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Why SABC is not identifying the Dros suspect or using the video

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When to name a suspect in a sexual offence case: Public interest vs. the law

On Saturday, 22 September there was a post on Facebook detailing an alleged sexual offence committed against a minor.

The post reads: “I’m at Dros in Silverton en this man just raped a six year old in the toilet…police are here, she is bleeding…the guy looks 24…apparently he was scouting her while she was playing in the kids area en waited for her to go to the toilet (sic).”

Media reports detailing that the suspect has appeared in court on Tuesday followed, and some publications identified the race of the suspect, as a white male in his early 20’s and the victim as a minor, reported as a 6 or 7-year-old girl.

Social media was ablaze about the suspect not being named or identified by mainstream media. Emotive arguments were that white suspects are protected under the premises of legal technicalities whereas black African suspects are not provided the same privilege and are “paraded.”

What the law says

There are specific instances where it is legislated by the Criminal Procedures Act (CPA) that a suspect may not be named. Print and online publications are also governed by the Press Code, which needs to be taken into consideration.

In the CPA, victims of sexual assault and children are protected in law from being identified by the media. However, the media can still report on the nature and details of the case.

Section 154 (2) b of the CPA explicitly states that:

If the charge relates to anything under section 153 (3) of the Criminal Procedure Act (“indecent acts” [sexual offences] or extortion), you may not publish any information relating to the charge until the accused has pleaded.

The Dros suspect made his first appearance on Tuesday 18 September 2018. He has been detained in custody while police are finalising charges against him. The next appearance will be on Tuesday, 2 October. The suspect is likely to plead when the matter goes to trial. Only then may the media identify the suspect.

The SABC not identifying the suspect or using the video shot by a bystander is in compliance with the law of the country, to ensure the proceedings of the trial are procedurally fair. Premature identification might also compromise the case should an identity parade be required as part of the investigation. Any media house that has identified the suspect is flouting the law, and may be held in contempt of court.

There is also Section 69 of the South African Police Services Act, which prohibits publishing any image or visuals of an accused or a witness in custody pending his or her appearance in court or while the case is proceeding, without the written permission of a provincial commissioner or the National Commissioner, which is a convictable offence.

The broadcaster or publication could also be reported to the Broadcasting Complaints Commission of South Africa (BCCSA) or Press Council for deviating from the respective Codes of Conduct.

The Press Code prescribes to the media how to deal with children:

The Bill of Rights (Section 28.2) in the South African Constitution states: “A child’s best interests are of paramount importance in every matter concerning the child.” The media, applying the spirit of this section, shall therefore exercise exceptional care and consideration when reporting about children. If there is any chance that coverage might cause harm of any kind to a child, he or she shall not be interviewed, photographed or identified without the consent of a legal guardian or of a similarly responsible adult and the child (taking into consideration the evolving capacity of the child), and a public interest is evident.

On how to treat rape victims, the Press Code states:

Rape survivors and survivors of sexual violence shall not be identified without the consent of the victim or in the case of children, without the consent of their legal guardians (or a similarly responsible adult) and the child (taking into consideration the evolving capacity of the child), and a public interest is evident, and it is in the best interest of the child.

Media publications can fulfill their role of following-up, verifying and confirming the occurrence of the incident, but not identifying the suspect at this particular point (before they plead) is a legal requirement, which moves beyond the public’s interest (right to know) and more towards not compromising the child’s right to justice. Therein lays media’s directive to report news truthfully, accurately and fairly.

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