Ruling by the Press Ombud
4 July 2017
This ruling is based on the written submissions of Mr Tuwani Mulaudzi and those of Marianne Thamm, on behalf of the Daily Maverick online publication.
Mulaudzi is complaining about an article in Daily Maverick of 13 June 2017, headlined Analysis: Time for Judge Hlophe to face the music.
Complaint
Mulaudzi complains that the:
· story incorrectly referred to him as a “crooked” businessman – while he had never been found guilty of any offence;
· article omitted to state that:
o Nedbank, the source of the case, closed his accounts, retained all his investments worth millions, refused to pay him;
o Nedbank informed Old Mutual that it no longer had an interest in his investment with the latter, and that it (Old Mutual) had to pay him; and
o the Supreme Court of Appeal (SCA) has remitted the matter back to the Western Cape High Court for full argument (the case will be heard on 20 November 2017, and could still end up again at the SCA or even the Constitutional Court) – while the publication reported as if the matter had been finalised and he had been found wanting.
He also complains that the journalist did not give him a right of reply.
The text
The article, written by Marianne Thamm, was about Supreme Court of Appeal Justice Ponnan’s ruling with regard to Judge Hlophe’s “bias” in a case where he failed to recuse himself and ruled in favour of his own lawyer’s client (Mulaudzi).
The dispute is about an investment of R33.5-million which Mulaudzi made with Old Mutual, but later ceded to Nedbank. Old Mutual allegedly paid out the money to him by mistake, and he then refused to pay back the money.
Daily Maverick responds
Thamm says the story as well as paragraphs quoted in it were taken from the utterances of Judge Ponnan as per his ruling (http://www.justice.gov.za/sca/judgments/sca_2017/sca2017-088.pdf)
She cites several paragraphs of the judgment which were also reflected in the article, arguing that the court found Mulaudzi had committed a criminal offence. “That he is appealing this, or that this matter will be heard in the courts at some later stage, as he has argued, has no bearing on the essence of this story,” she argues.
Her last quotation is important. It reads, “Likewise, Hlophe JP’s finding that Mr Mulaudzi had ‘committed no criminal offence in gaining access to these funds’ and that ‘there had also been no unlawful contrectatio’, is equally untenable. In Nissan SA (Pty) Ltd v Marnitz NO & others 48 at 24A-D, Streicher JA stated: ‘Where A hands over money to B mistakenly believing that the money is due to B, B, if he is aware of the mistake, is not entitled to appropriate the money. Ownership of the money does not pass from A to B. Should B in these circumstances appropriate the money such appropriation would constitute theft’. (R v Oelsen 1950 (2) PH H198; and S v Graham 1975 (3) SA 569 (A) at 573E-H).”
Mulaudzi replies
Mulaudzi denies that Judge Ponnan said he was guilty of a criminal offence – he says he has not been found guilty of any criminal offence. The case which has been remitted back to the Western Cape High Court is no criminal trial either. “There is therefore no justification whatsoever for the Daily Maverick to label me a crook or criminal as they did,” he argues.
He also says the story incorrectly stated that he had filed for bankruptcy (“… implying that I did so after hiding assets and the money”).
(Thamm admits the DM erred in stating that Mulaudzi had filed for bankruptcy – instead, she says he had been sequestrated as stated in the summary of the judgement. I do not believe that this issue is material enough to be corrected.)
Analysis
Whether the case was a criminal or a civil one, the fact remains Judge Ponnan stated, “… Hlophe JP’s finding that Mr Mulaudzi had ‘committed no criminal offence in gaining access to these funds’ and that ‘there had also been no unlawful contrectatio’, is equally untenable.”
This sentence alone, if not the whole of Judge Ponnan’s finding, justified the use of the word “crooked”. Please note that it was not the Daily Maverick that made the statement quoted above, which included the words “criminal offence” and “unlawful”.
The complaint about the omitted details of Mulaudzi’s case also cannot hold water – the story was mainly about Hlophe; I also accept that DM will publish those details, and other relevant information, once the case is heard again.
Lastly, it is not accepted journalistic practice to ask a party in a court case for comment. I also take into account that the reportage on Mulaudzi did not contain anything new about him which could have necessitated a right of reply.
Finding
The complaint is dismissed.
Appeal
The 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 Ombud