Aristides Danikas vs Daily Maverick

SUMMARY

The headline to the story in dispute read, Confidential NPA report exposes senior officials who lied about Johan Booysen, yet they are still employed – Top prosecutors at the National Prosecuting Authority lied and concocted false evidence in a desperate attempt to nail former top Hawk Johan Booysen and the so-called Cato Manor ‘death squad’ (published on 5 August 2020).

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

 

The story was about alleged irregularities at the National Prosecuting Authority (NPA).

The heart of Aristidis Danika’s complaint revolved around the following sentences: “The evidence of Danikas was crucial in the state’s case. He is a Greek businessman and was a police reservist in Durban who worked with the Cato Manor unit. (Former top Hawk Gen Johan) Booysen suspended him in 2008 for bringing police management into disrepute. He left the country overnight after allegedly stealing R300 000 from his business partner”.

Dankikas complained that the article repeated an allegation by Booysen, without taking any steps to verify it, that he “had stolen” R300 000. This was not truthful, accurate and fair, and was harmful to his reputation, he said.

He added it was also untrue that:

• he had “turned on Booysen and his men” after the Sunday Timeshad published an article about the “Cato Manor Death Squad”;
• NPA officials returned from Greece “empty-handed” after they had visited him in 2016;
• he had “refused to sign” an English version of his statement;
• a senior NPA official had “imposed” his signature on the English version of his statement; and
• he was on the witness list in the case the state brought against Booysen.

He also complained that the headline of the article was untrue and that he had not been given a right of reply.

The Panel found that the Daily Maverick had transgressed the Press Code in that it:

• did not seek Danika’s views, or it did not record that he could not be reached; and
• damaged his reputation by publishing the allegation about theft.

The publication had to apologise to Danikas for this. It should also allow him a right of reply to relevant issues.

The rest of the complaint was dismissed.

 

THE RULING ITSELF

Finding Complaint 8268

Date of Article: 05/08/20

STRAP: DECADE OF DECEIPT LAID BARE

Headline: ‘Confidential NPA report exposes senior officials who lied about Johan Booysen, yet they are still employed.”

Blurb/Sub-head: ‘Top prosecutors at the National Prosecuting Authority lied and concocted false evidence in a desperate attempt to nail former top Hawk Johan Booysen and the so-called Cato Manor “death squad”.’

Author: Jacques Pauw

Online: Yes

Particulars

This finding is based on written submissions from Mr Danikas, a written response from Jacques Pauw of the Daily Maverick, a sworn affidavit from General Johan Booysen, several other documents from Mr Danikas and a hearing convened on 21/1/21.

Complaint

Mr Aristidis Danikas, a dual citizen of South Africa and Greece, who is currently living in Greece, complains of an article published in the Daily Maverick under the headline, “Confidential NPA report exposes senior officials who lied about Johan Booysen, yet they are still employed.” He says the article repeats an allegation by General Booysen that he “stole” R300 000 from a business partner without taking any steps to verify it. This was harmful to his reputation, as well as transgressing clause 1.1 of the Press Code which says reporting must be truthful, accurate and fair.

He was also not offered an opportunity to respond to the article before it was published.

The article also repeated an allegation (originally made in Noseweek) that he was suspended from the police by Gen Booysen for bringing the police into disrepute.

The report that he had “turned on Booysen and his men” after the Sunday Times published an article about the “Cato Manor Death Squad” is also untrue

It is also not true that NPA officials returned from Greece “empty-handed” after they had visited him in 2016, nor that he had “refused to sign” an English version of his statement. It was also untrue that a senior NPA official had “imposed” his signature on the English version of his statement, nor that he was not on the witness list in the case the state brought against Johan Booysen.

The headline of the article – and the sub-head – insofar as it referred to his evidence, was also untrue.

Specifically, then, he complains that the following clauses of the Press Code have been transgressed:

The media shall:

1. take care to report news truthfully, accurately and fairly;

1.2 present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization;

1.3 present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such;

1.8 seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;

3.3 exercise care and consideration in matters involving dignity and reputation, which may be overridden only if it is in the public interest.

10.1 Headlines, captions to pictures and posters shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.

1. Text

1.1 The story ran under the strap, ‘Decade of deceit laid bare,’ with a headline, ‘Confidential NPA report exposes senior officials who lied about Johan Booysen, yet they are still employed.’

The blurb  or sub-head reads: “Top prosecutors at the National Prosecuting Authority lied and concocted false evidence in a desperate attempt to nail former top Hawk Johan Booysen and the so-called Cato Manor ‘death squad’.

1.2 It reports that a deputy director at the NPA “superimposed” a signature of a potential witness onto an “unsigned affidavit” to implicate Gen Booysen in “murder, and a host of other crimes”.

The deputy director is identified as advocate Sello Maema “a leading member of a cabal of prosecutors” at the NPA used during the State Capture project to “maliciously prosecute diligent law enforcement officials who exposed corruption and nepotism between 2008 and 2011.”

1.3 The article sources “the extent of lies and deceit” that resulted in the prosecution of Booysen and 26 former members of the Cato Manor and Port Shepstone organised crime units” to a “top-level prosecutorial panel” appointed by the national director of public prosecutions (NDPP), Shamila Batohi.

The confidential report, produced last year, provided “startling evidence” of the way the former NDPP, Shaun Abrahams, acting NDPP Nomcobo Jiba, former director of public prosecutions in KZN Moipone Noko and Adv Maema “lied and conspired to charge Booysen and his men”.

Collectively, they faced 116 charges of murder, racketeering and robbery. This followed the alleged extra-judicial killings of 28 suspects in KZN between 2008 and 2011.

1.4 Batohi appointed four “top prosecutors” to advise her about the evidence against Booysen and his team. They produced a 96-page report in June 2019. As a result,  Batohi withdrew the charges. The report has since then been kept under “close wraps.”

1.5 But in spite of “damning evidence” against Noko and Maema, no “public steps” have been taken against them.

1.6 The article quotes NPA spokesperson Sipho Ngwema saying that the De Kock Panel (as it was called) was not instructed to make a finding about the integrity of the prosecutors. He also said the report was shared with the Zondo Commission “as the matter is serving before Judge Raymond Zondo.”

Ngwema said both Noko and Maema had been transferred to the North West province. The article notes that both were emailed at their official NPA addresses but neither responded to requests for comment.

1.7 The article notes: “While the De Kock panel might not have made specific findings about the integrity of the implicated prosecutors the evidence against them is compelling.” Furthermore the NPA was “compelled to act against evidence of fraud, misrepresentation and perjury.”

1.8 It notes that Booysen had laid fraud charges against both Maema and Noko in 2015 for “misrepresenting evidence” but the cases had apparently not been investigated.

1.9 It reports that six prosecutors were appointed by Jiba to work on the Cato Manor case with Maema the lead prosecutor.

“Booysen and the Cato Manor cops appeared more than 20 times in court over a period of seven years. The case had a devastating impact on their lives. They were suspended for years, three have died since their prosecution and they spent millions of rands in legal costs.”

1.10 Booysen confirmed he and the others were instituting civil claims against the NPA.

1.11 It says the report has exposed the “extreme malice by top NPA officials” in the prosecution of Booysen and his team.

Citing Booysen’s testimony to the State Capture Commission in April 2019, it says he and his team were first arrested and charged by Jiba in 2012 and again by Abrahams in 2016. According to the testimony, “he and his officers were targeted because he refused to cease investigations into politically connected fraudsters and scammers”, among them Durban businessman Thoshan Panday, “accused of scoring R69-million in irregular and lucrative SAPS tender during the 2010 Soccer World Cup.” Former provincial police commissioner Lt Gen Mmamonye Ngobeni instructed Booysen to drop the case and that of attempted bribery against a fellow cop.

1.12 Booysen and his team were arrested after they refused to comply with a request by Edward Zuma, the former president’s son, to “unfreeze” a R15 million payment from SAPS to Panday’s company.

The then acting DPP in KZN, Adv Simphiwe Mlotshwa, refused to charge the Booysen team for lack of evidence but “Jiba replaced him with Noko” who not only charged them but withdrew the charges against Panday and the police officer who had allegedly tried to bribe him, Col Navin Madhoe.

1.13 Complainant in this matter, Mr Aris Danikas is mentioned several paragraphs into the article with regard to a presentation that Maema and Noko had made to Shaun Abrahams, which was described as “riddled with mistakes and falsehoods. They, for example, failed to inform him that some of the evidence they relied on comprised hearsay evidence twice removed and lied about the availability of Aris Danikas as a witness.

“The evidence of Danikas was crucial in the state’s case. He is a Greek businessman and was a police reservist in Durban who worked with the Cato Manor unit. Booysen suspended him in 2008 for bringing police management into disrepute. He left the country overnight after allegedly stealing R300 000 from his business partner.”

1.14 The article references the Sunday Times story of  December 2011 about the “Cato Manor death squads” (later withdrawn) and the arrests of Booysen and his team; it says after this “Danikas turned on Booysen and his men.

“He claimed that he had accompanied the unit when they executed and tortured suspects and planted evidence on crime scenes. He became the prosecution’s star witness. Danikas made an affidavit but never signed it. It thus had no value.”

1.15 Booysen applied to have his prosecution set aside and this was granted by Judge Trevor Gorven (the article misspells the name of the judge as “Govern”) in 2014, who ruled that “not only was Danikas’s statement neither signed nor dated, but said that even if it was an affidavit, it had no value in Booysen’s prosecution because the content did not cover the indictment period.”

Only one incident in the affidavit covered the indictment period, and Booysen was not mentioned in this.

1.16 The charges against Booysen were withdrawn and Jiba was charged with perjury and fraud. Mxolisi Nxasana, who became NDPP in October 2013, had also told the Zondo Commission there was not a “shred of evidence against Booysen.”

1.17 After May 25, when Abrahams became head of the NPA, charges against Booysen were reinstated, and charges against Jiba withdrawn, and she was reinstated.

1.18 The article references Danikas again, saying in a “fraught effort” to re-prosecute Booysen, Abrahams sent Maema and another advocate to Greece in January 2016 to consult with Danikas. “They returned empty-handed but, again, with an unsigned ‘statement’”

Abrahams “inexplicably” ordered the re-prosecution of Booysen saying the Danikas statement “would assist in establishing the nature, scope and modus operandi of the alleged enterprise.” This, he said, was new evidence not served before Jiba.

1.19 However the De Kock Panel found that the statement Abrahams relied on was “totally misplaced and that no new evidence” was placed before him.

Danikas had only signed a Greek version of his affidavit. He had refused to sign the English version “because it contained mistakes.”

1.20 The article quotes the De Kock report saying “Danikas does not implicate Booysen and the other accused…and will not assist the prosecution to prove the racketeering charges.” It also described the state’s reliance on his evidence as “puzzling”, and could not understand why it did not translate the Greek version into English.

1.21 Maema admitted to the panel that Danikas’ signature was “just imposed on the English version.”

The article describes this as a “shocking admission”, particularly as Maema admitted that the statement “contained mistakes.”

1.22 It reports that Booysen had privately had the Greek version of the affidavit translated and found it contained “the same information upon which Jiba relied when she authorised prosecution four years earlier – and which the High Court overturned.”

1.23 It quotes Danikas’ lawyer Julian Knight as saying he had received an email from Maema in early 2015, saying the state did not intend to call Danikas as a witness. Maema in fact had acknowledged in a memo dated 27 January 2015 that the incidents Danikas referred to were between 2007 and 2011 and were not covered by the indictment. It quotes the Maema memo as saying: “We are not sure that the witness is telling us everything…[and] have not been able to convince our prosecution authorities that Mr Danikas’s evidence will assist the state case…”

1.24 The De Kock Panel concluded there were “serious concerns regarding the quality of the investigation” – there had been little effort to find witnesses, no identification parades were held and the accuseds’ firearms were never tested to link them to bullets that had killed the deceased.

1.25 The article mentions a “cabal” of state prosecutors who “allegedly targeted perceived enemies of Jacob Zuma’s State Capture project”. It also mentions that Maema and Noko appear “to have escaped any sanction.”

It goes into some detail about the fates of Maema, Noko and Jiba and ends with a quote by spokesperson Ngwema who says: “I want to emphasize that we all want to restore integrity and see justice being done.”

2. The arguments

Mr Aris Danikas

2.1 Mr Danikas says he is a dual citizen of South Africa and Greece and has been living in Greece for the past 11 years. He is currently a project consultant for two international NGOS, Transparency International and Blueprint for Free Speech. He deals with “the implementation of whistleblowing secure protection mechanisms, as well as corruption reporting mechanisms”.

He says that in 2015 he was presented with a “special recognition award” for his contribution as a whistle-blower.

2.2 He complains about the following sections of the article:

“The evidence of Danikas was crucial in the state’s case. He is a Greek businessman and was a police reservist in Durban who worked with the Cato Manor unit. Booysen suspended him in 2008 for bringing police management into disrepute. He left the country overnight after allegedly stealing R300,000 from his business partner”. (his emphasis)

2.3 He says the journalist, Mr Pauw, “simply repeated an allegation made by Johan Booysen that he stole R300 000 from my business partner and took no steps to verify it.” He cites an article by Gen Booysen in News24, where he originally makes this allegation. [1]

The Daily Maverick did not give him a chance to respond to the allegation – had he been he would have been able to show it was a “complete fabrication.” This violated both clauses 1.1  and 1.8 of the Press Code.

2.4 In terms of the allegation that he was suspended as a reservist for bringing the police into disrepute, he argues that this was a repeat of an allegation made in Noseweek on 14/4/2014. Mr Pauw took no steps to verify it and it is false.

He references an article published in the Daily News on 29 August (he does not give a year -I assume this is 2008), headlined “Reservist may resign over promotion row”, referring to his possible resignation after complaining about his lack of promotion as a police reservist.

On 30 August, Director Eddie Kennedy, the head of police reservists in KwaZulu-Natal, sent Reservist/Captain Mitchel to his house to inform him that he would be “verbally suspended” because he complained in the media about his lack of promotion due to racial discrimination.

The same day, he faxed a resignation letter to Director Kennedy.

Kennedy responded saying his resignation would not be accepted because of the “good work I have done over many years” but asked him why he had bypassed the normal grievance procedures and gone to the media.

2.5 Johan Booysen helped him prepare his response. He says he can make available “handwritten notes on his draft response to Director Kennedy, dated 5 September 2008, faxed to him from Booysen’s office on September 8^th 2008. He sent this letter to Director Kennedy on 11 September 2008.

2.6 On 25 September “I fled to Greece with my wife, fearing for my life.”

2.7 In 2009, his “close friend”, Commissioner Pat Brown, the head of detectives in KwaZulu-Natal, told him promotion had been approved and a ten-year service medal was sent to his office. “By then I was already living in Greece.”

2.8 He also lists various accolades he received for his work as a police reservist, including two letters from Gen Booysen, one in 2003, the other in 2006, which he says he can make available. He says far from Booysen suspending him for bringing the police into disrepute, Booysen in fact tried to prevent him from being suspended.

2.9 He also complains about the following paragraph: “Following an exposé about the Cato Manor “death squad” in the Sunday Times in December 2011 (the story was later withdrawn), and the arrest of Booysen and his men, Danikas turned on Booysen and his men”. (his emphasis)

2.10 He says this is “completely untrue”. He says he warned about the actions of the Cato Manor unit at least four times:

• The first was in 2005 when he he showed a video to Johan Booysen of its members torturing a suspect. But Booysen “took no action”.
• The second was in 2007 when he told Commissioner Brown about his concerns about the Cato Manor unit. He made both these statements under oath.
• The third time was also in 2007, “when I informed a friend of mine and a neighbour, working at the SARS as a senior investigator, who later became a senior diplomat in the department of international relations.” He says he can reveal his name on a “strictly confidential basis” after he seeks his permission.
• The fourth time was in 2009, when he sent emails to various reporters in South Africa and to CNN News tips from Greece. He says he is willing to supply the Ombudsman with the emails.

2.11 He also uploaded images and footage of torture on YouTube in 2009 and gives a link to this.[2]

2.12 “If Pauw had contacted me for comment before going to print, I would have been able to provide him with this information and evidence that I had been trying to expose the Cato Manor unit for many years before the Sunday Times published its story in 2011.”

2.13 He complains too about the following paragraph: “In a fraught effort to re-prosecute Booysen, Abrahams sent Maema and another advocate to Greece in January 2016 to consult with Danikas. They returned empty-handed but, again, with an unsigned “statement”. (his emphasis)

2.14 He says it is not true that Maema returned “empty-handed”. At the South African embassy in Greece, he had given the NPA team a “two-day presentation” of how the Cato Manor unit functioned and handed the evidence to them on a USB stick. Maema had told him he “appreciated the value of my evidence.”

He says the purpose of this visit was for a senior officer of the South African witness protection program, to meet him and “build a trusted relation” with him. “The conditions and terms of the witness protection act were explained to my Attorneys. This allowed the formal Mutual Legal Assistance process between Greece and South Africa to get underway. As a result of that January 2016 meeting, the MLA was prepared and signed on 24 October 2016.”

If Pauw had contacted him for comment, he would have explained this.

2.15 He complains about this paragraph: “Danikas had only signed a Greek version of his affidavit under the mutual legal assistance agreement between Greece and South Africa some eight months after Abrahams re-prosecuted Booysen. He later refused to sign the English version because it contained mistakes.” (his emphasis)

2.16 He says he does not recall being asked to or refusing to sign the English version. His signed and sworn statement in Greek was translated by an official translator, Marilena Piperidis from the Supreme Court of South Africa. “There would be no legal basis for me to sign a translation done by a third party.”

Adv. Maema had emailed his attorney on 23 November 2018, asking him to review the English translation. Mr Danikas  pointed out “one or two minor inaccuracies in the English version. As far as I am aware, they were corrected.”

Pauw had written that Maema had imposed his signature on the English version “to create the impression that there was evidence that implicated former top Hawk Johan Booysen and his men in murder and a host of crimes”.

This is misleading.

He did not know about Maema “imposing” his signature on the English version. “All I know is that my Greek signed and sworn statement, commissioned, and authorised by an MLA Greek Judge as per MLA treaty requirements, has evidence implicating Booysen and his men in various crimes. That the English translation presented to me vie email by the NPA, might have contained one or two minor translation errors, which I addressed, and I believe they were corrected, does not change the fact.”

Had Pauw contacted him prior to publishing his story, “as the Press Code requires”, he would have clarified this point.

2.17 In this paragraph: “The De Kock Panel says the state’s reliance on Danikas’ evidence is “puzzling” and it failed to understand why the state never translated the Greek version into English” (his emphasis), he says the De Kock report says his statement was translated into English, and cites two paragraphs from the report to show this was the case. Thus this statement is false. As mentioned above an official translator, appointed by the Supreme Court translated it. (He cites case 2008/8872 but I have done a search on Safli and cannot find this).

2.18 He says the following paragraph is misleading: “It has also emerged now that Danikas was never on the state’s witness list and Maema did not intend calling him. Pretoria attorney Julian Knight, acting for Danikas, said in a February 2015 affidavit that he had received an email from Maema in early 2015 stating that he would not be calling Danikas as a witness.”(his emphasis)

2.19 It gives the impression that the state did not consider him a “valuable witness”, which is not true.

2.20 He says: “The facts are as follows”:

During his visit to Greece on the 19^th January 2016, the prosecutor Advocate Maema told him he appreciated “the value of your evidence”. He says during that meeting, and in a phone conversation on the 17^th  October 2016, Adv Maema told him the reason he was never on the witness list “was done deliberately by the NPA to protect me and my identity because my life was at risk.”

He says he can provide recordings of the Embassy meeting as well as the phone conversation on a confidential basis.

“If Pauw had bothered to contact me for comment, as required by the Press Code, I could have shared this information with him.”

The statement in the article that Maema had emailed his attorney, Julian Knight in early 2015 “stating that he would not be calling Danikas as a witness” is also a “gross distortion”. The email, quoted in the De Kock report (pars 114-117), says he is being “considered” as a witness “and outlines the challenges this would entail.

2.21 As recorded in the De Kock report (par 117), Maema’s email to his attorney says they had not been “able to convince our prosecution authorities that Danikas’ evidence will assist the state case in anyway”. However, when he asked Maema about this during his 2016 visit to Greece, he had apologised “profusely” .

2.22 Mr Danikas, who says he has a recording of the conversation, records Adv Maema’s words as: “For whatever was caused because of our communication with Julian … for whatever … mistrust it caused, we apologise.  We mean well. We recognise the value that you can add to our case. I wrote the letter, and I honestly and earnestly apologise, and I want to restore the trust. I appreciate the value that you mean to us. … Please accept my apology on behalf of the prosecuting authority.”

He says he can make this recording available to the Ombud on a confidential basis.

Moreover, after the email, he had come to Greece to “convince me to testify in court.”

As Pauw had not “bothered” to contact him, he could not share this information.

2.23 He also objects to the sub-head/blurb:  “Top prosecutors at the National Prosecuting Authority lied and concocted false evidence in a desperate attempt to nail former top Hawk Johan Booysen and the so-called Cato Manor ‘death squad’.”

He says, read together, with the paragraph that Maema had “imposed” his signature on an unsigned affidavit, it creates the impression that his evidence was “false” and “concocted”. Thus it violates the Press Code.

2.24 This is “completely untrue”. His signed and sworn statement in Greek contains evidence “implicating Booysen and his men in crimes. The authorities in South Africa are still obliged to act on this evidence.”

2.25 He asks for either a retraction or correction of the story with a link to the correction displayed at the top of the article, and for the publication to retweet the story alerting readers to the retraction.

Jacques Pauw for Daily Maverick

2.26 As part of his response, Mr Pauw provided an affidavit from Gen Johan Booysen, whom, he says, “has an unblemished record in the SAPS, in which he served for 40 years. He is highly decorated and respected and currently advisor to the police minister.”

2.27 He divides his reply into three parts:

• A background to the complaint and story
• Notes on the qualifications of Mr Danikas
• A reply to his complaint

Background

2.28 Mr Pauw deals with the background to the complaint as follows:

Booysen and more than 20 members of the Cato Manor organised crime unit in KZN “were victims of claims made by Aris Danikas after he left South Africa in 2008 and returned to Greece”

2.29 In 2009 he (Danikas)  published videos and photos that claimed extrajudicial killings, torture and tampering of crime scenes committed by members of the Cato Manor organised crime unit or “death squad”. Booysen was their ultimate commander. “

Danikas was a “key witness” in the Sunday Times stories of 2012 about the “death squads”. As a result, Booysen and his men faced charges of murder and racketeering. Over a period of seven years, they have appeared more than 20 times in court, were suspended, and sent millions in legal fees. Some of them died.

2.30 He provides a timeline of the prosecution of Booysen and his men:

• In 2014 Judge Trevor Gorven withdrew the charges. Danikas had become a state witness but failed to sign an affidavit. The judge ruled that even if it had been signed it was not relevant.
• Then NDPP Mxolisi Nxasana refused to appeal Judge Gorven’s ruling, telling the Zondo Commission in 2019 there was not a “shred of evidence” against Booysen. He also referenced the “unsigned statement”.
• Booysen was found not guilty in a police disciplinary case
• When Shaun Abrahams became NDPP in 2015, he ordered that Booysen be recharged. He sent prosecutor Adv Sello Maema to Greece to “secure the evidence” of Danikas but returned without an affidavit. Nonetheless, charges against Booysen were reinstated.
• In 2016, former acting NDPP Nomcobo Jiba was struck off the roll for committing perjury with regards to the prosecution of Booysen.
• In 2019 Booysen testified before the State Capture Commission. He told the Commission he was suspended and charged to “prevent the prosecution of several businesspeople that were close to former President Jacob Zuma and/or his family.” This evidence has not been challenged by anyone, including Danikas.
• In 2018, when the new NDPP, Adv Shamila Batohi, took office she appointed a four-person panel chaired by Adv Rodney de Kock to investigate racketeering charges against Booysen. Among other things, they found the testimony of Danikas “worthless” and that the State never intended to call him as a witness. As a result of the report, the NPA withdrew all charges against Booysen and the Cato Manor officers.
• In 2018, too, the Sunday Times, which had run the “death squad” stories “with Danikas as a key witness”, withdrew and apologised for the stories.
• Since 2009, Danikas has disseminated and published videos and pictures ”of what he claims show murder and torture by the Cato Manor ‘death squad’” But none of this material has been verified and none of the Cato Manor policemen can be identified.

2.31 Mr Pauw references the same YouTube clip that Mr Danikas does.(see above). There are three clips that show a dead man, a wounded man, and then the same man. No policeman is evident in the videos, and there is no context to the incident.

2.32 Danikas, he says, is not a “whistle-blower” – “he is a conman”, as evidenced by the High Court, the De Kock panel, evidence at the State Capture Commission and Booysen’s disciplinary hearing.

He has caused “tremendous harm” to the police – Booysen was suspended “on and off” for five years. After the disbanding of his unit, organised crime “soared”; moreover Booysen’s removal was part of the [then president] Jacob Zuma’s plan to “capture’ law enforcement agencies.

2.33 He references Booysen’s affidavit, which states he does not believe Danikas drafted the complaint himself; he says he agrees with this. “His English is so bad that he failed to make an English affidavit against Booysen.” Also, his first name is misspelled in the complaint.

On Mr Danikas’ qualifications

2.34 He also queries the status and academic qualifications of Mr Danikas.

Although Mr Danikas says he is a “project consultant” for Transparency International Greece and Blueprint for Free Speech, his name is not on the BFS website.

There is a short bio of him on the Transparency website which Mr Pauw quotes.

2.35 Among the points he (Danikas) makes are that he studied electrical engineering and graduated with a degree in “electronic hardware maintenance”, and that he received “various state awards” because his “extensive knowledge of criminal investigations, evidence handling and digital evidence screening.”

He also claims on his LinkedIn page that he exposed the Cato Manor ‘death squad” and “escaped” to Greece because he feared for his life.

2.36 Mr Pauw says there is no such degree as “electronic hardware maintenance” in South Africa, which Mr Danikas says he has. There is also no Omnitec Institute College in SA where he claimed to have been awarded a diploma.[3]

2.37 He says Danikas is a “volunteer” for Transparency International Greece and not a “project consultant”

2.38 He did not receive “several official state awards” for his work as a reservist but one commendation.

2.39 He also says it is untrue that Mr Danikas “escaped” to Greece after “exposing” the “death squad”, as he only “exposed’ it after he had left SA.

In the note on its website accompanying the “Special Recognition Award” Mr Danikas received for “exposing” the Cato Manor “death squad”, the NGO Blueprint for Free Speech notes the case is under way (at the time of writing) and that the allegations must be dealt with in the South African courts.

Mr Pauw says he intends to inform the NGO that all the charges against the accused have been withdrawn and that both the High Court and the De Kock panel have found Mr Danikas’ evidence to be “worthless”. Also the Sunday Times has withdrawn and apologised for its stories.

On the complaint

2.40 On Mr Danikas’ objection to the paragraph stating he had been suspended in 2008 and then “left the country overnight” after allegedly stealing R300 000 from his business partner:  Mr Pauw refers to Gen Booysen’s affidavit.

He says it is a fact that he was suspended. Furthermore, he only made the allegations about the death squad after he had left the country. “I fail to understand why his life was in danger before he left. In fact, Booysen and Danikas remained friends even after he left the country.”

No criminal case was opened against him in connection with the alleged theft as he had left the country.

2.41 On the paragraph: “Danikas turned on Booysen and his men”: Mr Pauw refers to Booysen’s affidavit. It is “factually true” that Adv Maema and Mr Dawood Adam went to Greece in 2016 to see him but returned with “an unsigned affidavit”. Then NDPP, Shaun Abrahams authorised the reinstatement of charges without having a signed affidavit from Danikas.

On the complaint that the article reports he was never on the witness list and the state never intended calling him: Mr Pauw refers to the De Kock report. It noted that Mr Danikas’ SA attorney, Julian Knight was told by Adv Maema that there would be “challenges” in using him.

Further the De Kock report states: “It appears that the prosecution team never intended to bring Danikas to South Africa to testify since Maema in his email already provides reasons why he cannot testify.”

The De Kock report also notes that Danikas’ evidence does not implicate Booysen and his men in the racketeering charges and will not help the prosecution in that respect.

Whatever Adv Maema may have told him is “irrelevant” because it is factually established that the state did not intend to call him as a witness.

2.42 On the sub-head (or blurb under the headline) and Mr Danikas’ complaint that “read together with the paragraph that Maema “imposed” his signature on the unsigned affidavit that creates the impression that his evidence was “false” and “concocted”: Mr Pauw answers he “fails to understand” how these paragraphs violate the Press Code. He says it is a fact that Maema imposed his signature on the affidavit: he had confirmed this in an email to De Kock. “And that is fraud.”

2.43 In response to the complaint about the paragraph that he “later refused to sign the English version because it contained mistakes”, Mr Pauw quotes the De Kock report stating this was the case: “Danikas has never signed the English translation as he pointed out a number of mistakes.”

On the complaint that it was “misleading” for Pauw to write that the De Kock panel “failed to understand why the state never translated the Greek version of my statement into English”, Mr Pauw quotes from p42 of the report: “Why is the signed English translation outstanding after almost three years? Who made the decision to superimpose the signature of Danikas on the English translation that Danikas says has mistakes?”

2.44 In conclusion, Mr Pauw argues:

• “Danikas has never been able to prove or substantiate his allegations about the Cato Manor “death squad”.
• The NPA’s case against Johan Booysen has been severely discredited – and Danikas was their key witness.
• The High Court and a panel of four eminent senior advocates have found Danikas’ evidence to be of no use in the prosecution of Booysen and his men.
• The State Capture Commission has heard evidence that the state’s case against Booysen – of which Danikas was an integral part – was concocted to protect the cronies of Jacob Zuma and/or his family.
• The Sunday Times has withdrawn all their Cato Manor stories. Danikas was a key witness for the newspaper.
• Danikas lies about his academic qualifications, his decorated career in the SAPS, his role in Transparency International Greece and that he fled to Greece because he feared for his life.
• It is ludicrous that Danikas demands a “full retraction” of the Daily Maverick story. He suffers from an illusion of grandeur and was nothing but a useful idiot for the Sunday Times and the NPA. “

2.45 On Mr Danikas’ complaint that he was not given the right to reply: Pauw says he tried to get hold of Mr Danikas to comment but he did not have his number. His LinkedIn address in Aristides (Aris) D “which is very misleading”.

Further arguments

2.46 In response to Mr Pauw, Mr Danikas makes the following points:

2.47 He asks for proof that Mr Pauw tried to contact him. The spelling on his LinkedIn page is not confusing – it is the same as in the De Kock Report. He also  says that Johan Booysen, “his source”, has his number.

2.48 He asks that the contents of Booysen’s affidavit be disregarded by the Ombud. He produced this post-publication and if the Ombud considers this, it should consider his response to the Booysen affidavit and his evidence.

2.49 He contests that Booysen has an unblemished record: he was implicated in the Goldstone Commission in 1992 for an unjustified shooting; for handing over a state firearm to him in 2001; for a “malicious arrest and prosecution” in 2006 and is an advisor to a minister implicated in corruption by the Zondo Commission.

2.50 He does not want the entire article retracted: only the “falsehoods” written about him

2.51 Pauw “belittles” his English but it is not his first language. The idea that someone else “misspelled” his name on his complaint is “ridiculous:” He gives the Greek spelling of his name (which I cannot reproduce as I don’t have a Greek keyboard) and says there are different ways to spell his name in Latin (I assume the alphabet). He “states categorically” this is his own complaint.

2.52 It is a “blatant lie” that he stole R300 000 from his business partner. There is no evidence to support this. Even if he was not in SA, a criminal case could have been opened. Despite General Booysen’s affidavit stating that she had died “shortly after” he had left  the country, his business partner, Zonke, had died four years later (he checked the record of her death). She would have had four years to lay a charge and she did not.

2.53 He was not suspended for “bringing the police into disrepute” but for talking to the media.

2.54 The head of the reservists in KZN, Director E Kennedy, did not want him to resign because of his “good work”, and Booysen tried to help get him a promotion after he was suspended.

He attaches various letters in support of this.

He had never claimed, as Pauw says, that he been promoted to the rank of reservist Captain after he had left South Africa. When he had left SA, his application for a promotion was pending. He discovered that his pending promotion was approved after he’d resigned and left South Africa. He says he can provide emails to support this.

2.55 It is not true, as Pauw says, that he only made his allegations after he’d left the country. He made  a video in 2007 where Booysen was in charge of a crime scene. When Booysen had seen it later, he warned him to get rid of it. He has a witness, Atha Georgiadis, who was present when the video  was shot as well as when he screened it at his house afterwards.

Before he’d left the country he had “expressed his concerns about the actions of the Cato Manor unit” and his fear they might harm him. He has emails to this effect.

He insists that his life was in fact in danger before he left the country, contrary to Pauw’s scepticism, citing various incidents to back this up.

2.56 It is also not true that Booysen and he remained friends after he left the country. After texting him once, he changed his number and email address to prevent contact. An incident that Booysen refers to in his affidavit about a friendly exchange occurred after he (Danikas) had uploaded “images and videos of Cato Manor unit torture” on YouTube and he had not wanted to “raise suspicions” so he’d responded in a friendly manner. The next month (October 2011) he alerted the Institute of Security Studies to the alleged human rights violations carried out by the unit.

2.57 It is not “factually true” that the NPA returned “empty-handed” after they visited him in 2016. They returned with a USB stick in a “sealed evidence container”, typed notes, and an agreement about “terms and conditions” of witness protection arrangements, and his agreement to testify from a “safe location” in Europe.

Pauw uses an “outdated” letter from Maema to his attorney to claim that the State did not intend to call him as a witness. In any event, Maema signed his emails as

“Lead Prosecutor: Cato Manor Prosecuting Team.”

2.58 On Pauw’s reliance on the De Kock report to aver that the prosecution never intended to bring Danikas to testify, he argues it did not intend to bring him to South Africa to testify: the plan was that he testify from a safe location in Europe via video link as he was in fear of his life. He says Pauw misquotes the report in this regard.

2.59 His evidence was not “false” and “concocted” as Pauw argues: the English translation contained a “few errors” which he’d pointed out.

2.60 Lastly, he says he does not understand Pauw’s question about why he was not willing to make an English affidavit. “I followed the law of the Mutual Legal Assistance Process in Greece and produced a statement in my first language- Greek.”

3. Hearing

3.1 A hearing to consider Mr Danikas’ complaint was convened on 21^st January, 2021. The panel of adjudicators comprised the Press Ombud, and two members of the Panel of Adjudicators, Mr Peter Mann and Mr Joe Thloloe.

3.2 We had hoped to hold the hearing more than a month previously, but Mr Danikas twice requested we postpone it.

The parties also agreed that no legal representatives be present, although two days before the third scheduled hearing, Mr Danikas’ lawyer wrote to the Ombud asking that he represent him and that there be another postponement. However, after discussion between the Ombud and Mr Danikas’ legal representative, it was agreed the hearing should go ahead as planned. Mr John Clarke was present at the hearing as a “support person” for Mr Danikas, who was concerned about his English.

3.3 The Daily Maverick was represented by assistant editor, Gillian Green and Mr Jacques Pauw, the journalist. Mr Pauw called General Johan Booysen as a witness in the case. He had previously submitted an affidavit from General Booysen, which testified, among other things, to the allegation made in the story that Mr Danikas had fled the country after persuading one of his “employees” (Mr Danikas describes her as a business partner) to invest R300 000 in his computer business. According to General Booysen’s affidavit, she lost her investment as a result of Mr Danikas’ departure and “was killed in a motor vehicle accident shortly after.”

3.4 The hearing was punctuated by some emotional outbursts and interruptions, mainly on Mr Danikas’ part.

However, in his first address he outlined the basis of his complaints, as enunciated in his written complaint. These were:

• He was never contacted by the Daily Maverick for a right of reply
• It was a “lie” that he had “stolen” money from his business partner; furthermore she had died “some years” after he had left the country, not a few months afterward.
• It was also not true that the NPA, as reported in the Maverick article from the De Kock report, had returned “empty-handed” from Greece after two prosecutors went there in 2016. He said he provided them with evidence on a USB stick, which included photographs containing “incriminating evidence including trophy photos of dying suspects, high resolution pictures of Cato Manor crime scenes…video of suspect being tortured at Cato Manor office by officers, video (of) Johan Booysen describe in presence of me and my wife how he and Cato Manor officer were shooting African pedestrians for fun while on duty…”
• He said at the meeting, he agreed to sign a Mutual Legal Agreement with the NPA at the SA embassy in Greece.

3.5 He said he was never asked to sign an English translation of his statement by the NPA because “there was no need to”, as he had already signed the statement in Greek.

3.6 It was also not true, as the article stated, that he “turned on Booysen and his men” in 2011.” He had tried to approach General Booysen before but ‘as a result of the incidents…I felt my life was in danger.”

3.7 He said no one on the De Kock panel had approached him for his version of the story.

3.8 The prosecutor in the case, Sello Maema, who features prominently in the De Kock Report, had not asked him to return to SA as a witness as he was “fearing for my own safety”.  He had agreed with the NPA to testify at a safe location in Europe via video link. He has evidence to prove that the NPA were intending to call him as a witness.

3.9 The article was an “assassination on his character.”

3.10 He also averred it was a “lie” that Mr Pauw had tried to contact him.

3.11 Mr Pauw then asked Mr Danikas various questions. Among these were a request for him to comment on the following:

• The postulation that “over the past ten years, the allegations you made have not proved to be true. When Booysen challenged the allegations in 2014 in court, Judge Gorven ruled [them] out..”
• In June 2019, the former National Director of Public Prosecutions, Mxolisi Nxasana, testified before the Zondo Commission that there was not a “shred of evidence” against General Booysen. [4] The only evidence in the docket was “a mere unsigned statement commissioned from a witness who had left the country.” The others were “hearsay statements twice removed.”
• In 2015, the NDPP said Mr Danikas’ statement was not under oath, “it doesn’t implicate Gen Booysen and there’s no cover up.”

3.12 Mr Pauw said he wanted to put these points to Mr Danikas to respond “because nothing you said is true.” He asked for Mr Danikas’ response to the fact that “the De Kock panel, a High Court Judge and a senior advocate have all rejected your evidence.”

3.13 Mr Danikas responded that if the NPA had made a fault with the case, “it has nothing to do with me”. He spoke only “broken English” so the fact that his affidavit was rejected because the English version was not signed was not his fault.

3.14 Mr Pauw said his source for the allegation that Mr Danikas had left the country after allegedly defrauding his business partner of R300 000 was General Booysen. He had asked General Booysen if he was prepared to make an affidavit to this effect, to which he’d agreed.

3.15 He had also asked General Booysen if he had a phone number for Mr Danikas, and he had replied in the negative. He said he could not trace Mr Danikas on Google, Facebook or Twitter, although he “has a LinkedIn account with a different name.”

3.16 On his suspension from the police reservists, he referred to General Booysen’s affidavit, as well as his leaving the country.

3.17 In reply to questions, he said the De Kock Report, apart from General Booysen, was his main source for the article.

3.18 In response Mr Danikas said the woman he was alleged to have defrauded was never an employee but a “partner in his business”. It was also odd that he stood by an affidavit of “a sole witness who’s been accused by me of wrongdoing, that he is the reason I left the country out of fear for my life, and that I was the witness against him in a SA national case, and you bring only this witness against my case to this panel..” General Booysen had every reason to “attack his credibility.”

3.19 The Ombud pointed out that the article mentioned “business partner’ rather than employee, although Mr Mann said General Booysen’s affidavit mentioned “employee.”

3.20 Mr Danikas also accused General Booysen of “lying’ in his affidavit saying Ms Mthethwa had died four years after he left the country not “shortly afterwards”. (the timing of her death is not mentioned in the article).

3.21 He said Mr Pauw also could have called his SA attorney Julian Knight to establish his contact details.

3.22 Mr Pauw replied that he thought he had taken “reasonable steps” to get hold of him after trying to find him through the internet and asking General Booysen.

3.23 There was some argument about whether the De Kock report had referred to Mr Danikas’ evidence about police tampering with a crime scene after a shooting.  (See the Analysis section for more on this).

3.24 Mr Pauw said it was “common knowledge” that for four years since 2007, the NPA were intent on prosecuting Gen Booysen and his men – that is why the charges were reinstated by former NDPP Shaun Abrahams after being initially dropped. “If there was any other evidence Danikas had, they would have used that evidence.”

3.25 Mr Danikas replied that he could not answer to the mistakes of the NPA, but he knows he submitted evidence of “killing, torture, crimes by policemen of that unit.” In any event, his main purpose was to complain about the Maverick article.

3.26 Mr Thloloe asked Mr Pauw if he had relied only on General Booysen for the allegation in his report that Mr Danikas had taken his business partner’s money. Mr Pauw confirmed this but said General Booysen was prepared to make the statement under oath. The incident had also been referred to in his (Booysen’s) book.

He also said the alleged theft, he said it had also been reported in Euronews and News24. [5]

The Ombud asked if any criminal charge was laid as a result of this. Mr Pauw said no, because Mr Danikas had left the country.

3.27 On the right of reply (Clause 1.8): Mr Thloloe also asked whether internet and social media tools were the only way to try to get hold of Mr Danikas.

3.28 Mr Pauw replied those were the “obvious tools” but added he was “under pressure for the story to go out” as there was competition among media houses.

Mr Thloloe cautioned that peoples’ reputations were on the line and the basis of our profession should be to be cautious about every sentence. Mr Pauw said he appreciated that but in this case he regarded General Booysen as a credible witness who was prepared to go under oath.

3.29 Mr Mann said he had had no problem tracing Mr Danikas on LinkedIn. It took him “two minutes” to find him. Had he perhaps edited his account since Mr Pauw had tried? Mr Pauw replied he had screen shots of the account he had tried.

Mr Mann also pointed out that Mr Pauw had not indicated in his report, as required by the Press Code, that he had tried but failed to contact Mr Danikas. This Mr Pauw conceded.

3.30 In terms of the De Kock panel not speaking to Mr Danikas, Mr Pauw pointed out that the panel had worked from documents; it had not spoken to any witnesses, not even General Booysen.

3.31 On the question of the sub-head, which referred to the De Kock Panel finding “false evidence”, Mr Pauw replied it did not refer to Mr Danikas, but to prosecutors in the NPA.

3.32 Mr Pauw then called General Booysen as his witness. He asked him whether could affirm that he had called him to ask for Mr Danikas’ number, which he did. General Booysen also said he did not have his new number.

3.33 On the alleged fraud, Gen Booysen said: “I used to visit Danikas in his store in Durban…at some time he introduced me to Zonke Mthethwa who was the employee at the time and he told me he had tried to convince her to invest money into his business. She told me she had actually invested R300 000..then I received a call that Danikas was nowhere to be found. I went to the store and met Zonke [who told me he] had asked her and another employee to stay away from the shop for about a week as he refurbished the store. When they returned, they found the store completely empty.”

He said in his view, Danikas had committed fraud and left the country. This was in 2008.

3.34 Asked by Mr Pauw why Ms Mthethwa did not press charges against him, General Booysen said it was because she did not see any possible results in it.

He also confirmed that he had suspended Mr Danikas as a police reservist for bringing police management into disrepute.

He told the panel he had sent an officer to recover his state firearm after the suspension soon after he (Danikas) had got married. Mr Danikas emailed him to say he had been “humiliated” in front of his wife.

3.35 Asked about the truth of the allegations of murder and attempted murder pertaining to the Cato Manor officers, General Booysen replied that if there had been any truth, there would have been a prosecution. However, the NPA, following the departures of Nomcobo Jiba and Shaun Abrahams from their positions as NDPP, had said there was no evidence that linked him to the crimes. Moreover, a judge had also found that. He had testified under oath at the Zondo Commission to this and to the circumstances that led to his being charged.

3.36 On the claim that Mr Danikas “feared for his life”, he said he had an email from him in 2011, with a picture of him and his wife, saying “Merry Christmas from a familiar place.” The email was from Paris, to where Mr Danikas and General Booysen had once made a trip.

3.37 Asked about Mr Danikas’ statement that General Booysen was implicated in the Goldstone commission in 1992, General Booysen said he had been cleared of all alleged crimes then.

3.38 In reply to a question from Mr Thloloe, General Booysen said he was aware that the Zondo Commission had not yet made any findings but that “arrests have been made based on my evidence”.

3.39 Mr Pauw also raised General Booysen’s evidence at the Mokgoro Commission into the suitability for office of two former NPA senior officials, and said both had been fired as a result of his evidence.

3.40 Mr Danikas challenged General Booysen’s evidence that he did not know his number, saying he had “screenshots” of the calls he (Booysen) had tried to make to him in 2016, “the day before I went to sign the MLA.” He had not taken the calls. Mr Pauw should have been able to get his number.

General Booysen replied that after his first arrest his phone was confiscated. He got a personal phone and that was confiscated on his second arrest in 2016.

3.41 The Ombud asked Mr Danikas about an apparent contradiction in his written submissions where he first said General Booysen had his number, but in his response to the Daily Maverick said he had changed his number and email address as he was so “afraid” of General Booysen. Mr Danikas replied he now had a Greek number. He did not know how General Booysen had his Greek number.

He also said he had submitted statements to the Zondo and Mokgoro Commissions (the latter has finished its work).

3.42 In response to questions by Mr Mann, General Booysen said he thought the numbers he had for Mr Danikas were out of date, which is why he could not give them to Mr Pauw. The email address  Mr Danikas had used to file the complaint was different from others he had used before.

3.43 Mr Danikas, in response to a question about how he knew Ms Mthethwa died four years after he left the country and not “shortly afterwards”, said he had checked with the Home Affairs database as he had her ID number. He also confirmed that Ms Mthethwa had invested R300 000 into his business, a 10% stake, “which she ran successfully until she died.” The other 90% had been sold to a Greek friend of his.

3.44 Summing up, Mr Pauw said “90%” of his article was based on the De Kock report, which should be considered a “quasi-judicial” document and as such exempt from the provision in the Press Code that requires a right of reply.

The allegation about the fraud was published locally and internationally and “at no stage did Mr Danikas challenge those allegations.”

He maintains that he took “reasonable steps” to find Mr Danikas’ contact details but was not successful.

3.45 The Daily Maverick, in the wake of the complaint filed, had also offered Mr Danikas a right of reply, which he turned down. The Public Advocate, Mr Fanie Groenewald, clarified that it was not a right of reply that was offered but a “follow-up story”.

Gillian Green, assistant editor at the Daily Maverick, confirmed that the editor of the DM had given an undertaking during the hearing that it would be “happy to publish” a right of reply from Mr Danikas “provided it deals with the article and not the individuals.”

4. Analysis

4.1 There are four main elements to Mr Danikas’ complaint. They pertain to:

• Truthful and accurate reporting
• Presenting only what is reasonably true as fact; allegations must be clearly presented as such
• Allowing the subject of adverse reportage the right of reply
• Exercising care and consideration in matters of reputation and dignity
• The sub-head/blurb which refers to “concocted evidence”.

4.2 The panel had a robust discussion about whether the De Kock panel report to the NPA head – a confidential internal memo to the head of the NPA – was in fact a “quasi-judicial” document. If so, the elements of the article that pertain to that would fall in the category of reportage exempt from a right of reply.

The panel decided it did not fall in this privileged category as it was an internal memo within the prosecuting authority.

4.3 A key part of Mr Danikas’ complaint was about the status of his statement as described in the De Kock report.

That report made the following points:

• Adv Maema had never intended to call Danikas to testify in South Africa
• It asked why the signed English translation was “still outstanding after almost three years” (the report was done in 2019). And it asked “who made the decision to superimpose the signature of Danikas on the English translation that Danikas says has mistakes.”
• Mr Danikas’ Greek statement was signed in October 2016. The report says the contents of Mr Danikas’ statement “do not cover the period dealt within the indictment except for one incident when he arrived on the scene after the event…and in which Booysen is in any event not implicated”
• Mr Danikas does not implicate Booysen and the other accused in the racketeering charges.
• [Shaun] Abrahams the former NDPP “places a lot of reliance on Danikas statement”.
• The “reliance on the unsigned statement was in our view misplaced”
• It also said no “certified translation” of the Greek statement had been filed in the docket.
• It recommended that the racketeering charges against Booysen and the other accused be withdrawn.

4.4 Mr Danikas had a detailed explanation for the apparent incongruencies about his statement in Greek and English. He said he was not obliged to sign a statement in a foreign language and he had complied with all the legal requirements in signing the Greek one.

4.5 It is useful to turn to the Gorven judgment (which is a judicial document) to see what similarities there are in that and the De Kock report.

This is what Judge Gorven said in relation to Mr Danikas’ statement: “The document referred to as a statement by Mr Danikas… is not a sworn statement. It is not even signed by anyone. It is not dated. Even if it could be attributed to a named person, and even if it was a sworn statement as claimed by the NDPP, the contents do not cover the period dealt with in the indictment except for one event which does not relate to Mr Booysen.”[6]

4.6 Thus in relation to the status of the statement, the De Kock panel echoed the Gorven judgement.

4.7 However, the article also says that Adv Maema and another advocate, returned from their visit to Mr Danikas in Greece in January 2016 “empty-handed”, again with “an unsigned statement”.

Mr Danikas disputes they returned “empty-handed” and says he had given them a USB stick containing evidence, including videos and pictures.

As this visit is not in the Gorven judgment – which was made before the said visit – this should have been put to Mr Danikas for comment, even though the De Kock panel found the new prosecution memorandum, partly based on this, “did not amount to new evidence”

4.8 He also claimed he did not sign the English version, not because it “contained mistakes” but because it was not in his mother tongue, even though it had been translated by a Supreme Court appointed translator. He says he was never asked to sign an English version.

Although this is more a reflection on the prosecuting authority than on Mr Danikas, he could have given this comment if asked.

4.9 In relation to his contention on the report on the “superimposed signature”, this is in the De Kock report (par 122.4). However, again it is a reflection on the NPA not on him, as it is clear he would not have “superimposed” his own signature on the document.

4.10 He also disputes that General Booysen suspended him. When he had heard this may be the case (from Director Eddie Kennedy), he had in fact resigned.

However, among the  documents Mr Danikas supplied after the hearing, there is a letter of resignation which confirms it is in response to his suspension (dated 30/8/2008); there is also a letter in response to him from Director Kennedy dated 1/9/2008 confirming that he had been suspended “pending an inquiry into your conduct.” He was also asked in the letter to “pertinently disclose which senior officer, if any, informed you, you would not be promoted because of your race.”

In other words, Mr Danikas’s documents confirm General Booysen’s version.

4.11 He also says it is untrue that after the exposure of the so-called Cato Manor “death squad” in the Sunday Times, he had “turned on Booysen and his men”. He says he had reported alleged incidents of torture before this, namely in 2005, 2007 and 2009. The last time was from Greece when he sent emails to various South African and international journalists. In fact at least one story, cited above, was carried. He had also uploaded videos to YouTube (also cited above).

4.12 The then acting NDPP, in her statement before Judge Gorven, confirms that he provided information to the press and posted videos on YouTube. [7] However this is not strictly relevant. The point is: is it untrue that he “turned on” Gen Booysen after he was allegedly suspended?

From the evidence available to this panel, there is no way of ascertaining the date as there are two different versions of the narrative. However, Mr Danikas should have been given a right of reply on this point.

4.13 Most serious is the allegation that he defrauded his business partner of R300 000.

This allegation was neither in the Gorven judgment nor the De Kock report.
General Booysen’s affidavit and evidence alleges the partner had died shortly after Mr Danikas had left the country. Mr Danikas has provided evidence that her death was some four years later not “shortly after”.

4.14 The allegation that “[H]e left the country overnight after allegedly stealing R300 000 from his business partner” was not put to him and was premised, by Mr Pauw’s own admission, only on General Booysen’s statement (it is not attributed to him in the article but is in his affidavit). Even though Gen Booysen made his affidavit under oath, it is nonetheless a serious allegation and one that, without further evidence, is damaging to Mr Danikas’ reputation. It also appears that General Booysen was the source of the allegation in similar reports published, as referenced above.

4.15 On the matter of the sub-head or blurb: it reads: “Top prosecutors at the National Prosecuting Authority lied and concocted false evidence in a desperate attempt to nail former top Hawk Johan Booysen and the so-called Cato Manor ‘death squad’”. The blurb does not mention Mr Danikas. It is aimed at the NPA and in particular its former (and current) senior prosecutors. The substantiation for this is in the De Kock report, which forms the basis of the article. Mr Pauw in fact approached the NPA spokesperson, Sipho Ngwema for comment on the fact that the NPA, in spite of a decision by “a full bench of High Court judges” in 2017 that the withdrawal of charges against former acting NDPP, Nomcobo Jiba was unlawful, had decided there was no prima facie case against her. Despite a change in leadership she had still not been charged.

4.16 Mr Ngwema is quoted as saying: “..we all want to restore integrity and see justice being done. We should make sure none of our actions should sabotage those noble intentions. Public interest demands that we deliver on the new vision of the NPA – this will be a process not an event.”

4.17 The bulk of the article, including the blurb, was aimed at former and current officials in the NPA.

4.18 In his judgment, Judge Gorven refers to the “deafening silence” on the part of the acting NDPP (at the time) in response to General Booysen’s “assertion of mendacity on her part.” The court says on the basis of this, it is obliged to “draw an inference adverse” to her. This is an important part of the basis it held for declaring the decision to prosecute Gen Booysen and his team “irrational”.

4.19 The 96-page De Kock report speaks about the “challenges” with Mr Danikas’ evidence. It also has a section entitled: “Inconsistencies and material contradictions in indictment, prosecution memoranda and summary of substantial facts” in relation to the dockets. It is clear that the blurb refers to the “top prosecutors” at the NPA, and not Mr Danikas.

 Conclusion

The article based on the De Kock report was newsworthy and within the public interest, given that it deals with the fate of law enforcement over a period that has come to be known as that of “state capture”.

The story and controversy around General Booysen has been in the public domain for about a decade and much of it is well-known. He gave evidence under oath to the Zondo Commission where he detailed how his pursuit of a businessman, who had allegedly scored corrupt deals from the SAPS during the 2010 World Cup, and a bribery attempt by a fellow police officer for him to drop the case, led to increased pressure on him, including from high-profile political figures.[8] The charges – and the leaking of the original stories – followed these events. [9]

However, notwithstanding the fact that General Booysen may well have been a victim of false charges, this does not obviate the need for a publication to approach those who are the subject of adverse coverage, in this case Mr Danikas, in terms of the Press Code. This is particularly so when the allegations are serious – such as theft – even when those allegations are made under oath.

It is also clear that this case is overshadowed by a pronounced breakdown in what was once a close relationship between General Booysen and Mr Danikas. The fractures in this relationship – some of which had nothing to do with the complaint – were clearly evident in the hearing.

We have tried to sift out the issues that concern the article from the broader issues surrounding this.

It is not clear that Mr Pauw made more than a perfunctory effort to contact Mr Danikas. In any event, he did not reflect these attempts in his article as required by the Press Code.

We also note, though, the Daily Maverick’s new offer to Mr Danikas of a right of reply insofar as it concerns the contested issues in the article.

Finding

The Daily Maverick has transgressed clause 1.8 of the Press Code, which stipulates that the media “shall seek the views of the subject of critical reportage in advance of publication.”  If the person concerned cannot be reached, or refuses to comment, this must be recorded. It has also, insofar as the allegation about theft is concerned, transgressed clause 3.3 in that it has damaged his reputation.

These are Tier 2 offences

The Daily Maverick is ordered to apologise to Mr Danikas for this. The apology must be approved by the Ombud.

It should also allow him a right of reply. This right of reply should confine itself to the following sections of the article only:

• The claim that the prosecutors left Greece “empty-handed”.
• The reasons he did not sign the English version of his statement
• The allegation that he “stole” R300 000 from his business partner shortly before leaving the country, and that the business partner had died “shortly after”.

The Ombudsman is to approve this reply.

The rest of 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 [email protected].

Pippa Green, Press Ombudsman, with Adjudicators: Peter Mann public representative and Joe Thloloe, press representative

January 31, 2020

[1] https://www.news24.com/news24/Columnists/GuestColumn/ray-hartley-doth-protest-too-much-20181022