Naleni Atwaru vs. The Witness

This ruling is based on the written submissions of Msunduzi councilor and attorney Naleni Atwaru, and those of Zoubair Ayoob, editor of The Witness newspaper.

Complaint

Atwaru is complaining about an article in The Witness of 23 April 2015, headlined Atwaru wants case halted.

She complains that the newspaper has identified her in the story before she has pleaded in court.

The text

The story, written by Ingrid Oellermann, said that Atwaru and medical doctor Terrence Govender would soon argue their case against a charge of fraud and corruption involving approximately R800 000 each for submitting false claims to the Road Accident Fund between 2006 and 2009.

Responses

Ayoob argues that there is nothing in the Press Code which prevents the newspaper from naming an accused in a criminal case. “In fact, where that accused is a public figure, in this case a member of the Municipal Council, the public’s right to know overrides any other consideration.”

The editor says that although there is a convention that accused persons should not be identified before they have pleaded, his attorneys advised that “this would not stand up and that once an accused person has appeared in open court, they may be named”. He argues that this view is based on the fact that the courts are open to the public. “If members of the public can go in and see who the accused is, we are at liberty to report on who the accused is.”

Ayoob concludes that this policy appears to be followed by all sections of the media, and that the newspaper has not transgressed the Press Code in any way.

Atwaru objects. She says that the case pertains to the period 2006 – 2009 and involves her in her capacity as an attorney – while none of the charges are relevant to her position as councilor. “This…is prejudicial and lacks ethics.” Atwaru argues that she has “always” seen comment in the press that persons should not be named before they have pleaded.

She concludes that she and her children have suffered “huge embarrassment” and that her current employment is under “huge pressure” due to “negative publicity”.

Ayoob responds: The story did not say that Atwaru was guilty. “We have simply reported the case in the same manner we regularly report [on] other court cases.” He adds that the newspaper does not identify an accused before he or she has pleaded when the charges are of a sexual nature or involve extortion, “because we are barred in law from doing so”.

The editor says that, in relation to every other criminal offence, the newspaper reports on the appearance of the accused from the time they initially appear in court. “We have simply reported factually that the matter is in court and the trial is still pending… The fact that the charges concern the period 2006 to 2009 is immaterial – she was subsequently elected to council and became a public figure.”

Atwaru replies her main concern is the fact that she has been named publicly over a matter that occurred years ago in her capacity as attorney, but the newspaper alluded to her current standing as DA councillor, which created the impression that the relevant events occurred while she was in office. “I do not see the need to have my current position placed in the press as this…refer to a time when this was not in fact so. I have suffered huge prejudice personally, emotionally, financially, as well as within the employment realm.”

My considerations

It is common cause that a newspaper should not identify an accused before he or she has not pleaded.

Or is it? Not everybody agrees with this opinion…

I have therefore sought advice from two attorneys who are both well-versed in media law – the one took the view of the newspaper (as cited above); the other one was of the more conventional opinion.

That leaves me between a rock and a hard place.

I also note that The Freedom Of Expression Institute’s The Media and the Law – a handbook for community journalists treats “plea” and “first appearance” as equivalent in terms of the sub judice rule regarding the identification of an accused. (It cites an example of contemptuous behaviour as: “Identifying an accused before plea / first appearance”.)

Be that as it may, as Ombudsman I have to base my ruling on the Press Code – and Ayoob is correct in stating that there is nothing in the Code which prevents the newspaper from naming an accused in a criminal case.

Given the fact that attorneys disagree with each other on this issue, and especially that the Press Code does not give guidance in this regard, I am in no position to make a definite finding regarding the sub judice rule.

I cannot provide her with relief regarding her concern that she has been identified as a DA councilor either – it is an elected position and the public interest does apply.

Finding

There is no finding regarding the fact that the newspaper has identified Atwaru prior to her having pleaded.

The complaint about alluding to Atwaru’s standing in the DA is dismissed.

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

Johan Retief

Press Ombudsman