Appeal Decision: Nova Property Holdings and Moneyweb

SUMMARY

The headlines to the stories in dispute read, Three former Sharemax auditors, 413 improper conduct charges (23 March 2020); Nova: Insolvent, or in a sound financial position? (18 March 2020); and two others.

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.

 

Nova Property Group applied for leave to appeal the ruling of the Press Ombud in relation to several complaints, all given in favour of Moneyweb. The only exception was the inaccurate publication of the number of investors. In that case, the Ombud did not impose a sanction as that matter had already been corrected by Moneyweb.

The essence of the first complaint revolved around the contention that the article exaggerated the number of people who had invested with a defunct company known as Sharemax.

The second complaint also revolved around the number of investors, though in a different context. These complaints inter alia were that:

• Moneyweb had unfairly linked what was said in the headline to a photo depicting Nova’s building, when the article had nothing to do with that company;
• the article unfairly provided a link to two “historic” articles by the editor; and
• the number of investors were inaccurate.

The third complaint was that the article provided a link to the “historic” story that had given rise to some complaints, while there was no connection between them.

The fourth complaint was again about an “unfair” link. In particular, the complaint was that the:

• editor was wrong in giving the impression that Nova was in financial difficulties;
• editor untruthfully and inaccurately stated as a fact that Nova was not in a financial position to repay debenture holders; and
• article stated untruthfully, inaccurately and unfairly as a fact that Nova’s statements indicated that there had been an independent official valuation of its properties in the 2019 financial year.

Judge Ngoepe agreed in every aspect with the Ombud’s rulings and dismissed the application for leave to appeal.

 

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 Property Group (“applicant”)  wants leave to appeal the Ruling of the Press Ombud in relation to a number of complaints, given in favour of Moneyweb “(respondent”). The applicant had in effect filed a total of some six complaints, which were inter-related. The first group of complaints, four in number, are directly rooted in an article published on 17 March 2020. Then there are three complaints, referenced by the office of the Press Ombud as complaints 7792, 7795 and 7804. The applicant says that the 17 March 2020 article provided the reader with a link to the articles which gave rise to the above three complaints which were lodged with the Office of the Press Ombud on 28 February 2020, 4 March 20202 and 11 March 2020 respectively. It therefore appears that the 17 March 2020 article gave birth to a total of seven (7) complaints: four directly, and three indirectly by way of a link. The four complaints arising directly out of the 17 March 2020 article are dealt with under complaint reference 7828, and were lodged on 25 March 2020 with the office of the Press Ombud.

COMPLAINTS BASED ON THE 17 MARCH 20202 ARTICLE REF: 7828

2. As I said above, four complaints arise out of the above article.
   1. 1 The essence of the first complaint revolves around the contention that the article exaggerated the number of people who had invested with a defunct company known as Sharemax, for which the respondent was a business rescue vehicle. It was argued that the number was less than 20,000, whereas the article gave the figure as 40,000, stating it as a fact; therefore, it was argued, the reporting was untruthful, inaccurate and unfair.
   2. 2 The second complaint: It too revolved around the figure of 40,000 vis-a-vis 20,000 though in a different context.
   3. 3 Third complaint: The complaint is that the 17 March 2020 article provides a link to the historic story that had given rise to the three historic complaints mentioned earlier, while there was no connection between the 17 March 2020 article with the historic one; that it was unnecessary to make the cross reference. This, it is argued, was done solely to cause damage to the dignity of the respondent.
   4. 4 The fourth complaint (?): That the sins arising out of the articles relating to complaints 7792, 7795 and 7804 be visited upon Mr Cokayne of the respondent even though written by Mr van Niekerk because the former had, in his 17 March 2020 article, provided a link to the latter’s articles.

The respondent demanded retractions, corrections and apologies to Mr Myburgh, Chairman of the respondent, and to the respondent.

3. Regarding the first complaint, the respondent states that the 40,000 was an error which was corrected immediately; there was no intention. The same applies to the second complaint: there was no intention, and the number was corrected to 18,000. The matter was of huge interest to the investors as some had lost their life savings. Regarding the third, the respondent says the complaint relating to articles to which the link was provided, were yet to be adjudicated upon by the Ombud; but, in any event, the inclusion of the hyperlinks was not unfair or out of context. As far as the fourth complaint is concerned, the respondent queries why Mr Cokayne should be held responsible for the sins of Mr Van Niekerk. The links were not provided by Mr Cokayne, but by the sub-editor. For his part, Mr Van Niekerk says he will defend the hyperlinked stories when the time comes.
4. The Ombud”s Ruling: In his Ruling dated 21 August 2020 the Ombud dismissed the entire complaint except the one about the mentioning of 40,000 people instead of about 20,000. He found breach of section 1.1 of the Press Code, but imposed no sanction as the respondent acknowledged its mistake and corrected it. Also dismissed was the complaint relating to the hyperlink to historic stories. The Ombud found the stories were above board, and that the link was justified.
5. The applicant seeks leave to appeal against the dismissal of the other complaints relating to the above article.

COMPLAINT BASED ON THE 23 MARCH 2020 ARTICLE: COMPLAINT REF: 7829

6. The above complaint related to an article published on 23 March 2020 by Mr Cokayne for Moneyweb, entitled “Three former Sharemax auditors, 413 improper conduct charges.”
7. Out of this article alone too, emanates four complaints:
   1. 1 First complaint: That the respondent is being unfairly linked with what is said in the headline through a photography depicting the respondent’s building, when the article had nothing to do with the respondent. It is argued that the article is therefore misleading, untrue, inaccurate and unfair.
   2. 2 Second complaint: Because Mr Cokayne also provides a link to two historic articles by Mr Van Niekerk referred to earlier, he also incurs the same complaint Mr Van Niekerk did. It is argued that the inclusion of the two historic articles is unfair and out of context to the 23 March 2020 article.
   3. 3 Third complaint: It is a replica of complaint 2.4 above.
   4. 4 Fourth complaint: It is a replica of complaint 2.1 above, except that in this instance, the figures in dispute are 33,000 vis-à-vis 20,000.

The applicant demands correction, retraction and apologies to Mr Myburgh as Chairman of the respondent and to the respondent.

8. The respondent’s response to the four complaints: As regards the first complaint: Mr Van Niekerk points out to the close relationship between Sharemax and the respondent. He says the two are intrinsically linked; the applicant “was created to rescue the investments of Sharemax’s 18,000 investors after the collapsing of the Sharemax scheme”; respondent also occupies the same premises as Sharemax did. As regards the second complaint, the answer is more or less the same as in paragraph 3 above. As far as the fourth complaint is concerned, the respondent pointed out the error was corrected immediately it was realized. The third complaint relating to the historic links attracted the same answer as before.
9. The Ombud’s Ruling: In his Ruling dated 21 August 2020, the Ombud dismissed all the complaints under this article except the one relating to the inaccurate figure of 33,000 former Sharemax investors. No sanction was imposed as the error did not change the thrust of the story. Also dismissed was the complaint relating to the hyperlink to historic stories; here too the Ombud ruled that the link was justified as the stories were above board and were indeed interlinked.

COMPLAINT RELATING TO THE 18 MARCH 2020 ARTICLE: COMPLAINT REF 7830

10. The above complaint is in respect of the article published on 18 March 2020 with the headline “Nova: Insolvent, or in a sound financial position?” The essence of the story was that it was doubtful that the respondent would be able to repay the 18,000 former Sharemax investors.  The article was written by Mr Van Niekerk of Moneyweb. It gave rise to three complaints.
    1. 1 The first complaint: The gist of the complaint was that Mr Van Niekerk was wrong in giving an impression that respondent was in financial difficulties and that he, Mr Van Niekerk, was being blamed by the respondent for being the author of the situation it finds itself in; all of which were being denied. The report by Mr Van Niekerk is therefore seen as being untrue, inaccurate and unfair.
    2. 2 The second complaint: It too was that Mr Van Niekerk stated as a fact that respondent was not in a financial position to repay debenture holders. The statement is therefore untrue and inaccurate.
    3. 3 The third complaint: it is complained that the article states untruthfully, inaccurately and unfairly as a fact, that respondent’s statements indicated that there was independent official valuation of the properties in the 2019 financial year.

The applicant demanded correction, retractions and apologies.

11. The respondent’s response: In response to the above complaints, which revolve around the narrative that the applicant’s financial situation was precarious, the respondent referred to various documentations and statements, and once more denied the accusation that the respondent said it was the author of the applicant’s misfortune. What is clear however, is that the applicant was indeed not in a financially comfortable postion; this was demonstrated by the fact that it could only borrow money from a source that could only be referred to as a “loan shark”; at an exorbitant interest rate.
12. The Ombud’s Ruling: In his Ruling dated 21 August 2020 the Ombud dismissed the entire complaint with its subsidiaries; including the complaint relating to the evaluation of some properties. This was a crucial issue as an inaccurate evaluation could affect the balance between assets and liabilities one way or the other.

APPLICANT’S NOTICE OF APPEAL: RE COMPLAINT 7830

13. The applicant has noted an appeal against the Ombud’s Ruling of 21 August 2020 dismissing complaint 7830. Before dealing with the merits of the application for leave in respect of this complaint or any other one for that matter, I want to point out the following – as also being an answer to the applicant’s first point of appeal. Strictly speaking, the applicant is wrong to say it lodged a total of six complaints. What Mr Myburgh did on behalf of the applicant, was to engage in a hair splitting exercise: he took each of the supposed six complaints and divided it into a number of sub-complaints; the result was a multiplicity of complaints. In doing this, Mr Myburgh came close to – if he did not do so – abusing the process provided by the Press Code as an expeditious way of resolving disputes.  It is from this perspective that he complains about the Ombud’s statement that the articles are about “the same subject and issue.” The criticism is unwarranted. It does not create different complaints to take a piece of hair and split it into smaller pieces of the same hair and contend that you have several threats of hair. This disposes of the so-called first ground of appeal. Anybody reading the articles would see that the theme was the same; this is confirmed by the fact that the applicant repeatedly raises identical complaints throughout.  Point two of the appeal is no point at all: it is a mere speculation to say that the Ombud ruled against the applicant simply because he says the applicant used “unacceptable language”. There is nothing that suggests that the Ombud did so; if anything it is clear, even from his addendum, that he decided to consider, and did consider, the complaints notwithstanding his concern about the language used. It is hard to see any basis for bias, given the extent to which the Ombud engaged the issues. Nothing turns on point three regarding whether or not Mr Van Niekerk was actually blamed for the applicant’s financial situation. After all, he has not lodged a complaint against the applicant for blaming him; there is therefore nothing to resolve.
14. I do not intend to delve into a detailed analysis of the points raised in the Notice of Appeal. The points were raised in the same hair splitting manner as the main complaints themselves. I set out briefly some reasons why I do not agree with the points raised:
    1. 1 The points are simply argumentative and have no substance.
    2. 2 It is argued, with regard to this complaint and others, and indeed in respect of sub-complaints as well, that the Ombud failed to adjudicate them. The notice of appeal is replete with such allegations. I am minded to respond to this allegation now and not to return to it again: I have read the Ombud’s Rulings in respect of each complaint. He made time to go into each complaint and analysed it, together with the corresponding response by the respondent. I find nothing wrong with the manner in which he dealt with the complaints. It is therefore an unjustified and unfounded criticism to say that he did not consider any complaint or that he failed to make any ruling on it. That he did not on some occasion deal specifically with a so-called complaint, must be considered against the fact that there was an undue sub-division of complaints.
    3. 3 The Ombud was correct to see a continuous connection between the articles as they unfolded. He was entitled to adopt a robust view towards the complaints.
    4. 4 It is clear that the applicant does not sufficiently openly want to appreciate the practical implications of its relationship with Sharemax; which the Ombud did.
    5. 5 The collapse of Sharemax held serious consequences for investors. It was a large number of them, running into thousands even on applicant’s own version; the matter was therefore of huge public interest. The amount involved was also huge.
15. The manner in which the Ombud dealt with this complaint is illustrative of the thoroughness with which he dealt with the complaints. For example, he went out of his way to get clarity as to which properties were said to be over-evaluated and, on the basis thereof, delved into the relevant complaint.

NOTICE OF APPEAL: RE COMPLAINT 7804

16. The two points of appeal have already been dealt with above when I dealt with the notice of appeal regarding complaint 7830. In any case, an “introduction” is not part of the substantive Ruling and any error relating thereto is immaterial; so too is the addendum which is just explanatory; it is not part of the “judgement”.
17. Consistent with the way he has been presenting his complaints, Mr Myburgh created not less than nine or ten complaints regarding the Ombud’s ruling in his notice of appeal. I am not going to be drawn into this hair splitting exercise. I only state that some are at best argumentative, suppositions and lack no basis. For the rest, I refer to the whole of paragraph 14 above.

REASONABLE PROSPECTS OF SUCCESS

18. For an application for leave to appeal, an applicant must show reasonable prospects of success before the Appeal Panel. For the reasons stated above, I am of the view that the applicant has no such prospects; the following Order is therefore made:

The applications are dismissed.

Dated this 12^th sday of October 2020

Judge B M Ngoepe, Chair, Appeals Panel