Carte Blanche

Financial Mail - - AT HOME & ABROAD - Carte Blanche

el­derly on prop­er­ties it didn’t own. But he soon clashed with Mclach­lan.

In Jan­uary, Nel se­cretly recorded a meet­ing with Mclach­lan at a cof­fee shop, dur­ing which Mclach­lan fumed about su­ing his for­mer FD, how nonex­ec­u­tive direc­tor Njab­ulo Mthethwa “needs to be buried” and how, when the share price fell to 2c a share, “we start sup­port­ing it to keep it at 7c”.

This record­ing is ev­i­dently deeply em­bar­rass­ing for Mclach­lan, as it forms the basis of the R44m “claim for dam­ages as a re­sult of defama­tion and losses” sent to Nel last week.

The com­pany says: “Un­der the aus­pice [sic] of a friendly cof­fee in­vi­ta­tion at a restau­rant, il­le­gally with­out the per­mis­sion and knowl­edge of Mclach­lan, [Nel] taped the con­ver­sa­tion with him with the sole in­ten­tion to use, dis­trib­ute and cause it to be pub­lished on na­tional tele­vi­sion”.

Mclach­lan says the ex­cerpts of the record­ing aired on in­ves­tiga­tive TV pro­gramme por­trayed him as “a greedy per­son, a thief and a fraud­ster, that he se­cretly and il­le­gally chan­nelled [Pem­bury] com­pany funds to the ac­count of his spouse … that he stole com­pany as­sets and that he, his spouse and his son are dis­hon­est per­sons, thieves and fraud­sters”.

He says th­ese claims are false and cause “in­jury to their good names and rep­u­ta­tions”.

Nel told the FM this week that the law­suit is a joke.

“I mean, R44m — where have you seen that in your life? It’s a joke, and An­drew’s a joke. Th­ese things don’t scare me. For me, the real is­sue is that they took R200m of old peo­ple’s money, and they messed up. They don’t care who they tram­ple on,” he said.

It seems the pur­pose of the law­suit may be sim­ply to in­tim­i­date Nel, given the ob­vi­ous le­gal prob­lems with the law­suit.

Per­haps the big­gest is that, un­like the al­le­ga­tion in his lawyer’s let­ter, it isn’t ac­tu­ally il­le­gal to record some­one if you’re party to that con­ver­sa­tion.

Web­ber Wentzel me­dia lawyer Dario Milo, who also acts for Carte Blanche, says record­ing a con­ver­sa­tion isn’t a crim­i­nal of­fence, even if the com­mon law of pri­vacy may re­strict what can be re­vealed to the public. “Even in re­la­tion to the con­tents of the con­ver­sa­tion, if they re­veal a mat­ter of public in­ter­est there would be no un­jus­ti­fied breach of pri­vacy rights.”

How­ever, when the FM con­tacted Mclach­lan’s lawyer Mar­i­nus Hes­selink and pointed this out, he said: “I’m not go­ing to elab­o­rate or dis­cuss it with you — I dis­agree with you.”

Hes­selink ar­gued that as a di­rect re­sult of the insert, the share price dropped “overnight”.

It’s true that on the Mon­day fol­low­ing its air­ing, the share price fell from 10c to 8c — an R8.3m drop in its R41.5m mar­ket value. But it’ll be hard to prove this was be­cause of the TV show since, on the Thurs­day be­fore the pro

An­drew Mclach­lan: What was the in­ten­tion of the record­ing?

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