Letter from the editor - why we're not naming the rape accused

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eNCA.com

eNCA.com

web_photo_eNCA_LOGO_260815

eNCA.com

eNCA.com

Dear Readers,

I know that many of you have been querying why eNCA has not named the grandson of a struggle icon accused of rape.

This is in contrast to other media organisations who named the person involved and have been open about the family to which he belongs.

At eNCA, we do not believe that this is the right way to do things. It is neither lawful nor ethical.

Our decision is not only in line with our editorial policy but more importantly with the law of South Africa itself.

Media who have named the accused are quite simply breaking the law.

Section 154 (2B) of the Criminal Procedure Act is clear and says:

(b) No person shall at any stage before the appearance of an accused in a court upon any charge referred to in section 153(3) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information relating to the charge in question.

Section 153(3) says:

(3) In criminal proceedings relating to a charge that the accused committed or attempted to commit- (a) any sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person; (b) any act for the purpose of furthering the commission of a sexual offence as contemplated in section 1 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, towards or in connection with any other person; or (c) extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage.

So, it is sexual offences cases and extortion which are governed by this.

The law is absolutely clear that accused in cases of rape CANNOT be named until they have pleaded in open court. This usually only happens at the commencement of a criminal trial.

In sexual offences cases, this is to ensure that the rights of the accused AND the accuser are protected ahead of a full trial.

Allegations of sexual abuse or rape can destroy lives. The reason that accused people are not named before a criminal trial is that law enforcement agencies and prosecutors should be reasonably certain of their case.

Similarly, there may be many reasons why an accuser may want to withdraw charges before it gets to trial. In this way, the accuser may be protected from identification too. It is easy to imagine the damage which could be done to both accuser and accused if care is not taken.

Rape is one of the few crimes where it is contested that a crime actually took place at all. Again, the law is designed to protect both parties.

Naming the grandfather of the accused is also problematic – not only may some then be able to identify the accused quite easily BUT this struggle icon had many grandsons and why should they all fall under suspicion?

In a previous similar example, kwaito star Brickz was accused of rape. We did name him BUT only after getting permission from his lawyer to do so. We were satisfied that identifying Brickz would not expose the identity of his accuser in that case. 

I know it is hard; it is complex and sometimes seemingly nonsensical, but we at eNCA always try to stick to our principles and the law.

We do try and think these things through, not just run with the media pack and I am happy with our decision in this case.

Thank You,

Ben Said

eNCA Group News Editor