Appeal Decision: Paola J Raymond vs Daily Maverick

Wed, Sep 25, 2024

BEFORE THE APPEALS PANEL OF THE PRESS COUNCIL OF SOUTH AFRICA

In the matter between

Paola J Raymond Applicant

And

Daily Maverick Respondent

Decision on an Application for Leave to Appeal

This is an application by Mr Paola J Raymond (applicant) for leave to appeal the Ruling by the Deputy Press Ombud, dated 4 July 2024. The Ruling was in respect of a complaint that had been lodged by the applicant against Daily Maverick (respondent) following articles published by the respondent on 12, 21 and 21 March 2024. The gist of the articles was summarized in the Ruling as indicated below.
The first article was titled Steinhoff: Reserve Bank Manager signed off on billions in alleged unlawful cross-border transactions…”

The gist of the article was that a document by the Hawks threw light “on some alleged backroom schmoozing apparently aimed at paving the way for the questionable facilitation of billions of Steinhoff rands out of South Africa – with South African Reserve Bank (Sarb) approval.” The applicant was indicated as the responsible person in Sarb, or at least as one of them.

The second article was headlined “Le Roux, Mbikiwa, Trengove: NPA’s A-team was ready to charge Markus Jooste.” The three people, in private practice as advocates, were alleged to have been appointed as a team to prosecute Jooste and others in respect of the movements of billions of Steinhoff’s monies out of the country. This arrangement was supposed to be confidential (and apparently not to be known by the respondent). Sarb “reportedly found that Paola signed off on a list of ‘suspicious’ exchange control applications from Steinhoff. Grove, in particular, and Jooste were suspected of being central to attempts to ‘cajole Paola into allegedly favouring Steinhoff’”. As a result, Steinhoff was possibly able to move billions of rands offshore unlawfully.
The headline to the third article was “Steinhoff mastermind Markus Jooste reportedly commits suicide shortly after R475m fine.” The Ruling presents the gist of the article as follows: “According to the article, Jooste is suspected of being central to attempts to ‘cajole’ Paola to allegedly sign off on a number of unlawful cross-border transactions. This reportedly led to the freezing of R5.5 billion of Steinhoff’s funds in the company’s local bank accounts in 2023.”
The applicant’s complaint against the first article was, amongst others, that it contained details of (internal) charges that had been levelled against him by Sarb and which had not been proven; that the information had been obtained illegally; that the respondent was relying on a source with a hidden agenda and that the article failed to take due care of his dignity and reputation. The other complaints were that the respondent wanted to create the impression that the applicant and Sarb were “covering up the matter out of …. embarrassment”. The applicant also denied that the Sarb charges had anything to do with the alleged illegal activities of Steinhoff and Jooste. His other complaint was that the article wrongly characterized the gifts he had received as amounting to a bribe. In brief, the applicant denied any wrong doing in relation to any unlawful activities of Steinhoff.
In its response to the complaints, the respondent started off by giving some background to the story; that it would not disclose its source; that some investigations had been done against Steinhoff’s activities by Sarb and also by firms of attorneys and auditors with certain findings being made, and that there was indeed a link between the charges levelled internally by Sarb against the applicant on the one hand, and the alleged role he played regarding Steinhoff’s alleged unlawful activities. The respondent also stated that Sarb filed a criminal complaint with the Hawks against the applicant, Grove and Jooste; that the applicant did in fact receive gifts. The respondent contended that the publication of the article was in the public interest. The other parts of the article complained about were described by the respondent as constituting mere allegations.
Regarding articles 2 and 3: Regarding article 2, the applicant objected to the statement that he signed off on a list of suspicious exchange control applications from Steinhoff and, with article 3, that he allegedly signed off on a large number of unlawful cross-border transactions, which led to R5.5 billion of Steinhoff’s funds being frozen and that he was ever cajoled into doing anything untoward. He argued that the two articles failed to consider his position fairly; that they conflated the charges lodged by Sarb against him with the illegal activities of Steinhoff and Jooste and that, because he allegedly received gifts, he must have been involved in the illegal activities of Steinhoff and Jooste.
The respondent’s response regarding articles 2 and 3 was, amongst others, that they were published after the first article and that both “were merely contextual paragraphs inserted in other stories, that were entirely based on the first article.” The statement that the transactions were described as suspicious was based on the fact that the bank had found the transactions to be so; also, it was submitted that the use of the word ‘cajole’ was justified.
The respondent therefore denied that any of the articles had breached the provisions of the Press Code.
In his Ruling, the Deputy Press Ombud found no breach of the Code, and dismissed all the complaints. The applicant now seeks leave to appeal the Ruling. For the application to succeed, the applicant must show reasonable prospects of success on appeal.
Like the Deputy Press Ombud, I first looked at the issue of the confidentiality of the source of information. This aspect was dealt with at length in the Ruling. Suffice it to say that the general rule is that the source of information is not to be disclosed. There are three findings foundational to the dismissal of the complaints: firstly, that the collapse of Steinhoff was a matter of huge public interest, nationally and internationally; one needed only to look at its impact on the Stock Exchange. Secondly, accusations levelled against the applicant were presented as mere allegations. Thirdly, it was not for the Deputy Ombud to investigate the legality or otherwise of how the information was obtained by the respondent. The Ruling dealt seriatim and in detail with the complaints. It speaks for itself. Nevertheless, I want to deal briefly with some of the points raised by the applicant in its application for leave to appeal.
It is argued that the Ruling violated the applicant’s constitutional right to the audi alterem partem rule. I do not agree. The Deputy Ombud was competent to call for, and consider, the confidential disclosure, after which he proceeded to consider the matter. In my view, the parties, in particular the applicant, had made detailed submissions. The issues were fully ventilated. The Deputy Ombud was therefore entitled to disposed of the matter on paper. I agree with the respondent’s counter-submissions in this regard. The journalist appears to have relied on the internal charge sheet against the applicant, and also that there had been several unsuccessful attempts made by the journalist to get the applicant’s view on the charges; the applicant was therefore aware of the document with the charges. The applicant argues that because the Deputy Ombud is a member of the board of GroundUP, which later published the Ruling, he was conflicted and should not have heard the matter. I do not think that he was conflicted. The dispute has always been between the applicant and the respondent, not GroundUp. As the latter says in its letter of 24 July 2024, its publication of the Ruling was part of its effort to bring rulings of the Press Council to the attention of the public.
For all the reasons given above and those by the Deputy Ombud, I find that the application has no reasonable prospects of success on appeal; it is therefore dismissed.

Date this 25^th day of September 2024.

Judge B M Ngoepe (Retired Judge President), Chair, Appeals Panel