How “on earth” did a high court judge conclude that it was appropriate to grant a gagging order against investigative journalists amaBhungane and order them to return confidentially sourced documents when they were not cited as a party to the court case? asked deputy judge president Roland Sutherland in court on Tuesday.
Sutherland was questioning an order against amaBhungane obtained by companies in the Moti Group, a group of about 250 companies headed by Zunaid Moti at the beginning of June. The order was obtained after a hearing that was conducted on an ex parte basis — in the absence of amaBhungane — and behind closed doors.
Pretoria high court judge John Holland-Muter ordered that amaBhungane must, within 48 hours, return about 4,000 leaked documents to the Moti companies, which the Moti companies claimed had been stolen. The court also gave an interim order interdicting amaBhungane from publishing anything based on the documents, pending a further court date.
The orders, unheard of before in democratic South Africa, caused an outcry, and amaBhungane went urgently back to court on a Saturday for a variation, which was granted — essentially allowing the journalists to hold on to the documents but not to publish anything pending a further decision by court.
On Tuesday, the Moti Group sought to defend Holland-Muter’s order and make it permanent, while amaBhungane sought to have it thrown out, with counsel Steven Budlender SC, calling the Moti Group’s actions an “absolute archetypal SLAPP suit” — where “corporations with deep pockets” seek to “intimidate the media into silence”.
How on earth did he manage to decide that it was appropriate to grant this relief ex parte if he’d applied his mind to those decisions, which ethically should have been made available to him. How did it happen?
— Deputy judge president Roland Sutherland
But counsel for the Moti Group, Vincent Maleka SC, argued that the documents were “stolen” and that the rights of the media to access to information and to protect confidential sources were not absolute. They had to be balanced against competing rights, such as the rights to privacy and dignity.
Maleka argued that there was no hierarchy of rights in the constitution; and the media, like everyone else, was bound by the rule of law.
He told the court that the documents that were the subject of the Holland-Muter order had been unlawfully copied by a former employee of the Moti group, Clinton van Niekerk, who was being prosecuted for theft of these documents. The documents contained confidential and privileged information, he said.
When amaBhungane had previously reported on the documents and had sent questions to the group, the group had asked for the documents upon which the reportage was based. AmaBhungane had refused to provide the documents or identify them, said Maleka, saying that to do so may disclose the identity of their source.
This was a failure to give the Moti Group an adequate right of reply, he argued. It was not for the media to grant itself the right, with no factual basis and merely on a say-so, to decide when it could protect its sources and when it was in the public interest to do so.
Maleka said Van Niekerk was not a whistle-blower and there was no evidence that he was entitled to steal the documents and disclose them to a third party.
“We don’t know what his motive is,” said Maleka.
But Sutherland asked, even if he acted with nefarious purposes, how this contaminated amaBhungane, which was “performing a recognised, prima facie, public service in publishing matters in the public interest”.
“Let us cut to the chase,” said Sutherland. He asked Maleka what was said to Holland-Muter “to persuade him that various cases dead in point [with judgments that went against the Moti Group’s case] were distinguishable in his view ... How on earth did he manage to decide that it was appropriate to grant this relief ex parte if he’d applied his mind to those decisions, which ethically should have been made available to him. How did it happen?”
Counsel have a heightened ethical duty when they approach a court ex parte to bring to the court’s attention all relevant judgments, even those that go against their case.
Maleka said that he was not in the urgent application before Holland-Muter. But later, Paul Strathern SC, who had argued the case before Holland-Muter, addressed the court and said that the judgments Sutherland referred to had not been put before the judge. He said one of the judgments was “not on my radar” because of the way the case had been argued before Holland-Muter, but that there had been full disclosure to the judge.
Budlender argued that the ex parte application was a “patent abuse” of court process and that the order should be set aside on that basis alone. Such an application was unknown in our law, and despite listening carefully to Maleka, the Moti Group had not explained why they had gone to court on an ex parte basis. Not only was there no explanation, but they had also done so “improperly” — by not putting relevant case law before the judge, he argued. He asked for a punitive costs order.
Budlender argued that it was completely irrelevant what the motive of amaBhungane’s source was. He said the Moti Group had sought to make a “straw man” argument that the media had given itself the right to decide when it was in the public interest to protect its sources, and “therefore are a law unto themselves”.
Yes, the media had a right and duty to make a call on whether to publish on the basis of confidential sources. But that did not mean they were a law unto themselves. If the media got it wrong, there were consequences: they could be sued for defamation or they could be found in breach of the press code — “the consequences are calamitous for them,” he said.
Budlender added that the Moti Group had not addressed the long-held principle of our law that prior restraint orders — or gagging orders — were only granted in the most exceptional circumstances. The group had got nowhere near to showing that such circumstances existed in this case.
Sutherland said it was important that this case was decided quickly and that he would deliver a judgment before Monday.
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