Ruling by the Press Ombudsman
February 28, 2013
This ruling is based on the written submissions of G. Rooseboom, for Oasis Group Holdings, and the Weekend Argus newspaper.
Complaint
Oasis Group Holdings (OGH) complains about a story in the Weekend Argus on 20 October 2012 and headlined Crunch time for Hlophe.
OGH complains that the:
· reference in the story that Judge John Hlophe has reportedly moonlighted for Oasis Asset Management Group (OAMG) was incorrect;
· reported did not verify her information; and
· newspaper never contacted it for comment.
Analysis
The story, written by Fatima Schroeder, was about information that the “ongoing controversy around whether Cape Judge President Johan Hlophe attempted to influence Constitutional Court judges in favour of President Jacob Zuma in 2008” would now finally be investigated.
Moonlighting
The story mentions Oasis only once, stating that it was reported in 2006 that Hlophe was at the time moonlighting for the group.
OGH complains that the statement about moonlighting was false. It explains that Hlophe was a trustee on the Oasis Crescent Retirement Fund, where he served with other independent trustees. “At no time was he a director or non-executive director of any Oasis company. At no time did he or his trust hold a beneficial interest in Oasis… The relationship with Oasis Crescent Retirement Fund was to look after members(’) interests and (it) was not a case of moonlighting.”
The company also says that:
· the word “moonlighting” is defined (in Webster’s New World College Dictionary) as “the practice of holding a second regular job in addition to one’s main job”. This, it argues, implies a second full-time occupation. “Hlophe attended one trustee meeting a quarter. Hardly moonlighting, is it? The words paint a picture that is not true”;
· the press, at the time, reported that more than 40 other judges held positions in companies. “It is unfair for Hlophe to be singled out for doing something that many judges were doing… It is even more unfair for Oasis to be accused of wrongdoing when none of the other companies was”;
· a former Minister of Justice gave Hlophe permission to sit as trustee on the retirement fund;
· nowhere was Hlophe found guilty of moonlighting;
· no formal forum ever found it guilty, or even accused it of any wrongdoing; and
· it openly disclosed the payments to Hlophe’s trust, as well as the nature of these payments.
In conclusion, OGH asks for an apology because:
· Hlophe was never linked to Oasis Asset Management in any way;
· Hlophe never did moonlighting with Oasis; and
· Oasis never received any undue benefit from knowing Hlophe or his being a member of the Fund.
The Weekend Argus insists that it is a fact that Hlophe was paid by the group, and concludes that this boiled down to moonlighting.
I therefore asked the newspaper for evidence to this effect (other than the stipendium that he received for attending quarterly meetings – which, on its own, would not have justified the use of the term “moonlighting”).
The newspaper sent me three documents of note:
· An article by former Constitutional Court Justice Johann Kriegler (published in the Sunday Times on 7 October 2007);
· A public statement by senior council by the Cape Bar (that was widely published); and
· An extract of submissions by the Institute for Accountability in Southern Africa (Ifaisa) to the parliamentary committee on the Code of Conduct and Regulations concerning disclosure of interests by Judges (authored by Adv Paul Hoffman and dated January 2011).
In connection with Hlope’s income from Oasis, Kriegler called the group Hlophe’s “secret paymaster”. He also mentioned Hlophe’s “consulting fees”, amongst other things.
Senior council (Cape Bar) referred to Kriegler having mentioned that Hlophe had received “surreptitious payment”. They also stated that the Judicial Services Commission has found unanimously that Hlophe’s explanations for receiving money from Oasis was “unsatisfactory in certain respects” and considered his failure to disclose his relationship with Oasis at the time he gave it permission to sue another Cape judge to be “inappropriate”.
In Ifaisa’s document, Hoffmann stated it as fact that Hlophe had “moonlighted with Oasis”.
Please note that I do not need to establish if Hlophe moonlighted for Oasis – my task is merely to establish if the newspaper was justified, with the information at its disposal, to have used the phrase “reportedly moonlighted”.
Based on the evidence that the newspaper provided me with, it had been justified in its reportage on this matter.
A quick internet search confirmed this decision – for example, many publications reported that Hlope had claimed to have received permission to moonlight at Oasis from former justice minister, the late Dullah Omar.
This “reported” moonlighting is indeed in the public domain.
Not verified
OGH complains that Schroeder did not verify her information regarding Hlophe’s alleged moonlighting with the group. “One cannot rely on previous utterances to repeat information that could be false and damaging, one must verify the facts.” The company also argues that when the press continuously prints false information the public starts to accept it as fact.
This is true, but not in this instance. Based on the abovementioned evidence it follows that this part of the complaint has no legs to stand on.
Not asked for comment
OGH complains that the newspaper did not ask it for comment.
Weekend Argus replies that Oasis was not the subject of the story and that the complaint against Hlophe in this regard was a matter of public record.
Indeed.
Finding
The complaint is dismissed in its entirety.
Appeal
Please note that our Complaints Procedures lay down that within seven days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Ralph Zulman, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombudsman