Frans Richards vs. City Press and Rapport

Tue, Nov 19, 2013

Ruling by the Press Ombudsman and an Adjudication Panel

November 19, 2013

This ruling is based on the written submissions of Mr Frans Richards and Jacques Pauw, on behalf of City Press (and Rapport), as well as on a hearing that was held on 13 November 2013 in Johannesburg. Pauw was accompanied by his editor, Dumisane Lubisi, while Richards was supported by the Public Advocate. The two members of the Panel of Adjudicators who assisted me were Moshoeshoe Monare (press representative) and Brian Gibson (public representative).

COMPLAINT

Richard complains about the story headlined The scramble for Gaddafi’s cash stash – The hunt for Gaddafi’s billions gets weirder, published in City Press on 25 August 2013. A similar (and materially similar story) was published in Rapport on the same day, headlined Libië se geld in SA kry kinkel.

Richards complains that the following statements in the story were false, namely that:

(a) he was investigating the Gaddafi billions (b) as part of a “team” (of arms dealers and intelligence operatives) (c) which was also involved in an arms deal (d) after having received instructions of the DG of the State Security Agency (SSA) to this effect; and
SARS was not aware of his motives and agenda, and that he offered it false credentials/ID documents.

He adds that he did not give the reporter permission to quote him, and concludes that the story falsely implied that he was a fraudulent person.

THE TEXT

The story, written by Jacques Pauw, said that SA and Libyan arms dealers and intelligence operatives believed that former Libyan dictator Muammar Gaddafi had stashed R128 billion in a warehouse near OR Tambo International Airport weeks before his death. He wrote that these operatives “who claim to act on behalf of the…[SSA] have, with their Libyan associates, spent the past year trying to track the money”. Richards was reportedly one of these operatives.

ANALYSIS

The complaint: (a) Investigating the Gaddafi billions (b) as part of a team (c) which was also involved in an arms deal (d) after having received instructions of the DG of the State Security Agency (SSA) to this effect

The story said that Richards was one of the operatives who investigated the Gaddafi matter, implying that he was part of a team, that he had taken Libyans to Denel, and that: “[Richards] also said he acted on authority from the SSA director-general…”

Correspondence received prior to the hearing

Richards denies that he:

was investigating the Gaddafi money – he says that he repeatedly told Pauw so;
was part of any team of investigators – he was a private investigator who worked alone; and
received his instructions from the DG of the SAA – he says that the SA government requested him to verify the documents and fraud against a Middle Eastern company, and that the DG of the SSA was instructed to support him. “I am not part of the SSA, or getting paid by them or taking any instructions from them.”

Pauw replies that he has no doubt that Richards was indeed involved in the Gaddafi investigation. The column on the left is his response to the complaint, the one on the right is Richards’s rebuttal:

Pauw Richards

He knew Richards for several years as a private investigator with strong links to the SA intelligence and security community.	This was true, but these were only some of his suppliers in business terms – there was nothing sinister in that.
A private investigator with whom he had regular contact and who had close links with SA intelligence and worked for the SSA, George Darmanovich, told him around the middle of 2012 that he was involved in the Gaddafi investigation – and adds that he and Darmanovich discussed this matter in the presence of Richards.	Darmanovich was not an accredited private investigator, but was a debt collector. The fact that he (Richards) was present at the meeting did not imply that he was involved in the Gaddafi investigation.
Darmanovich and Richards worked together and almost every time he saw the former, the latter was present.	He told Pauw many times that he was working alone – Darmanovich was merely a source of information to him.
He had a lunch appointment with Darmanovich – and present were also Richards, Pretoria arms dealer Johan Erasmus, and two or three Libyan officials involved in the search for the Gaddafi billions. The missing Gaddafi money was discussed at this meeting.	This did not necessarily constitute a business association. Those people asked him how to procure arms for Libya; he then took them to Denel, which was the total extent of his involvement (as he is not an arms dealer). “I fail to understand what that meeting had to do with Gaddafi’s money…”
Richards confirmed in an email post publication: “George and Erasmus pulled me to the table with the Libyans as they wanted to find an alternative for the French’s supply of arms to Libya. I said to them that I do not deal in arms but that I would take them to Armscor, which I subsequently did” – from this he concludes that Richards in fact admitted his involvement in these negotiations.	The arms negotiations were with Armscor and not with him. He took the Libyans to Armscor “trying to do my country a favour” (for which he did not receive any advantage). He denies that he ever “admitted” to being involved in this matter, and asks for proof of this “admission”.
Sources at SARS told him that Richards had met with a senior customs official, the SARS spokesperson Adrian Lackay, and a Mr Van Loggerenberg about the Gaddafi fortune and where it was located.	He spoke to SARS about the documents in an effort to understand the processes involved in importing money.
Richards presented SARS with the waybill allegedly detailing the Gadaffi money. It was the same document that Darmanovich and his team had used in their investigation (as “confirmed” by SARS).	He did produce the waybill but claimed to have received it from the senior customs official, not Darmanovich. (
Richards told him that he had acted on behalf of the SSA and that he was tasked by the SA government “from very high up”. The conversation was about the Gaddafi fortune and no mention was made of any other country. The waybill Darmanovich gave him was the same one that Richards had given to SARS.	The information was correct, but the conversation was not (and never) about the Gaddafi money. Pauw based his assumptions on a waybill which had been given to him by Customs and which he took to SARS. Why would he object if he indeed investigated the Gaddafi money (as no harm could come to him because of that)?

Their conclusions:

Conclusions: Pauw Conclusions: Richards

It was fair “and in all probability accurate” to conclude that Richards took the waybill to SARS and to accept that he was acting on behalf of the SSA in investigating the Gaddafi billions.

Pauw confused facts with rumours. If he had misled the SARS, the Service should charge him – or else it would be aiding and abetting him in his crime.

Pauw also provides the panel with his correspondence from SARS, dated 16 August 2013, in which SARS spokesperson, Lackay, confirms that Richards had approached SARS and purported “to represent the SSA”. Pauw also claims that Richards confirmed to him that he had acted on behalf of the SSA.

The journalist adds that several credible SARS officials verified that Richards told the Service that he represented the SSA, and that Richards also told him that he had had the acting DG’s blessing.

At the hearing

Richards informed the panel that he was a private investigator, with his own business, and registered with the Private Investigators’ Regulatory Authority; he was also affiliated to the South African branch of the Association of Certified Fraud Examiners – he worked alone, and not as part of a team.

He also told us that Pauw phoned him on August 14 with the following questions:

“What is happening with the Gaddafi money?” – he said that he told the reporter to ask Darmanovich instead;
“Can I believe George (Darmanovich)” – he told Pauw that this was his decision; and
“Does the money at the airport exist?” – which he confirmed.

However, Richards denied that he had ever confirmed that the money was from Libya. He had merely confirmed the presence of money at the airport. After publication, he told Pauw that he had in fact investigated certain Iranian funds only and that everything he said or did related to this investigation. It was not his job to explain to Pauw that there were two investigations into foreign funds allegedly held at the airport.

He concluded that there was no proof that he had been investigating Gaddafi money, that he was part of a team of investigators, or that he had been involved in arms dealing (as implied in the story). He argued that the story stated it as fact that he was part of a team that investigated the money, and not as an allegation – and added that “relationships” with people are not identical to “working together as a team”.

The panel then focused on correspondence between Pauw and Lackay (the official SARS spokesperson) which transpired on August 16, almost 10 days before the story was published. As the content of the reporter’s questions to SARS, as well as its responses, are of vital importance we now summarise these documents:

Pauw referred to meetings between freelance agents of the SSA and SARS regarding a fortune that was allegedly stashed away in South Africa by Gaddafi. In 13 sub-sections, the reporter outlined the background to the above (leaving no doubt that the rest of his enquiry was about the Gaddafi money and about that money only). In these sub-sections he mentioned Tripoli, a Libyan government official as well as an arms dealer from that country, and Gaddafi (again). He also referred to Richards (six times), and to meetings between the latter and officials in connection with this money.

Lackay confirmed that Richards had approached SARS on a number of occasions, “purporting to represent the SSA” with the objective of trying to understand the process of importing cash into the country. He denied that any such import had been recorded on the SARS systems and that SARS Customs never detained such an import. He added: “Imports of such a nature would obviously have been handled with special care. SARS can confirm no such import ever happened”.

Richards confirmed to the panel that the content of Lackay’s letter, which was sent to him prior to publication, was substantially correct.

We then asked Richards why he did not refute both the questions put to SARS by Pauw and SARS’ response, as it was clear that the reporter was only interested in the alleged Gaddafi money, and that he had linked Richards to an investigation into this matter.

Richards said that it was not his responsibility to point Pauw to the right direction, and that he would not offer any information (due to the secretive nature of his work). He was unable to explain to the panel why he had engaged in any discussion with Pauw if his work was so secretive.

Pauw argued that his reportage was reasonable, because (not in logical order):

a meeting took place between Richards, Darmanovich (who had been investigating the Gaddafi money) and some Libyans;
after this meeting, Richards took the Libyans to Denel – which pointed to the former’s involvement in a possible arms deal;
Darmanovich confirmed that Richards was part of the team;
there was a connection between the Gaddafi money and an arms deal (which may have been funded or partly funded by those resources);
Darmanovich gave Richards a waybill, dated 26 December 2012, that mentioned 125 pallets of money with 100 million US dollars each. This document was dated some months after Richards said that he had started to investigate money from Iran;
the waybill went from Darmanovich to Richards to SARS – “which made him an accomplice”;
when he asked Darmanovich about the waybill (that Richards took to SARS), he told him to speak to the latter about this matter; and
all relevant documents alluded to Gaddafi money only.

From this, Pauw concluded that it was reasonable to report that Richards had been involved in an investigation into the alleged Gaddafi money and that other people have been involved in the same investigation (read: part of a team).

The reporter added it was substantially true that Richards claimed to have acted “on authority” from the SSA director-general.

Richards admitted that it was true indeed, but stated that he never gave Pauw this information. He said that he only told the reporter that the DG “knew” about his investigation.

The panel

We reflected firstly on the central issue of Richards having investigated Gaddafi money, as part of a team, reminding ourselves that we are not a court of law – our task was not to establish the veracity of the statements in dispute, but merely if his reportage had been reasonable at the time of publication.

We believe that it was, because:

Richards had ample time to correct the information contained in Pauw’s letter to Lackay and Lackay’s response (Pauw forwarded his letter to Richards on the same day that he sent it to Lackay. We are convinced that he should have done so, and that his argument that he was in a security environment which made it difficult for him to impart information did not hold water. We do not expect him to have divulged any information – merely to have rebutted or corrected those parts of Pauw’s letter that he later contested as being incorrect and which, according to him, unnecessarily put him in a bad light him and prompted SARS to respond in “a faulty” manner to Pauw;
Richards received the waybill and took it to SARS. This link (Darmanovich – Richards – SARS) surely points to some involvement by Richards in this matter;
Richards took Libyans to Denel, which also showed involvement in arms dealing; and
the term “team” was used loosely, and should not necessarily be interpreted in a narrow sense of the word.

We are also convinced that the statement that Richards claimed to have acted on authority of the SSA was materially correct.

The Complaint: Offering false ID documents to SARS; and that SARS was unaware of his motives, agenda

In the City Press story, the SARS spokesperson is reported to have said that Richards was “unable to provide proper credentials and that the documents he provided were fictitious and clear forgeries”. In the Afrikaans version of the story published in Rapport, the word “credentials” became “ID-documents”, and it was also stated that SARS was unaware of Richards’s motives and agenda.

Correspondence prior to the hearing

Richards denies that he ever gave SARS identity documents, adding that he asked the SARS about the credibility of the import documents and to assess them – which implies that SARS must have known what his “motives” and “agenda” were.

He told the panel that:

nobody operationally connected to the SSA (in his case, the latter was ordered to support him) carried credentials on their person “as the nature of the work is done in a covert/discreet manner”;
the SARS officials would only have agreed to meet with him (several times) if he gave a valid reference; and
adds that he provided SARS with the name and cellular phone number of the Chief Director: Operations of the SSA “to verify my official visit”.

In Lackay’s email, dated August 16, he said the documents that Richards produced “were studied and concluded to be fictitious”. He added: “The other documents he produced were clear forgeries…” – and concluded: “SARS would prefer not to speculate on Mr Richards’ motive and agenda, nor on why he appeared to attach such great meaning to documents that are clearly fictitious.”

Pauw also provides the panel with official correspondence from the SSA spokesperson (Dube) who responded to his request for comment (dated August 16), confirming that the organization knew of no “intelligence freelancer” (with regards to the Gaddafi matter).

Richards replies that he was not a freelance agent of the SSA.

At the hearing

Pauw said that the statement in City Press was based on Lackay’s response to him, who wrote: “He was however unable to provide proper credentials… SARS would prefer not to speculate on Mr Richards’ motive and agenda, nor on why he appeared to attach such great meaning to documents that are clearly fictitious”.

The newspaper admitted, though, that the (translated) reference in Rapport to Richards having presented false ID-documents to SARS had been a mistake.

The panel

We note that the:

story merely quoted Lackay in this regard (the story attributed the information to him, which Pauw was entitled to do); and
newspaper admitted that it had erred in translating “credentials” with “ID-documents” in the story that appeared in Rapport.

The complaint: No permission to quote him

Richards says that he never gave Pauw permission to quote him, “as he in the past consulted me to clarify certain background situations on condition of anonymity”. He adds that the reporter told him that he was not going to “feature” him. “When I refused Pauw more information on my investigation as I am under the Secrecy Act in this instance, he told me that it is now out of his hands.” He argues that this behaviour was unethical.

However, in later correspondence he also complains that the reporter mentioned him, but not his opinions.

At the hearing

Richards said that he had phoned Pauw back after their discussion on August 14, asking him if his name was going to be mentioned in the story. The reporter said “no” to this question. He was under the impression that (as usual the conversation between himself and Pauw was off the record.

Pauw denied ever giving this undertaking, asking why he would mention Richards’s name several times in his correspondence with Lackay (which he forwarded to Richards) if he was not planning to use his name.

The panel

Given Pauw’s explanation above, we believe that it was reasonable for the reporter to have mentioned Richards in his story.

The complaint: Implying he was fraudulent

Correspondence prior to the hearing

From all of the above, Richards concludes: “The inference of the article is that I am a fraudulent person and/or is involved with using the SSA’s name for austere and personal reasons. Pauw cannot say that he could not for see (sic) these inferences as my name is used in the same article as all these accusations.” In later correspondence he adds that the reporter abused his position to infringe on his right to be accurately and fairly quoted, and maintains that the reportage was malicious and done with bad intent.

At the hearing

Richards repeated this part of his complaint. Pauw said that this conclusion was based on the truth.

The panel

This part of the complaint does not stand on its own, as it rests on conclusions that may be based on all of the above.

As we do not believe that Pauw transgressed any section of the Press Code, we feel that the public should be entitled to draw its own conclusions in this regard.

FINDING

The complaint is dismissed, except for the faulty translation of “credentials” as “ID-documents” in Rapport.

This mistake is in breach of Section 2.1 of the Press Code that says: “The press shall take care to report news truthfully, accurately and fairly.”

SANCTION

Rapport is cautioned (“vermaan”) for this mistake, and directed to correct it – if indeed Richards wants such a correction to be published.

The newspaper is directed to ask Richards about this matter, and to prepare text that should be approved by both him and the panel (if applicable).

APPEAL

Our Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Moshoeshoe Monare (press representative)

Brian Gibson (public representative)

Johan Retief (press ombudsman)