Connie Myburgh, Nova Property Group vs. Moneyweb


Fri, Aug 21, 2020

 

Particulars

Complaint Number: 7828                               

Lodged by: Mr Connie Myburgh, Chairman: Nova Property Group

Date of article: 17 March 2020

Headline: Covid-19 halts Sharemax auditors’ disciplinary hearing – Three ACT Audit Solutions directors are facing hundreds of charges related to work done for failed investment scheme

Author of article: Roy Cokayne

Respondent: Ryk van Niekerk, editor

Index

Introduction: Six complaints                                                                                                         2

                      Unacceptable language                                                                                           2

  1. Complaint                                                                                                                          3
    1. The article                                                                                                                    3
    2. Relevant sections of the Press Code                                                                            3
  1. The text                                                                                                                               3
  1. The arguments                                                                                                                     4
    1. Introduction                                                                                                                4
    2. Some 40 000 people ‘or so’                                                                                       4
    3. Some 40 000 people ‘want to know’                                                                              5
    4. Cokayne ‘obliged to respond’                                                                                            6
    5. Links to previous articles                                                                                           7
  1. Finding                                                                                                                                 8
  2. Seriousness of breach                                                                                                      8
  3. Sanction                                                                                                                                 8
  4. Appeal                                                                                                                                       9

Introduction

At the outset, I need to flag two issues:

Six complaints

Mr Connie Myburgh and Nova Property Group (“Nova”) have simultaneously lodged six complaints with the office of the Press Ombud.

The complaint numbers, headlines and dates of publication of the five other complaints are:

  1. 7795 – Where is Hans Klopper? (4 March 2020);
  2. 7804 – Seven reasons Orthotouch’s dismal failure must be investigated (5 March 2020);
  3. 7828 – Covid-19 halts Sharemax auditors’ disciplinary hearing –  (17 March 2020);
  4. 7829 – Three former Sharemax auditors, 413 improper conduct charges (23 March 2020); and
  5. 7830 – Nova: Insolvent, or in a sound financial position? (26 March 2020)

As all the articles complained of are about the same subject and issue, all six of the complaints and adjudications should be read in conjunction with the others. At the end of the last adjudication, I shall make some general comments in a separate addendum.

Unacceptable language

Under the heading Adjudication by the Ombud, Section 3.1 of the Complaints Procedures says, “No complaint written in disparaging, insulting, demeaning or vexatious or similar language shall be accepted.

Correspondence from the complainant was such that I initially declined to entertain his complaint. The problem was not that he was critical of Moneyweb’s editor – under our country’s Constitution he has every right to speak his mind; the dilemma was that he has crossed the line and attacked the editor in his person.

Chair of Appeals Judge Bernard Ngoepe granted the complainant his appeal against my decision, on condition that he tones down his language.

The complainant has largely complied – but alas, not quite to my satisfaction.

I have seriously considered refusing the complaint yet again, but in the end I have decided against it – I realised that I should take the (extraordinary) tension between the parties into consideration; I also have to accept that we do not live in a perfect world.

What settled the matter, is my belief that ultimately, the adjudication of these complaints is – or should be – in the public interest.

Johan Retief – Acting Assistant Press Ombud

  1. Complaint

1.1 The article

1.1.1 Myburgh complains that the:

  • reference to “40 000 or so former Sharemax investors” was untrue, inaccurate, distorted and misrepresentative;
  • the journalist had no way of knowing that approximately 40 000 people “wanted to know” what the auditors were doing (adding that the same journalist should respond to his complaint); and
  • links to articles that he has already lodged a complaint about with this office were unfair, irrelevant and out of context – and that it “departed” from the facts in the present article.

     1.1.2 He requests that this complaint be reintroduced as an “independent new complaint”, in order that the author (Cokayne) be required to respond to it. He based this on the hyperlinks to other articles by the editor, arguing that Cockayne should take responsibility for what had been written in those hyperlinks.

1.1.3 He says Moneyweb should retract the inclusion of the two articles and rectify and apologize to him and to Nova Property Group for the above.  He says if Moneyweb is unable to provide proper proof to all the relevant statements, allegations or innuendos, he requires the publication of rectifications, retractions and unequivocal public apologies to him in his personal capacity and as chairman of the Nova Property Group (“Nova”), as well as to Nova.

     1.2 Relevant sections of the Press Code

Sections of the Press Code complained about are:

  • 1.1: “The media shall take care to report news truthfully, accurately and fairly”;
  • 1.2: “The media shall present news in context and in a balanced manner, without any intentional or negligent departure from the facts whether by distortion, exaggeration or misrepresentation, material omissions, or summarization”;
  • 1.3: “The media shall present only what may reasonably be true as fact; opinions, allegations, rumours or suppositions shall be presented clearly as such”; and
  • 3.3: “The media shall exercise care and consideration in matters involving dignity and reputation…”
  1. The text

2.1  The article said that the Covid-19 pandemic had brought to a temporary halt a disciplinary hearing by the Independent Regulatory Board for Auditors (Irba) against the former auditors of the failed Sharemax property syndication.

2.2 The rest of the text mainly provided context to events leading up to the hearing.

  1. The arguments

3.1 Introduction

3.1.1 Before I delve into this complaint, allow me to say that I am going to ignore statements that are irrelevant to the complaint – of which there are quite a few. If follows that I am also going to ignore responses to such statements.

3.1.2 Myburgh leaves no stone unturned to accuse the editor of bias and “utmost malice”, alleging that he was out to create “maximum damage” to him and to Nova. I shall refer to this allegation again in my addendum, after I have adjudicated all six complaints.

3.1.3 To keep the issues as simple as possible, I am:

  • not going to repeat myself, as often happens in the relevant correspondence that has landed on my desk; and
  • grouping together several issues that are addressed separately in the communication with this office.

3.1.4 I am cognisant of the fact that simplifying matters can be dangerous. Over-simplifications will inevitably lead to wrong interpretations and decisions. However, the intricate nature of the complaint at hand has forced me to simplify. Hopefully, I have not missed any nuances in this process. If I have, it was not intentional. The exercise was indeed all but easy.

3.1.5 Myburgh’s (and Nova’s) refusal to respond to Moneyweb’s questions is a recurring theme. He says Nova has long ago come to understand that, “to respond to Mr van Niekerk, merely provides him with another platform and opportunity, to further report his incorrect, and in the view of the Nova Group, damaging and defamatory narrative, regarding the Nova Group and its functionaries”. He adds, “To respond to every article written about the Nova Group by Mr van Niekerk in order to satiate his obsession with the Nova Group, will be a waste of time, money and resources, as the reportage is no more than sensationalist writings.”

3.1.6 On the other hand, I note (with appreciation) that the editor nevertheless persisted in giving Nova a right of reply.

3.1.7 Still, this is an extremely unhealthy situation. Given the tension between the parties (let’s be honest!), I have little hope that this adjudication will do anything to improve this situation. I am nevertheless going to try to do the seemingly impossible – to bring the parties closer to each other. But, in the end, the choice is theirs.

     3.2 Some 40 000 people ‘or so’

     3.2.1 The sentence in dispute stated there were 40 000 “or so” former Sharemax investors.

     3.2.2 Myburg complains the article falsely reported twice, as “fact”,  that “40 000 or so people” were former Sharemax investors

     3.2.3 He says the reference to “40 000” is (intentionally) untrue, inaccurate, distorted and misrepresentative, as the number of people who are invested with reference to the historical (no longer existing) Sharemax financial structures, is fewe than 20 000. He challenges the reporter to substantiate and prove the number of “40 000”.

3.2.4 Van Niekerk describes this complaint, that largely relates to the factual accuracy of several references in various articles, as “frivolous”. He nevertheless responds to it, asking this office to read his reply in conjunction with the three other replies to other, similar complaints (Complaints 7792, 7795 and 7804).

3.2.5 He admits that the reference to “40 000” investors was incorrect. However, he submits that this error was immediately rectified when Moneyweb became aware of the mistake. The editor adds that an apology was published at the top as well as underneath the article and denies that the reference in question was intentionally wrong.

3.2.6 Myburgh  replies that Cokayne does not deal with the complaint at all.

Analysis

3.2.7 The inaccurate reference to 40 000 former Sharemax holders is not “frivolous”, as the editor remarks. A mistake is a mistake.

3.2.8 However, Moneyweb has already corrected this mistake. I appreciate this, especially since it was accompanied with an apology – both at the top and at the bottom of the article.

3.3 Some 40 000 people ‘want to know’

3.3.1 The caption to a photograph stated that approximately 40 000 people “want to know” what the auditors were doing.

3.3.2 Myburgh says the journalist could not truthfully aver he was aware that so many people “wanted to know”. He says this statement was untrue, inaccurate and unfair, and asks Moneyweb for substantiation.

3.3.3 Van Niekerk points out that the full caption (the one that was corrected) read, “The disciplinary committee, together with the 18 000 or so people who invested around R4.5bn in Sharemax’s various syndication schemes, want to know what the auditors were doing.”

3.3.4 He says he believes the wording “want to know” was a fair statement “as the implosion of the Sharemax investment scheme may represent the single largest investment fraud in South Africa’s history”.

3.3.5 He adds that there is an ongoing criminal investigation into the demise of Sharemax, and says the disciplinary hearing of Sharemax’s former auditors could reveal invaluable insights into what went wrong. The National Prosecuting Authority, Special Investigating Unit and the Sars would also be interested to “know” what the auditors were doing, he opines.

3.3.6 Myburgh accuses the editor of (again) being “untruthful, dishonest and disingenuous” in his response.

3.3.7 He says that, when the editor corrected the “40 000”, he inserted the word “would” (“ ‘would’ want to know”) – which did not appear in the original article. He asks, “How is it possible that Mr van Niekerk can, post the event, change the wording of Mr Cokayne’s article, in front of the Press Ombud, in the clear belief that he can get away with such dishonest behaviour?”

3.3.8 He asks this office to “severely sanction” the editor in this regard.

3.3.9 He says that the editor’s reply to this part of the complaint was irrelevant and insufficient, adding that he has no proof for most of his allegations. 

Analysis

3.3.10 I am bypassing the expression “would want to know” and directly deal with the original statement, namely that 40 000 “want to know”

3.3.11 If I were a Sharemax investor, I certainly would have wanted to know. In fact, it is inconceivable to believe that there was a single investor who did not want to know what was going on.

3.3.12 Moneyweb’s reportage therefore passes the test of reasonableness on this count.

3.3.13 I shall make some remarks about Myburgh’s persistent allegation of untruthfulness and dishonesty of the editor in an addendum after I have adjudicated all six of the complaints.

3.4 Cokayne ‘obliged to respond’

3.4.1 Myburgh says Cokayne has repeated the views expressed by his editor in the articles that he has already complained about (see Complaints 7792, 7795 and 7804). He asks this office to revisit those complaints (as “new, independent complaints”), this time with a view to Cokayne – with the obligation on the latter to respond to those complaints.

3.4.2 Van Niekerk says this complaint is indicative of the vexatious nature of the complaint. He objects to Myburgh’s request and prays that this office will rule on Complaints 7792, 7795 and 7804 as per the normal Press Council procedures.

3.4.3 He adds, “It is untenable that Mr Myburgh can prescribe which representative of Moneyweb should respond to complaints. I am the editor of Moneyweb and the author of the articles Mr Myburgh complained about. It may be pertinent to ask why Mr Myburgh would request Mr Cokyane to respond to the complaints based on articles I wrote? I pray that the Ombud will regard my responses to the previous complaints as the only responses from Moneyweb.”

3.4.4 Myburgh says:

  • he is not putting the cart before the horse – he merely refers to the fact that he has complained about the two previous articles in question;
  • the two articles were not included “to provide more context”;
  • Cokayne’s article had nothing to do with any of the matters at hand (if not for the inclusion of the two “hyperlinked” articles); and
  • to hide behind the actions of a “sub editor” does not assist Moneyweb.

Analysis

3.4.5 Clearly, Myburgh does not understand the Press Council’s system of adjudication. While all journalists should adhere to the Code, it is institutions that ascribe to the system – and therefore, which can be held accountable.

3.4.6 Section 1.2 of the Complaints Procedures read, “The ‘respondent’ in respect of a complaint shall be the proprietor of the publication, which shall delegate its editor or, in his or her absence, an assistant editor or other suitable editorial representative of the member concerned, to act and appear in its stead in respect of any complaints dealt with by the Public Advocate, the Ombud or the Chair of Appeals.”

3.4.7 To the best of my knowledge, never in its history did the Press Council ever hold an individual journalist accountable.

3.5 Links to previous articles

3.5.1 The article included references to two previous articles by the editor under the headlines, Irba reports Nova to Sars and CIPC, and Seven reasons Orthotouch’s dismal failure must be investigated (about which Nova has also lodged a complaint with this office).

3.5.2 Myburgh says the inclusion of these articles was unfair, out of context and irrelevant to the subject matter and was done with the clear and only intention of again placing the two articles in circulation and in the public domain, with the intention of regurgitating the matters complained of by Nova.

3.5.3 This, he opines, again represented an attack on Nova, as well as on his dignity and reputation. This, Myburgh argues, made Cokayne as guilty as the editor was.

3.5.4 Van Niekerk says Myburgh may be putting the cart before the horse, as this office has not yet ruled on the complaints related to the two previously published articles.

3.5.5 He submits that Moneyweb, like most other online publishers, includes links to previously published articles in articles to provide more context. “Moneyweb does not have a policy regarding which links should be included in an article. It is at the discretion of the sub-editor who posts the article into our publishing system,” he explains.

3.5.6 Be that as it may, he says it was not Cokayne who included the hyperlinks in the article.

3.5.7 The editor also argues that the inclusion of the hyperlinks was relevant and justified as the:

  • first hyperlink was to an article that revealed that the current auditor of Nova (the company purposely set up to rescue the investments of the former Sharemax investors) filed a Reportable Irregularity with Irba, who later referred it to the Companies and Intellectual Property Commission (CIPC) and Sars for investigation; and
  • second hyperlink was to an article that identified several developments at Orthotouch, a company set up to “rescue” the investments into the various failed Highveld Syndication schemes. He points out that Myburgh was a director of Orthotouch, as well as Nova’s chairperson. “It is relevant to the article that readers are aware of Mr Myburgh’s conduct at other rescue schemes,” he concludes.

3.5.8 Myburgh  insists that Cokayne “must take responsibility” for his actions.

Analysis

3.5.9 I have dismissed the complaints about the two articles mentioned under sub-section 3.4.1. While those reports were about the same issue, it follows that I need to dismiss this complaint as well.

  1. Finding

4.1 The reference to 40 000 people “or so” was in breach of Section 1.1 of the Press Code that says, “The media shall take care to report news … accurately…”

4.2 The rest of the complaint is dismissed.

  1. Seriousness of breach                                              

5.1 Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).                                       

5.2 The breach of the Press Code as indicated above is a Tier 1 offence, as it did not change the thrust of the story.

  1. Sanction

6.1 I have been confronted with such a situation (an inaccuracy that was already rectified) many times before – and each time I have decided to take no further action. The publication has already acknowledged its mistake, and it will serve no purpose to ask it to rectify it again.

6.2 There is no sanction.

  1. Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.

Johan Retief

Acting Assistant Press Ombud