O
n the 3rd of June 2008 and the 3rd of July 2008, SABC 3’s investigative programme “Special Assignment” dealt with allegations and claims that the complainant, Prof Graham Fitch, had engaged in acts of sexual molestation of children. The second programme included elements of the first programme, though added to it were elements that were indicated as constituting further evidence. Prof Fitch filed a complaint with the Registrar that the programmes had defamed him. The SABC responded by arguing that a reasonable viewer would judge the matter within context as mere allegations and that, given the, in their view, tardiness of the police investigation, the broadcasts were in the public interest.
Held that the reasonable viewer would regard the programmes as being defamatory of Prof Fitch. The programmes did not meet the standards which are required to establish the truth. In the absence of convincing truthful evidence, the legitimate public interest defence does not even come into play.
Held further that the alternative defence relating to defamation, that of reasonableness, within a democracy that guarantees freedom of expression, likewise failed, in the circumstances, to save the programmes. The concern of the producers is an understandable one. Although the rights of children are stated to be paramount in section 28 of the Constitution of the Republic, the Constitutional Court has held that any inquiry into constitutional rights must commence with all the competing rights at the same level. The producers gathered information from, in particular, two children, and also attempted to have an interview with Prof Fitch. Yet the producers were well-informed, by a participant, as to the right to be presumed innocent. Indeed, at the end of the second programme, viewers were invited to SMS the SABC as to whether they thought that the programme had amounted to a “trial by the media”. The programmes were, indeed, unfair trials by the media. Despite the attempts of the producers to build up a case against Prof Fitch, the programmes lack what is fundamental to the notion of fairness: cross-examination of the two star witnesses, and evidence from Prof Fitch. The fact that the latter refused to proceed with an interview, into which he was, as he stated, “entrapped”, cannot be held against Prof Fitch. While it is probably true that entrapment is the only manner in which such an interview could have been arranged, yet it was, nevertheless, unfair in the extreme. Prof Fitch had no opportunity to prepare for the interview, and had no idea of what he was to be confronted with. Sending the two apparent “rent” boys to run after him when he left the interview was also questionable in the extreme. This invaded Prof Fitch’s privacy and freedom of movement and degraded him to the status of the hunted. The commentary regarding the identity of the car and the whereabouts of the house where the boys were allegedly taken to, is also vague in the extreme. To simply argue that his guilt is evident because he vehemently denied the accusation and hastily left the interview is not sufficient. To argue that he was given the opportunity to explain, is also not enough. The defence of reasonableness cannot, accordingly, save the programme.
Given the absence of satisfactory proof of truth or reasonableness, the Tribunal concluded that both programmes were defamatory of Prof Fitch. Legitimate public interest was not sufficient grounds to save the programmes.
Held finally that the SABC was also negligent in having broadcast the programmes.
The seriousness of the contraventions led to a fine of R30 000 for the first programme and R50,000 for the second programme.