Tony Kamionsky vs. Personal Finance


Mon, Aug 22, 2011

Ruling by the Deputy Press Ombudsman

August 17, 2011

This ruling is based on the written submissions of Mr Tony Kamionsky and the Personal Finance newspaper.

Complaint

Mr Tony Kamionsky complains about a column in Personal Finance, published on July 10, 2011and headlined Savings pirates evade justice.

Kamionsky, the former owner of the retirement fund company Dynam-ique Consultants & Actuaries (DC&A), complains that the column erroneously states it as a fact that this company has left a mess when it stopped functioning as the administrator of four umbrella retirement funds.

Analysis

The intro to the column, written by editor Bruce Cameron, explains what the article is all about. It reads: “In September 2008, then Finance Minister Trevor Manuel met with his justice counterpart, Brigitte Mabandla, to find out why there were not more prosecutions of people and companies who had ripped off consumers and in particular retirement fund members.” At that time, Manuel has reportedly presented Mabandla with 3 000 such cases.

Cameron says that little has happened since then. He then cites some examples of “cavalier, but not necessarily criminal” activity by some companies.

The part that mentions DC&A reads: “The losses faced by 11 000 retirement fund members employed by 200 companies because of the mess left by Dynam-ique Consultants & Actuaries which, until 2008, was the administrator of four umbrella retirement funds. In 2008, the South African arm of global financial services company Aon took over the administration of the funds after it bought the Dynam-ique administration system but not the (whole) company. Dinam-ique’s previous owner was actuary Tony Kamionsky.”

The column later also refers to Mr Arthur Brown from Fidentia as an example of a company that frustrates regulators.

He ends off the column by suggesting various solutions for the government to consider.

I shall now look at the merits of the complaint:

Left a mess

The column states it as a fact that DC&A has left a mess when it stopped functioning as the administrator of four retirement funds.

Kamionsky complains that no court has as yet established that DC&A was in fact responsible for the losses. He argues that Cameron was wrong to state this as a fact and that he should have clearly indicated that the statement was an unsubstantiated allegation – and says that this is in breach of Art. 1.3 of the Press Code.

This statement of fact, he says, makes him out to be a savings pirate who evades justice of the likes of Fidentia’s Brown. He claims that the column is defamatory of him and asks for an apology and for no further “unfactual derogatory comments” by the newspaper against DC&A and himself.

Cameron replies that his opinion (that the administration of the funds was a mess under the jurisdiction of DC&A) was based on information that he had received from a number of independent sources.

He says that these sources are:
• The fund chairman, Mr John Rollason;
• Mr Jurgen Boyd, the deputy Registrar of Pension Funds and deputy executive of the Financial Services Board (FSB) in charge of retirement funds;
• Aon chief executive Anton Roux;
• Mr Richard Bennett, the former MD of Genesis;
• Legal documents backing a civil claim against Kamionsky brought by the trustees of the funds;
• A letter of complaint to the Pension Funds Adjudicator by 31 funds against the Boards of Trustees in which extensive reference is made to Kamionsky and DC&A;
• A legal opinion by Adv JJ Meiring on liability for the cost of the rebuild of the four retirement funds; and
• Various sources who initially brought the matter to his attention or added further detail after he had first written on this issue.

In addition, Cameron says that Kamionsky has from 2005 to 2008 failed to produce minutes of trustee meetings to any concerned party. He also argues that, if the administration was not in a mess, there would have been no need for a rebuild (matching assets to liabilities) for the period which the funds were under Kamionsky’s control. This process, Cameron says, is still underway even though it was originally scheduled for completion by the end of June – an indication of the “seriousness of the problem”.

Cameron explains that it will only be when the rebuild is completed that it will be possible to establish whether there are any mismatches in assets and liabilities. He says: “However the rebuild will cost 2.5 percent of the assets of funds – in other words the retirement savings of members (that will be used to pay for this expenditure).”

Regarding the reference to Brown, Cameron says that Kamionsky deliberately mis-interprets his column by claiming that he has compared him to the Fidentia boss. He argues that the reference to DC&A is “quite separate” from the Fidentia one and that the column does not contain any allegations of criminal activity on DC&A’s part.

Kamionsky refers to Art. 1.3 of the Press Code. This article reads: “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with due regard to context and importance. Where a report is not based on facts or is founded upon opinions, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”

However, this article is concerned with the reporting of news, where rules other than those applicable to columns apply. For that, we rather need to look at Art. 4 of the Code. This article reads:
• “The press shall be entitled to comment upon or criticize actions or events of public importance, provided such comments or criticisms are fairly and honestly made;
• “Comment by the press shall be presented in such a manner that it appears clearly that it is comment, and shall be made on facts truly stated or fairly indicated and referred to; and
• “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.”

It is against these provisions that I need to evaluate the complaint.

As the column was clearly marked as such, the matter boils down to the questions if Cameron’s comment were made:
• fairly and honestly;
• on facts truly stated or fairly indicated; and
• based on a fair account of all available facts which are material to the issue.

Only if some of these provisions were breached the question of malice comes into play.

Firstly, this must be clear up-front: My task is not to determine if DC&A is/was indeed in a mess as this office is not a court of law. My mandate does not extend to investigations into the possible guilt of anybody, like the courts do. Instead, my concern is a journalistic one – I am only interested in one question, namely if the published text is in breach of the Code or not. In other words, I need to establish if the sentence in dispute was responsible journalism or not.

Let me spell out the implications of this:
• My question is not if it is true that DC&A left matters in a mess, but rather if it was reasonable and fair for Cameron to publish his opinion on this matter – because if it was, the column would have met the criteria as stated above; and
• Kamionsky’s complaint that no court has as yet established that DC&A was in fact responsible for the losses is irrelevant.

Cameron provided me with some documents on which he says he based his opinion. I am going to refer only to two of these, as that would suffice.

The first one is correspondence between Cameron and one of his sources, CEO of Aon South Africa Anton Roux. (Kamionsky was privy to this correspondence.)

I would say that, being in this position, Roux was a credible source.

On March 10, 2011 Roux responds to questions by Cameron. He states that DC&A’s financial statements were “qualified”, which means that it did not get a clean audit. He adds that the trustees of the funds then appointed a company to reconstruct these funds from their inception to the end of January 2008. He also says: “The cost estimate to rebuild the funds were approximately R18m, which represents approximately 2,3% of the value of the assets of these funds.” He adds that the Boards of Trustees were taking legal action to recover the cost of the rebuild.

On the same day, in a follow-up email, Roux says that the fund was taking action against DC&A, Kamionsky and Aon. He adds that, if the action against the latter should be successful, “we will commence our own legal proceedings against Kamionsky”.

Another source is Richard Bennet. He told Cameron (on March 12) that as MD and principal officer of the Genesis Umbrellas, he had fired Kamionsky’s company in September 2007 “on the grounds of gross maladministration”. He added that standards were going down “appallingly quickly” and concludes: “In my opinion, Kamionski (sic) is fully responsible and legally liable for the disgraceful mess he created, did not fix and then walked away from…”

I also take into account:
• that Cameron did not say that DC&A had acted illegally – he merely stated that that company was in a mess; and
• his argument that there would have been no need for a rebuild in the first place if the administration under Kamionsky was not in a mess.

Regarding Brown: The column does not put him and Kamionsky in the same boat. When Cameron mentions Brown, he starts off by saying: “What makes things worse…” Clearly, the editor places Brown in a different category than Kamionsky.

Let me reiterate: I cannot say that DC&A acted unlawfully or even that this company indeed was in a mess – is not my job to make such decisions.

However, when weighing up all of the above, the only reasonable conclusion that I can come to is that Cameron made this comment:
• fairly and honestly (based on the correspondence between himself and his sources);
• based on facts fairly indicated (the column mentions some relevant statistics); and
• after taking a fair account of all available facts which are material to the issue (the fact that no court has yet made a decision is not relevant, as the administration may have been in a mess regardless of the outcome of the court case).

This means that Cameron has met all the relevant requirements of the Press Code. I therefore cannot blame him for calling it a mess.

The issue of malice does not come into play.

Finding

The complaint is dismissed.

Sanction

There is no sanction. The newspaper is free to publish (a summary of) this finding if it wishes to do so.

Appeal

Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, anyone of the parties may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at Khanyi@ombudsman.org.za.


Johan Retief
Deputy Press Ombudsman