Appeal Decision: Mulaudzi Tuwani vs The Daily Maverick

SUMMARY

The headline to the story in dispute read, The headlines to the almost identical stories in dispute read, Turkse ‘mafia’ glo in SA bedrywig (Turkish mafia ‘active’ in SA), and the second, Turkish fugitives buy arms company (published on 5 February 2017).

This ruling by the Appeals Panel was based on the Press Code that was in effect before 30 September 2022.

The articles said that Turkish citizens sought by their government for alleged terrorism back home, had managed to buy an arms manufacturer without the South African government knowing about it. Turkey’s former ambassador to South Africa and the Turkish deputy minister of foreign affairs reportedly told the Turkish newspaper, Daily Sabah, that a number of Turks based in South Africa, including Vuslat Bayoglu, were fugitives in that country and were wanted for their involvement in the alleged terror group.   

Bayoglu objected to the use of the words “fugitives”, “mafia” and “terror group” / “terrorism” in the headlines and the articles.

The Ombud noted that the journalist did not state as fact that Bayoglu was a fugitive – she merely conveyed what a Turkish newspaper reported and stated it as such. He concluded that the journalist had done nothing wrong – the only mistake she made was one of omission: she neglected to ask Bayoglu about the fugitive issue. The newspapers were directed to apologise to Bayoglu for omitting to ask him to comment on the allegation that he was a fugitive. The newspapers then successfully applied for leave to appeal.

Based on the evidence presented, including the journalist’s handwritten notes, the Panel ruled that the journalist did not ask Bayoglu specifically to comment on the allegation that he was a “fugitive” (from Turkish justice).  This oversight was compounded by the newspapers decision to repeatedly refer to him in the articles as a fugitive rather than as an alleged fugitive, or to put the word “fugitive” in quotation marks.

The Ombud’s ruling was confirmed in its entirety.

THE RULING ITSELF

In the matter of

MULAUDZI TUWANI                                                               APPLICANT

AND

[1]     Mr Tuwani Mulaudzi (“applicant”) lodged a complaint against The Daily Maverick (“respondent”) in respect of an article which appeared in the respondent’s edition of 13 June 2017, the headline of which read “Analysis: Time for Judge Hlope to face the music.”

[2]     The complaint was adjudicated upon by the Press Ombud, who handed down his Ruling dated 4 July 2017, dismissing the entire complaint.  In his Ruling, the Ombud summarized the complaint as follows:

“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”.

[3]     The Ombud also summarized the gist and context of the story:

“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”.

[4]     In its defence, the respondent says the story and the quoted paragraphs were from the judgment of the Supreme Court of Appeal; which implicated the appellant criminally.   The Court illustrated that the manner in which the applicant had gotten the money mistakenly paid to him, amounted to theft.  To applicant’s complaint that it was incorrectly stated that he had filed for bankruptcy, respondent conceded that this was a mistake; it should have stated that he was sequestrated.

[5]     Apart from any other reason given by the Ombud, I believe that the applicant has no reasonable prospects of success before the Appeals Panel for, inter alia, the following reasons:

5.1    The article is substantially about Judge Hlophe, as the heading also suggests, though it also says a lot about the applicant.

5.2    The remarks attributed to Judge Ponnan of the SCA really implicate the applicant criminally.

5.3    The circumstances under which the R43m was paid to the applicant seem to be common cause.

5.4    Very importantly, the story was based on court documents and the judgment; this also goes to militate against the complaint that applicant was not contacted for comment.

[6]     In his application for leave to appeal, the applicant makes heavy weather of the fact that it was wrongly reported that he filed for bankruptcy, instead of being sequestrated.  Not much turns on the difference; the consequent financial status is materially the same.

[7]     For the reasons given above, the application is dismissed.

Dated this 22^nd day of August 2017

Judge B M Ngoepe, Chair, Appeals Panel