At one point there are 11 people in the courtroom. Two of them are women — me and the judge’s clerk. The rest are men — attorneys, advocates, judge and clients.
It’s a sausage fest.
These men have gathered together to fight over whether a story can be published. The story is about a woman who says she was raped. To gag the story or not to gag the story, that is the question the judge faces.
By late Thursday afternoon — two hours before the newspaper must go to print — the Mail & Guardian’s lawyers are still listening to the argument from the advocate for the rape accused and occasionally darting a look at Judge Mohamed Ismail.
In front of him, the man’s counsel, Nick Ferreira, is saying it wouldn’t be in the public interest to publish the story. The accused, who is also an attorney, is a private figure, not a politician, Ferreira says. He will be easily identified. The story says he lives in Johannesburg, then it says he can be found in Sandton, where he has his own law firm. Surely, it’s enough to identify him?
Minutes earlier, the judge had handed the man accused of rape a copy of the story that the M&G wants to publish. The man took a yellow highlighter out of his bag and began colouring the words in front of him.
It goes against the ethics of journalism to allow an interested person to read a copy of a story before it is published, but here we are.
The M&G has told him he would not be named because the Criminal Procedures Act forbids a person accused of rape from being publicly named until they have pleaded to a charge.
But still, says Ferreira, his client will be “irreparably injured” if the article is published, because he can still be identified.
Ismail looks convinced that the story is a no-go. He’s even, at one point, helping Ferreira make his argument.
“So, you’re saying the story is like a GPS system …” Ismail begins his metaphor.
The M&G’s advocate, Nazeer Cassim, stands up. He argues that the M&G did not write this story as an “agent” for the victim. The newspaper is fulfilling its public interest duty, he says.
In this instance, he goes on, the accused trying to interdict the story will argue whatever he can to keep the allegations against him under wraps. Cassim ends with a punchline, name-dropping South Africa’s most wanted.
“They will do, my lord, what the president of this country does. They will deny it,” Cassim says with gusto.
Cassim argues it’s no secret that rape victims in South Africa are reluctant to report sexual assault. So is the interdict request really just to gag a story in which rape in the legal profession is being reported on? After all, he says, the story has testimony from another victim and interviews with experts who say the profession is rife with sexual assault. He is arguing that freedom of expression must be respected.
“We want all South Africans to read it … that’s the most profound way to deal with it,” he says.
One voice is not heard in the courtroom.
The woman who opened a case against the accused is beginning her career — she’s a candidate attorney. The man she has accused of rape was her principal.
She has been to the Law Society of the Northern Provinces, she has laid a charge with the police, she has even taken to Twitter to tell her story. There is already one interdict in place banning her and a friend from tweeting about her allegations, and she was forbidden from publishing the case anywhere else. She has been silenced.
As all the men in robes and suits go back and forth, her silence is the loudest thing I hear.
After the arguments finish the judge withdraws to think about it. The clock ticks as deadline back at the newspaper fast approaches.
Ninety minutes goes by and, finally, the judge returns. In one breath he says: “Application dismissed.” The story goes to print.
[Read the story the Mail & Guardian published here.]