The Advertising Standards Authority Antics
ASA's tomfoolery
Note:
The total number of words involved in the communications that passed between me end the Advertising Standards Authority (ASA) amounts to more than 12 000. Loading that amount of text on this page of my website caused some gibberish. I have therefore only loaded my letter to the ASA since the letter quotes all the germane contents of Gail Schimmels emails and deals specifically with the contents. Should you wish to see the contents of the amails then you can request that information by sending an email to me at scch@mweb.co.za.
_____________________________________
COEN VAN WYK
B.Sc., B.Sc. (Hons.), B.Iuris
14 August 2006
By email.
The Head: Legal & Regulatory Affairs,
Advertising Standards Authority.
Dear Gail
BUREAUCRATIC ARROGANCE that NEGATES TRANSPARENCY
I refer to your email of the 2nd instant, the contents of which I found rather surprising, upsetting, and also exciting, for reasons that would clearly emerge from what follows herein.
I wish to state most emphatically at the outset that I found the words and innuendo of the following impertinent, offensive, profoundly upsetting, and uncalled for:
“I have to record that at this point I am no longer entirely comfortable with your line of questions and implicit accusations, although I realise that your tone may have been inadvertent.”
It is quite clear that you intend to convey with the words the notion that my actions are inappropriate and not proper and that I am doing something wrong, or undesirable. You also falsely ascribe to me “accusations” that I simply did not make, and that are pure figments of your imagination.
In the opening words of your email your choice of the words, “bona fide queries from interested members of the public or industry” appears to contain the clear innuendo that you do not regard my query as a bona fide query from an interested party. That is also clearly evidenced by the fact that in the very next sentence you not only “record” your discomfort with my “line of questions” (sic), but you also falsely accuse me of making “accusations”.
Whilst reserving my rights against you and the ASA, I demand that you stop your unwarranted attacks and false accusations and forthwith deal with my queries and questions in a professional and unemotional manner.
The upshot of your conduct is that my focus in this matter has now shifted somewhat. I will explain.
1. Introduction
(a) I am a scientist, lawyer and freelance journalist.
(b) My interest in the Rath matter and cellular medicine was caused by the fact that, some time ago, I was commissioned as a scientist by a Dr. Gunn to do research on certain natural products and thereafter to produce a report that he intended to use as a marketing tool for his products. Dr. Gunn has the same views on nutrition and drugs as Dr. Rath and in due course Gunn handed to me a full-page advertisement of the Rath Foundation. Ever since then I have followed the fall-out connected to Dr. Rath’s endeavours.
(c) In my first email to ASA in this matter I stated that I have received an email from a list to which I subscribe, being Druginfo (druginfo@healthlink.org.za), in which it is stated that Dr Matthias Rath is facing legal challenges in Germany as well as South Africa.
I also mentioned that the email from Druginfo states that the ASA ordered the Dr Rath Health Foundation Africa to stop advertising that dietary supplements were safer and more effective than conventional drug treatments against HIV infections.
(d) When I read the Druginfo email I decided that, as a journalist, I would follow the story on the criminal case with the view of developing an article on the matter. Although I had some concerns about the ASA’s handling of the Rath matter, my main focus was the criminal matter concerning Rath.
My first email to ASA was therefore mainly to procure any information regarding the Rath Foundation endeavours that may shed some light on the efficacy of cellular medicine. Although, as a journalist, I would critically consider the facts regarding the ASA ruling, with a view of developing a report for publication, my interest, at the outset, in the ASA ruling was not to do a report on the ASA, but to investigate the possibility that particulars of the ASA proceeding could contain facts relevant to the other proceedings against Dr. Rath.
But then your bureaucratic arrogance emerged, and that became a very interesting story. I therefore thank you for your recalcitrance and for shooting yourself, ever so skilfully, in the foot.
To put it bluntly, this became a really good story when you started misbehaving!
(e) I therefore intend developing an article on the ASA, its funding, the manner in which it functions, and its credibility. At this juncture it is my intention to present the final product to Noseweek. If you are not aware of this particular publication then I suggest that you get hold of a copy and read it. The editor-in-chief is Martin Welz who also happens to be a lawyer and who pulls no punches in fearlessly going after anybody, or any organization, or government department that needs to be critically scrutinized. If you do a search on Noseweek’s web site then you would notice how he has been giving Judge President Hlope a very tough time for quite a while.
But then again, you should be familiar with Noseweek because it dealt comprehensively with your chairman’s role as trustee in the greedy endeavours concerning the dismemberment of the once vast Frame business empire, and how he (Mervyn King) rewarded, inter alia himself, ever so generously in he process. The following are some sobering quotations regarding the conduct of Mervyn King:
(i) The cover of issue 45 of Noseweek contains the following banner:
“KING PONG
“How ‘Mr Clean’ helped clean out the Phillip Frame Will Trust”
(ii) The following is found on the Noseweek web site:
“THE FRAME AFFAIR - A TRUST BETRAYED (Issue 45)
The dismemberment of the once vast Frame business empire revolved around the greed and venality of a small group that was aided and abetted by the likes of SA's 'Mr Clean', Mervyn King, and Sydney Kentridge SC, who applied themselves to subverting Philip Frame's wish to protect the tens of thousands of jobs he had created.”
(iii) The issue 45 Editorial contains the following:
“But when history really becomes news is when the story suggests that the likes of Mervyn King and Sydney Kentridge helped execute a plan, contrary to the public interest and driven by greed. A plan which the perpetrators knew would costs as many as 20,000 breadline employees their jobs at a time when this meant starvation and even death.”
(vi) The King Pong continues in, what Noseweek describes on the cover of issue 46 of the magazine as “Mervyn King and the Frame saga: Part 2”.
The mentioned issue contains the following:
· The following editorial:
“He and the likes of Mervyn King clearly found the mere possibility so outrageous that they were prepared to ignore Frame’s will – and deny and old man the liberty to do with his own goods what he thought was right.”
· The following contents of a report that makes for very interesting reading regarding just how generously King and his fellow trustees remunerated themselves contrary to Frame’s stipulation in his will. According to the Noseweek article Frame’s will;
‘determined that the trustees of his trust were to be paid an annual remuneration not exceeding R1000 each “and save for the foregoing, my said trustees shall not be entitled to receive any other remuneration for their services.”
‘The annual accounts of the trust for 1989 revealed that, to add insult to injury, Mr King ad (sic) his fellow trustees paid themselves a R5000,000 “fee” from the proceeds of the sale of the trust’s Frame Group shares.
‘This was in addition to the R285,600 paid in 1990 and the R231,600 paid in 1991 for “administrative costs agreed to by beneficiaries” [but explicitly disallowed by their benefactor].’
(v) In a Letters to the Editor column, the following germane question is posed concerning the Mervyn King antics as exposed in issue 47 of Noseweek:
“Why is King still permitted to dominate the corporate governance arena after your Frame Trust exposé? Will any politicians – or the Institute of Directors – have the courage to stick their necks out on this?
Sam Hansen”
(f) Given the fact that your email contains some personal remarks aimed at me, I need to make one thing clear to you and that is that if you think that any abusive writing is going to deter me, then you are living in cloud-nine la-la-cuckoo-land. If you should read the more than 50 pieces that I have written, and had published then you would become intensely aware of the validity of what I have stated. As the saying goes, “Sticks and stones may break my bones but words will never hurt me”. So, you may become as insufferable, or abominable as you may choose to be, but that will not daunt me. If you have any sense then you would save yourself by relinquishing your arrogance and dealing appropriately with my request for informing. In that regard you need to realize that you should at all costs prevent this matter from escalating and that your deplorable and inept conduct be exposed to the public.
(g) As an investigative reporter I have done a number of articles where the possibility of grave personal danger existed. In that regard I mention that some time ago I did an investigation on the pilot licence scam of a few years ago. My actions as investigative journalist were the reason why Trevor Abrahams, the CEO (at the time) of the Civil Aviation Authority (CAA), and personal buddy of Thabo Mbeki and the late Dullah Omar, was originally arrested. This was due to the fact that I demanded, as member of the public, to cross-examine Abrahams at the public enquiry into the pilot licence scam. When I addressed my demand to the chairman of the proceedings (a judge) I stated that the panel members had failed in their duty to test the evidence of Abrahams, and that I need to do so in the interest of justice. After a few adjournments, during which the three panel members caucused extensively behind closed doors, I eventually had my way, cross-examined Abrahams, and within hours thereafter he was behind bars. I subsequently wrote an article entitled; ‘SPECIAL AVIATION REPORT Investigating the antics of the so-called “Independent” Review Panel of the CAA’. The report was published in the August 2000 edition of SA Flyer. All of this took place while people were leaving the country due to death threats, and the police insisted that one of my journalistic sources, a senior police officer, Superintendent Manie Esterhuizen, and his family, be placed in a witness protection program. But despite the death threats directed against my journalistic sources, I courageously pressed on with the project and had my report published.
(h) You may be aware of the fact that our superior courts have on a number of occasions commented on the role of the press. In that regard I may mention that the role of the media has appropriately been described in the following comment of the High Court in the 1994 case of the Government of the Republic of South Africa v 'Sunday Times' newspaper:
"The role of the press in a democratic society cannot be understated. The press is in the front line of the battle to maintain democracy. It is the function of the press to ferret out corruption, dishonesty and graft where it may occur and to expose the perpetrators. The press must reveal dishonest mal- and inept administration. It must also contribute to the exchange of ideas. It must advance communication between the governed and those who govern. The press must act as the watchdog of the governed."
(i) Although I never even considered investigating the goings-on at the ASA when I penned my first email to you, your conduct in this matter has alerted me to some inherent repulsive characteristics and weaknesses in the procedure for “regulating” advertising in South Africa. I consequently decided that I would embark on developing a comprehensive report on the issue. You would therefore be well advised to give me your cooperation in that regard. You, as the senior member of the directorate at the ASA would be invaluable to me in my quest for clarity on how advertising should be controlled in this country. And in the process you could emerge as the knight in shining armour. To continue with the caginess that you have displayed so far would most certainly point to dire consequences.
I must tell you that I find a system in which a “quasi-judicial” function is exercised by people whose salaries are inter alia derived from membership fees, rather sordid. I will explain my sentiments by referring to a hypothetical civil case in the high court in which the Dr Rath Health Foundation Africa is the defendant. The case concerns an objection to an advertisement of the Rath Health foundation. The salary of the presiding judge in the matter is inter alia derived from membership fees paid by members of the court. Yes! Members of the court! The court has members! (Nogal!) And 26 of the defendant’s competitors, and his bitter enemies, are powerful organizations and are members of the court through the Pharmaceutical Manufacturers Association of South Africa. And these enemies of the Rath Health Foundation also have some 17 cronies with whom they share a common interest, being that they are also members of the court in which the Rath Health Foundation is going to be judged. And lo! If the Rath Health Foundation should decide to appeal any ruling that the court has made against it, then things would really become very messy in that cronies of the Rath Health Foundation’s bitter enemies will participate in adjudicating on the Foundation’s appeal. Cosy, but messy!
I also find it particularly revealing that whereas, even as regards the highest court of the land, an ordinary humble citizen like myself has a right of access to the information contained in the court file, and the names of the judges who adjudicated in a particular matter, but when it comes to the august organization called the ASA, I “do not have a right of access to the information”.
2. Your email of 2 August 2006
I will now deal with your mentioned email as follows:
(a) You stated: “My starting point in answering any of your (or anyone else's) correspondence is that the ASA attempts to conduct itself in a transparant (sic) and ethical manner, and part of that is answering bona fide queries from interested members of the public or industry.
My response is:
(i) I have noticed that you have now whittled down the issue of the ASA’s integrity from an assertive statement that an ASA decision can not be bought to a rather mundane statement that “the ASA attempts (my underscoring) to conduct itself in a transparant (sic) and ethical manner”
So what you are now saying is that the ASA at least tries to be transparent and ethical.
(ii) As regards your contention regarding the ASA’s “transparant” (sic) conduct I will revisit the issue of transparency after I have dealt herein with the supercilious and cagey manner in which you dealt with issues that I raised and I will then examine just how much transparency your demeanour, as Head: Legal & Regulatory Affairs, of the ASA, exudes in this matter.
(ii) As regard your contention that “the ASA attempts to conduct itself in a transparant (sic) and ethical manner”, that may be true of the ASA. However, how the ASA views your deplorable cagey conduct in this matter will be decisive in deciding whether the ASA requires ethical conduct from its senior officers. My advice to you is to get off your high horse; apologize for your deplorable behaviour; and thereafter deal properly with my questions and queries.
(iii) Your choice of the words, “bona fide queries from interested members of the public or industry” appears to contain the clear innuendo that you do not regard my query as a bona fide query from an interested party. That is also clearly evidenced by the fact that in the very next sentence you not only “record” your discomfort with my “line of questions” (sic), but you also falsely accuse me of making “accusations”.
I will therefore now deal with your discomfort and my alleged accusations in the following paragraph.
(b) You state: “I have to record that at this point I am no longer entirely comfortable with your line of questions (sic) ...”
In dealing with your discomfort with my “line of questions (sic)”, I will not only deal with questions that are clearly demarcated with question marks, but I will also deal with my requests for information. The reason why I do so is because it is obvious from the manner in which you responded to my requests, and your demeanour, that the requests clearly stressed you out and that the source of your discomfort lurks somewhere in the following words, quoted in bold underlined print, from my email:
(i) As regards the issue of funding, I have noticed that you are funded by a levy on advertising. My question is however whether your members, such as the Pharmaceutical Manufacturer’s Association of South Africa, pay any membership fees. If the reply is in the affirmative, then I would be interested to know how much the mentioned member pays.
In that regard the following is relevant:
· Why are you not comfortable with a question;
o regarding the funding of the ASA;
o whether your members pay membership fees; and
o the amount paid by the Pharmaceutical Manufacturer Association of South Africa?
· Your explanation regarding funding reads as follows:
“All advertisers pay a levy on advertising that is collected by the media owner and paid into a trust. This trust funds a number of advertising related services, including the ASA. This means that we don't know where our money comes from specifically, ensuring independence.”
Given the fact that you have not mentioned membership fees as a source of your funding, my question is: Why did you conceal from me the funding by members? Where was your precious transparency when you informed me of the ASA’s funding? After all, the fact that you are funded by membership fees, is clearly evidenced by your following words:
“The amount members pay ... forms a very small part of our funding”.
But there is another even more disturbing issue and that is that you were simply not telling the whole truth, because you know exactly where the membership fees that are paid to you come from,
· Given the fact that you volunteer information to the effect that the “amount members pay...forms a very small part of our funding”, despite the fact that I did not ask a question in that regard, clearly indicates that you are particularly sensitive about the ASA’s funding by members (for reasons that I fully understand). But you made matters worse for yourself when you replied to my question regarding “...how much the mentioned member pays”, with the meaningless answer, “The amount members pay is nominal”.
Now in an attempt to ascribe some sort of value to the word “nominal”, I looked up the meaning of the word in the Microsoft Word list of words, and an Oxford dictionary. I found the following:
Microsoft Word:
“supposed”, “ostensible”, “so-called in name only”, “titular”.
Oxford dictionary:
“Existing in name only, not actual or real or effective”, “almost nothing”.
Your response to my enquiry as regards how much members pay is therefore absolutely meaningless, and I verily believe that your choice of the word, “nominal” is a desperate attempt to conceal the actual amount of money that the ASA receives from its members.
· Your evasiveness regarding payments to the ASA by its members has made me even more interested in the particular information and I therefore repeat the question here below and await your reply:
“My question is however whether your members, such as the Pharmaceutical Manufacturer’s Association of South Africa, pay any membership fees. If the reply is in the affirmative, then I would be interested to know how much the mentioned member pays.”
· I also have the following questions that are extremely germane regarding the independence of the ASA:
o What percentage of the ASA’s funding do the membership contributions constitute?
o What does the membership fees, that were contributed during the part three years, amount to.
(ii) I now turn to the issue of benefits enjoyed by members. In that regard I would be particularly interested to know the implications of the fact that “some members get representation on the appeal committees”. I would also be interested to learn whether the Pharmaceutical Manufacturer’s Association of South Africa has such “representation”.
Your response reads as follows:
“The PMA is not currently represented on any of the appeal committees. Any member who is represented and has a conflict or perceived conflict on a particular matter is, in any event, recused from that hearing.”
I will revisit the issue of “conflict” later herein.
(iii) “So why would the ASA be above all those types of shenanigans?”
Why would you be uncomfortable with that question? After all, you did state that “the ASA attempts (my underscoring) to conduct itself in a transparant (sic) and ethical manner”. Your obvious response should have been that the shysters that I referred to in my email try not to do conduct themselves in a transparent and ethical manner, whereas the ASA does at least “attempt” (your word, not mine, dear madam) to do so. The question is: Does the ASA succeed?
(iv) Why not state unequivocally that “member bodies of the ASA are not involved in the decision making process (full stop!)” Adding the words “at Directorate level” implies (albeit perhaps unintentionally so) that the “member bodies” are indeed involved in the “decision making process”, but not at (sic) “at Directorate level”.
Given the fact that you had to disclose that members (who, incidentally do contribute money to the ASA coffers) are indeed involved in the “decision making process”, I fully understand why you are uncomfortable with my query.
Your response to the contents of the paragraph containing the quoted words is extremely informative and illustrative of the arrogance level on which the ASA (and you) function in dealing with the public. I will explain my contention.
· You state the following in your response:
“I find the content of this paragraph irrelevant and somewhat offensive.”
It is not clear what in particular you find offensive. It is however clear that you suffer from the illusion that you have the power to decide what is relevant. And in that regard you have inter alia decided that the issue of members being “involved in appeal decisions” is “irrelevant”.
· But you also stated the following:
“As one of the most senior members of the ASA staff, I can assure you that our integrity is beyond reproach. I am not prepared to enter further debate about this.”
My response is that if what you say is true, then you and other staff members of the ASA staff must be the most unique group of people in the world. I say so because, according to you, you do not merely possess a high level of integrity, but your ”integrity is beyond reproach”. Wow! That is something very, very special. That means that, as regards the ASA staff;
o not one of them has ever been convicted of a criminal offence; or admitted guilt regarding committing an offence;
o each and every fact in the CV of each staff member is completely accurate;
o their tax affairs are completely in order; and all their tax returns are completely accurate;
o none of them ever did any of the nasty type of fraudulent things regarding expense accounts that we read about in the New South Africa.
Are you saying that no disciplinary steps whatsoever were ever taken against any of the pristine ASA staff members? Are you also saying that no warning in terms of labour legislation was ever issued?
· But then you close the door on any further scrutiny by stating the following ever so conceitedly:
“I am not prepared to enter further debate about this.”
Now that is a very special brand of ASA transparency. You state that your integrity is “beyond reproach” and immediately thereafter YOU, and you alone, decide that that is that! Wow! Such awesome power!
· After you conceded that “Members may be involved in appeal decisions” you also found it necessary to add the following:
”As explained above, if such a member had a conflict or a percieved (sic) conflict, they would be recused from that matter.”
I assume that when you used the word “conflict” you intended to refer to a conflict of interest. I will therefore, while assuming that that is indeed what you meant, comment on what you have stated.
A number of questions arise concerning the “conflict” issue. They are inter alia the following:
o Who decides whether there is a conflict of interest?
o How is a decision on the issue arrived at?
o How is it possible to establish whether a particular member has an interest in a matter concerning its cronies (fellow members)?
o Given the fact that ASA members also have members, how can the absence of an interest in a particular matter ever be established?
I will now briefly revisit your assertion that your “integrity is beyond reproach” by asking you whether you are prepared to furnish me with the names and identity numbers of the staff members of the ASA in order to enable me to establish whether they have criminal records, or civil judgement against them? I undertake to furnish to any staff member all the particulars that I procure concerning the staff member. Incidentally, I am prepared to furnish to you the same information concerning myself, on the same conditions.
(v) “I wish to mention one other issue, being the documents referred to in the ruling. I assume that the documents are not available in scanned form. If they are indeed, could you please email the documents to me?”
Now why would you be uncomfortable with this question? Please, please, pretty please, do let me know the reason for your discomfort with this question.
You responded as follows:
“As you are not a party to the matter you do not have a right of access to the information you have requested. The ruling that you have seen is the public record of the matter. I will, however, post you some information aboput (sic) the ASA to help your understanding.”
I mention at the outset that I have not received anything in the post from you. When did you address the mail to me?
I have the following questions regarding your quoted statement:
· On what do you base your contention that I “do not have a right of access to the information”? Is there some sort of authoritative rule or constitution on which you rely? If the reply is in the affirmative then please let me have particulars in that regard.
· Is this once more an example of the special brand of the ASA transparency?
I also find it particularly revealing that, whereas, even as regards the highest court of the land, an ordinary humble citizen like myself has a right of access to the information contained in the court file, and the names of the judges who adjudicated in matters, when it comes to the august organization called the ASA, I “do not have a right of access to the information”
(vi) Before leaving the matter of Rath behind and moving on to other matters, I would appreciate it if you could let me have the names of the ASA people who conducted and participated in the TAC/RATH proceedings.
· Now your reply to this perfectly innocuous request is very telling. It reads as follows:
“The Dr Rath matter was considered by the Directorate who is made up of the full time professional staff of the ASA. I do not think that the names are relevant for you, and must again point out that you are not a party to the matter. As with the Committees, if a member of Directorate has a conflict of interest, they are recused from the matter.”
· Wow! Talk about paranoia. When did the ASA transparency finally go flying out the window? And where did the following come from?
“As with the Committees, if a member of Directorate has a conflict of interest, they are recused from the matter.”
Before I read your baffling words I had not even thought of “conflict of interest”, let alone raise it at any juncture. Could it be that there are some “conflict of interest” skeletons in the ASA’s cupboards that caused you to blurt out the irrelevant (and unsolicited) “conflict of interest” information? Or is it perhaps not all that irrelevant? Nevertheless, thank you for alerting me to that possibility. Looks like a classical “Freudian slip”.
However, let me suggest the following to you: Firstly take a deep breath. Then breath out, and breath in. Slo-o-o-o-o-o-wly now! Then say. “Ohm”, in a deep voice. And thereafter just tell me who conducted the proceedings during the Rath matter. If you were one of the people involved in the whole shebang, then simply come out with it. Remember, the truth will set you free.
· As regards your words. “I do not think that the names are relevant for you”, I implore you, please not to think. Just let me have the information that I requested because I “think that the names are relevant”. What you think is actually completely irrelevant.
· What I don’t understand is the reason for your blatant and shameless endeavours in concealing from me the names of the people who were involved in the proceedings that gave rise to the ASA ruling against the Rath Foundation. What do you want to hide from me? How can your despicable conduct possibly enhance the credibility, image and transparency of the ASA? Are you really unable to appreciate that your clandestine act of concealing from me the identity of the mentioned role players, seriously tarnishes the whole process, and creates the distinct impression that there is something bad at the ASA that needs to be concealed?
I need to inform you that without the names of of the people involved in the ruling in the Rath matter, I am unable to establish whether any of them have any connection with the members of the Pharmaceutical Manufacturers Association of South Africa, or any of its ASA cronies.
I will eventually get the names that I want and I will then start off by checking whether any ASA person involved in the Rath matter, or any other ASA staff member is (or was ever) a director or officer of the following pharmaceutical companies, who in effect, happen to be members of the ASA, and who have a profound interest in ensuring that the Rath Health Foundation’s products are not advertised.:
Abbott Laboratories
Akzo Nobel - Organon
Almirall-Prodesfarma
AstraZeneca
Bayer
Boehringer Ingelheim
Bristol-Myers Squibb
Chugai Pharmaceutical
Eisai
Eli Lilly
Esteve
F-Hoffmann-La Roche
Astellas Pharma Inc.
GlaxoSmithKline
Merck & Co., Inc.
Menarini S.A.
Merck KGaA
Novartis International AG
Pfizer
Sanofi-Aventis
Institut de Recherches Internationales Servier -I.R.I.S.
Sigma-Tau
Schering AG
Schering-Plough
Takeda
Wyeth
(vii) The question is therefore whether the ASA ensures that it has proof of service of the complaint on the respondent before it assumes that the respondent failed to reply, and an adverse ruling is subsequently made against him.
‘I notice that you also state the following: “...we send a minimum of two letters before we rule”. Are those letters sent by registered post?’
Now I can imagine that, if the ASA letters are not sent by registered post (or served by the Sheriff), and that the ASA therefore has no proof of service of the complaint, then that would most certainly cause you to be uncomfortable with my following question:
“Are those letters sent by registered post?”
The cause of your discomfort would obviously be that you would then have no proof whatsoever that the letters were sent to a hapless advertiser. That would mean that the ASA therefore never gave the “advertiser the chance to respond to an accusation”, before an adverse ruling was made by the ASA against it beleaguered victim. And that is probably why you skilfully evaded my question; “Are those letters sent by registered post?” Could you please let me have an answer to my question, albeit that it may cause so much discomfort?
You actually simply ignored my following question, contained in my previous email:
“Are those letters sent by registered post?”
(viii) ‘Given the fact that you say that “there'd be various ways that you could now address the problem”, I wish to hear from you in that regard. In the meantime I may mention that a Mrs D Beukes signed the letter dated 2 June 1992, in her capacity as Acting Executive Director, and the reference is,”DB/dvh/23”.’
You responded as follows:
“Your matter was decided 14 years ago. The ASA's electronic records start in 1999. In terms of good corporate governance, we discard files after 5 years.”
Given that you state, “In terms of good corporate governance, we discard files after 5 years...”¸ kindly inform me what you are referring to. Is there indeed an authoritative rule to that effect? I there is, then kindly let me have information in that regard.
You did not furnish any information regarding, what you refer to as, “there'd be various ways that you could now address the problem”.
Could you please do so now?
(c) You state: “I have to record that at this point I am no longer entirely comfortable with your ... implicit accusations...”
I demand that you point out all my alleged “accusations”.
(d) You state the following: “While I remain happy to answer any procedural queries, I would prefer that you wait for the information that I am mailing you.”
I waited and at the time of penning these words had not yet received anything from you. When did you send your mail to me?
(e) You ever so arrogantly state the following: “I am also not prepared to debate either the integrity of the ASA, or any issue relating to the Dr Rath matter further.”
My response is that I have no intention of debating anything with you. I merely want information from you.
(f) I have noted your comments concerning the SABS issue and I will in due course act as you suggested.
3. A special brand of “ASA – Gail Schimmil transparency”
I once more record your following words quoted from one of your emails:
“My starting point in answering any of your (or anyone else's) correspondence is that the ASA attempts to conduct itself in a transparant (sic) and ethical manner, and part of that is answering bona fide queries from interested members of the public or industry.
Hold that thought while you read what now follows.
(a). As regards the issue of the funding of the ASA, I will now deal with how I had to go about in my endeavours to drag out of you the truth about the ASA funding, being that its members, who happen to be “involved in the decision making process” actually contribute to, inter alia, the payment of your salary.
(i) You stated the following in your email of the 31st ultimo:
“All advertisers pay a levy on advertising that is collected by the media owner and paid into a trust. This trust funds a number of advertising related services, including the ASA. This means that we don't know where our money comes from specifically, ensuring independence.”
Now a mere cursory perusal of what you had stated on the delicate issue of the ASA funding, would already reveal that you said nothing about the funding derived from members, who happen to be “involved in the decision making process” of the ASA. You deliberately concealed that fact from me.
(ii) In my email of the 1st instant I responded as follows to your quoted words:
“As regards the issue of funding, I have noticed that you are funded by a levy on advertising. My question is however whether your members, such as the Pharmaceutical Manufacturer’s Association of South Africa, pay any membership fees. If the reply is in the affirmative, then I would be interested to know how much the mentioned member pays.”
(iii) You did not actually respond to my question, “whether your members, such as the Pharmaceutical Manufacturer’s Association of South Africa, pay any membership fees”, albeit that it is clear from your particularly terse response that your members do indeed contribute to the ASA treasury.
You also did not respond, at all, to my question how much the mentioned member pays” and that information simply cannot be extracted from your mentioned terse response, which incidentally reads as follows
“The amount members pay is nominal and forms a very small part of our funding.”
(iv) You therefore deliberately concealed from me the fact that you are funded by membership fees.
(v) But not only did you conceal from me the fact that you are funded by membership fees, but you are still deliberately evading my request for information regarding how much the Pharmaceutical Manufacturers Association of South Africa pays in membership fees.
(vi) Furthermore, not only did you deliberately conceal from me the information (that I had dealt with) regarding your funding, but you also falsely stated that you “don't know where” your “money comes from specifically, ensuring independence”.
And that false statement you made whilst being fully, and probably painfully, aware of the fact that you know that your funding inter alia comes from membership fees, paid by members such as the Pharmaceutical Manufacturers Association of South Africa.
(b) But even after your cover on the issue of funding through membership fees had been blown, you still did not opt for transparency by giving particulars of the amount of funding derived from membership fees, and giving particulars of what share of the total funding the membership fees represents. You remained un-transparent by stating the following:
“The amount members pay is nominal and forms a very small part of our funding.”
Your last-mentioned statement is purely qualitative, and its non-quantitative character does a lot of harm to the credibility of your contention “that the ASA attempts to conduct itself in a transparant (sic) and ethical manner”.
(c) But soon thereafter you got on your high horse “As one of the most senior members of the ASA staff” and you assured me, ever so haughtily, that your “integrity is beyond reproach”. And lo, immediately thereafter you suddenly lose your transparency and become so profoundly opaque by making the following statement:
“I am not prepared to enter further debate about this.”
Now is that perhaps a manifestation of selective transparency? That is, you will be transparent when it suits you, or you feel like being transparent, or you can be transparent with impunity.
(d) But it got worse. When I asked about the possibility of procuring the information on which the Rath ruling is based, the ASA transparency took a further tumble when you told me that I am not even entitled to the information that I am, as of right, entitled to regarding any court case in South Africa (irrespective of whether I am a party to the matter, or not).
The following is what you stated:
“As you are not a party to the matter you do not have a right of access to the information you have requested.”
(e) But it got even worse. When I enquired about the names of the ASA people who conducted and participated in the TAC/RATH proceedings, you refused to let me have the particulars and you also addressed the following words to me: “I must again point out that you are not a party to the matter”.
So there you have it. Any person in South Africa is entitled to know who presided in any case that came before a court of law. That even holds true for the Constitutional Court. But when it comes to the proceedings of the ASA, the identity of the people who participated in its proceedings are shamelessly shrouded in secrecy.
Is this brazen concealment the type of conduct that you were referring to when you stated “that the ASA attempts to conduct itself in a transparant (sic) and ethical manner”?
(f) When I asked you whether, in a particular matter, the ASA ensures that it has proof of service of the complaint on the respondent before it assumes that the respondent failed to reply, and an adverse ruling is subsequently made against him, you simply did not reply.
To my question, “Are those letters sent by registered post?”, you also did not respond.
Why not?
4. Closing remarks
I have requested certain innocuous information from you and you have responded in a rather cagey and snotty manner. I can assure you that your recalcitrance is not going to prevent me from getting hold of the information. Your refusal to cooperate merely makes the story all that more interesting. To continue concealing information and refusing to be open about the information that I request, merely causes further damage to your credibility, and that of the ASA. So, if you wish to save yourself, and protect the interests of the ASA, then you would have cooperate with me.
In conclusion I mention that if you are not going to cooperate with me in this matter then kindly inform me accordingly and let me have the particulars of the person that you report to at the ASA. I need to establish whether the ASA officially condones your conduct in this matter before I go public with the matter. I must tell you that if you do cooperate then you are in for an interesting excursion.
Regards,
Coen van Wyk.