Brenda Wardle vs. The Citizen

This ruling is based on the written submissions of Ms Brenda Wardle, COO of the Wardle College of Law, and those of Steve Motale, editor of The Citizen newspaper and Riana de Lange, news editor.

Complaint

Wardle is complaining about three stories in The Citizen, the first on 10 July 2015 headlined Wardle up for fraud charges – again. Convicted: Legal analyst faces three new accusations. A similar, but not identical, report was published on the newspaper’s website, headlined Brenda fingered in alleged fraud spree. The third story was published on 14 July 2015 and headlined Bank moves on Wardle accounts – In court tomorrow: Brenda’s money ‘frozen’.

The stories in the printed newspaper were both lead reports on page 3.

She complains that:

·        the stories reported “false and inconsistent amounts” concerning alleged fraud (she says the print edition said R100 000 and the electronic version reported R55 000 – while an amount of R50 000 was initially mentioned);

·        she was named in two matters prior to being formally charged;

·        the journalist published witness statements from a docket to which she had not yet been privy;

·        the reporter did not ask her for comment – the article in print appeared without her full response, except for a reference to the availability of her responses online. “People who buy the print copy are not necessarily the same people who read the copy online…”; and

·        the journalist continued to publish extracts from a legal representative statement even though the matter was sub judice.

Wardle concludes that her fair trial rights have been violated.

The text

The stories, written by Vicky Somniso-Abraham, mainly said that “famous legal analyst and convicted fraudster, Brenda Wardle” was expected to appear before the Johannesburg Specialised Commercial Crimes Court on charges of fraud.

The newspaper’s arguments

Motale says Wardle was a public figure, and it was therefore in the public interest to identify her – even though she had not yet pleaded. “This is what we always do with cases involving public figures and celebrities.”

He adds:

·        the police in Gauteng and the Eastern Cape confirmed several cases against her;

·        the newspaper did give Wardle ample opportunity to comment, even though she chose to threaten and insult the journalist. In spite of this, The Citizen still published a part of her response in a follow-up story;

·        Wardle allegedly requested alleged victim Mortimer Harvey to drop charges against her and accept a settlement of R100 000 – despite alleging that the newspaper published witness statements from a docket to which she says she was not privy. “If Ms Wardle does not kow (sic) the contents of the docket why did she try to settle the matter out of court?”

·        regarding the jub judice rule: the information was obtained from sources from different police stations who were identified in the story, and both the spokesmen for the Hawks and for the Eastern Cape police confirmed the allegations; and

·        the alleged victims gave the journalist the different amounts.

The editor concludes, “As for Ms Wardle’s right to a fair trial being violated, this is a matter she has to sort out with the police and the alleged victims.”

Motale argues the case further, alleging that Wardle had contradicted herself. This part of the defence is not relevant to the complaint on my table – I am not a court of law, and am therefore not adjudicating a complainant. My sole responsibility is to determine whether or not what was published adhered to the Press Code.

Analysis

Motale’s response is a matter of concern on several counts, to say the very least.

Firstly, a publication may not identify an accused when that person has not yet pleaded to the charges – irrespective of whether that person is a public figure or not. The reason is that such identification may lead to speculation and to trial by media, which is not fair to the person in question.

(Wardle, in her complaint, says she was identified prior to being charged, while the story stated that she had been charged but had not yet pleaded. Despite some confusion, it is common cause that she had not yet pleaded.)

The Citizen also invaded her privacy, to which she was entitled at the stage of publication. Only when she pleaded, did the matter come into the public domain.

The editor’s statement that such identification “is what we always do with cases involving public figures and celebrities” is worrying.

Secondly, the mere happenstance that some sources give information to a publication – whether these sources are police spokesmen or not – is irrelevant. The fact remains that the suspect should not be identified at that stage of the process. Even if the police ask a newspaper to publish, the publication should still deny such a request. The Citizen should have upheld the sub judice rule – it is there for a reason.

The fact that The Citizen asked Wardle for her comments prematurely, adds to my concerns. A newspaper should not interview an accused prior to that person entering a plea in court. This, too, may compromise court proceedings.

But it is the editor’s conclusion that a violation of Wardle’s right to a fair trial is a matter she has to sort out with the police and the alleged victims, that is the most chilling – given the huge influence of the press, and the ethical duty to adhere to the Press Code and to protect everybody who needs protection until such time as the rules dictate otherwise.

On the matter of the “incorrect” amount of R55 000, I note that the story did not present this as fact but attributed it to a source. The journalist was justified to quote that source. I cannot adjudicate on the “incorrect” amount of R100 000 as that amount does not appear in the stories at my disposal.

I find Motale’s question – if Wardle did not know the contents of the docket, why did she try to settle the matter out of court – probing enough to dismiss that part of the complaint. However, the relevant question is not whether or not Wardle was privy to the docket – the real question is whether the newspaper was justified in printing information from the docket prior to her plea in court.

I submit that, if Wardle’s identity was not revealed, the newspaper would have been justified to publish such information. However, she was identified which, in this case, made the matter worse.

In her response to the editor’s reply to her complaint, Wardle raises new issues, such as that:

·        it was illegal and unlawful for the journalist to be given access to dockets and evidentiary material including complainant affidavits before she had sight of them; and

·        at the time of publication of the Citizen story and for many months before that, she had no account with the bank mentioned, and none of her accounts was closed or frozen at the time.

I cannot entertain these issues as the newspaper did not have an opportunity to respond to them.

Suggestion

I suggest that The Citizen gets a legal expert in court reporting to do a session with all concerned.

Finding

The fact that the newspaper identified Wardle was unfair to her and invaded her privacy. This is in breach of the following sections of the Press Code:

·        2.1: “The press shall take care to report news…fairly”; and

·        4.1: “The press shall exercise care and consideration in matters involving the private lives and concerns of individuals…”

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

Given the fact that the breaches as described above have the potential to cause Wardle unnecessary harm, they are classified as Tier 2 offences.

Sanction

The Citizen is directed to apologise to Wardle for unfairly identifying her prior to her having pleaded to any charges in court, for the invasion of the privacy she should have enjoyed at the time of publication, and for the unnecessary harm that this and the information garnered from the docket might have caused her.

This apology should be published at the very top of page 3, as well as on the newspaper’s website.

The newspaper should prepare the text, starting (in the introductory sentence) with the word “apology” or “apologise/s”, and should end with the sentence, “Visit www.presscouncil.org.za for the full finding.”

The text should be approved by me.

The headline should contain the word “apology” or “apologise/s”, as well as Wardle’s surname.

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