There was not “a smidgen of justification” for companies in the Moti Group to approach a court ex parte — without notification to the other side — to obtain a gagging order against investigative journalists amaBhungane, the Johannesburg high court said on Monday.
The court set aside an earlier gagging order “in its entirety”. It had been obtained by the Moti Group in June, after two of its companies went to court urgently and secretly — without notifying amaBhungane — and was heard behind closed doors. The court ordered amaBhungane to return about 4,000 leaked documents that the Moti Group claimed were “stolen” and interdicted the publication of any media articles based on the leaked documents — pending a later court decision.
The June order was unprecedented and caused an outcry. On Monday, Gauteng deputy judge president Roland Sutherland said it was “a most egregious abuse of the process of court”.
After the initial June order, amaBhungane went to court urgently, on a Saturday, and got the order varied: instead of returning the documents, a freeze was put on both the documents and any publication, until everything came before Sutherland last week.
Sutherland said it was a “fundamental norm” in our law that no decision adverse to a person should be made by a court without giving that person an opportunity to be heard. There were exceptional circumstances where the “sacred right of audi alterem partem may be relaxed”, he said. But here, there was nothing to justify it.
It is manifest that the order granted on 1 June 1, should never have been sought on an ex parte basis, still less granted ... The courts cannot tolerate abuse of the process.
— Deputy judge president
Roland Sutherland
“It is manifest that the order granted on June 1 should never have been sought on an ex parte basis, still less granted,” he said.
“The courts cannot tolerate abuse of the process,” said Sutherland. He gave a punitive costs order against the Moti companies, saying “there must be consequences”.
Sutherland said this was grounds enough to set aside the earlier court order. But he went on to deal with the other arguments on whether the order was warranted: whether there was good reason, in law, to order the return of the “stolen” documents and to interdict amaBhungane from publishing any news reports based on these documents.
On both these questions, he found in favour of amaBhungane.
AmaBhungane had sent questions to the Moti Group ahead of publishing their stories. When asked for the documents upon which the stories were based, amaBhungane refused to provide them, saying it may reveal their source. The Moti companies argued that amaBhungane were accomplices to theft.
“This belief is incorrect,” said Sutherland. He said the law did provide, in some situations, for possession of stolen property to amount to a crime.
However, “contraband information in the hands of a journalist is certainly not in such a category”, he said.
“On the contrary, there is overwhelming support for such activity being a positive and necessary good in society. In contemporary South African society there could be a cogent argument advanced that such an activity is an essential good without which our country cannot crawl out of the corrupt morass in which we find ourselves,” he said.
Protection of sources by journalists was “not mala fide but is rooted in a norm both practical and ethical”. Showing that this was a long-held principle, Sutherland quoted from a number of earlier judgments of our courts, including the Constitutional Court, and from international law instruments including from the UN and African Commission on Human and People’s Rights.
On the question of interdicting publication by amaBhungane he said: “A South African court shall not shut the mouth of the media unless the fact-specific circumstances convincingly demonstrate that the public interest is not served by such publication. This is likely to be rare.”
Looking at the facts of this case, he said the Moti companies had not convinced the court that the information in the documents was truly confidential — particularly since the documents had already been leaked. If, as suggested, the information was defamatory, the answer for the Moti companies was to exercise their right of rebuttal and to sue for unlawful defamation, said the judge.
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