In the matter of
DANIKAS ARISTEIDIS APPLICANT
AND
DAILY MAVERICK RESPONDENT
MATTER NO: 8226/08/2020
DECISION ON APPLICATION FOR LEAVE TO APPEAL
“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(b) Following an exposé about the Cato Manor ‘death squad’ in the Sunday Times in December 2011 (the story was later withdrawn), and the arrest of Booysen and his men, Danikas turned on Booysen and his men.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.
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’.
“Specifically, then, he complains that the following clauses of the Press Code have been transgressed:
The media shall:
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 7th day of April 2021
Judge B M Ngoepe, Chair, Appeals Panel