Fazel Bhana vs The Star

Complainant: Fazel Bhana

Lodged by: Fazel Bhana

Article: Pay Aurora miners, judge orders – But Joburg family pleads poverty

Author of article: Omphilhetse Mooki

Date: 31 October 2014

Respondent: The Star

Complaint

Bhana is complaining about an article published in The Star of 27 August 2014, headlined Pay Aurora miners, judge orders – But Joburg family pleads poverty.

He complains that the:

  • following sentence is incorrect, unsubstantiated and malicious, and that it is not “remotely close” to the court records/proceedings: “While this was just a drop in the ocean in relation to multi-million-rand transactions that the father-and-son team of Sulliman and Fazel Bhana made into their private bank accounts”; and
  • story jeopardises his life in that criminals may start thinking he has an abundance of money in his bank account – while the judgment was granted for an amount of R15-million in total.

The text

The story, written by Omphilhetse Mooki, said that the North Gauteng High Court had ordered the father-and-son team of Sulliman and Fazel Bhana to repay R15.1-million to Aurora mineworkers. The reporter wrote: “While this was just a drop in the ocean in relation to multi-million-rand transactions that [the Bhanas]made into their private bank accounts, liquidators were elated at Judge Eberhard Bertelmann’s ruling as they can go ahead and issue warrants against the Bhana family and their estates.”

The arguments

Bhana argues that no mention was made of a fraud claim, and denies that there is any proof or court ruling to the effect that an amount of money was filtered through any Bhana accounts. He challenged the newspaper to produce any proof, record or bank statement which substantiates its claim.

His request was reasonable, so I asked the newspaper to provide me with evidence to substantiate the story.

To this, Ritchie replied as follows:

 

The article was based on a report of court proceedings and specifically the judgment of Judge Bertelsmann. The only extraneous information and comment contained in third paragraph related to the future proceedings, set down for March 2015.

The statement in dispute was a matter of comment (it was a mere drop in the ocean if compared to the other claims that the liquidators wish to bring against the Bhanas).

The claims can best be summarised in the words of the attorney acting for the liquidators, who described it in an email seen by the journalist as follows:

The case against the bhana’s in terms of section 424 of the Companies Act is to declare them liable for all of the debts in Aurora personally.

The Pamodzi liquidators have proved claim in the Aurora estate of R 122 million (gold sales) and R1.8 billion (replacement value of assets destroyed) respectively.

In other words the debts of Aurora amount to approximately R 1.9 billion. These claims have been proven before the Master of the High Court and we can get the claim forms for you from the Aurora liquidators.

 

The source will not be identified in order to protect him/her.

Regarding the claim that “transactions that the father-and-son team of Sulliman and Fazel Bhana made into their private bank accounts” was false:

The judgment of Judge Bertelsmann was handed down in court on 26 August 2014 and the journalist observed the judgment. The content of the article was based on her notes, recorded first-hand. Notwithstanding requests to obtain copies of the judgment, it has not been made available by the court and the journalist has been informed that it had not yet been typed.

In his oral judgment, the judge remarked, with reference to the complainant and Sulliman Bhana:

 

  • “In order to counter the allegations that payments running into millions were made to respondents when the company was indisputably insolvent, they ought to show that these payments were validly made”; and
  • “Your clients furthered (feathered?) their own nest at the expense of other creditors.”

In the application by the liquidators it is stated inter alia that large payments were made to various members of the Bhana family. The founding affidavit in the case refers to the Bhanas’ involvement (from paragraph 25 and following, on page 68). Payments made to the Bhana family members are dealt with specifically in paragraphs 25.8 – 25.12, as well as paragraph 26.4. Paragraph 27 (page 103 and following) addresses the dishonesty of, amongst others, the complainant.

The judgment called the payments made by the Bhanas as payments into their “private” accounts. The story, therefore, refrained from calling these “personal” accounts – it meant private accounts controlled by or for the benefit of the Bhanas, and not that of the company in question. The report is therefore factually correct.

The statement must also be read in the context of the following paragraph that appeared in the article:

“The liquidators said the Bhana family were busy transferring money into several of their accounts, driving Aurora Empowerment Systems (AES) into insolvency, while workers went for months without payments.”

Bhana significantly focused on a narrow interpretation of one part of a sentence in the story. The Aurora scandal and the reporting around it has been one of the largest cases of fraud and asset stripping in this country, with thousands of mineworkers left destitute as a consequence of Bhana (amongst others). The judgment was extremely critical of him.

The story was therefore justified, accurate and without malice insofar as it:

·         reported on the facts of the court’s judgment (being subject to qualified privilege); and

·         commented on the further litigation (the amount of the claim to be adjudicated on in March 2015).

Bhana responded, saying that the:

·         Judge did not use the phrase that the R15-million was merely a drop in the ocean made into their private bank accounts;

·         other claims mentioned by Ritchie referred to a damages claim (“potential” loss for damages to the asset and not cash or any other transfers to the Bhanas or any associates);

·         reason for the judgment was not because it was proven, but because the Bhana family did not have legal representation to defend the matter and had asked the court for time to raise funds for a legal team; and

·         article clearly mentions the private accounts of the father-and-son team, which is factually incorrect.

My considerations

Ritchie’s arguments are sound in that:

  • the story was based on court proceedings;
  • the sentence in question was comment, and therefore did not purport to be a factual quote;
  • the information supplied by the attorney acting for the liquidators (quoted above) gave the newspaper enough justification to make such a comment; and
  • a private account is not necessarily a personal account – the former might indeed denote accounts controlled by or for the benefit of a person within a company.

I also have no reason to disbelieve Ritchie when he says that the journalist was present when the Judge handed down his judgment, and that she recorded it first-hand.

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 Adjudication Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Press Ombudsman