Dyambu Operations and Others

Transcription

1 Case No: 19/2000 Date of Hearing: 31 August 2000 Dyambu Operations and Others Complainants vs M-Net Respondent Re : Discovery of documents and other material Heard by the Chairperson: Prof Kobus van Rooyen SC For the Complainants: Johannesburg For the Respondent : Johannesburg Mr L Morison, instructed by Goldman-Judin, Mr D Spitz, instructed by Webber Wentzel Bowens, SUMMARY Request for discovery at this stage of proceedings denied. JUDGMENT (3)

2 JCW van Rooyen At this stage of the proceedings concerning a complaint by Complainants in regard to a broadcast by Respondent in its regular programme, Carte Blanche, I have been called upon to decide three issues: on the first I held that the complaint should be brought directly before an Adjudication Committee and on the second I held that the Complainants should waive their rights to further legal recourse (obviously excluding an application for review). The last issue is whether I should compel the parties to discover documents and material as set out hereunder: Webber Wentzel Bowens : The respondent hereby requests the complainants to make the following documents available for purposes of this hearing before the Broadcasting Complaints Commission of South Africa: 1. all shareholders agreements relating to Meritum Hostels (Pty) Ltd ( Meritum ), Dyambu Operations (Pty) Ltd (Dyambu Operations ) and Dyambu Holdings (Pty) Ltd ( Dyambu Holdings ); 2 2. the company registers reflecting past and present shareholding in Meritum, Dyambu Operations and Dyambu Holdings; 3. details of any beneficial shareholding in Meritum, Dyambu Operations and Dyambu Holdings, including in particular, details as to which shareholders in these companies hold shares in a nominee capacity and the identities of the beneficial shareholders on behalf of which they hold such shares; 4. the pre-registration agreement between the Dyambu Trust and Messrs van Zijl and Smith, including Addendum A thereto, referred to in paragraph 29 of the Dyambu Trust Deed; 5. any agreements entered into between the Dyambu Trust and/or any of the following: Dyambu Operations; Dyambu Holdings; Meritum; Mr van Zijl; and/or Mr Smith. 6. all documentation relating to the purchase by Dyambu Holdings of an equity stake in Irvin and Johnson in 1998; 7. all documents submitted in relation to the tenders to the Department of Home Affairs for the operation of Lindela Repatriation Cantre ( Lindela ) in terms of tender number 13/96 ( the 1996 tender ) and tender number RT 706SP (the 1998 tender ), including, without limitation, the forms and specifications which were attached to the ST8 form attached as annexure 6 to the complaint, including

3 ST3, ST5, ST6, ST7, ST11.1 and ST36, and the specification, including paragraph 11.2 thereof; 8. the contract originally entered into with the Department of Home Affairs for the management of Lindela, and any subsequent amendments thereto; 9. the identity of the person who signed the ST8 form dated 29 June 1998 (annexure 6 to the complaint dated 1 June 2000); 10. the identities of the other tenderers which tendered for the award of the contract for the operation of Lindela; 11. the partnership agreement of the partnership between Mr Van Zijl and Mr Smith referred to in paragraph of the complainant s attorney s letter dated 16 May 2000; 12. the books and records of Meritum, Dyambu Operation, Dyambu Holdings and the Dyambu Trust, including the books of account of the Trust from its registration to date; 13. all reports or other documents filed with the Master of the Supreme Court in relation to the Dyambu Trust; 14. the articles and memorandum of association of Meritum, Dyambu Operations, Dyambu Holdings; 15. all CM forms, including details of directors, officers and auditors, and other documents lodged at the office of the Registrar of Companies in relation to Meritum, Dyambu Operations and Dyambu Holdings; 16. all documents pertaining to the 1996 and 1998 tenders, including, but not limited to the minutes of any meetings held with the Department of Home Affairs or the State Tender Board in relation to such tenders; 17. any correspondence between Meritum, Dyambu Operations or Dyambu Holdings, on the one hand, and the Department of Home Affairs or the State Tender Board, on the other hand, relating to the 1996 and 1998 tenders as well as the ad hoc renewals of the contract for the operation of Lindela in the time period between the two tenders; and 18. any other documents relating to this complaint. 19. the consent of Dyambu Operations (Pty) limited to the disclosure by the Department of Home Affairs of documents in the possession of the Department which are relevant to this matter. 3

4 4 Goldman Judin: 1. At your request, we set out hereunder what our clients (i.e. 1 st, 2 nd, 3 rd Complainants) require by way of Discovery:- 1.1 all the video footage filmed by Carte Blanche during the course of the interviews of our clients both on the premises of Lindela facility and otherwise, and 1.2 all tape recordings made by Carte Blanche of interviews between any of their representatives and our clients in preparation for the programme; and 1.3 documents and correspondence in the possession of Carte Blanche pertaining or relevant to the matter. 2. We set out hereunder the names of the various witnesses we intend calling as well the anticipated duration of their testimony:- 2.1 Doctor Jurgen Smith? 1½ hours 2.2 Daniel Mansell? 1 hour 2.3 David Sadie? 2 hour 2.4 Johannes Gumede? 45 mins 2.5 Nombi Kazi? 15 mins Procedural Rule 3.2 provides as follows: The written statement by the complainant shall contain or be accompanied by: full particulars of the complaint and the substantive bases for the dispute (if material facts or events are alleged these should be presented in affidavit form); copies of relevant correspondence; whenever possible a video or tape recording or transcript of the broadcast giving rise to the complaint; names and addresses of witness, if applicable; any other evidence, including affidavits, in support of the complaint Procedural Rule 3.3 provides as follows. The registrar shall submit a copy of the complainant s statement to the respondent. The respondent shall within 5 days of the receipt of such statement submit a written statement to the registrar which shall set out fully his or her defense to the complaint together with reference to supporting evidence, where necessary, including the names and addressed of witnesses, if applicable. The registrar shall submit a copy of the respondent s statement and supporting documents to the complainant, and if the chairperson so determines, he or she may allow the complainant to respond in which case the complainant shall deliver

5 such response to the registrar and the respondent within 2 days after receiving notice that the chairperson has so determined. The Registrar ensures that the chairperson and the members of the Adjudication Committee are in possession of all the documents referred to in this paragraph. Procedural Rules 4.2 and 4.3 provide as follows: The chairperson of the BCCSA, may, if satisfied that no injustice will result, and upon such conditions as he may impose: at any stage require any allegation of the fact in the statements filed in terms of rule 3 to be verified on oath; call upon the parties to a dispute to furnish such further information as he may consider necessary. Procedural Rule 3.10 provides as follows : If one or more parties do appear before the Committee, the proceedings shall take the form of a round table discussion and not a trial. At this stage of the proceedings it is, in my opinion, not necessary to direct any of the parties to discover any document or verify any matter on affidavit. The Complainants should be allowed to approach their case in a manner they deem fit and I will allow them to lead evidence of witnesses and hand up documents which they deem fit, so as to put their case. If they believe that a sworn statement is necessary, then such statement will of course be acceptable. If I am not satisfied with the evidence, I could call for more evidence or for affirmation by way of a sworn statement. Relevant questions by the Respondent will be allowed. It is important to note that the proceedings should at no stage lose their informal, round table character as required by the Rules. Onus also does not play a role. Ultimately the Tribunal must assess the facts in a manner which would satisfy it that a decision can be taken with confidence. Once the Complainants have closed their case, the Respondent will be allowed to put its case. If it chooses to lead evidence or hand in documents it may do so and where I deem it necessary, such evidence could be required to be verified by way of a sworn statement. 5

6 Of course, the Respondent may wish to commence with sworn statements, and that will also be acceptable. Relevant questions may be put to the Respondents witnesses, if any, by the Complainants. After each party has closed its case as to evidence, argument from both parties will be heard, the Complainants commencing, the Respondent answering thereafter and the Complainants replying as to new points raised. The parties are required to furnish the Registrar and each other with a list of witnesses who will be called and documentation which is to be handed up. Such list should reach the Registrar seven days before the hearing commences. A hearing is scheduled for Friday, 27 October at 10:00. A second day might be necessary, the parties counsel are requested to discuss this aspect and provide us with a few alternative dates. JCW VAN ROOYEN SC CHAIRPERSON 5 September