Ruling by the Press Ombud
1 August 2017
This ruling is based on the written submissions of Mr Buhle Duma of Fluxmans Attorneys, on behalf of Mr Ntokozo Ndlovu and Profit Trading, and those of Dumisane Lubisi, executive editor of the City Press newspaper.
Ndlovu is complaining about a story in City Press of 28 May 2017, headlined Reader falls victim to Profit Trading forex scheme.
Complaint
Ndlovu complains that the journalist had published the story without affording him an opportunity to comment, even though the issue was not urgent.
This, he says, has inter alia led to inaccurate, biased, unsubstantiated and misleading statements, namely that Profit Trading had:
· closed its offices in Sandton (creating the impression that it had fled after defrauding its customers) and that its employees “have disappeared”;
· made use of a trading robot and conducted a Ponzi scheme.
He adds that some of the authors on Hellopeter have since apologized to Profit Trading for the false allegations in question and that the person called ‘Des’ in the article has also since withdrawn some of his statements.
Ndlovu complains that this reportage has harmed his reputation, integrity, name, brand and business.
The text
The article, written by Maya Fisher-French, quoted an individual called ‘Des’, who wrote to City Press “after being defrauded by forex trading company Profit Trading, a business that claimed to invest clients’ money into an automated forex trading system. The company appears to have closed down, with the founder unreachable and investors unable to access their funds”.
‘Des’ was also quoted as saying that he had since lost his house, his car and a lucrative logistic deal.
The journalist stated that an investigation by City Press had inter alia found that:
· the business had its licence revoked by the Financial Services Board (FSB) in September last year after complaints from investors; and
· the FSB said it had handed the case over to the police for investigation.
Another investor reportedly said that:
· when Profit Trading started a few years ago it managed to fake enough information about having automated foreign exchange (forex) trading software to obtain an FSB licence and so continue with its operations; and
· Profit Trading had closed its offices in Sandton, no lines were working and its workers had disappeared.
Fisher-French added that, on the surface, Profit Trading seemed to be a classic Ponzi scheme, providing just enough information to make people believe it to be a real opportunity. “What [investors] do not realise is that there is no real investment and the money they initially receive is from new investors,” she wrote.
Her report stated that the marketing material on the website claimed people could invest in a forex “robot” that was accurate 95% of the time. She then also quoted Ms Elaine Mabiletsa (who works at the Johannesburg Stock Exchange as a specialist on bonds, currencies and interest rate derivatives) saying that this was impossible and if such a robot did exist, the banks would be using it – which meant it was more likely that the funds were never invested in the first place.
The journalist added that her online research revealed that a Profit Trading Bot – an automated forex and binary trading robot – was a scheme that had been marketed elsewhere in the world and appeared on many “scam warning” sites.
She concluded, “City Press has tried to contact Profit Trading through the telephone numbers listed but they have been disconnected. We have also tried to reach Ndlovu on his cellphone and via LinkedIn, but he had not responded by the time of going to print.”
City Press responds
Not asked for comment
Lubisi says the reporter made several (unsuccessful) attempts to reach Ndlovu. She:
· called him at least twice on his mobile cellphone (07601444176), which was obtained from a source. Both times, a voice said the number was not available and there was no option to leave a message. A source told the newspaper that Ndlovu was not contactable, which was consistent with the journalist’s experience;
· called the landline numbers 0861PROFIT (776348), 0315664776, 0333420970, 0315664776 of the various offices – the Sandton office had a recorded Telkom message to say the number is no longer valid, while the other offices gave a permanent engaged signal;
· tried several times to contact the offices via their contact platform (Chabot). The Chabot continuously had a message reading, “We're not around, but we'd love to chat another time”; and
· sent him a LinkedIn message.
From this, the editor concludes that the newspaper took all reasonable steps to reach Ndlovu, “but we could not wait longer for a comment which we were not aware was going to come or not”.
Lubisi stresses that the newspaper was aware that such a story could have had serious implications, hence its attempts to obtain the comment – and once the matter was in the hands of the police, it was clear that City Press needed to publish “because this was no longer merely allegations from investors but was being taken seriously by a law enforcement agency of the country”.
He also remarks that Ndlovu does not seek a right of reply to dispute the alleged “inaccuracies” and adds, “If indeed, he felt aggrieved that his name has been rubbished for [the] wrong reason, he would have sought a right of reply.”
He says journalist Patrick Cairn told Fisher-French that Ndlovu would only respond to calls dialed through WhatsApp, which is how she was subsequently able to get hold of him.
He adds that this was reflected in the story.
Inaccurate, misleading statements
Sandton offices closed; employees disappeared
Lubisi says this information was a direct quote from an investor who took to Hellopeter – and although the journalist did not use this quote in her article, the original informant (‘Des’) had written in his e-mail that he had been to the Sandton office where he was told they had “upped and left”.
He adds that, to verify this information, City Press called the relevant landline – which yielded no response except for the message that the number was no longer available. He says this is contained in the direct quote that came from the complaint on Hellopeter and City Press recorded it accurately without adding its own meaning.
The editor submits that investors also could not reach Profit Trading because their office lines were apparently no longer working. He adds, “It is a fair assessment from those who invested to say Profit Trading employees had disappeared because they could not be reached anywhere. People were scared of losing their money invested in the company and the non-reachable issue was a concern to people who then took to complaining about this matter.”
Lubisi concludes that the article was a fair reflection of what the investors told City Press and at best Ndlovu can complain that the investors’ information was wrong – he cannot hold the newspaper responsible for publishing comments made by some investors.
Trading robot; Ponzi scheme
Lubisi points out that in fact it was not the FSB, but the police which started an investigation – the FSB has already done its investigation and handed the matter over to the SAPS (as stated in the story).
He also says ‘Des’ confirmed that initially he received profits of between 5% and 8% monthly, but these dried up later. He also experienced delays in the September 2016 payout and was promised that it would be made in January 2017 and then March, but nothing came of this.
The editor argues that, as FSB had already revoked Profit Trading’s licence after an extensive investigation triggered by complaints from investors, it was a fair comment to state that the business seemed to be “a classic Ponzi scheme”.
He concludes that the marketing material on Profit Trading’s website specifically refers to a robot (screen shot); Ndlovu also claimed to have created a trading robot in his interviews (see https://www.youtube.com/watch?v=FqoLPgoy07o).
Investors on Hellopeter having apologized; ‘Des’ having withdrawn certain statements
Lubisi says the newspaper has no record of investors (including ‘Des’) who have since apologized, and points out that Ndlovu also does not provide such. The same goes for people who complained on Hellopeter – in fact, further complaints have been logged since the publication of the article.
He adds that City Press continues to receive complaints from investors who have not received their money.
Conclusion
Lubisi emphasizes that this was a matter of great public interest.
Ndlovu replies
Ndlovu says Profit Trading has not advised City Press, or anybody else, that its offices had been closed or its employees had disappeared – therefore, the newspaper should have said that it had “reasonable grounds to believe that [those] office may have closed and its employees could not be reached”. However, the stating of these allegations as fact was a “quantum leap”, which was “misleading, improper, unfair, opportunistic and sensational”. He adds that, while telephone lines might not have been operational, it did not necessarily mean that the offices had closed and employees had disappeared.
He also argues that it would have been a different matter if the Hellopeter statement had been quoted in the article.
Ndlovu says City Press has overlooked the fact that:
· existing clients called the business’s consultants directly on their mobile lines;
· employees come and go just like in any other business; and
· he, as the CEO, had not always been in direct contact with clients.
He also complains it was unfair, misleading and unsubstantiated to label the business as a Ponzi scheme just because it was alleged that clients stopped receiving profits – while it would have been reasonable to report the allegation, its conclusion was unreasonable.
Analysis
It is not in dispute that this matter is of great public interest.
Not asked for comment
As pointed out by Lubisi, the journalist’s efforts to contact Ndlovu were extensive – and indeed quite impressive. Reporting the fact that the reporter could not get hold of him prior to publication was also in line with the Code of Ethics and Conduct.
I disagree with Ndlovu that City Press should have waited for his response as, according to his claim, the issue was not urgent – the matter was already in the hands of the police.
The fact that Fisher-French got hold of Ndlovu after publication does not negate the above.
Sandton offices closed; employees disappeared
The relevant information was stated as an allegation (“the company appears to have closed down, with the founder unreachable and investors unable to access their funds” – emphasis added), while the rest of the reportage on these issues was indeed attributed to sources (which City Press was justified to do).
I also agree with Lubisi that it was a fair assessment from investors to say Profit Trading employees had disappeared because they could not be reached anywhere – the investors were concerned about losing their money and the conclusion was theirs, not that of the newspaper.
Ndlovu does not dispute Lubisi’s statement that the FSB has already done its investigation, has revoked Profit Trading’s licence, and has handed the matter over to the SAPS. As these developments were quite serious and indeed in the public interest, City Press did well to warn its readers in this regard.
Trading robot
The reference to a robot by Profit Trading in marketing its product, as well as Ndlovu’s statement in the TV interview that the business was using such a device, justified the reportage on this specific issue.
Ponzi scheme
Lubisi’s argument about a “classic Ponzi scheme” is not convincing. The fact that the FSB revoked Profit Trading’s licence and that some investors allegedly did not receive what was due to them, did not necessarily point to a Ponzi scheme – there could have been other reasons for such a situation.
I take into account that Fischer-French (at least initially) did not state it as fact that it was a Ponzi scheme, but merely said it “seemed” to be. While this was possibly stretching matters a bit, the following sentence did cross the line: “What [investors] do not realise is that there is no real investment and the money they initially receive is from new investors.”
That constituted a Ponzi scheme – and this time it was stated as fact.
While it may turn out to be a Ponzi scheme at a later stage, the newspaper was not justified to report it as fact at the time of publication. This reportage was unfair, and it carried the possibility of causing unnecessary harm to Profit Trading.
‘Defrauded’
The opening sentence of the article read, “Des wrote to City Press after being defrauded by … Profit Trading…”
While fraud may be proven at some later stage, the newspaper was not at liberty to make such a statement (of fact) at the time of publication. Fraud first needs to be proven, in a court of law – which has not happened as of yet.
In the circumstances I would have given the newspaper the green light if it had used the word “allegedly” – but it did not.
That was unjustified and irresponsible, at least at the time of publication, and it also could have caused the business unnecessary harm.
Investors on Hellopeter having apologized; ‘Des’ having withdrawn certain statements
I might have taken this into account, had Ndlovu provided me with particulars in this regard. However, I cannot base any conclusions on assumptions.
Finding
Not asked for comment
This part of the complaint is dismissed.
Sandton offices closed; employees disappeared
This part of the complaint is dismissed.
Trading robot
This part of the complaint is dismissed.
Ponzi scheme
The indication that Profit Trading was operating a Ponzi scheme was in breach of Section 1.1 of the Code of Ethics and Conduct which reads, “The media shall take care to report news … fairly.”
‘Defrauded’
The statement of fact that Profit Trading defrauded an investor (‘Des’) was in breach of the same section of the Code.
Investors on Hellopeter having apologized; ‘Des’ having withdrawn certain statements
This part of the complaint is dismissed.
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breaches of the Code of Ethics and Conduct as indicated above are all Tier 2 offences.
Sanction
City Press is directed to apologise to Ndlovu and to Profit Trading for:
· stating as fact that Profit Trading defrauded an investor;
· indicating that it was operating a Ponzi scheme; and
· any unnecessary harm this might have caused the business.
The newspaper is requested to publish:
· this apology on the same page as that of the offending article, with a headline containing the words “apology” or “apologises”, and “Ndlovu” or “Profit Trading”; and
· the same text and headline online (if the story appeared there as well).
The text should:
· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed;
Appeal
The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud