Appeal Decision: Lovey Modiba vs Sowetan
SUMMARY
The headline to the story in dispute read, Hundreds lose as Ponzi goes bust – Limpopo official under investigation for failing to pay investors’ money (published on 14 March 2017).
This ruling by the Chair of the Appeals Panel Judge Bernard Ngoepe was based on the Press Code that was in effect before 30 September 2022.
The article said that Lovey Modiba and her boyfriend, Adv Ronald Tshikororo, faced a probe by the SA Reserve Bank for allegedly running a multi-million-rand pyramid scheme that had swindled people out of their money. The company was reportedly modelled on the Indian Travel Venture International Express (TVI).
Modiba complained that the:
- article misleadingly and inaccurately reported that she had founded and operated an illegal pyramid scheme, intentionally swindling people out of their money, and modelling the company on the TVI;
- journalist did not give her a right of reply; and
- reportage had caused her severe embarrassment and had damaged her reputation.
The Ombud dismissed the complaint, upon which Modiba applied for leave to appeal.
Judge Ngoepe dismissed the application, because:
- what was said about the scheme and Modiba’s participation was presented as allegations and not as facts. Moreover, her involvement in the scheme was not minimal;
- Modiba did not deny participating in the sense that she promoted the scheme or recruited “investors”, but merely said she did not know that it was a Ponzi scheme;
- Modiba committed herself to refunding an amount of R800,000 – she therefore could not seriously argue that she did not personally benefit from the scheme;
- Modiba faced a probe by the Reserve Bank; and
- The newspaper did give Modiba a right of reply.
THE RULING ITSELF
In the matter of
LOVEY MODIBA APPLICANT
AND
SOWETAN RESPONDENT
MATTER NO:
DECISION ON AN APPLICATION FOR LEAVE TO APPEAL
[1] On 14 March 2017 The Sowetan (“respondent”) published an article with the headline “Hundreds lose as Ponzi goes bust – Limpopo official under investigation for failing to pay investors’ money”. The official referred to was Ms Lovey Modiba (“applicant”). The essence of the story was that the applicant and her boyfriend, one Adv Ronald Tshikororo, were facing an investigation by the South African Reserve Bank for allegedly running a multi-million rand pyramid scheme. Investors were asked to put in some money with the company for huge return and with other benefits such as rented cars and travelling. Like all others, the scheme collapsed.
[2] The applicant’s complaints was accurately summed up by the Press Ombud in his Ruling dated 12 June 2017, namely, that the applicant complains that the:
“l article misleadingly and inaccurately reported that she had founded and operated an illegal pyramid scheme, intentionally swindling people out of their money, and modelling the company on the Indian Travel Venture International Express (TVI); and
l Journalist did not give her a right to reply”.
She added that the article caused her severe embarrassment and has damaged her reputation”.
[3] In its defence, the respondent says that the applicant was given the opportunity to respond, and that she did not deny running the scheme.
[4] For the application to succeed, the applicant must show that she has reasonable prospects of success before the Appeals Panel. I must therefore assess that. A number of material facts are either common cause, or are not in dispute.
4.1 What was said about the scheme and the applicant’s participation was presented as allegations.
4.2 In any case, the applicant does not deny participating in the sense that she promoted the scheme or recruited “investors”, but merely says she did not know that it was a Pondzi scheme.
4.3 She committed herself to refunding an amount of R800,000.00; she therefore cannot seriously argue that she did not personally benefitted from the scheme.
4.4 She faced a probe by the Reserve Bank
It is important to note that applicant’s involvement was not minimal, nor is there any indication that it was for say a day or two, although she says she stopped when she realized that the scheme was a Pondzi Scheme.
[5] As far as not being given the right to reply is concerned, the Ombud is correct to find that she was given such an opportunity, and that, in any case, her version that she stopped once the realized it was a fraudulent scheme, was reported. The article did not say she was guilty, but merely that she was being probed.
[6] For the reasons given above, I hold that the applicant has no reasonable prospects of success before the Appeals Panel. The application is therefore dismissed.
Dated this 18th day of July 2017
Judge B M Ngoepe, Chair, Appeals Panel
