A lawyer’s letter landed in our editor Branko Brkic’s inbox on Friday, 14 May. It came from  Charl Cilliers and Diane Burns, directors of Insure Group Managers. They claim to have been defamed, demanded to censor our investigation and invoked that obsolete relic, the sub judice rule.

Two days earlier, Scorpio’s Pauli van Wyk had revealed how Insure was unable to pay more than R1,7-billion in premium money to about 45 insurance companies and VBS Mutual Bank because they had bought a range of dubious, high-risk and ultimately loss-making assets. That wasn’t the worst of it – indications are that, in breach of governing laws, Insure Group Managers may have also used the premium money to fund the company’s operations. All of it was done on the sly, without consent of the insurers, by means of an impermissible scheme with the goal of making a large profit with money Insure didn’t own. 

South African insurance industry rocked by Insure Group ‘premiums misappropriation’ scandal

Naturally, Cilliers and Burns are aggrieved and “innocent” and claim to have done nothing wrong. Their lawyer’s letter attempted to write a cheque it will struggle to cash.

It offers no clear argument of where we supposedly got our facts wrong, nor provides a list of what could be improved on. 

It does, however, for the second time in two months, demand to censor Daily Maverick. 

The latest example, prompting this editorial, states: “My clients were not given an opportunity to review the article in question, which should be standard practice where there is, as in this case, defamatory matter (sic). Mr Cilliers and Ms Burns should have been allowed to respond to the article or its contents.”

What “should” be standard practice is most definitely not for the subject of an investigative report to dictate, as reminiscent of apartheid as this particular demand is. 

At Daily Maverick, we work with facts.

Between March and May, Scorpio offered Cilliers and Burns five chances to respond to several questions and requests for clarity. This included one instance where their lawyer asked for an extension of the deadline, which was granted, in order to answer questions better. In another instance, Scorpio had a 33-minute telephonic conversation with Burns, which has been duly recorded in our report. The lie that Cilliers and Burns have not been allowed to respond to the article’s contents is quite staggering and raises red flags over their grasp on reality as well as on their business dealings. 

Taking us back to the content of the letter to our editor: what actually is standard practice, supported by our country’s laws and eloquently explained by a full bench of the Supreme Court of Appeal in the 2007 case of Midi Television v DPP, is that no law obliges a journalist in South Africa to offer the subjects of an investigative report (or any report, for that matter) a chance to view and cleanse that report before it is published. 

The story here is that Cilliers and Burns have acted in a questionable and possibly unlawful way, and now they balk at Scorpio shining a light on the facts. Their company, now under curatorship, cannot pay back the R1,7-billion. The knock-on effect is immense. Some companies told Scorpio that the scheme was a gut punch that took their businesses back about five years. Some even closed their doors. 

All of this came to light when the Insure scheme ran out of money in September 2018 and had to move into voluntary curatorship, which included a probe of where it all went wrong.

The curator alerted the Financial Sector Conduct Authority (FSCA) to several reportable irregularities, acknowledging the possibility of civil and criminal repercussions. 

The FSCA found the two directors were at all times the “directing minds” of the scheme and debarred managing director Cilliers and compliance director Burns for five years based on a lack of honesty and integrity. Both Cilliers and Burns appealed the decision. This will be heard in November. 

The Financial Intermediaries Association (FIA), the industry body, labelled their conduct “illegal”.

Insurers have laid criminal complaints, including one of fraud, which is now investigated by the Hawks.

Cilliers’ and Burns’ demand to censor a respectable and credible media company simply because we shone a light on their “truth” in this context looks seriously suspicious.

The second, equally ill-conceived threat is the letter’s reliance on the sub judice rule – that archaic Latin phrase used by slimy politicians and businesspeople because it sounds wonderfully intimidating – in an attempt at bullying Scorpio into not writing about the R1,7-billion Insure cannot pay back. 

Cilliers’ and Burns’ letter states: “The [appeal] hearing will take place in July 2021 [it has since been moved to November]. In these circumstances, the ruling of the FSCA cannot be said to be final and the matter is, therefore, sub judice. Notwithstanding the aforegoing, you saw fit to publish an article… which was… defamatory of both Mr Cilliers and Ms Burns…”

The argument, it seems, is that because Cilliers and Burns demanded that the FSCA’s debarment decision be reviewed, no word about the matter must be published because it’s “sub judice”! 

The much-abused and purposefully misappropriated sub judice rule is a relic from South Africa’s defunct trial-by-jury system. Our 1996 Constitution changed the legal position and entrenched citizens’ right to free expression. Democratic era politicians started using the rule as a shield to deflect journalists’ probing eyes from their shenanigans and lies. 

So prevalent is the phenomenon, media lawyer Dario Milo once stated, in a different context, that “relying on [the] ‘sub judice’ rule is, in my opinion, the last refuge of [the] scoundrel”. 

Constitutional lawyer Pierre de Vos, in yet another context, said: “One of the most irritating phenomena of our political life is the manner in which politicians wrongly invoke the so-called sub judice rule to avoid accountability. Because they do not want to answer difficult questions or deal with politically awkward issues, such politicians invoke a rule that only exists in their imagination.”  

The Midi Television case is instructive. Judge Robert Nugent, writing for a full bench of five judges in the SCA, said:

“[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that the prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage.” (our emphasis).

The “disadvantage” the SCA refers to here, relates to how a ban on an investigative report will disadvantage the rights of South African citizens to be informed. To restrict press freedom is to restrict the rights of every person in having access to information. This is why anyone asking for such a restriction has a high bar to cross.

Said the SCA: “There is no general principle in common law or in a statute or the Constitution that obliges media to furnish its material to the subject before being published, and least of all a law that prohibits it from broadcasting the material unless it could first demonstrate that the publication would not be unlawful. The law generally allows freedom to publish and freedom is not subject to permission.”

That means Cilliers and Burns will have to convince South Africa that there would be a “demonstrable and substantial” prejudice to the administration of justice if Scorpio is allowed to report on their questionable actions. They would further have to argue successfully that it would not be in the interest of society that Scorpio shines a light on the facts. 

Based on our information, already reported, we know that Cilliers and Burns have no leg to stand on. Based on our information, yet to be published, we know why it is in their interest to silence Scorpio. 

We will offer the last word about the sub judice rule to De Vos, who said: “So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable… assume instead that the politician is ducking and diving because he or she is scared, or is trying to avoid being caught out in a lie…”

This takes us to the third issue in the letter – defamation.

In the case of EFF v Manuel, the Constitutional Court said that truth and public interest is a defence that has long been recognised as rebutting the presumption of unlawful defamation. In rebutting the accusation of defamation, a journalist can therefore rely on truth and public interest – in other words, the defamation will not be unlawful if it is the truth. Questions a journalist must ask themselves here include, to what lengths have they gone to establish the facts and whether publication is reasonable. These lead to questions over reliable sources and whether the subject of an investigation was offered an opportunity to provide context and better understanding. 

Fact is, the R1,7-billion Insure cannot pay back is locked into questionable investments – to the detriment of society. 

Even if Daily Maverick omitted all information offered to us by unnamed sources, the fact still stands that both Cilliers and Burns are debarred by a credible industry body based on honesty and integrity requirements. They further stand accused of “illegal” conduct by a second industry body. 

So what can Cilliers and Burns do when they feel aggrieved? 

Take us to court, we say. 

Daily Maverick does not believe in journalistic exceptionalism. We believe in a fair and open society. And above all, we believe our duty is to inform people so that they may make informed choices about their lives. 

If Cilliers and Burns have adequate grounds for believing the contrary, let them take us to court. 

In the meantime, we will continue to unearth and report the truth.

We will not allow business people and politicians to bully Daily Maverick into submission. 

Our loyalty will forever be with South Africa and its people. DM