Judge Julius in court, not the media

Wednesday, 2 November 2011

Under South African law, the rules under which a person accused of a crime can be named are very clear: the person has to be charged, appear in court, and enter a plea of guilty or not guilty.

It’s not something peculiar to this country. Civilised societies recognise that people should not be needlessly defamed and will take steps to protect those rights. Civilised societies also recognise that people accused of wrongdoing also have other rights under law. These may be called “due process”, or “natural justice”, or “procedural justice” but all have at their core the concept of fairness. Justice must be served, but an accused is innocent until proven otherwise.

Crucially, the accused must be tried by the courts, and not by the media.

During the apartheid years, newspapers were generally respectful of the principle because newspapers during the apartheid years were at the forefront of protecting human rights. After 1994, this began to change.

In early 2004, a South African judge visiting Mumbai was accused of rape. He was arrested and clapped into jail. And the South African media had a feeding frenzy. Headlines screamed out his name and supposed details of the incident based on an on-air conversation between the husband of the supposed victim and a radio presenter.

Continue Reading Below

At the time, I was Executive Producer of e.tv news. We took a decision to report on the incident but to not name the parties involved. Our colleagues at other media institutions were quite derisive of this decision.

Very shortly afterwards, the charges against the judge were unconditionally withdrawn. He had been falsely accused. We at e.tv were vindicated in not naming him, but there’s no question that his name has been forever unjustly besmirched by other media institutions who rode roughshod over his reputation.

Over the past weekend, the Sunday Tribune and its sister papers reported that a probe by special investigative unit the Hawks into Julius Malema’s financial affairs “has allegedly uncovered prima facie evidence of wrongdoing related to the awarding of tenders to Limpopo companies with close ties to the ANC Youth League president.”

I quote further: “The Tribune has learnt that it is no longer a case of ‘if’ Malema will be charged, but a matter of ‘when’ he is likely to be hauled before a court. Sources close to the investigation said he faced charges of corruption, fraud and money laundering which mirror those Jacob Zuma faced before he became president.”

The most basic principles of law require that a defendant has the right to be informed of the nature and cause of the accusation against him. The US Supreme Court has ruled that “it is not sufficient to set forth the offense in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.”

What is Malema accused of?

The most basic principles of law also guarantee a defendant the right to face their accuser. The Roman governor Porcius Festus, discussing the treatment of his prisoner the apostle Paul, said 2000 years ago: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”

Who is Malema’s accuser?

I don’t like Julius Malema. I believe he preaches a gospel of divisiveness that can never build a national consensus. No doubt, many of my colleagues in the media share my low opinion of the man.

But no person should be attacked by hearsay, gossip and innuendo dressed up as fact. If Malema loses that right, it’s not long before all of us do. Play the ball, not the man.