Appeal Decision: Nova Property Holdings vs Moneyweb7795

SUMMARY

The headline to the story in dispute read, “Irba reports Nova to SARS and CIPC” – Sharemax rescue vehicle to be investigated for possible transgressions of tax legislation and the Companies Act (published on 4 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.

Connie Myburgh complained that the editor had created the false and unsubstantiated innuendo that he had done something wrong as chairperson of Nova and that that had merited a forensic investigation. He added that the reportage defamed him (personally and in his capacity as the group’s chairperson), as well as Nova.

The article was about a meeting of the creditors of Ortotouch held in November 2019, and about the apparent failure of its directors in carrying out their fiduciary duties to implement the rescue plans.

Judge Ngoepe said that the Ombud, in his ruling, the had embarked on a detailed analysis of the matters before he dismissed the entire complaint. He said he agreed with the Ombud’s approach and the reasons for his decision to dismiss the complaint, and inter alia added:

• The complaint was not about Nova, but more about the criticism of Myburgh himself;
• His objection against being linked to both Orthotouch and Nova in the same story was without merit as he was the director of both and indeed chair of the latter – he was the common denominator between the two; and
• If both Nova and Orthotouch did spectacularly well and covered them in glory, it begged the question: why would Myburgh not be happy about being linked to both? Surely, their excellent performance would have been a glowing testimony for him?

The application for leave to appeal was dismissed.

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 one of the many applications for leave to appeal by Nova Property Group (“applicant”) in a matter between the applicant and Moneyweb (“the respondent”). The complaint is in connection with an article the respondent published on 4 March 2020. Mr Connie Myburgh filed the complaint on behalf of the respondent. In his complaint letter, Mr Myburgh says the heading of the article, published on the respondents Website Platform, was “Irba reports Nova to SARS and CIPC”. The sub-head was “Sharemax rescue vehicle to be investigated for possible transgressions of tax legislation and the Companies Act.” It is difficult to get clarity as to exactly what he describes as the first complaint is. He makes reference for example to a radio platform which Mr Van Niekerk of Moneyweb used to attract adverse comments from the public. It seems his complaint is that Mr van Niekerk insinuated some wrongdoing, and called for some investigation of the respondent. With regard to this particular publication, Mr Myburgh crafted a few complaints. The second complaint related to comments that were made by the public on the respondent’s website platform (“Moneyweb’s Platform”). He says amongst others, that the comments were aggressive, hateful etc. Apparently the complaint is that the respondent created this platform to encourage such comments from the public. There is a third complaint: It relates to an article published on Moneyweb on 4 March 20220 under the heading “Where is Hans Klopper?” Here too there is a complaint against a call for investigation. It appears Mr Myburgh was a director of a company known as Orthotouch, and also director and chairman of the respondent. Mr Myburgh complained about the linkage to the two companies. The underlying cause of the objection being what he saw as a call for an investigation into the two companies. It is difficult to accurately identify the nature of the complaints. They are written in details that are more expressive of unhappiness than of a concise precise complaint. I agree with the Ombud’s Summary of the complaints in his Ruling of 21 April 2020:

“1.1   Mr Connie Myburgh complains that the editor:

• Created the false and unsubstantiated innuendo that:
• He had done something wrong as chairperson of Nova;
• The above had merited a forensic investigation; and
• Has defamed him (personally and in his capacity as the group’s chairperson), as well as Nova.

1.2    He asks for a rectification, retraction and apology to Nova and him, both as an individual and as Nova’s chairperson.”

I also agree with the Ombud’s summary that the article was about a meeting of the creditors of Ortotouch held in November 2019; and that the article was about the apparent failure of the Orthotouch directors in carrying out their fiduciary duties to implement the rescue plans.

2. What characterized Mr Myburgh’s complaint was the strong language he used. The Ombud, correctly, expressed his unhappiness about that but nonetheless proceeded to adjudicate the matter. I will return to this aspect later. In his answer, Mr Van Niekerk denied that what he had written was not based on facts, as Mr Myburgh alleged. In this respect, he referred to a number of documents. I will refer to some of them later.
3. In his Ruling, the Ombud embarked on a detailed analysis of the complaints and of Mr van Niekerk’s responses. In the end, he dismissed the entire complaint. I agree with the Ombud’s approach and the reasons for his decision, and I would like to add the following:
   1. 1 In truth, the complaint is not about Nova, but more about the criticism of Mr Myburgh himself.
   2. 2 His objection against being linked to both Orthotouch and Nova in the same story is without merit. As the Ombud said, the Windeed Company Registrar showed that he was the director of both and indeed chair of the latter. Both companies were set up as business rescue vehicles and were both mired in some controversy, at least form the point of view of some of the investors. Mr Myburgh was the common denominator between the two. As the respondent says, it is a past which Mr Myburgh cannot simply wish away or prevent people from writing about.
   3. 3 Mr Myburgh got more than what he had bargained for. He accused Mr Van Niekerk of writing without factual basis; in particular, with regard to the alleged insinuation of wrong doing. It turned out from Mr Van Niekerk’s response that he had relied, amongst others, on a report by a Mr E Bertelsmann who, inter alia, referred certain aspects for investigation by the National Prosecuting Authority. I have reason to believe that “E Bertelsmann” is in fact Judge E Bertelsmann who served under me while I was still Judge President. He would not have made such a referral lightly.
4. Let me cut to the chase:
   1. 1 Orthotouch, it appears, was meant to carry out a business rescue plan in respect of Highveld Syndication; Nova was to do the same with regard to Sharemax. Neither Orthotouch nor Nova were a spectacular success.  This would be clear from the articles written by Mr van Niekerk, and it would be interesting to hear the views of the investors or creditors of Sharemax and Highveld Syndication. If both Nova and Orthotouch did spectacularly well and covered them in glory, it begs the question: why would Mr Myburgh not be happy about being linked to both? Surely their excellent performance would have been a glowing testimony for him.
   2. 2 It is a common refrain in Mr Myburght’s complaints that Mr Van Niekerk wrote without any facts. It is clear that the latter did in fact conduct an extensive investigation into the activities of Nova ad Orthotouch, and indeed beyond that to Sharemax, and to some extent Highveld Syndication. This negates other allegations constantly made by Mr Myburgh, such as “malice”. The complaints are aimed at curbing adverse criticism of Nova. Good reputation is earned.
5. The following is one of the reliefs sought by Mr Myburgh on behalf of the applicant:

“Nova requires the Ombud to take steps against Moneyweb, in order to procure that Moneyweb does not utilise, make available or allow Moneyweb’s Platform to accommodate and be used by members of the public to comment on Moneyweb’s Platform with irrelevant matters, hate speech, aggression, insults, outpouring of venom and personal attacks, with reference to articles published by Moneyweb , and in particular insofar as such articles and comments relate to Nova  and its functionaries”. It is a startling but revealing request: The Ombud must take steps to silence the public – which would include aggrieved investors – from saying whatever they want to say; I suppose they should only be allowed to sing praises to Nova! Contrast that with the following submission by Mr Van Niekerk: “The investing public have the right to be informed about these matters, not only so people who are in position for corporate power can be held to account, but also to educate themselves about, and protect themselves against the kind of investments. This is a duty I owe to (my) readers ….” This is what investigative journalism is about; and therein lies its value to the public. The Press Code cannot be used to stifle information which should go out to the public.

6. It is clear from the way the Ombud examined an analysed the matter, the reasons he has given as well as from what I say above, that the applicant has no reasonable prospects of success before the Appeal Panel. The application for leave to appeal is therefore dismissed.

Dated this 15^th day of October 2020

Judge B M Ngoepe, Chair, Appeals Panel