Appeal Decision: Aristeidis 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 employ (published on 5 August 2020).

This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.

Danikas Aristeidis lodged a complaint against Daily Maverick’s article in which he was portrayed as having been on the side of, and co-operated with, the people who wanted to bring down top Hawk Johan Booysen on the allegation that he was the head of the so-called Cato Manor death squad. There were several other damning allegations against him in the story.

The Ombud dismissed several complaints but held that DM breached the Press Code in that it did not give Aristeidis a right of reply, and that the reportage had damaged his dignity and reputation. Aristeidis then applied for leave to appeal.

Judge Ngoepe agreed with the Ombud’s ruling. He added that Aristeidis’s appeal did not take the matter any further and dismissed his application for leave to appeal.

THE RULING ITSELF

DANIKAS ARISTEIDIS                                                                                        APPLICANT

AND

1. Mr Danikas Aristeidis (“applicant”) lodged a complaint against Daily Maverick (“respondent”) in respect of an article that was published by the respondent on 5 August 2020. The article was written by Mr Jacques Pauw, with the headline “Confidential NPA report exposes senior officials who lied about Johan Booysen yet they are still employed”. There was a sub-head “Top prosecutions 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”. It was a lengthy article with some intricate details. The bottom line of it was that the applicant was on the side of, and co-operated with, the people who wanted to bring down Mr Johan Booysen, on the allegation that he was the head of the so-called Cato Manor death squad. There were also allegations that the applicant falsely claimed certain qualifications and commendations. Allegations of theft were also made against him. He used to be a police reservist in Durban before he left the country for Greece; his claim that he left South Africa for fear of his life was doubted. In his complaint, the applicant uplifted certain parts of the article, tabulated them and underlined particular statements from them which he said were incorrect, at the same time giving his own version.

“I am lodging a complaint to the following parts of the article:

 (a)      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. 

(b)       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.

(c)       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’.

(d)       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.

(e)       The De Kock Panel says the state’s reliance on Danika’s evidence is  ‘puzzling and it failed to understand why the state never translated the Greek version into English.

6. 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 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”.

The applicant strenuously disputed the allegations and presented his own version. He, amongst others, insisted he left the country for fear of his life, lying against Booysen or formed part of any clique that sought to have him charged.

One of the applicant’s complaints was that he was not contacted prior to the publication for his comment; in answer to this, which Mr Pauw said that he tried but was unsuccessful.

Both in his article and his response to the complaint, Mr Pauw disputed a number of claims by the applicant, effectively discrediting him. Mr Pauw indicated inter alia that the charges against Mr Booysen were dropped, the applicant’s credibility discredited and that the Sunday Times which had been carrying allegations against Mr Booysen, based largely on what the applicant had been saying about the alleged death squad, withdrew its stories. At the end of his response to the complaint, Mr Pauw presented the following conclusion:

1.       Danikas has never been able to prove or substantiate any of his allegations against the Cato Manor ‘death squad’.

2. The NPA’s case against Johan Booysen has been severely discredited – and Danikas was their key witness.
3. 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.
4. 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.
5. The Sunday Times has withdrawn all their Cato Manor stories. Danikas was a key witness for the newspaper.
6. 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. 8.
7. 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”. 3.

2. The above is pretty much a summary of the main issues forming the substance of the dispute.
3. Because of the nature of the dispute, the Ombud sat with other members of the panel and an oral hearing was held. Not surprisingly, the parties disagreed on almost everything as they did in the papers. It was a difficult hearing; emotions ran high and perhaps understandably so, given the nature of the issues in dispute. The applicant argued that several clauses of the Press Code were breached. The panel’s ruling summed the complaints up:

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

The media shall:

1. 1 take care to report news truthfully, accurately and fairly;
2. 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;
3. 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 public in question”.

4. After an extensive analysis of the evidence, the Ruling dismissed several complaints but held that the respondent breached clauses 1.8 and 3.3 of the Code, and imposed an appropriate sanction. The applicant is not satisfied, hence this application for leave to appeal. For the application to succeed, the applicant must show reasonable prospects of success. I find no fault with the manner in which the Ruling dealt with the issues, and the basis for the findings. There is, moreover, an additional consideration. It was for the applicant to make out his that he had reasonable prospects of success on appeal. But having gone through the documents, it is clear that there are so many factual disputes that, at best for the applicant, one would say the scale is evenly balanced. In such a case, an applicant has not made out its case. But my statement that the scale is evenly balanced would, I am afraid, be a highly charitable assessment of the evidence in favour of the applicant. The affidavit by Mr Booysen really tips the scale against the applicant. There are very important consideration here. Mr Booysen, even on the evidence of the applicant, does not appear to have any reason to take sides. The fact that Mr Booysen’s case was thrown out by the court, the fact that Sunday Times withdrew its article, etc. are all the factors that weighed against the applicant. I am satisfied that the remedy given to the applicant in the form of the sanction, will adequately bring fairness to the parties. The appellant’s Notice of Appeal does not take the matter any further.

5.      In the circumstances, the application for leave to appeal is dismissed.

Dated this 7^th day of April 2021

Judge B M Ngoepe, Chair, Appeals Panel