Appeal Decision: Mulaudzi Tuwani vs The Daily Maverick

Decision: Appeal Hearing

Applicant: Tuwani Mulaudzi

Respondent: The Daily Maverick

Matter No: 3365/06/2017

1.    Mr Tuwani Mulaudzi (“applicant”) lodged a complaint against The Daily Maverick (“respondent”) in respect of an article which appeared in the respondent’s edition of 13 June 2017, the headline of which read “Analysis: Time for Judge Hlope to face the music.”

2.     The complaint was adjudicated upon by the Press Ombud, who handed down his Ruling dated 4 July 2017, dismissing the entire complaint.  In his Ruling, the Ombud summarized the complaint as follows:

Mulaudzi complains that the:

·                story incorrectly referred to him as a ‘crooked’ businessman – while he had never been found guilty of any offence;

·                article omitted to state that:

o           Nedbank, the source of the case, closed his accounts, retained all his investments worth millions, refused to pay him;

o           Nedbank informed Old Mutual that it no longer had an interest in his investment with the latter, and that it (Old Mutual) had to pay him; and

o           The Supreme Court of Appeal (SCA) has remitted the matter back to the Western Cape High Court for full argument (the case will be heard on 20 November 2017, and could still end up again at the SCA or even the Constitutional Court) – while the publication reported as if the matter had been finalised and he had been found wanting.

He also complains that the journalist did not give him a right of reply”.

3.     The Ombud also summarized the gist and context of the story:

The article, written by Marianne Thamm, was about Supreme Court of Appeal Justice Ponnan’s ruling with regard to Judge Hlophe’s ‘bias’ in a case where he failed to recuse himself and ruled in favour of his own lawyer’s client (Mulaudzi).

The dispute is about an investment of R33.5-million which Mulaudzi made with Old Mutual, but later ceded to Nedbank.  Old Mutual allegedly paid out the money to him by mistake, and he then refused to pay back the money”.

4.     In its defence, the respondent says the story and the quoted paragraphs were from the judgment of the Supreme Court of Appeal; which implicated the appellant criminally.   The Court illustrated that the manner in which the applicant had gotten the money mistakenly paid to him, amounted to theft.  To applicant’s complaint that it was incorrectly stated that he had filed for bankruptcy, respondent conceded that this was a mistake; it should have stated that he was sequestrated.

5.    Apart from any other reason given by the Ombud, I believe that the applicant has no reasonable prospects of success before the Appeals Panel for, inter alia, the following reasons:

5.1    The article is substantially about Judge Hlophe, as the heading also suggests, though it also says a lot about the applicant.

5.2    The remarks attributed to Judge Ponnan of the SCA really implicate the applicant criminally.

5.3    The circumstances under which the R43m was paid to the applicant seem to be common cause.

5.4    Very importantly, the story was based on court documents and the judgment; this also goes to militate against the complaint that applicant was not contacted for comment.

6.     In his application for leave to appeal, the applicant makes heavy weather of the fact that it was wrongly reported that he filed for bankruptcy, instead of being sequestrated.  Not much turns on the difference; the consequent financial status is materially the same.

7.    For the reasons given above, the application is dismissed.

Dated this 22nd day of August 2017

Judge B M Ngoepe, Chair, Appeals Panel