Media freedom triumphs as judge sets aside SAA interdict against press

The High Court on Thursday set aside a gagging order obtained by South African Airways (SAA) against media houses‚ including the publisher of Business Day.

SAA had urgently gone to court in the middle of the night of November 24 to prevent Business Day‚ Moneyweb and Media24 from running a story based on a legal opinion from its internal legal counsel‚ Ursula Fikelepi‚ to the board.

The opinion advised that SAA should secure an equity injection from the state or apply for business rescue. It said to continue trading under current circumstances was “reckless” and recommended that the board abandon its attempts to renegotiate the Airbus transaction to lease five A330 aircraft and revert to the old deal structure that was negotiated in March.

SAA said that the document was protected by attorney-client privilege and so could not be published.

But by the time the interdict was obtained‚ the City Press and Moneyweb had already published and Business Day had gone to the printers.

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In setting aside the interdict‚ Johannesburg High Court Judge Roland Sutherland said that the metaphor of the horse having bolted was “inadequate”.

He said the document had also been disseminated widely. “A better image might be that virus has infected the world’s literate population”.

The order “was futile even as the ink dried upon it‚” he said.

Judge Sutherland was scathing about SAA’s attempts to contact the media houses to notify them of its intention to get an interdict. “Service was a farce‚” he said.

He also said SAA’s founding affidavit contained “falsehoods” and were misrepresentations “calculated to positively mislead the judge”.

He was referring to Judge Fayeeza Kathree-Setiloane who was on urgent duty and granted the interdict.

While it was a “certain fact” that SAA’s right to confidentiality had been violated‚ privilege could not be invoked when confidentiality had already been breached and the information had become known outside of the litigation context.

- TMG Digital/BDLive