Ruling by the Press Ombud
4 July 2017
This ruling is based on the written submissions of Mr Tuwani Mulaudzi and those of Susan Smuts, legal editor of the Sunday Times newspaper.
Mulaudzi is complaining about a story in Sunday Times of 11 June 2017, headlined Hlophe showed bias for lawyer, appeal judge finds.
Complaint
Mulaudzi complains that the:
· story incorrectly referred to him as a policy fraud – while he had never been found guilty of any offence and also invested cash (and did not take out any insurance policy);
· 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 at the SCA again or even the Constitutional Court) – while the newspaper 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 Philani Nombembe, said that the SCA has slated Western Cape Judge President John Hlophe for 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.
Sunday Times responds
Smuts replies that the story:
· was based on a judgment of the SCA, and therefore the newspaper was not obliged to ask Mulaudzi for comment (even though it tried to get hold of him, and in fact did contact his former lawyer, Barnabas Xulu, who said he was no longer representing Mulaudzi);
· referred to Mulaudzi only to the extent that it was necessary to explain how the appeal concerning Hlophe arose;
· did not call Mulaudzi a fraud – it merely stated that he was accused of fraud;
· made it clear that the case was not concluded, as it was reported that the case had been referred back to the Western Cape High Court; and
· deliberately did not include the details of his dispute with Old Mutual (as the article was about Hlophe, and the matter had not been finalised).
Mulaudzi replies
Mulaudzi asks where in the SCA judgment did it say Hlophe’s judgment had been “nullified”. He says if the matter had been nullified, a confiscation order would have been issued and the matter finalised; instead, it was referred back for argument.
He reiterates that Sunday Times was obliged to contact him, even if the story was reporting on a court case – or, at least, it should have indicated that it was not able to contact him. “To suggest they had no obligation to do so, is rejected with the utmost contempt it deserves. I feature prominently in that story and the complaint cannot just simply be dismissed on their perceived view that the subject matter was Hlophe JP.”
Analysis
It is not true that the story “prominently” featured Mulaudzi. For the sake of completeness, I quote all the references to him:
· “The Asset Forfeiture Unit … obtained a provisional order attaching Pretoria businessman Matthews Mulaudzi’s assets…”
· “Mulaudzi is accused of defrauding Old Mutual of R48-million. He enlisted the services of Hlophe’s lawyer, Barnabas Xulu, to save his multimillion-rand home and other assets worth about R30-million”; and
· “…Judge Visvanathan Ponnan nullified Hlophe’s ruling and sent the matter back to the High Court in Cape Town to be heard by a different judge.”
This totals three paragraphs out of a total of 17 in a story which was almost exclusively about Judge Hlophe.
It is also not true that the story called Mulaudzi a fraudster or a criminal – it merely mentioned that he had been accused of fraud, and also that the case had still to be heard (which seems to be not in dispute).
The word “policy” (fraud) did not appear in the story. I note, however, that Judge Ponnan did (quite extensively) refer to a bond policy.
The complaint about the omitted details of Mulaudzi’s case also cannot hold water – the story was mainly about Judge Hlophe; I also accept that the newspaper will publish those details, and other relevant information, once the case is heard again.
Regarding the use of the word “nullify”, I note Judge Ponnan made the following statement: “It is settled law that not only actual bias but also the appearance of bias disqualifies a judicial officer from presiding (or continuing to preside) over judicial proceedings. The disqualification is so complete that continuing to preside after recusal should have occurred renders the further proceedings a nullity.” (Emphasis added.)
It therefore seems as if Sunday Times was justified to use this word. However, not much turns on this, as the reason for Mulaudzi’s complaint about the use of that word was indeed nullified by Sunday Times reporting that the case was still to be heard.
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