Diamond absolved

Alberton – The Diamonds hit back after they made headlines in February after Carte Blanche aired a damning report relating to the La Montanara and Jannie van der Walt saga’s.

On February 23 this year, Carte Blanche broadcast a programme concerning Ekurhuleni businessman and Councillor, Mr. Neil Diamond and his wife Click for Carte Blanche’s press release

Justine, relating to the sale of the wedding venue La Montanara to Mrs Diamond, and Mr Diamond acting as the executor of a deceased friend’s estate.

A press release to the RECORD stated that “the program did not relate to Mr Diamond in the execution of his official duties as Public Representative and

Chairman of Finance, but Carte Blanche chose to include this to sensationalise the matter.”

Following this broadcast the Alberton RECORD reported on the matter and Mr Diamond instructed Jurgens Bekker Attorneys to lodge 30 individual complaints and a collective complaint regarding the broadcast as a whole at the BCCSA (Broadcasting and Complaints Commission of South Africa).

The Diamond’s essentially claimed that Carte Blanche failed to provide the Complainants, Mr Diamond in particular, with a right of reply on some of the crucial matters, thereby allowing the formation of opinion based upon incorrect facts. They also complained that Carte Blanche infringed on their dignity and right to privacy.

The Tribunal issued their judgment on Tuesday October 7 and held unanimously that, judged as a whole, the broadcast succeeded in unjustifiably portraying Mr Diamond as a person whose integrity is questionable – which is not the case. The BCCSA found that Carte Blanche should have included more of Mr Diamond’s response to the allegations made by Carte Blanche and that the programme should air a correction.

The judgement further states: “Mr Diamond made information available to Carte Blanche on the particularly critical issue of the assets of La Montanara.

There was an omission to broadcast Mr Diamond’s reply and in mentioning this, it would have served to show the viewer that a division of assets would take place in accordance with the settlement. The inclusion would have removed the sting from the scene. This was once again to sensationalise a matter that would otherwise have no media interest. The BCCSA ruled that the Diamond’s complaint was justified and it was upheld in terms of the BCCSA Code of Conduct – insofar as important information provided to Carte Blanche was omitted in the broadcast.

Statements from the judgement:

La Montenara matter:

The BCCSA also ruled on the erroneous comment by Hennie Els in the programme as significant. Mr Els referred to an eviction order having been granted against the Diamonds. The allegation made by Els to an eviction order was found by the Tribunal not to be based on the truth.

Neil Diamond said that it is shocking that a person will be willing to lie on camera in front of thousands of people just to be noticed. The Tribunal found that it was not only Mr Els but also the presenter, who stated twice that there had been an eviction order, when indeed this was not true.

Carte Blanche was found to be in contravention of the BCCSA code once again, because of Hennie Els’s statement as it is simply not true or reasonably connected to the truth that an eviction order had been issued. The Tribunal further ruled that any implication of criminality against the Diamonds was, accordingly, unfounded.

Further the BCCSA commented on Hennie Els’s statements, as well as a statement by attorney Sybrand Tintinger, acting for St Aden’s liquidators, that

Mr. Diamond, as an estate agent, knew before the actual purchase that there were defects in the house. Tintinger said the following on air: “He knew

exactly what he was buying at the time….He did his studies. He’s an estate agent, he’s a valuer; he bought the property and then immediately after that he raised the latent defects.”

The Tribunal found that Mr. Diamond should at least have been granted the opportunity to reply to these allegations. Given the wide range of latent defects on the property, it was most unlikely that the Diamonds would have known about all of them.

An affidavit of the brother of Antoinette Fourie, that was presented to Carte Blanche, confirmed that his sister knew about the defects, but had not declared them to the Diamonds. This shows that the statement of Tintinger could not simply have been broadcast without disclosing the affidavit of the brother of Antoinette Fourie and the wide-ranging nature of the problems at La Montanara.

Van der Walt matter:

The BCCSA judgment found that Carte Blanche omitted to mention that Mr Diamond had in fact been validly appointed, as the executor in the first will of Jannie van der Walt in October 2011.

The validity of this will was not questioned at all and which was, to all intents and purposes, valid. The fact that Mr Diamond was elected to be the executor in an earlier will, the validity of which is not questioned, was important, and if this fact had been mentioned, it would likely have favoured Mr Diamond in the eyes of a reasonable viewer. This omission amounted to another contravention of the BCCSA code in terms of clause 28.2.

The Tribunal also found that Neil Diamond handed all documents of the estate over to Annelien van der Walt’s second attorney back in August 2012 and an allegation to the contrary were not true. Carte Blanche should have stated that Diamond disputed their allegations and that he gave Carte Blanche letters confirming that all documents were returned to Van der Walt’s attorney.

The BCCSA ruled that in law, the position taken by Carte Blanche around Diamond’s conduct as executor on air was not correct. The judgment clearly stated that an executor is indeed permitted to make payments out of the estate before the final documentation is filed with the Master.

The Master officially appointed Diamond as the executor, and he had certain powers and responsibilities. One of them was to make payments of debts, even if such debt is to himself in his personal capacity. To raise doubts as to the integrity of Mr Diamond, based on the payments, gives rise to a duty to ask him for his reply – albeit in writing. Mr Diamond obtained the opinion of senior counsel that he had acted within his powers. This opinion was made available to Carte Blanche, yet it was not broadcast.

Furthermore, Mr Diamond had provided Carte Blanche with all documents in respect of payments made by him during his tenure as executor.

These omissions by Carte Blanche amounted to a serious contravention of the BCCSA code. Carte Blanche was in possession of the positive opinion of a senior counsel, yet it did not refer to that, and it should have mentioned that Mr Diamond had handed documents to Carte Blanche in respect of payments made during his tenure.

No criminality by Diamond:

The BCCSA judgment finally addressed one last matter regarding the accusations of Criminal complaints against Mr Diamond. Carte Blanche in their broadcast stated that: “Criminal complaints have been laid against him and police are investigating. He claims that this is part of a campaign to extort money from him. He has obtained an interdict to stop Annelien (Van der Walt) and a private investigator from threatening, harassing or intimidating him.” The BCCSA found that this was not the case and that there was no evidence to support a criminal investigation by the police. Even if that were not the case, the BCCSA ruled that the opinion of senior counsel found that Mr Diamond had not acted unlawfully in the execution of his functions as executor of the Estate of Jannie van der Walt, and this should have been broadcast.

BCCSA ruling:

The BCCSA has ordered that Carte Blanche, without comment, and at the start of the first or second programme after the issue of the order, broadcast what was regarded by the Tribunal to be the essence of the finding. The Diamond’s remarked that it was a costly and lengthy fight against Carte Blanche to expose the lies of individuals such as Hennie Els and have their dignity and reputation restored. Diamond said: “We are vindicated by the BCCSA, but as keen Carte Blanche viewers we will be a lot more apprehensive about the integrity of their stories in future.”

Attorney Andrew Boerner stated: “Carte Blanche omitted to broadcast material that was likely to have cast a different perspective on the entire matter and also made conclusions not based on facts.

Despite receiving legal advice from the start of its investigations in August 2013, Carte Blanche failed to broadcast a programme which was remotely compliant with the code of conduct. It was clear right from the beginning of the investigation that Carte Blanche sought to portray Mr Diamond, our client, as a person whose integrity was questionable, even if it meant breaching the BCCSA Code of Conduct on several occasions.

It was most disappointing that an award-winning investigative programme such as Carte Blanche would produce a programme, which was in violation of the most fundamental aspects of the BCCSA Code of Conduct. Given Carte Blanche’s reputation, it was important for our client to pursue his complaint and successfully so. We trust that they will exercise caution when reporting on public figures in future and that the public will take into consideration that even Carte Blanche gets it wrong…”

Carte Blanche’s comment:

“M-Net respects the Broadcasting Complaints Commission of South Africa and has noted the BCCSA’S decision in the matter concerning Carte Blanche and Mr Neil Diamond. Carte Blanche is an award-winning current affairs programme, committed to serving the interests of the South African people. It will continue to abide by the BCCSA code,” said Lani Lombard: M-Net en Carte Blanche spokesperson.

Diamond confirmed that the matter is now settled, and that the BCCSA ruling is final and M-Net did not appeal the ruling.

Hennie Els comments:

“It is clear that multiple complaints were laid with the Broadcasting Complaints Commission and clearly a issue of put as many complaints as possible and hope some stick and get a ruling on a few and then claim victory on all, and this could be seen that a ruling was only made in favour of the subject on few of the many complaints lodged. It is clearly an issue of a shotgun approach as was argued by Council for the Broadcaster.

“I will comment as far as it concerns me or where I have knowledge off, and it must be kept in mind that none of our evidence was tested by the Tribunal and we were never questioned by the Tribunal on what the actual facts and circumstances were in statements made during the interview. And I am sure that if we were afforded the opportunity that the Tribunal would have come to a different finding in most of the issues.

“I confirm that the subject is a public figure, and it is my submission that as a public figure one should be above question in all aspects.

If I was called to testify at the Tribunal, it would have been stated that in my interview I did refer to the “eviction order application” that was opposed by the subjects, and which was also discussed in detail with Mr Diamond during an interview in his office. Therefore his claim that I have blatantly lied about the order is not correct at all.”

To this Diamond said: “I deny ever having such a meeting with Els. This is a fragment of his imagination.”

Else continued: “I agree that I have during the interview and also during the interview with Mr Diamond in his office said by opposing the “eviction order (application) “ that he is stealing from the poor. At the time I went and interview him there was no “attachments” as stipulated in paragraph 15 which refer to as “attachment”. I therefore deny and strongly object to the statement made by the subject stating that he is shocked that a person (referring to me) was willing to lie on camera in front of thousands of people just to be noticed, where in fact it was a simple omission of the word “application” where in fact there was an application for the eviction order, and he in fact vigorously opposed the application for the eviction. There was no deliberate lie told at all.”

Sybrand Tintinger on behalf of the Curators:

Mr Tintinger sent a five-page reply to the RECORD stating: “The Trustees respect the ruling. They were not parties to the proceedings before the Tribunal and were also not called upon to comment on certain of the facts of Mr Diamond in his response to the BCCSA. Were they called to respond, they would have placed certain facts before the Tribunal, which would have elucidated certain of the issues touched on in the ruling. To deal with those issues separately in this press release would be counterproductive and serve no purpose, in light of the ruling already having been made.”

Tintinger then goes back to things dealt with in the broadcast which the Tribunal ruled on.

The full judgment is available at www.bccsa.co.za.”

Latest on La Montanara:

Bids closed at R2.2 million for La Montanara at a public auction on Thursday September 3. With the property being part of an insolvent estate, there is a 14-day waiting period for approval from the Master of the High Court, and to make sure everything is in place with acceptance from the curators of the estate. The 14 days expired on October 14.

Neil and Justine Diamond were also invited to come and collect their assets removed when the saga started. They did so on Wednesday October 1.