Appeal Decision: Nova Property Holdings Limited vs Moneyweb

SUMMARY

Nova PropGrow Holdings Ltd (Connie Myburgh) complained about six stories that were published between 24 February and 26 March 2020.

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 Public Advocate accepted the complaints, but the Acting Assistant Press Ombud refused to do so. He held that Colin Myburgh’s language in his reply to the editor’s response used was in violation of section 1.2.6 of the Complaints Procedures in that it was malicious and vexatious in its attack on the editor.

Myburgh sought leave to appeal this decision.

Judge Ngoepe asked: Why should an unacceptable offensive reply retrospectively invalidate a complaint that complied with the procedure at the time it was filed?

He opined that the Ombud should refer the matter back to the Public Advocate who should be directed to ask Myburgh to reformulate his responses in acceptable language, and to do so within a given period; failing which the complaints would be rejected. Once that is done, the matter would then be enrolled before the Ombud.

THE RULING ITSELF

BEFORE THE APPEAL PANEL OF THE SOUTH AFRICAN PRESS COUNCIL

In the matter between

NOVA PROPERTY HOLDINGS LIMITED                                                        APPLICANT

AND

1. Nova PropGrow Holdings Ltd (“applicant”) lodged the above referenced complaints against Moneyweb (“respondent”). The complaints were accepted by the Public Advocate, and the respondent given the opportunity to respond. The respondent did so. The applicant then replied. It appears that, in its reply, the applicant used very strong language against both the respondent and Mr van Niekerk of the respondent in particular; for example, it was stated many times that Mr Van Niekerk acted with utmost malice, in a disingenuous manner, had unbridled obsession to behave maliciously, etc. The Acting Assistant Press Ombud held that the language used was in violation of section 1.2.6 of the Complaints Procedures in that it was malicious and vexatious in its attack on Mr van Niekerk. He also found that  the language was disparaging and demeaning in violation of section 2.1. He accordingly rejected the complaints.
2. The appellant now seeks leave to appeal the decision of the Acting Assistant Ombud. Appellant argues the reply was necessitated by the respondent’s response. Secondly, the appellant argues that in any case the complaints were already accepted by the Public Advocate, and the alleged offensive reply was not part of the complaint. The Public Advocate must have found the complaints acceptable. Respondent opposes the application. In response to applicant’s above argument, Mr van Niekerk of the respondent states, inter alia: “If (the applicant’s) responses are not deemed to form part of the complaint process, (respondent’s) responses are per se also delinked from the complaint. This would mean my responses would not be taken into account, and I wasn’t given an opportunity to respond”. The respondent is right; applicant’s responses in question cannot be divorced from the complaint process. But there is another angle to the issue. Why should an unacceptable offensive reply retrospectively invalidate a complaint that complied with the procedure at the time it was filed? I am going to take a cue from the practice in the Courts. Under those circumstances, an interlocutory application may be brought to strike out a reply which is deemed irrelevant, offensive or vexatious. It is also important to note that the Acting Assistant Ombud has not yet considered the complaints on the merits.
3. Proceedings before the Press Council are aimed at disposing of complaints as expeditiously as possible. In line with that it would be inappropriate to bring up the above technical point to the Appeal Panel. The matter should be dealt with in an interlocutory manner. If the Ombud is of the view that applicant’s reply to respondent’s response is couched in vexatious or unacceptable language, the Public Advocate should be directed to ask the applicant to reformulate its responses in acceptable language, and to do so within an given period; failing which the complaints would be rejected. Once that is done, the matter would then be enrolled before the Ombud. It is so directed.

Dated this 3^rd day of August 2020

Judge B M Ngoepe, Chair, Appeals Panel