CASE NO: 36/2013 – SABC (MOTSWEDING FM) VS MOKGORO – APPEAL – DIGNITY OF A RAPE VICTIM

Appeal against a decision and sanction by a Tribunal of the BCCSA.  Disclosure was made by the broadcaster as part of an awareness campaign against the rape of women and children, with permission of the parents, of the identity of a child who had been raped and who had subsequently died. The first Tribunal, on an interpretation of Clause 11(7) of the Free-to-Air Code, found that the broadcaster had contravened the Code and a fine of R 10 000 was imposed.  The Appeal Tribunal found that Clause 11(7) did not provide for the identity of minors or deceased victims to be disclosed under any circumstance, while it is clear from the wording of the clause that a victim of rape or sexual violence may consent to such disclosure.  This is a hiatus in the Code that has to be remedied through interpretation.  Disclosure might be in the public interest as appears to be the case in this awareness campaign, even in the case of minors or deceased persons. An absolute prohibition on disclosure of identity in perpetuity in the case of minors and deceased victims cannot be in the public interest.  The dignity of persons do not continue after death and cannot be protected.  Parents and legal guardians are authorised by law to make decisions on behalf of their children, even after the death of their children.  The disclosure of the identity of the deceased child, in this case, was legally justified.  The first Tribunal’s finding was clearly wrong and the appeal against the finding and sanction was upheld.  Co-opted member, Prof Van Jaarsveld, disagreed that the finding of the first Tribunal was clearly wrong.