Presumed innocent in law

Published Oct 2, 2018


Pretoria - It is with a heavy heart that I write this column today as I am as shocked as the rest of the nation over the rape of a 7-year-old girl at the Dros Restaurant in Silverton slightly more than a week ago.

Many rape cases have crossed my path over the years as a court reporter, and it is not easy to remain impartial in reporting on them. But this case was particularly upsetting - perhaps because I watched the video that was circulating on social media.

I had vowed not to watch it, but I did - and it is only natural to wish all kinds of evil on the alleged perpetrator. But the problem is that the man, reported to be 20, is presumed innocent in our law, unless and until convicted. Many may argue that he was caught red-handed, with his pants down literally and figuratively, and that there is unprecedented public interest in the case.

That may be true, but the law is very clear that no one may publish the identity of a suspect in a sexual offence case until the suspect has pleaded to the charge against him. In fact, nothing may be published that could identify him - nothing.

The Criminal Procedure Act is firm on this, and it is one of the first things you are taught during media law at journalism school.

Media law expert Dario Milo is of the opinion that this rule is unconstitutional, given the potentially inordinate length of time between arrest and pleading. He also points out that the courts do not have the discretion to permit publication before the accused had pleaded. But, as Milo says too, it is currently the law and remains so until its challenged successfully, constitutionally.

When the picture of the alleged rapist, along with his name, and video were published on social media last week, many shared it. This could mean that trouble may be waiting for them if, for whatever reason, the man is acquitted. He could then even sue for defamation.

His name and photo also made headlines in certain Sunday newspapers, with Rapport explaining their decision to break the law by saying that he had already appeared in court and that he had been identified on social media. The editor said although he had not yet pleaded it was in the public interest to reveal his identify.

He argued that if the legal position was that a sex-accused may not be named before they have pleaded, then most, if not all, of the media reporting were in contravention of this law. This, however, to my mind - and the view is shared by my editor - still does not make it right.

Perhaps Rapport’s stance will see the law in this regard changed in future, and yes, it can sometimes take months before an accused in a sex crime is asked to plead in court.

The legislator seems to be overprotective in this regard, as a person who has been falsely accused of rape could suffer the consequences for the rest of his life. But then the same can be said of someone accused of murder.

Perhaps one way to remedy this is to ensure that one reports on the case from start to finish - whether the accused is found guilty or innocent.

I recall a case in 2007 of Pieter Viljoen, a man who slit the throat of his pregnant wife on a smallholding in Pretoria North. He was cleared of murder on a technical ground, as his constitutional rights were said to have been trampled on. Luckily the State managed to have him retried and he is now behind bars.

In this case we would want the suspect to face the law, and need to be careful that we do not make it possible for a clever legal team to find a constitutional loophole when it is the victim we should be concerned about.

* Zelda Venter is a senior court reporter for Pretoria News.

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