Connie Myburgh, Nova Property Group vs. Moneyweb


Fri, Aug 21, 2020

Particulars

Complaint Number: 7829                                                              

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

Date of article: 23 March 2020

Headline: Three former Sharemax auditors, 413 improper conduct charges – One of the former professionals has been charged with five reportable irregularity offences

Author of article: Roy Cokayne

Respondent: Ryk van Niekerk, editor

Index

Introduction: Six complaints                                                                                                        2

                      Unacceptable language                                                                                          2

 

  1. Complaint                                                                                                                         3
  2. Relevant sections of the Press Code                                                                                 3
  3. The text                                                                                                                             3

 

  1. The arguments                                                                                                                 4
    1. Introduction                                                                                                               4
    2. Publication of a picture with Nova’s name, logo                                                      4
    3. Links to previous articles                                                                                          6  
    4. Cokayne ‘obliged to respond’                                                                                   6
    5. 33 000 former Sharemax investors                                                                                                   7
  1. Finding                                                                                                                              8
  2. Seriousness of breach                                                                                                      8
  3. Sanction                                                                                                                           8

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 – Irba reports Nova to Sars and CIPC (24 February 2020);
  2. 7795 – Where is Hans Klopper? (4 March 2020);
  3. 7804 – Seven reasons Orthotouch’s dismal failure must be investigated (5 March 2020);
  4. 7828 – Covid-19 halts Sharemax auditors’ disciplinary hearing –  (17 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 Myburgh complains that the:

  • publication of a photograph with Nova Property Group’s (“Nova”) name was misleading, unbalanced, untruthful and out of context;
  • links to articles that he has already lodged a complaint about with this office was unfair, irrelevant and out of context, and that the hyperlinks “departed” from the facts in the relevant article;
  • author of the article did not respond to his complaint; and
  • original article inaccurately, untruthfully and misleadingly stated there were 33 000 former Sharemax investors.

1.2 He says if Moneyweb is unable to provide proper proof to the complaints, he requires the publication of rectifications, retractions and unequivocal public apologies to him in his personal capacity and as Nova’s chairman, as well as to Nova.

  1. 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

3.1 The introductory sentence to this article aptly summarized its content. It read, “Three former auditors of the failed Sharemax property syndication scheme are facing a total of 413 improper conduct charges at their Independent Regulatory Board for Auditors (Irba) disciplinary hearing.”

3.2 Cokayne identified these former auditors as Messrs Jacques Andre van der Merwe, Danie Dreyer and Petrus Johannes Jacobus Bekker.

3.3 Between the headline and the article a picture of an entrance to a building was published, depicting the entrance to the Nova Property Group’s offices, with Nova’s logo and its name.

  1. The arguments

4.1  Introduction

4.1.1 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. It follows that I am also going to ignore responses to such statements.

4.1.2 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.

4.1.3 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.

4.1.4 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.

4.1.5 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.”

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

4.1.7 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.

4.2 Publication of a picture with Nova’s name, logo

4.2.1 Myburgh submits the publication of a photograph to the entrance of a property with Nova’s name and logo was intended to link the group with the content of the article – while the story had no bearing on Nova (save for the linking of two previous Moneyweb articles that mentioned the property group).

4.2.2 He complains that this photograph represented untruthful, inaccurate, unbalanced, unfair, misleading and out-of-context reporting which did not reasonably reflect the content of the article, and requests Cokayne to justify its publication.

4.2.3 In general, the editor says this complaint is frivolous. He also asks this office to read his responses to this complaint in conjunction with Complaints 7792, 7795 and 7804.

4.2.4 He says:

  • Sharemax’s former address was 105 Club Avenue in Waterkloof in Pretoria – Nova now occupies the same office and the number of the address is clearly visible on the photograph; and
  • Cocayne did not insert the photograph into the article.

4.2.5 Van Niekerk adds that Myburgh is desperately trying to distance Nova from the failed Sharemax group – a theme of his arguments in virtually all his previous complaints. “However, the two entities are intrinsically linked. Nova was created to rescue the investments of the 18 000 investors after the collapse of the Sharemax scheme. Mr Myburgh wrote the Section 511 Scheme of Arrangement which was the blueprint for the restructuring of Sharemax and the formation of Nova. Two former Sharemax directors were also appointed as directors of Nova,” he concludes.

4.2.6 Myburgh says the editor again tries to divert attention away from the nub of the complaint by referring to irrelevant matters. He emphasises that Nova is a totally separate and distinct organization from Sharemax (which ceased to exist some 10 years ago). He says that the editor has “an irresistible compulsion to link the discontinued organization with the Nova Group, by continuously dragging his creation of a ‘failed’ Sharemax organization,  into the affairs of the Nova Group, as if the two organizations are one and the same”.

4.2.7 He denies that Nova was created to “rescue the investments” of historical Sharemax investors. He alleges this “rescue” concept “is a dishonest and disingenuous creation of Mr van Niekerk’s imagination, used in his continued attempts to damage the Nova Group”.

4.2.8 Based on the above, he argues that the publication of the photograph was out of context and represented unbalanced reportage.

Analysis

4.2.9 The article was about three former auditors of the “failed Sharemax property syndication scheme”, who were facing improper conduct charges.

4.2.10 I do not agree that the picture tried to involve Nova in the investigation into former Sharemax auditors. The article certainly did not do that – and I do not believe that reasonable readers would have understood or concluded that Nova was at fault.

4.2.11 Regarding Myburgh’s denial that Nova was created to “rescue the investments” of historical Sharemax investors, I refer back to my adjudication (Complaint 7792), where I have found (under sub-sections 3.2.3.12 – 15) that Nova, in a real sense, tried to mitigate the losses that Sharemax investors stared in the face. I wrote, “In this regard the use of the word ‘rescue’, is therefore appropriate. Technically speaking, though, Nova did not act as a rescue vehicle for the company called Sharemax – it seems to me that nothing and nobody could rescue it. But it did act as a rescue vehicle for former Sharemax investors. And I am not going to split hairs.”

4.2.12 In conclusion, I believe that a picture of Nova’s logo and name in front of the same building that house Sharemax was relevant – Nova and Sharemax were indeed linked, albeit a decade or so ago.

4.3 Links to previous articles

4.3.1 Myburgh complains about the inclusion of two hyperlinks in the article he complained about in Complaint 7828 (Irba reports Nova to Sars and CIPC, and Seven reasons Orthotouch’s dismal failure must be investigated).

4.3.2 He argues that the inclusion of these articles in the present one was irrelevant to its subject matter, and adds it was “done with the clear and only intention of again placing the two articles in circulation and in the public domain…”

4.3.3 Myburgh says that by regurgitating the two articles, Cokayne and Moneyweb again attacked Nova’s dignity and reputation, as well as his, and again disseminated untruths and inaccuracies.

4.3.4 He concludes that the inclusion of the two articles were unfair and out of context with the one which is in dispute, and that it intentionally departed from the facts reported on in that story.

4.3.5 The editor denies that the inclusion of the hyperlinks can justifiably be interpreted as an “attack” on Nova or on Myburgh’s integrity/reputation. He adds that Cokayne did not include the hyperlinks in the article – it was inserted as part of the publication process by a sub-editor.

Analysis

4.3.6 Given my previous arguments and decisions, it follows that I cannot uphold this part of the complaint. The stories were all above board, and inter-linked. There is no reason why Moneyweb should not have hyperlinked them to this report.

4.4 Cokayne ‘obliged to respond’

4.4.1 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.

4.4.2 Van Niekerk replies 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.

4.4.3 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.”

Analysis

4.4.4 I am repeating what I have said in the previous adjudication (regarding the article headlined, Covid-19 halts Sharemax auditors’ disciplinary hearing):

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

4.5  33 000 former Sharemax investors

4.5.1 The original article stated there were 33 000 former Sharemax investors.

4.5.2 Myburgh complains this statement was false and unfair, as there were fewer than 20 000 investors. He says Cokayne intentionally distorted, exaggerated and misrepresented the correct facts in this regard, and requests him to substantiate this statement.

4.5.3 Van Niekerk admits this was a mistake – which was immediately corrected when Moneyweb became aware of the error. “An apology was published at the top and underneath the article. Although no error in an article is acceptable, the reference was not material to the story,” he adds.

4.5.4 He denies that this mistake was intentional.

4.5.5 Myburgh insists that the mistake was intentional, and submits there was no need to have referred to “the number of people who invested in the failed Sharemax scheme”.

Analysis

4.5.6 Moneyweb has admitted its mistake and has already corrected it.

  1. Finding

The statement in the original article that there were 33 000 former Sharemax investors was inaccurate. This was in breach of Section 1.1 of the Press Code that says, “The media shall take care to report news … accurately …”

The rest of the complaint is dismissed.

  1. Seriousness of breaches                                              

6.1 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).

6.2 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

7.1 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.

7.2 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