Appeal Decision: Fikeni Lwandile vs Wits Vuvuzela

SUMMARY

The headline to the story in dispute read, Wits student accused of assault by two women (published on 19 May 2017).

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 article said that two women had accused Lwandile Fikeni, a former Ruth First Fellow and a prominent arts journalist on the Wits campus, of physical and emotional abuse.

Fikeni complained that the story identified him, even though there was no legal process underway. He asked for the story to be withdrawn until he appeared in court, or for his name to be removed from the story. The reportage, he said, tarnished his dignity.

The Ombud remarked that, while this case was not about alleged sexual offences but rather about gender-based harm (GBH), the fundamental question remained the same: Do the media have the right to identify an alleged perpetrator of GBH (or of alleged sexual abuse such as rape, for that matter) prior to such a person having appeared in court? He identified some conditions that had to be met to justify the identification of an accused; he dismissed the complaint as he said that Wits Vuvuzela had met all those conditions.

Judge Ngoepe agreed with the Ombud. He said the crucial points made by the Ombud were:

• the public profile Fikeni enjoyed;
• that on a balance of probabilities, the accusations were true;
• Fikeni had refused to comment; and
• the fact that details of the alleged abuses were given and that there were more than one (independent) accuser, went a long way towards verifying the allegations “which, in any case, were presented not as fact but just that: allegations”.

Dismissing the application, the judge concluded it would make no sense to say the story be withheld when it is common cause that no charges had been laid.  The context within which the story was published, namely stories about violence on women, was also important.

THE RULING ITSELF

In the matter between

 FIKENI LWANDILE                                                                                            APPLICANT

AND

1.         Lwandile Fikeni (“applicant”) lodged a complaint with the Press Council in connection with a story which appeared on 19 May 2017 in Wits Vuvuzela (“respondent”), a publication of the University of the Witwatersrand, under the headline “Wits student accused of assault by two women”.  The person referred to was the applicant, a post-graduate student and a former Ruth First fellow.  The article said two women had accused the applicant of physical and emotional abuse; all these within the university campus.

2.         The applicant’s complaint was summed up by the Press Ombud in his Ruling, dated 21 November 2017, as follows:

“Fikeni complains that the story … has identified him, even though there was no legal process underway.  He asks for the story to be withdrawn until he appears in court, or for his name to be removed from the story.  The reportage, he says, has tarnished his dignity”.

The story went on to say that the two women chose not to lay charges, and also that the applicant had declined to comment.

3.         Several points were raised by the respondent in defence: that the two accusers gave their names and details of allegations on record; that the respondent was twice given the opportunity to respond, but did do so; that he could sue for defamation; that he was a prominent member of the university society; and that the matter had appeared on social media where he was identified.  In response, the applicant queried that certain details had not been investigated which would apparently absolve him, and also sought to attach an affidavit by another woman, seeking to discredit one of the accusers.

4.         The Ombud analysed the issues and found, inter alia, that what was published was done so as mere allegations and that what was said was probably true.  Material to this was the fact that the women had identified themselves.  I also agree that the failure to respond tended to tip the scale of probabilities in favour of the accusers’ version.  How does one fail to respond in light of specific and clear detailed allegations by people whose names are disclosed?  The crucial points made by the Ombud were the following:  the public profile the applicant enjoyed; that on a balance of probabilities (see above) the accusations were true; that the applicant’s refusal to comment; the fact that details of the alleged abuses were given and that there were more than one (independent) accusers went a long way towards verifying the allegations which, in any case, were presented not as fact but just that: allegations. Finally, it would make no sense to say the story be withheld when it is common cause that no charges were laid.  The context within which the story was published, namely, in the middel of stories about violence on women, was also important.

5.         For this application to succeed, the applicant had to show reasonable prospects of success before the Appeals Panel.  For the reasons given above, I hold that there are no such prospects; the application is therefore dismissed.

Dated this 17^th day of January 2018

Judge B M Ngoepe, Chair, Appeals Panel