Reasonable Suspicion

Once again, political events surrounding South Africa’s former deputy president Jacob Zuma have placed the media in the spotlight. The reporting on people alleged to have committed crimes has come into sharp focus, as it did in 2003. Through it all, Zuma has consistently stated that he has been a victim of “trial by media”, and that he has been found guilty although he has not been tried in a court of law.

A superficial examination of the coverage of allegations against Zuma can indeed lead to the conclusion that he has been found guilty in the media. Sensational headlines have very often given the impression that Zuma is corrupt, such as those calling for him to be fired or to be charged. What many, counting Zuma, often forget is that newspaper coverage takes its cue from developments elsewhere, including the courts.

At the beginning of the Schabir Shaik trial, Judge Hilary Squires stated clearly that Zuma was not being tried. He might have done so because of media speculation that Zuma was corrupt. But in his “guilty as charged” judgment, Squires made pronouncements on Zuma to the contrary. The judge said very emphatically that there was “a generally corrupt relationship” between Shaik and Zuma, and that Zuma had been ready to oblige when Shaik sought to use the influence and authority of the deputy president’s office to advance his personal interests.

It must also be remembered that way back in 2003 the former chief prosecutor Bulelani Ngcuka called a press conference and an off-the-record briefing with selected journalists. Here Ngcuka said that there was a prima facie case against Zuma, but that it was not winnable in court. It appears that Ngcuka provided further information on Zuma’s guilt at the briefing, which could have been all the “confirmation” the media needed.

In light of Ngcuka’s statements at the press conference, the subsequent trial and conviction of Shaik, and the charges brought against Zuma, it is not surprising that in the eyes of the media Zuma is guilty. Further, Zuma has alleged a campaign of leaks to journalists from a lengthy investigation into his affairs, which has not been denied. Indeed, in the inquiry into allegations that Ngcuka was an apartheid spy, Judge Hefer made a definitive finding that there were leaks emanating from the prosecutor’s office and that things were not as they should be.

It is therefore misinformed to say the media have found Zuma guilty when he has not been tried by a court of law. By nature, the media operate according to a suspicion that wrongdoing is happening somewhere, perpetrated by someone powerful. The media are often given information, for reasons that might be political, by sources that feed this suspicion. It is called the watchdog role - and in this role the media might demand, should they bark falsely, that their overall behaviour be judged against the harm visited upon society should they fail to bark at all. In short, the media works on the presumption of reasonable suspicion, not on the legal presumption that one is innocent until proven guilty.

Of course this is problematic. It can lead to violation of the individual’s right not to have his/her name sullied by untested allegations. Suspicion, some will say, is not a rational basis for reporting and can also amount to a transgression of journalistic ethics. So a balance needs to be struck.

The media and the legal system often have different methods of reaching the same ends. Reporting on the basis of suspicion can alert the legal system to the possibility of wrongdoing, leading to investigation and prosecution. But reasonable suspicion must be based on facts. In other words, the facts gathered must point to the strongest possibility of wrongdoing.

Professor Tawana Kupe is Head of the School of Literature, Languages and Media Studies at Wits University.

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