CASE NO: 05/2010 – The National Commissioner of the South African Police Service, WATERS AND BAUM VS e.tv – VIOLENCE

On 15 January 2010, e-tv broadcast a news insert during its 19h00 news broadcast. Earlier in the day, the same item had also repeatedly been broadcast during its newscasts. The background to and general context of the news insert was the repeated order issued by the National Police Commissioner to police officers to use lethal force when confronted with armed criminals. The news insert included interviews conducted with two individuals who stated that they intended to rob tourists during the FIFA World Cup, which is scheduled to take place in South Africa in June–July 2010.  The second interviewee stated, furthermore, that if the police tried to apprehend him or use force against him, he would retaliate by using force. The first interviewee was shown in profile and from the rear, but his features were not otherwise perceptible. The second interviewee’s face was covered by what seemed to be a stocking, so he was not identifiable.

The main complaint from the National Commissioner of Police was whether the broadcast fell afoul of the Broadcasting Code’s prohibition of material in clause 14(ii) that, judged in context, sanctions, promotes or glamorizes violence. Secondly whether the news insert was balanced in accordance with clause 36.1 of the Broadcasting Code and thirdly whether the National Commissioner had a right of reply on air in terms of clause 36.2.

Held that clause 14(ii) of the Broadcasting Code promotes the values that underlie section 12(1)(c) of the Bill of Rights as intended in section 39 of the Constitution of the RSA, in that it accentuates the act and does not refer to the effect of the broadcast. It is, accordingly, a strict rule with optimal protection.

Held that section 1(1)(b) of the Intimidation Act does not fall within the rules which the BCCSA applies and, even if it were to be applicable, the Tribunal is not convinced that the fear requirement had been met.

Held that the conduct of the interviewer during the interview in no way indicated that he (and thus e-tv) associated himself with the views of the interviewees. The opposite is true. The news insert also included the following comment by the National Commissioner: “These criminals are brutal, are heartless.  They get in our houses.  You hear amazing stories.  They get in the house, they wake up the husband and the wife.  They will rape the husband…the wife in front of the husband and they force the husband to watch.  You can’t… You are not going to tell me that is a human being.  That is “isilwanyana” that is an animal.”  Furthermore the interviewees were shown to be the scum of the earth and were in no way glamorized by granting them an opportunity to air their plans. The mere fact that the interviews with self-confessed criminals were granted did not promote or encourage or sanction violence but brought the harsh reality of the criminal mind to the fore. The interviews, in fact, gave credence to the words of the National Commissioner that such criminals were inhuman. Viewers had a Constitutional right to be informed of the reality of the criminal mind.

Held that the programme was balanced in terms of clause 36.1 of the Broadcasting Code. It included the main contrasting points: that of the National Commissioner hitting out at crime and that of the interviewees, demonstrating instances of the criminal mind.

Held that since the insert was by implication seriously critical of the National Commissioner he had had a right to reply. The reply by the National Commissioner, which was taped  earlier on the 15^th was not relevant to the steps being taken to ensure the safety of the FIFA World Cup and e-tv was not obliged to have broadcast that view. The right to reply was afforded to him or the Ministerial liaison officer again, but they were not available on the evening of the 15^th January. A right of reply was, accordingly offered and, for purposes of the 15^th January, e-tv had complied with clause 36.2 of the Code.

The Complaints were accordingly not upheld.