CASE NUMBER: 20/2007 – MAGAGULA VS etv – NEWS

This complaint concerned a comment on the 19:00 news on the 5^th June 2007 concerning the opposition of Mr. Jacob Zuma to the application that certain documents in Mauritius be made available to the prosecution in a matter concerning possible charges against Mr. Zuma and a French firm. For foreign readers of this judgment it was pointed out that Mr. Zuma was the Deputy President of South Africa and still is the Deputy Chair of the African National Congress, the majority party in Parliament. A court reporter asked the question on air why Mr. Zuma was opposing the application for the obtaining of the papers if he had nothing to hide. The Tribunal stated that, in the light of the ongoing debate in the Press about the Mauritian documents, it must be a question in the mind of the lay public why the Zuma team is opposing the application. If Mr. Zuma is not guilty, why would he oppose the application? The Tribunal, however, pointed out that, in law, there is much more to the matter: the Constitution guarantees a fair trial and any possible improper benefit to the prosecution might prejudice the proceedings. Whether there is such a benefit is a matter on which the Court will decide. However, if papers are placed in the hands of the prosecution they might derive some benefit from such papers which could prejudice a fair trial. The opposition is, accordingly, understandable in law even if not justified. After pointing out that the remark of the court reporter was not a permissible remark in law, the Tribunal held that it would be unreasonable to hold the broadcaster responsible for the remark of the court reporter in this case. In any case, she voiced a question which would have been in a large part of the lay public’s mind. The fact that the question was not legally relevant should not be held against the broadcaster. That reasonableness is a defense in spite of an error is also evident from the judgment of Lewis JA in  Mthembi-Mahanyele v Mail & Guardian Ltd 2004 (6) SA 329 (SCA), which is based on National Media Ltd v Bogoshi 1998(4) SA 1196( SCA).  Although these cases deal with defamation, there is no reason why the defense should not, where appropriate, also be applicable to the Broadcasting Code. The complaint was dismissed.