I must protest at the single-source journalism and biased reporting carried in several reports littered with inaccuracies that graced the Online Edition of the Mail & Guardian (Writer in court over alleged intimidation 02-10-2007, Writer threatened to ‘blow up’ radio station, 09-11-2007 refer). I no longer read the print edition, as it is too expensive and geared towards a middle class market.
The reports, written by the same journalist, were carried across the electronic spectrum with no attempt to provide an alternative perspective. They carried the same inaccuracies, typos and misprints and ended up by referring to a “Black Magician” instead of a “Black Musician.”
Since the matters raised involve my battle against certain elements of the media, in particular issues of racial profiling, racism and anti-Semitism, I can only draw the conclusion that the Mail & Guardian has given up any semblance of a progressive, struggle perspective and merely trots out whatever the mainstream wants to read?
Firstly, after 18 months, my discrimination case against Media24 is nowhere near an end. I have complained about racism at the Cape Bar to the Black Lawyers Association as well as the Portfolio Committee on Labour, including several journalists as well as Zulpha Khan, who had me arrested for merely raising my voice.
Secondly, while the Heart 104.9 incident is regrettable, the law is very clear, it is not an offence to verbally assault a building, and the court could not find any evidence to support the claim made by Khan in her testimony. In fact not only has she contradicted herself under cross-questioning, but her two witnesses could not testify that what she said was true.
The result is that the court was forced upon a reasonable examination of the evidence and facts at hand, to set me free, and find me not guilty of the alleged crime. Whatever the confusion surrounding the charges – on the one hand a charge of intimidation, on the other a charge of assault by threats, the fact remains that neither charge was supported by the evidence. I have expressed my reservations to the Freedom of Expression Institute regarding the legal precedent set by S v Mtimunye 1994 in which it was held that assault GBH can be committed by way of threats alone.
I wish to remind the press, the following direction was given to a jury in R v Meade & Belt, 1823, “no words or singing are equivalent to an assault.” Since South Africa does not have a jury system, the inevitable dislocation between the law and its citizens occurs, as the media merely reiterates and perpetuates the same institutional bias by which it suffocates and silences its critics.
In R v Sibonyone 1940, for example, it was found “for an assault to be committed where no physical impact takes place there must be a threat of immediate personal violence in circumstances that lead the person threatened, reasonably to believe that the other intends and has the power immediately to carry out the threat.” The court found in my instance, there was no immediate danger and I consequently did not pose a threat to society.
Khan is undoubtedly over-reacting and shooting the messenger. That she made the mistake of pressing charges in her own name and not that of her employers, who did not support her position, is her own business. Criminal Law and Procedure states, “there must be reasonable grounds for apprehension.” Since there were no gestures or actions which could have translated into a threat, and no threat was intended or made — I merely asked a rhetorical question for which an answer was not solicited and my words should rather be seen in the light of constitutional guarantees on political speech, it is clear that there was no justification for my arrest.
I am in the process of filing a complaint in this regard, and several documents have been lodged with my attorney. While I may have a reasonable fear that my case of discrimination (for which I do not have legal representation) will lead to a breakdown in race relations I have not acted on such fears, the complainant was thus being unreasonable in acting on a similar apprehension and this incident is undoubtedly one of shooting the messenger, instead of dealing with the problem at hand, which is one of racism and discrimination.
The Mtimunye judgement needs to be revisited for the simple reason that our constitution was not enacted until 1997. The judgment if applied in my case would have been so broad as to rule out any expression of outrage or intemperance in my position as it stands viz. vi, the right to defend myself against the actions of those who hold racist and discriminatory opinions, to call for boycotts and action against the parties concerned, and to act against those who continue to uphold systemic racism such as racial profiling.
I would therefore appreciate the right to respond to the several news reports referred to above, including the latest report referring to a supposed “botched charge sheet”. There was no error on the part of the state. I was locked-up by a misguided individual, and ruthlessly persecuted by the system in the furtherance of so-called justice.
David Robert Lewis
PS: A legal brief regarding the ongoing saga around my blog and Blogmark/Amagama, will be arriving in due course, and I trust that you will not fall into the trap of seeing my just political expression and right to freely associate, as a threat to your civil rights.