Appeal Decision: Nova Property Holdings vs Moneyweb 7804

SUMMARY

The headline to the story in dispute read, Seven reasons Orthotouch’s dismal failure must be investigated – It’s critical that the roles and conduct of the decision-makers be probed (published on 5 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 article was about the companies Orthotouch and Zephan that had been put into business rescue the year before, “effectively bringing an end to the ‘rescue process’ of the failed Highveld Syndication (HS) schemes”. Although a business rescue plan had not been published, it reportedly was clear that the 18 700 mostly elderly investors (to the amount of R4.6-billion) might have expected to receive only a few cents in the rand. The editor stated it was critical that the roles and conduct of the decision-makers, including Connie Myburgh, be investigated.

The gist of Myburgh’s complaint was that by calling for an investigation into the activities of Orthotouch and its decision makers, the editor insinuated some wrongdoing on his and on Nova Property Holdings’s part, of which he was tha chair.

The Ombud upheld one part of the complaint, but did not impose a sanction as that matter had already been corrected by Moneyweb. He dismissed the bulk of the complaint.

Nova then lodged an application for leave to appeal.

Judge Ngoepe said the Ombud set out and analysed each complaint, under specific sub-heads. “I therefore do not agree with the applicant’s argument that the Ombud skimmed over some of the complaints,” he said.

The judge agreed with the Ombud and dismissed the application for leave to appeal.

THE RULING ITSELF

BEFORE THE APPEALS PANEL OF THE SOUTH AFRICAN PRESS COUNCIL

In the matter between

NOVA PROPERTY HOLDINGS LIMITED                                                       APPLICANT

AND

1. This is also one of the series of applications for leave to appeal brought by Nova Property Group (“applicant”) in a matter between itself and Moneyweb (“respondent”). Applicant seeks leave to appeal the Ombud’s Ruling dated 21 August 2020 on applicant’s complaint against the respondent in respect of an article published on 5 March 2020. Out of that article, Mr Myburgh, the respondent’s chairperson, extracted ten (10) complaints. The complaints relate to a story which was about a company known as Orthotouch, and not the applicant, although, in the process, Mr Myburgh is mentioned but within the context of the activities of Orthotouch. The latter was a business rescue vehicle for a company known as Highveld Syndication which had some 18,000 investors who had invested some R4.6b.
2. The gist of Mr Myburgh’s complaint was that by calling for an investigation into the activities of Orthotouch and its decision makers, Mr Van Niekerk of the respondent insinuated some wrongdoing on his part and the applicant, of which he was chair.
3. In his Ruling, the Ombud set out and analysed each complaint, under specific sub-heads. I therefore do not agree with the applicant’s argument that the Ombud skimmed over some of the complaints. In the end, the Ombud dismissed all the complaints but one: he ruled that by reporting that Orthotouch lost R507m from sales transaction, the respondent breached section 1.1 of the Code; that is, inaccurate reporting. The loss was less. However, no sanction was imposed as the error did not change the thrust of the story.
4. For an application for leave to appeal, an applicant must show reasonable prospects of success before the Appeal Panel. For the reasons set out below, I am of the view that the applicant has failed to show such prospects.
5. As I have already stated above, the Ombud invested a lot of time analysing and dealing with each complaint. I do not find any fault on his part.
6. There is much to be said for the respondent’s argument that the applicant has no locus standi in this matter. If there is any connection between the applicant and the story, it is a very tenuous one indeed. The only common denominator in the story between the respondent and Orthotouch, is Mr Myburgh; but he is mentioned as acting in his capacity as the director of Orthotouch. Any cross-reference to the respondent would be in the context of showing that Mr Myburgh was a director of both business rescue vehicles, something which would be the truth.
7. One point was made by the respondent in respect of all the complaints raised by the applicant in relation to all the articles; it is that there would be no response by the applicant or Mr Myburgh to the questions asked by the respondent (Mr Cokayne or Mr van Niekerk). This is what happened in this case too. I mention this point because Mr Myburgh accuses the respondent throughout (in particular Mr Van Niekerk) of writing without facts. Should he not answer questions and, in the process, provide facts favourable to the applicant and himself?
8. As the director of Orthotouch, Mr Myburgh had a fiduciary duty towards the investors; he could hardly distance himself from questionable transactions which required some investigation.
9. As examples, I mention two issues which made the call for investigation reasonable:
   1. 1 The fact that, as the respondent puts it, by the time Orthotouch was put into business rescue, no property was registered in its name whereas, given the history of the matter, some properties should have been.
   2. 2 Then comes the following submission by Mr Van Niekerk: “The Section 155 Scheme of Arrangement specified that Mr Georgiou, or entities related to him, would Transfer a number of properties to Orthotouch to enhance the company’s asset base. This did not happen. Rather, these properties were sold to the Delta Property Fund via back-to-back transactions, which included Orthotouch”. He then attached Delta’s SENS statement confirming the transaction.
10. I repeat what I said in my Decision in the other matter: Mr Myburgh cannot bar the articles by the respondent in respect of matters of this nature. It is clear that Mr Van Niekerk had conducted an extensive investigation in respect of the entities in which Mr Myburgh was involved; this is what investigative journalism is about. The Press Ombud could conceivably in future refer to similar complaints raised by Mr Myburgh as res judicata. The office should not be flooded with volumes of papers, as it has been happening, raising the same issues previously dealt with.
11. It follows that the application lacks prospects of success, and it is therefore dismissed.

Dated this 15^th day of October 2020

Judge B M Ngoepe, Chair, Appeals Panel