25 February 2019

South Africa: Kodwa Rape Allegations - When Was It Right to Name Him?

Photo: MYANC/Twitter
Zizi Kodwa

In the wake of rape allegations against ANC spokesperson Zizi Kodwa, there has been debate about the ethics of naming a rape suspect before they have pleaded in court.

A prominent lawyer on social media said that if there is no criminal case pending, it is not a criminal offence to name someone accused of rape, provided the report is true or accurate and, crucially, in the public interest.

But the ethics of the matter are far from resolved.

On Saturday, ANC deputy secretary general Jessie Duarte confirmed to journalists on Saturday that the party had received a rape complaint against a high ranking member of the party.

She said the ANC had advised the woman to go to the police, and the party confirmed that the man was Kodwa.

News24 opted not to name the man until he had been given an opportunity to respond to the allegation. He could not be reached for comment on Saturday night. Several other media outlets named him as Kodwa.

On Sunday, however, Kodwa went public, issuing a statement denying the allegations. He said the complainant's letter to the ANC was "replete with false accusations" and was a "feeble yet dangerous attempt at political blackmail and manipulation".

Before Kodwa's statement was released, a debate raged on about the ethics of naming him as the suspect in question, even if his identity was revealed by the ANC.

Legal journalist at Tiso Blackstar Karyn Maughan said there was a double standard as the Dros rapist was not named by some media houses until he had pleaded in court.

TWEEET: As far as I understand, law prohibits media from publishing the name of an accused rapist until he pleads to charge in court?

But the law is seemingly applied differently according to who you are. This is a problem 1/2

-- Karyn Maughan (@karynmaughan) February 23, 2019

TWEET: The lack of consistency in who gets identified as a rape accused is problematic. The ANC released a statement on this and sparked the reports from today, but they and journalists should know what the law is on this. And apply it 2/2

-- Karyn Maughan (@karynmaughan) February 23, 2019

TWEET: It's a problem that media houses who chose not to name the Dros rapist (allegedly caught in act of raping a child) and a famous political figure's grandson are now naming a fmr spokesperson (albeit after he was named by his own party).

There is no consistency

-- Karyn Maughan (@karynmaughan) February 23, 2019

Media lawyer at Webber Wentzel Attorneys, Dario Milo however, said that in the absence of a criminal charge being filed (as in the Dros case), common law applies.

Without commenting on the specific case, he said that if there was no criminal process, so-called common law rules about naming suspects would apply - they can be named before they have appeared in court "provided it is true and in the public interest to do so".

Kodwa is a public figure and prominent politician. The Dros rape accused, conversely, is a private citizen.

The complainant too opted not to lay a police complaint against Kodwa, but rather send a letter to his organisation, the ANC.

If a criminal charge had been laid, however, it would be an offence in terms of the Criminal Procedure Act to name someone accused of a sexual offence before pleading in court.

TWEET: 1/ Criminal Procedure Act prohibits publication of any information about charge of sexual offence (including rape) until the accused has pleaded. But that only kicks in once criminal process has begun - eg if the accused has been arrested. Until then there is no criminal offence https://t.co/gqXnUkMrpU

-- Dario Milo (@Dariomilo) February 23, 2019

TWEET: 2/2 So if no crim process general common law rules apply - you can identify someone suspected of being involved in a crime even before they appear in court provided it is true and in the public interest to do so - see Modiri SCA case here : https://t.co/SHnzDQDm2b https://t.co/hafO6WKaXV-- Dario Milo (@Dariomilo) February 23, 2019

However, Milo noted that the law could be inconsistent here at times, because if it is in the public interest, a suspect can be named before appearing in court, but once the suspect is charged with a sexual offence, that person cannot be named until they plead.

TWEET: Technically, the 'charge' only comes some time after the 'complaint' is laid & investigated. The law is anomalous - you can (if in pub interest) id someone about whom complaint of rape laid but no arrest or summons 2 appear but once charged can't identify until accused pleads https://t.co/QLTfpqqeZc-- Dario Milo (@Dariomilo) February 23, 2019

The ANC meanwhile on Sunday said it was concerned about the allegations.

The party had not made a decision on Kodwa's continued role at Luthuli House, but said due processes should be followed so that both the complainant and the accused were respected.


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