Appeal Decision: Nova Property Group vs. Cape Times

NOVA PROPERTY GROUP                                                                      APPLICANT

AND

[1]     Nova Property Group (“applicant”) lodged a complaint with the Press Ombudsman against Cape Times (“respondent”) in relation to a story published by the respondent on 14 April 2015, in its Business Report section.  Respondent had two complaints.  It said the article made two statements which were factually incorrect and defamatory, namely:

“… Sharemax’s collapse in 2010 was precipitated by the findings of a registrar of banks investigation, that Sharemax’s funding model contravened the Bank Act, becoming public knowledge.  This led to new investments drying up and it being unable to make monthly payments to investors …” and that

“… The Registrar of banks laid criminal charges against Sharemax for alleged contraventions of the Bank Act in March 2012.”

[2]     It needs to be mentioned at the outset that virtually the same complaints between virtually the same entities were in the past made and dealt with.  As a result, in its response to the latest complaints, respondent reproduced the same responses it had given in the past.  In answer to the first complaint, respondent relies on a statement, referred to below in detail, allegedly made under oath by Hease (the author of the complaints), that Shairmax could not pay its creditors or investors.  As regards the second complaint, respondent’s reply, given by its journalist, is: “My statement in the articles is … based on official communication to me and thus justified and factually correct.”  The information was received from the office of the Registrar of Banks.

[3]     On the basis of the response by the respondent, the Press Ombudsman, in his Ruling dated 8 June 2015, dismissed the complaints.  The applicant is now seeking leave to appeal the Ruling.

[4]     For the application to succeed, the applicant must show reasonable prospects of success before the Appeals Panel.  I must therefore assess this. In dismissing the first complaint, the Ombudsman had regard to the statement by respondent’s attorney that “Ms Hease, (the Chief Executive Officer of the applicant) said the following under oath: “Sharemax has since been placed under Directive 15 September 2010, been unable to raise finance for its ongoing business requirements including service claims of all its known creditors …. Accordingly, … Hease has under oath made substantially the same statement Mr Cokayne (the journalist) has mentioned in his article.” Complaints of failure to make payments came in even before the Reserve Bank notice, according to the respondent.  The Ombudsman states: “Hease says Sharemax has merely ceased its business operations; Cokayne calls it a collapse.  The difference appears to be little more than semantic …. The end result is the same.”  I agree entirely with the Ombudsman.  The complaint cannot be upheld.  The Ombudsmen was also correct in dismissing the second complaint because the journalist did obtain the information from the Office of the Registrar of Banks.

[5]     I must also refer to the point in limine raised by the respondent; namely, that “Nova Group”, the applicant, has no locus standi to bring a complaint on a report relating to Sharemax.  This is because Hease has herself said that there was no connection between Nova Group and Sharemax.  For this reason too, I would not grant leave to appeal to the applicant.  Finally, there is much to be said for respondent’s argument that there is, at least on the face of it, an abuse of the complaint process by the applicant.

[6]     For the reasons given by the Ombudsman, and those mentioned above, I am of the view that the applicant has no reasonable prospects of success before the Appeals Panel; the application is therefore refused.

Dated this 21^st day of September 2015

Judge B M Ngoepe, Chair, Appeals Panel