adds that numerous attempts to contact Gumede failed, “and our records reflect this”.

The deputy editor explains that Wicks gleaned his information from a private investigator, “who along with a police source…maintained that the case was watertight”.

Analysis

The story contained the following references to Gumede:

• He had released two dangerous suspects on free bail;
• He had faced charges of misconduct; and
• The newspaper(s) had tried to contact him for comment, but without success.

Free bail

These are my considerations:

• Gumede does not deny that he granted free bail to the two suspects – that fact is undisputed;
• The story did not state it as fact that the magistrate had made a mistake in this regard – it said that he had been accused of allowing the suspects to go free (despite damning evidence, which was obtained from a source and presented as an opinion); and
• It is certainly not my task to determine the merits or the demerits of the bail decision itself.

Based on these arguments I cannot fault the newspaper on this specific issue.

Charges of misconduct

The story said that Gumede still faced charges of misconduct, “including complaints of sending a police officer to jail, releasing suspects without a bail hearing, and using strong language against a prosecutor”.

He denies that this is true, and provided me with charge sheets against him to substantiate his complaint.

I have obtained legal advice on this issue, and the following is the gist of it:

I have examined the document carefully and found that it certainly includes two of the three counts of misconduct…and, just possibly, the third one also. A letter and charge sheet from the Chairperson of the Magistrates Commission to Gumede, dated 23 May 2013, indeed lists 12 counts of misconduct against him as regards his official duties, including the releasing of suspects without a bail hearing [count 8 (b), page 7] and using strong language against a prosecutor [count 4(b) page 4; see also count 6 (b) page 5; count 10 (a) page 8 and count 12 page 9]. However, it does not appear ex facie the document that the witness sent to the police holding cells without due process having been followed was a police officer [count 3 (a) page 3], although that is of course possible.

Based on this opinion, I am satisfied that the sentence in dispute is essentially correct.

Unsuccessful attempts to contact Gumede for comment

The story said: “Ten attempts – including four by phone and six by SMS and WhatsApp – to contact Gumede for comment were unsuccess (sic) at the time of going to print.”

Gumede says that he advised the journalist to get hold of the court-case record in question. However, the publication went against his advice and instead listened to an anonymous source.

The newspaper denies that its journalist spoke to Gumede.

I accept that the reporter (quite extensively) tried to contact the magistrate, and also note that he does not contest this statement.

The real question, therefore, now becomes: Should the reporter have read the court-case record, or was it enough for him to rely on a source?

Having perused this document myself, I am not convinced at all that a reference to the case record would have substantially added to the content of the story – the article was not in the first place about the charges against the two suspects (which, of course, would have necessitated the use of the court-case record), but rather about the free bail they had been awarded.

General comment

Gumede also complains that the stories referred to “dangerous criminals” while they should have been presumed innocent until proven guilty. He contends that this was done to make him look stupid.

I agree that the use of the word “criminals” was wrong and unfortunate, as the accused had not been convicted of this or any other crime (to my knowledge).

Be that as it may, I do not believe that the use of this word was intended to make Gumede look stupid – the fact remains that he granted bail to the accused, who were potentially dangerous.

Finding

The complaint is dismissed, save for the incorrect use of the word “criminals”. This was in breach of Section 1.2 of the Press Code that says: “The press shall take care to report news…accurately and fairly.”

Sanction

The newspapers are directed to retract the word “criminals” and should furnish our office with the text prior to publication. Please add to the text: “Visit www.presscouncil.org.za for the full finding.”

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 Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Johan Retief

Press Ombudsman