Barry Oberholzer vs. Die Burger

This ruling is based on the written submissions of Mr Barry Oberholzer and those of Theuns van der Westhuizen, on behalf of Die Burger newspaper.

Although the newspaper is an Afrikaans publication, I adjudicate this complaint in English because it was received in that language.

Complaint

Oberholzer is complaining about a report in Die Burger of 23 February 2015, headlined Man se saak oor verkoop van helikopter eers later.

He complains the story inaccurately stated that:

·         the court case was postponed because he did not attend;

·         he had been charged with fraud; and

·         he had been a confidential informant for the US government, and that he had received immunity from the FBI.

He adds that the newspaper did not ask him for comment, and concludes that the article was “riddled with irregular malicious reporting”.

The text

The story, written by Nielen de Klerk, reported on a criminal case regarding the selling of a helicopter, with Oberholzer facing charges. She wrote that the case had been postponed because he had been absent, and then summarized the charges against him, with some background information.

Analysis

Court case postponed

Oberholzer complains that the story incorrectly stated that the court case had been postponed because of his absence, whereas the state wished to review presentations made by the NPA. “The case was postponed because the state wanted postponement to review the representations made the…NPA [and] not only because I was not at court.” (My emphasis.)

Van der Westhuizen replies the charge sheet shows that Oberholzer was not in court.

My considerations

The sentence from Oberholzer himself, as quoted above, implies he admits that:

·         he was not in court; and

·         his absence from court was at least part of the reason for the postponement.

This means that his absence from court is not in dispute.

Secondly, even if the state wished to review NPA representations, I do not think that this omission from the news report constitutes a breach of the Press Code, as it is not central to the story.

Fraud

The story said that Oberholzer had been charged with fraud concerning a deposit for a helicopter after he allegedly had not repaid the deposit.

Oberholzer says the complainant in this matter withdrew charges in 2013. He provided me with an e-mail from a Mr Hein Uys, sent to Col Adriaan Schilz and dated 14 January 2014 (in connection with case number Durbanville MAS 718/03/2011), which read:

Good Morning Colonel Schilz, Following our conversation, I would like to put on record that Mr Oberholzer has paid a full and final settlement to Benaja Trust and therefore we would like to withdraw our criminal case against Mr Barry Oberholzer. Regards Hein Uys

Die Burger replies that the charge sheet stated that he had been charged with fraud. “That was the information which the reporter had at her disposal. If the charge had been withdrawn, that information had not been added to the charge sheet.”

In later correspondence, Van der Westhuizen sent me the following reply by public prosecutor Adv Juan Agulhas, in response to enquiries by Die Burger regarding the charges against Oberholzer (the same case number as cited above). His reply reads as follows:

Dear Ms N de Klerk Please be informed that I, the undersigned, am an Advocate at the Specialised Commercial Crime Unit (SCCU). I am assigned and is currently dealing with the prosecution of Mr Oberholzer in the above matter. I have been busy with the case from Mr Oberholzer’s first appearance at Bellville District Court before it was transferred to the Specialised Commercial Court. The status of the case is that the defense made representations to the Director of Public Prosecutions-Cape Town after they were unsuccessful with representations to the SCCU. Mr Oberholzer is facing 2 counts of Fraud, a contravention of section 4(a) of POCA (Act 121 of 1998), a contravention of section 424(3) of the Companies Act (Act 61 of 1973) and a contravention of Section 7(1) of the FIAS Act (Act 37 of2002). Although the case is marred with numerous postponement for interlocutory orders, I can confirm that none of the above charges were ever withdrawn against the accused. The matter is postponed to 23 March 2015, for the outcome of the representations to the Director of Public Prosecutions. The charges against the accused remained exactly the same for at least the last 18 months. Kind regards JA AGULHAS Senior State Advocate Office of the Director of Public Prosecutions:  Western Cape Specialised Commercial Crime Unit

My considerations

Clearly, the e-mails from Uys and Agulhas are contradictory.

However, my task is not to establish which one of these versions is true, but to determine whether the newspaper was justified in its reporting. Based on the testimony of Agulhas, who is a credible source used by the reporter, De Klerk was indeed justified in her reporting.

US government, the FBI

De Klerk wrote: “He was main news in 2013 when he acknowledged that he operated a front organisation which provided American-made helicopters…to Iran. According to reports, he got immunity from prosecution in exchange for information given to the FBI.”

Oberholzer denies having been a confidential informant for the US government, and receiving immunity from the FBI.

Van der Westhuizen says De Klerk based her information on previous reports – which were not challenged at the time. He referred me to two such articles, both in Times Live. They were headlined, Probe into dubious SA-Iran deals widens (18 March 2012) and, Inside SA’s illegal helicopter smuggling operation (published exactly one year later).

My considerations

I take the following into account:

·         Firstly, this sentence: “He was main news in 2013 when he acknowledged that he operated a front organisation which provided American-made helicopters…to Iran.” It does not state as fact that Oberholzer operated a front organisation, but instead that, according to reports, he had made such an acknowledgement.

·         The following sentence did not state it as fact that he received immunity from the FBI, but instead referred to reports to this effect: “According to reports, he got immunity from prosecution in exchange for information given to the FBI.”

Not asked for comment; malicious reporting

Die Burger does not reply to these parts of the complaint.

My considerations

It is not standard journalistic practice to ask people for comment while a court case is pending. Also, I have no reason to ascribe malice to either the newspaper or the reporter.

Finding

The complaint is dismissed.

Appeal

Our 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].

Johan Retief

Press Ombudsman