Tony Mostert vs. Today's Trustee

Fri, Mar 25, 2016

Ruling by the Press Ombudsman and a Panel of Adjudicators

25 March 2016

This ruling is based on the written submissions of Mr Tony Mostert, curator of the National Provident Fund of the South African Commercial, Catering & Allied Workers Union (Saccawu), and those of Allan Greenblo, editor of Today’s Trustee (TT) magazine, as well as on informal meetings that I have held with both parties in Johannesburg and Cape Town respectively.

Complaint

Mostert is complaining about an editorial in Today’s Trustee’s edition of December 2015 – February 2016, headlined Indeterminate sentence – Registrar must please disclose why, and until when, the Saccawu fund needs the protection of a curator.

He complains that the:

· article was littered with inaccurate, one-sided, reckless and seemingly malicious statements and innuendo (details below);

· reportage amounted to “tendentious” journalism (details below);

· journalist has omitted key facts or has given insufficient attention to other matters (details below); and

· reporter did not ask him for comment (no proper verification).

In the course of the correspondence between Mostert, Greenblo and this office, the communication has tended, from time to time, to become personal, and some arguments and documents were mentioned that are not relevant to the complaint. These instances will not be reflected in any way in my adjudication of this matter.

The text

The article, written by Greenblo, started as follows: “Enough is enough. After 13 years under curatorship, the national provident fund of the Cosatu-aligned [Saccawu] should qualify for mention in the Guinness book of records.”

The editor quoted Mostert’s “latest available communication”, dated 24 August 2011, outlining that some court cases were still pending.

The gist of the text is summarised as follows in the last sentence of the article: “It’s reasonable at this stage to call for the Registrar’s accountability on his oversight function. More than this, good cause should be shown for the delay in appointment of a principal officer and an end to the curatorship.”

Under the sub-headline Justice unseen, Greenblo wrote, “As this TT edition was reaching its deadline for editorial production, something unusual happened. A report of … Mostert, dated 31 October 2015, was published on the Financial Services Board website. In all the years of the fund’s curatorsip, it’s a first.”

He added that, according to the new document, cogent reasons existed for the continuation of the curatorship.

The arguments

Mostert’s complaint in more detail:

Inaccurate, one-sided, reckless, ‘malicious’ statements

Mostert complains about the following “inaccurate, one-sided, reckless and seemingly malicious” statements and innuendo, namely that he:

· behaved improperly by previously using his law firm to conduct the affairs of the curatorships – whereas the practice has had judicial approval for many years; and

· acted as curator in his personal capacity – whereas the law firm is the “curatorship vehicle”.

He adds that the article called the fund a “defined benefit umbrella fund”, but in fact it was a “defined contribution” umbrella fund. “There is a substantial difference [between the two]…”

‘Tendentious’ journalism

Mostert complains that the article continually muddled comment and unsubstantiated and often untrue and fabricated “facts”, and that the article amounted to advocacy or “tendentious” journalism. He says that, while there is nothing wrong with this type of journalism, the Press Code (in Section 6 of the version that was in effect until the end of 2015) does emphasize that special care needs to be taken in this regard – which did not happen in this case.

He offers the following examples to prove his point:

· The statements that “enough is enough” and that the provident fund qualified for the Guinness Book of Records implied that the curatorship had run its course. This, he says, did not account for the facts – despite the fact that Greenblo had used an outdated report to support his views.

· “If [the magazine] had referred to the easily available judgment of Justice (Eberhard) Bertelsmann and my latest report published on the FSB website you would find the reasons for the continued curatorship… The important issue is the protection of the funds of the members – an issue [the magazine seems] to ignore, particularly by ignoring the Bertelsmann judgment.”

· Greenblo apparently championed the interests of the union and of Mr Mafa Dlamini (who was the principal officer of the Saccawu fund from 2009 to 2014, but was then fired by Mostert) against the interests of the fund’s approximately 100 000 members.

· The magazine credited all successes to other parties, but not to the Curator “who makes the actual decisions”. For example, the article “ignorantly and incorrectly” credited the recovery and profit made on the three companies to an unnamed liquidator, it credited the growth in assets to an outside asset manager, and it credited the growth in membership to Dlamini – “and argue[s] that his reward for [this] has been that he has been fired by me”. Mostert says this was “exceeding contentious”.

· The article suggested that the Registrar of Pension Funds, Mr Dube Tshidi, should put a stop to the CCMA proceedings involving the former principal officer of the Fund, without even considering the seriousness of the charges against Dlamini. He adds that the postponement of the CCMA hearings was also not due to his unavailability, as stated in the article, or to the failure of the earlier conciliation hearings. However, the article omitted to state that at the commencement of the hearing, he as well as the Commissioner attempted several times to settle the matter – efforts rejected by Dlamini. Again, the magazine did not verify the facts with him.

· The article said good cause should be shown for the delay in the appointment of a principal officer. “I would suggest that while the CCMA hearing is underway with Mr Dlamini demanding reinstatement this would be irresponsible and would result in unnecessary costs for the funds, this aside from other considerations.”

· The article stated that Saccawu trade unionists and participating employers were owed an explanation – while both members and employers were being kept informed of the situation. However, “Saccawu and/or some of its current and former senior members are hardly entitled to any such explanation given their track record in this matter, which has included fraud, theft and attempts to derail massive claims against other parties”. He adds that his reports were publicly available and letters to members were widely distributed to union members and employers.

Mostert concludes that the article was in breach of the whole of Section 7 of the Press Code, which deals with fair comment.

Insufficient attention; omitted

Mostert says the article gave no, or insufficient, attention to the following issues:

· The reference, merely in passing, to the Bertelsmann judgment (which dismissed the application to set aside Saccawu’s curatorship, and which was significant and material to the subject matter of the article);

· The selective use of a letter to members, dated 24 August 2011, while ignoring four subsequent letters (on 11 June 2012, 31 December 2013, 18 July 2014 and 17 March 2015) as well as the annual reports by the curator (the latest was dated 31 October 2015);

· The absence of substantial detail about the reasons for the continuation of the curatorship, about the failed “shadow” board of trustees he had appointed, as well as about the substantial successes achieved by the curatorship in exposing fraud and theft and making certain recoveries in this regard; and

· The scant mention of the reason for the curatorship, and of the fact that R250-million had been recovered.

He elaborates on each of the above:

Firstly, he states that Bertelsmann’s judgment dealt with pertinent issues and challenges in bringing the curatorship to a successful conclusion. “In short the Judge found that the curatorship should not be ended in the best interests of the members of the fund. For [Greenblo] to suggest that the curatorship should be ended simply because it is long running is simplistic, naïve and not in the best interests of the members and does not deal with the pertinent reasons for the continued curatorship.”

The editor did not check with him whether the (outdated) 2011 letter was the latest information on the continuation of the curatorship.

Mostert says the magazine has chosen to ignore the outcome of the Supreme Court of Appeal (SCA) matter, which was favorable to the fund, notwithstanding media reports dealing with it and the fact that the latest information was in the public domain. He adds that the article omitted to state that Saccawu, by refusing to testify in the matter, cost the fund over R500-million, which led to the fund losing on appeal, and that the fund initially prevailed in its claim against Standard Bank in arbitration before former deputy president of the SCA Louis Harms.

He submits that the reference to the then pending trial involving Saccawu Investment Holdings (SIH) highlighted the magazine’s lack of knowledge or willful recklessness with facts. In the Stop Press section of the article it was reported that the curator had been successful with the claim and that he had taken steps to recover the money. He asks why the editor did not redraft, withdraw or delay the entire article when reading his annual report on the FSB website, instead of simply tacking on a “stop press”. “In other words [the magazine] knowingly allowed incorrect statements to be published, using the totally out-dated concept of a stop press to avoid correcting what is a prejudicial and partial report.”

He concludes, “To suggest ‘this (recovered) money is understood to lie in a trust’ is devoid of all truth. The proceeds obviously went into the Fund and is so reflected in its financials. How [the magazine] could make this reckless and false statement is beyond reason.”

Saccawu, says Mostert, defrauded the Fund and caused hundreds of millions of rands in damages. Some R100-million had fraudulently been used to buy companies to the extent of approximately R55-million, hidden away by the union in its investment company (SIH). The curatorship exposed this and the court ordered that the shares invested in three companies be handed to the curator. “The Curatorship, together with two external accountants, managed over three years to build up the companies to achieve a selling price of R250 million and mitigated losses involving millions of Rands.”

Not asked for comment; no proper verification

Mostert complains that the magazine did not verify its information and did not ask him for comment – which it should have done, as he was a major focus of the article.

Greenblo responds as follows:

In general, Greenblo argues that the article in dispute amounted to fair comment which was in the public interest.

He points out that TT, being a quarterly publication, is essentially a magazine of comment and opinion. The editor argues, “Arguments are based primarily on information in the public domain and on my own independent analysis. Interpretation and argument, as in this instance, reflect opinion that a publication is entitled to hold. Were articles of opinion subject to pre-publication approval by persons mentioned in these articles, or even for ‘facts’ as presented being approved by them beforehand, press freedom would be undermined and the publication of controversial arguments impaired.”

Greenblo says, or at least implies, that Mostert confuses the terms approval and verification. He adds, “There is a vast an irreconcilable difference between what Mostert and I believe to be ‘relevant facts’, Mostert contending that there be copious arrangement of everything that projects him in the most favourable light. By contrast, any article must necessarily be selective and simultaneously coherent. This is what the article attempted to do, disagreements over selection of ‘relevant facts’ being inherent in the practice of journalism.”

The editor argues the two of them also seem to disagree on the meaning of the word balance – he says Mostert seems to regard “balance” as feeding the media information to uncritically promote his image and interests.

He mentions that the same TT edition also carried an article headlined Wynne-Jones wins, arguing that Mostert’s hostile reaction to the article in dispute may be, at least partly, motivated by his dislike of the other one.

In particular, he replies:

· The Financial Services Board (FSB) applies to the High Court for the appointment of a curator. Once this is granted, the curator “acts under the control of the registrar who made the application”. While Mostert is correct that he is not responsible for reports appearing on the FSB website, it is apparent from other curatorships that the FSB publishes such reports as and when they are received. This is done routinely as a matter of public interest. He says since no curator reports in respect of the Saccawu national provident fund were published on the FSB website during the 13 years of the curatorship, other than that of 31 October 2015, he could summarise only this report – “which in any event was recent and therefore topical”;

· For reasons unknown to him, only the one Saccawu curator’s report was to be found on the FSB website. He says he was also able to access the financial statements of the Saccawu fund for recent years. “I considered these adequate for purposes of my article”;

· Greenblo says he is well aware of the Bertelsmann judgment. It was handed down in May 2012 and comprehensively covered in the media at the time, notably in Personal Finance and on Moneyweb. He argues, “Both media are more immediate and have much larger readerships than TT. This made it redundant for TT have reported it too, let alone in an article more than two years after the event. My purpose in having referenced it in the current article was to strengthen my argument that, in the period of more than two years since the judgment was handed down, sufficient time had elapsed for the then-unresolved issues to have been resolved and for the ‘normalcy’ of the fund (i.e. termination of the curatorship) to be restored as the FSB had unsuccessfully sought in its court application at the time”;

· He admits that he did not check with Mostert on whether the August 2011 letter was in fact the latest information on the continuation of the curatorship. However, “[t]here was no need for me to have done so. The letter as it stood remained relevant for purposes of my article in commenting on the passage of time”;

· Mostert should be required to make available any subsequent letters to which he has referred – particularly copies of the communications over the past year between himself and the FSB pertaining to the continuation of the Saccawu fund’s curatorship. “These could be critical in helping the Ombudsman to decide on whether my central argument (that the time has arrived for the curatorship to end) is ‘simplistic’, as Mostert contends. They would definitely be critical for any next TT article that I write, either of my own volition or as the Ombudsman might instruct”;

· Regarding the Standard Bank/WIP matter, he says he had not mentioned in the article “that Saccawu, by refusing to testify in the matter, cost the fund over R500m. This caused the fund to lose on appeal”. If this statement was factually accurate, as asserted by Mostert, it would surely have been raised in the ruling of the arbitration appeal tribunal that comprised retired SCA judges C T Howie, J W Smalberger and P M Nienaber. He adds that he did not mention this assertion because the tribunal had not even alluded to it. Secondly, as a matter of fact, the arbitration findings of retired deputy president of the SCA Louis Harms were reported. It would have been absurd for TT to have reported only on the ruling of the appeal tribunal and not on the findings that gave rise to it. The “Indeterminate sentence” article provides the reference to the most recent TT article on the Standard Bank/WIP matter, from which further back editions may also be referenced;

· He says it is news to him that Mostert does not act as curator in his personal capacity, as:

o the Financial Institutions Act does not provide for a law firm to be the “curatorship vehicle”;

o all documentation including judgments and his own report describe Mostert (the individual) as the curator; and

o curatorship reports separately reflect fees paid to curators and fees paid to law firms;

· He says Mostert draws his own conclusions, incapable of substantiation, from his attendance at the Dlamini CCMA hearing – on the one hand, he contends that he (Greenblo) should have attended the full three days of the hearing; on the other, through his counsel he prevented him from attending at all. “Accordingly, I assumed that I would have been denied (and have therefore not applied for) access to a copy of the record that would have provided me with the ‘facts’ considered by Mostert to be so important that I should have verified them with him”;

· He says he is not prepared to comment on his sources, save to repeat his reliance on information that was in the public domain;

· He denies that he was championing the interests of either the union or those of Dlamini, against the interests of the fund’s members. He argues, “The opposite is true. It should be evident that the whole theme of the article is to argue that 13 years of curatorship should be sufficient for the problems that led to curatorship being resolved and for normal governance of the fund to be restored. This would be in the interests of the fund and its members, but might be in contra-distinction to the interests of Mostert”; and

· TT did err in describing the Saccawu national provident fund as a defined benefit fund. “This will be corrected, with my apology to readers, although nothing turns on the error.”

In conclusion, Greenblo says that Mostert:

· should be required to disclose written communications between himself and the FSB subsequent to 1 December 2014 on matters pertaining to the ongoing curatorship of the Saccawu national provident fund. “Not knowing their content, I can only assume that these communications will be relevant for consideration by the Ombudsman and for inclusion a future TT article”;

· remains welcome to supply copies of his letters dated 11 June 2012, 31 December 2013 and 17 March 2015 that he says the editor had “conveniently” ignored. “These could also be relevant to the Ombudsman and for a future article”; and

· should be required to disclose whether he and/or his law firm will be paid fees by the Saccawu fund for preparing and proceeding with his complaint to this office – if so, he should disclose the rate at which such fees will be charged and the justification for them. “This will shine light on Mostert’s objections to my references in the article to the Heaton Nicholls judgment, and on my ongoing interest in curatorship fees for future coverage.”

Mostert replies that Greenblo has continued to ignore the importance of the application to the High Court to set aside the curatorship, and the consequent judgment of Judge Bertelsmann – this despite knowing, by his own admission, of the existence of the judgment.

“As is apparent from the Bertelsmann judgment my curatorship of the fund was approved and not criticized by the court, in contradistinction of those frustrating and pro-longing the curatorship to which the judge made reference. The reasons for the continuation of the curatorship, are set out in my answering affidavit, was extensively referred to by the court. As and when appropriate, the FSB will no doubt approach the court with regard to the termination of the curatorship. It is of record that I have from the outset attempted to curtail and finalise the curatorship. These are facts, which are known to all the relevant parties, but clearly ignored by Mr Greenblo,” he argues.

Mostert adds that Greenblo’s argument about the ending of the curatorship is based on “very selective choice and interpretation of facts and on totally ignoring important facts such as the Bertelsmann judgment and without appreciating the circumstances relating to this curatorship. As stated, this is for the court to decide and not for Mr. Greenblo to dictate”.

He also says, “It is not a matter of not having reported the Bertelsmann judgment at the time when it was handed down. It is a fact that no consideration was taken by Mr Greenblo of the very valid reasons provided by the Judge for not setting aside the curatorship. He made no reference to the content of the judgment in the contested article, but avoids the issue by stating that the judgment was handed down two years ago and that this was sufficient time for the fund to have returned to ‘normalcy’, but he made no effort to check with me as to the status of the various reasons for the continued curatorship. He simply decided that two years was sufficient time.”

Mostert submits that Greenblo has not responded to listed claims of contraventions of the Press Code, that he has not dealt with any of the specifics at any stage and that he has in fact repeatedly stated that he will not do so – and when he did do so, he used extraneous issues in an attempt to justify himself.

He adds, “There is no way the factual accuracy and fairness of comment can be resolved without dealing with the specifics of his report. It is for this reason that Mr Greenblo avoids responding to the specific questions of accuracy and his unsupported and unfair opinions.”

Mostert remarks that Greenblo’s only responses have been a general, but unsubstantiated denial, attempts to muddy the waters by raising issues that are not germane to the complaint, by mentioning new issues about which he expresses an unsubstantiated opinion, and by numerous other red herrings (for example, making demands on this office to place conditions on him, by falsely insinuating that past disagreements between them were included in his complaint, and by stating that his complaint was in part driven by the article on Wynne-Jones).

He argues that Greenblo should not attempt to set conditions for this office in considering his complaint. “He attempts to use your good offices to solicit documentation … which is irrelevant to my complaint and fortifies my contention that Mr. Greenblo is on a ‘witch-hunt’ for the purpose of serving the apparent interests of others for whom he seemingly conducts this campaign against me.”

The complainant also denies the Pension Funds Adjudicator (PFA) found that the curatorship was no longer required – because she had no jurisdiction, she referred the matter to the Registrar for review on whether or not curatorship was still necessary.

“This is very different from the opinion stated by Mr Greenblo, who in effect demands that the curatorship be ended without taking account of most of the facts for the reasons for the continued curatorship. Instead he claims … that I have a ‘vested financial interest in the curatorship of the Saccawu fund being continued’ without any reference to the real reasons why this curatorship has been required to continue and without having any substantiation for making such a defamatory statement. It is of record that I have consistently, over the years, attempted to bring the curatorship to an end, but as reported in the Bertelsmann judgment, these attempts were frustrated by the conduct of others.”

Mostert also submits it does not matter that TT is a publication of comment and opinion. What is required, is that it adheres to the Press Code.

He says Greenblo has not taken much interest in publishing the grounds for the curatorships and the exposure of those responsible for the wrongdoing and what can only be described as theft on a grand scale of pension fund money, or in the curatorship’s successes, which are in contrast to his on-going reports – these being derogatory, defamatory and confrontational – and when faced with the facts (as opposed to the distorted facts) he fails to acknowledge his sins of omission or commission.

Mostert adds:

· The question of the continuation of the curatorship needs to be answered by the FSB, and this is no reason for Greenblo to question the continued curatorship in the manner he has done. “He could also have asked the FSB for access to other reports and could have done a search at the High Court for what are publicly available documents.”

· This office should decide whether the information used by Greenblo was still valid and whether more up-to-date information was available. “The approach of Mr Greenblo seems to be ‘if the facts suit my argument then that is quite adequate’. This is … a contravention of the Press Code.”

· He did not prevent Greenblo, either directly or indirectly, from attending the CCMA hearing.

· He accepts that the editor does not wish to reveal his sources. “They are however identifiable from the information that was made available and published by Mr Greenblo. This does not alter the fact that in terms of the Press Code Mr Greenblo should have made an attempt to get my view of the issue to take into account in forming his opinions.”

Analysis

Introduction

In the process of communication between my office and the parties, to and fro, much was said by both parties that may or may not be true, but which were not always pertinent to the issue. In that process I continuously had to distinguish between what was background information and what was not.

I shall endeavour to keep my eye on the ball and adjudicate this matter on what was printed – and to stick to the issues that are essential and central to the complaint.

After having studied all the documentation and having spoken with both parties individually, it became clear to me that the gist of Mostert’s complaint is also the main point of Greenblo’s article, namely the latter’s criticism that the former has stayed on for too long as the curator of Saccawu’s national provident fund.

I take into account that the text in dispute is not a hard news article, but an opinion piece – which, of course, brings different ethical principles into play than those applying to news stories.

The first and obvious one is freedom of expression, which to a large extent gives a person the right to be wrong. (This is a general statement; I am not saying that Greenblo was wrong.)

In this regard, the Constitutional Court (Judge Edwin Cameron) has ruled as follows in April 2011 (McBride vs. The Citizen): “Criticism is protected even if extreme, unjust, unbalanced, exaggerated and prejudiced, as long as it expresses an honestly held opinion, without malice, on a matter of public interest on facts that are true.”

The Press Code (the one in operation when the article was written) shares this opinion, and formulates it as follows:

· 7.1: “The press shall be entitled to comment upon or criticise any actions or events of public interest provided such comments or criticism are fairly and honestly made;

· 7.2: “Comment by the press shall be presented in such manner that it appears clearly that it is comment, and shall be made on facts truly stated or fairly indicated and referred to; and

· 7.3: “Comment by the press shall be an honest expression of opinion, without malice or dishonest motives, and shall take fair account of all available facts which are material to the matter commented upon.”

So, on the one hand Greenblo had the right to be wrong, but on the other hand he also had to base his argument on a “fair account of all available facts which are material to the matter”.

The question, derived from the Press Code, is whether the editor has adhered to this requirement when he stated that Mostert had been the curator for too long.

I am first going to apply my mind to some particular issues, before coming back to the central question as stated above.

Latest available communication

The article stated (as fact), “[Mostert’s] latest available communication to fund members – dated 24 August 2011…”

I have established that this statement is not true, as Mostert also wrote to fund members on 1 June 2012, 31 December 2013, 18 July 2014 and 17 March 2015. These documents, which are in my possession, were sent directly to these members, as was the one dated 24 August 2011. One could argue that Greenblo, who is a specialist in this field, should have known about these documents and that he should have taken an interest in them and tried to obtain them.

The editor told me that these documents were not really relevant to his article in any case, as they have all been overtaken by Mostert’s latest report.

I do not know how Greenblo knows this as he has not read the communication detailed above. Be that as it may, it still remains inaccurate to report that Mostert’s latest available communication was on 24 August 2011. This needs to be rectified as it created an incorrect and unfair picture of the curator.

Behaving improperly, using own law firm

The article said that Mostert was cautioned (in an unrelated matter) by the Gauteng High Court for appointing his own law firm to act in his curatorship. Greenblo quoted Judge Caroline Heaton-Nicholls in this regard as follows: “Although this in itself is not prejudicial or necessarily results in conflict … there is no escaping the inference that this may create an incentive to litigate unnecessarily.” The editor says Heaton-Nicholls found this “disturbing”.

Mostert told me that this Heaton-Nicholls judgment has since been set aside.

However, he refers to a judgment dated 29 February 2016 – which was after Greenblo published his article.

I have spoken at length with Mostert about this matter, which left me satisfied that it was not possible to divorce him from his firm.

Be that as it may, when Greenblo wrote this part he acted with the latest information at his disposal, and he certainly had the right to express his opinion (which he also based on his understanding of the law).

However, if Mostert is correct that Heaton-Nicholls’s judgment was overturned, also with regard to her comment about her discomfort about a possible conflict of interest, Greenblo would be well advised to publish this fact if and when he addresses this issue again.

Judge Bertelsmann

Mostert is unhappy because Greenblo did not take enough notice of Bertelsmann’s judgment, in which the latter motivated why he (Mostert) should continue as curator.

However, this judgment was handed down three years ago – and what was then considered as important might have changed in the meantime. If Greenblo had said that Mostert has stayed on for too long as curator shortly after Bertelsmann’s judgment, and without referring to this verdict, it would have been a different matter.

As things stand, however, Greenblo was squarely within his rights to comment that Mostert has stayed on for too long (whether other people, including Mostert, agree with him is not relevant). He exercised his right to freedom of speech – to which this office should never be an obstacle.

Annual report

In a Stop Press article Greenblo wrote, “As this TT edition was reaching its deadline … something unusual happened. A report of Saccawu fund curator Tony Mostert, dated 31 October 2015, was published on the Financial Services Board website. In all the years of the fund’s curatorship, it’s the first.”

This sentence can be understood in two ways – either it was a first that his report was published on the website, or it was a first that Mostert has produced one. In my conversation with Greenblo I came to believe that he intended to state the latter option.

In that case, he was wrong. Mostert says he has produced annual reports every year – but it is up to the FSB whether to publish them on its website or not. I found this testimony credible.

I would have thought that a mere telephone call to the FSB should have been enough for Greenblo to establish the truth about this matter.

Not asked for comment

I have asked Greenblo why he did not approach Mostert for comment. The latter argues that the editor should have done so, seeing that he was a major focus of the article.

Greenblo responded as follows, with my comment next to it:

Greenblo	My comment
Because of Mostert’s hostility towards him, he anticipated that the latter would expect him to fully publish “irrespective of their possible verbosity or biased veracity” – and then complain if he did not publish such statements.	A person’s alleged hostility and anticipation should not veto a journalist’s responsibility to adhere to the Press Code that requires the press to obtain comment from a subject of critical reporting.
Had Mostert known in advance of the article he was writing, he might have applied for an interdict to prevent publication – even if such an application had no chance of success, it would have been “severely disruptive” to the magazine.	If Greenblo expected that an interdict would stop him from publishing, it would have been a good enough reason to not contact Mostert. However, he did not think that such an interdict would have succeeded. Mere “disruption” is not a good enough reason.
Had he solicited comment from Mostert, he would have had to obtain comment from others too – which would have included people such as certain Saccawu officials and representatives, “whose views might lack credibility” (he says that Mostert, in his complaint, gives examples of such people).	I find this statement to be degrading.
He would only have invited further hostility from Mostert for having published those views.	Then so be it.
The article would have become unacceptably long. “It would additionally have deflected from my chosen course to base my arguments on the documents in the public domain that were available to me.”	Then edit it, or use one or both pictures slightly smaller.

These reasons are not convincing, not even when taken as a whole.

While I take into account that the text was an opinion piece, I still believe that Greenblo should have asked Mostert for comment as the latter was the subject of critical reportage.

Omissions

I have already dealt with the Bertelsmann issue as well as with the correspondence that Greenblo did not use.

What remains (material information – Mostert complains that Greenblo omitted these) are:

· The lack of substantial detail about the reasons for the curatorship of the Saccawu National Provident Fund, the failed “shadow” board of trustees which he had appointed, as well as the substantial successes achieved by the curatorship in exposing fraud and theft and making certain recoveries in this regard;

· The scant mentioning of the reason for the curatorship, and of the fact that R250-million has been recovered;

· The outcome of the SCA matter in the Cadac case, which was favorable to the fund, notwithstanding media reports on this matter and the fact that the latest information was in the public domain;

· Saccawu, by refusing to testify in the matter, cost the fund over R500-million, which led to the fund losing on appeal, and that the fund initially prevailed in its claim against Standard Bank in an arbitration before Judge Harms; and

· Saccawu defrauded the Fund and caused huge damage – some R100-million had fraudulently been used to buy companies to the extent of approximately R55-million, which the union hid away in its investment company. The curatorship exposed this and the court ordered that the shares in the three investee companies be handed to the curator. “The Curatorship, together with two external accountants, managed over three years to build up the companies to achieve a selling price of R250 million and mitigated losses involving millions of Rands.”

It is difficult if not impossible for me to come to a definite finding that the omission of the above amounted to bias or one-sidedness – Greenblo can easily argue that those issues were not germane to his article.

However, I need to state that I am concerned that the whole article was pitched negatively towards Mostert. Greenblo quoted many figures and referred to even more matters – none of which put the curator even remotely in a good light.

I say I am concerned about it, as life very seldom offers such a black-and-white scenario. Even if Greenblo was wrong with his facts here and there, and correct with most of them, my concern still remains.

Having listened to Mostert, I can well understand his complaint about bias. However, even if I tend to agree with him, such a finding would not stand up in an appeal before the Press Council’s Appeals Panel as I do not have enough solid evidence to back it up – a negative article towards a subject is not by default a breach of the Press Code.

Other issues

Mostert says the description of the Fund as a “defined benefit umbrella fund” is wrong, as it was rather a “defined contribution” umbrella fund. I accept this, but nothing much turns on it.

He also complains about Greenblo’s statement that the R250-million recovered was “understood to lie in a trust.”

The fact that the article did not state it as fact, but said it was “understood” to lie in a trust, saves the day for Greenblo (in terms of a finding by me against him on this matter).

Conclusion

This brings me back to my original question, derived from the Press Code: Did Greenblo adhere to the requirement that he should give a fair account of all available facts which were material to the matter when stating that Mostert has been staying on as curator for too long?

Let me recap where I have found that Greenblo was in the wrong:

· He inaccurately stated that Mostert’s:

o latest communication to fund members was dated 24 August 2011;

o annual report, dated 31 October 2015, was the first in all the years of the fund’s curatorship; and

· He should have asked Mostert for comment.

I add to this a suspicion (it is nothing more than that) of bias by Greenblo against Mostert. My suspicion is not only based on the omission of information, as stated above, but also on the inaccuracies that all reflect badly on Mostert. I can at the very least say that those inaccuracies has caused some unnecessary harm to Mostert’s reputation.

Because I cannot base a finding on a suspicion, though, I need to dismiss this (central) part of the complaint.

Finding

Today’s Trustee is in breach of Section:

· 2.1 of the Press Code for inaccurately and unfairly stating that Mostert’s latest communication to fund members were dated 24 August 2011 and that his curator report, dated 31 October 2015, was the first in all the years of the fund’s curatorship. This section reads, “The press shall take care to report news truthfully, accurately and fairly”; and

· 2.5 for not asking Mostert for comment – “A publication shall seek the views of the subject of critical reportage in advance of publication…”

The rest of the complaint is dismissed.

Seriousness of breaches

Under the headline Hierarchy of sanctions, Section 8 of our Complaints Procedures distinguishes between minor breaches (Tier 1), serious breaches (Tier 2) and serious misconduct (Tier 3).

The breaches of the Press Code as indicated above are Tier 2 offences.

Sanction

Today’s Trustee is directed to apologise to Mostert for inaccurately and unfairly stating that Mostert’s latest communication to fund members was dated 24 August 2011 and that his curator report, dated 31 October 2015, was the first in all the years of the fund’s curatorship, as well as for not asking him for comment prior to publication – and for causing unnecessary harm to his reputation in the process.

The text, which should be approved by me, should:

start with the sanction; and
end with the sentence, “Visit www.presscouncil.org.za for the full finding.”

The headline should reflect the content of the text. A heading such as Matter of Fact, or something similar, is not acceptable.

The magazine is also directed to afford Mostert a right of reply to the maximum of 800 words (if he wants to make use of this opportunity) – a text that I also need to approve.

If the article appeared on its website, the magazine should publish these texts there as well.

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 Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombudsman