Opposition party loses bid to gag press

Press Ombudsman Upholds right of newspaper to report on Public Figures

Opposition party loses bid to gag press

The National Party of South Africa
v Mail & Guardian Newspaper
20 August 1998

The South African Press Ombudsman ruled that suppression of high-level police investigation into allegations against a senior politician could not be justified as being in the public interest. It would be wrong to withhold such information from the public of a country whose Constitution provided for Aa democratic and open society@; founded the state on, among other values, Aaccountability, responsiveness and openness@; and set to protect freedom of expression which included the freedom to receive and impart information or ideas.

Facts

The Mail & Guardian newspaper in its edition of April 30 B May 7 carried a report headlined >NP leader in bizarre sex probe=. It told of a high-level police investigation into allegations against the Leader of the National Party, Marthinus van Schalkwyk, by a convicted thief that the NP leader had paid him for sex. The National Party laid a complaint with the Press Ombudsman, Ed Linington. The editor of the Mail & Guardian told the Ombudsman that his newspaper had been aware of the allegations for months, had been unable to corroborate them, and had, therefore, decided not to publish them. Subsequently, after the complainant laid a charge against Mr. van Schalkwyk, the police acted swiftly and put the investigation into the hands of the Western Cape=s senior sex crimes official.

The charge was initially laid in a small police station but was quickly passed up the ladder to National Police Commissioner George Fivaz and Gerald Morkel, leader of the NP in the Western Cape. It was the sudden high-level interest in the case, rather than the veracity of the charges, that persuaded the Mail & Guardian to publish the report. The High level investigation was initiated at the behest of Mr. Morkel who believed that the charges against van Schalkwyk were false and who was anxious that van Schalkwyk=s name should be cleared.

The NP contended that the inclusion in the report of all the details of the allegations against van Schalkwyk was intended to show support for the allegations and that the Mail & Guardian believed they were really true. It also suggested that if absolutely necessary, such reporting should have been done without revealing the person=s identity The Mail & Guardian argued that it was common in South African press practice to report on private affairs of public figures. In any event, it argued, the investigation in question had moved out of the private into the public domain, propelled there, in part, by Mr. Morkel.

Decision

In a ruling handed down on 20 August 1998, the Ombudsman said that while it was understandable that the NP and its leader should feel aggrieved by the report, the act of publication must be looked at in context and then measured against the press code of conduct. The Ombudsman held that it was regrettable that the Mail & Guardian did not allude to Mr. Morkel=s role in its first report of the investigation and only carried it in a subsequent issue. Had his role been revealed, it might have portrayed the NP and its Leader in a positive light. Said Mr. Linington, AThe police investigation, far from being Abizarre@, would have had a logical explanation that was favourable to Mr. van Schalkwyk and the NPY. The report was unfair in that respect.

National Party leader, Marthinus van Schalkwyk-media justified in reporting investigation.

But, except for that omission, the Ombudsman found for the newspaper. He held that when the police investigated a senior politician, such as the Leader of the Opposition, the press were entitled to report on it. He disagreed with the NP=s contention that such a report should not reveal the identity of the person concerned, as this would aggravate matters by fuelling rumours and causing suspicion to fall on persons other than the person under investigation. AThe Mail & Guardian was therefore justified in reporting on the matter. It set out the information fairly and accuratelyY. The report was not out of line with general newspaper practice. It did not contravene the press code, except (in respect of omitting reference to Morkel=s role).@