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Judge slams ruling against amaBhungane ordering journalists to hand over Moti files

Judge slams ruling against amaBhungane ordering journalists to hand over Moti files
Zunaid Moti. (Photo Supplied)

On Saturday, lawyers for amaBhungane launched an urgent application before Johannesburg High Court Judge Stephan Van Nieuwenhuizen, asking for a variation of the order granted on Thursday by Judge John Holland-Muter following an ex parte (without notice), in chambers application launched by the group.

  • AmaBhungane does not have to hand over the Moti files, court rules
  • In an urgent application on Saturday, Judge Stephan Van Nieuwenhuizen berated the Moti Group’s lawyers for being “unreasonable”.
  • He granted an order maintaining the “status quo” in which amaBhungane keep the documents they have on the company pending further litigation.

An order taken secretly compelling the amaBhungane Centre for Investigative Journalism to hand over documents to the Moti Group of companies within 48 hours, has been effectively set aside.

The order has been replaced with one in which amaBhungane will preserve and not alter or destroy the documents.

On Saturday, lawyers for amaBhungane launched an urgent application before Johannesburg High Court Judge Stephan Van Nieuwenhuizen, asking for a variation of the order granted on Thursday by Judge John Holland-Muter following an ex parte (without notice), in chambers application launched by the group.

In that application, the Moti Group alleged amaBhungane possessed documents stolen by erstwhile employee Steven van Niekerk, and were using them to write a series of articles labelled the “Moti Files”.

AmaBhungane’s lawyers said while they intended to oppose the finalisation of the interim interdict granted by Judge Holland-Muter, in the meantime they believed the order was fatally flawed. They disputed the documents were stolen, and said handing these over would mean revealing confidential sources.

Read more on Daily Maverick: #MotiFiles: Moti Group granted secret court order muzzling investigative journalists

They said in any case they could not comply because the documents were stored on a server overseas, and the journalists did not want to be held in contempt.

“I cannot understand how this order was granted”, said an obviously annoyed Judge Van Nieuwenhuizen.

He ordered the parties to “negotiate” a resolution which would maintain the status quo and accused the Moti Group of being “unreasonable” in not accepting an offer from amaBhungane’s attorney that his clients would agree not to dispose of the documents until the matter returned to court.

“It may well be that you will easily succeed in a reconsideration of the order,” he told amaBhungane’s advocate Isabel Goodman.

He told advocate Paul Strathern, for the Moti Group, to be reasonable.

Referring to attempts to negotiate between the parties on Friday, with the Moti Group insisting the documents must at least be given to a third party, such as an independent firm of attorneys, the judge said: “If you hadn’t added on strings, this could all have been sorted out yesterday … This half-baked order of yours can be reconsidered in due course.

“You baked this cake. You caused the trouble. You came up with 48 hours. It’s just not acceptable.”

The Judge also had harsh words for Paul O’Sullivan, who put up an affidavit in support of the original Moti application with “proof” through metadata analysis that some of the documents, which were attached to articles published by amaBhungane, had been stolen by Van Niekerk.

“I don’t profess to know how these things work,” Strathern said, to which the judge responded: “Well I do … Mr Paul O’Sullivan doesn’t know anything about computers … He must have an employee who does this. Where is the affidavit where he qualifies himself? So Judge Holland-Muter had no expert in front of him.”

He gave the parties 45 minutes to negotiate and come up with a draft order that “maintained the status quo”.

This was then made an order of court.

What this means is that amaBhungane does not have to hand over any documents, but is still gagged from using or publishing anything based on the documents.

AmaBhungane has indicated it will “anticipate” the return date of 3 October and apply for an earlier date in its bid to have the entire order overturned.

In a statement, amaBhungane said it welcomed the undoing of the worst aspects of the court order.

“We were seriously concerned about the damage to source protection … On Friday morning already we had made an offer to preserve the documents pending the proper ventilation of the matter in court. This was rejected by the Moti Group.

“While we are disappointed that the gag order issued against us – unjustifiably and abusively in our view – remains in place for now, we will fight this in due course.”

In a statement, the South African National Editors’ Forum (SANEF) condemned the attempt to muzzle amaBhungane.

“We believe the Moti Group sought to unreasonably gag further publication of any stories about their business, regardless of the public interest in their matters.”

“SANEF will closely monitor this matter, which cannot be left unchallenged because of the implications it may have on the work journalists do.”

It said Thursday’s interdict was “not only unreasonable, but tramples on the right of journalists to do their work, and the public’s right to know”. DM

First published by GroundUp

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Comments - Please in order to comment.

  • personal says:

    I am delighted by the outcome of the urgent application although amaBhugane still gaged. Hopefully they will get an early anticipatory date in the next month. Freedom of the media is absolutely essential to society.

  • jcdville stormers says:

    Bravo!!!That judge in the Moti camp?say no more.

  • jcdville stormers says:

    South Africans are starting to see what a”ethical “profession lawyers and advocates are

    • Johan Buys says:

      Somebody should keep a list of attorneys and advocates that CHOOSE (they are not compelled) to act for the bad actors.

      It would be a useful list to avoid for anybody needing legal assistance. We have the right to choose legal representatives based on who they associate with.

  • J W says:

    Hello Moti Group, and welcome to the Streisand effect.

  • dmpotulo says:

    It was a poor judgement, granted in secret. It had no rule nisi, therefore suspect.

  • Jane Crankshaw says:

    Sanity and the law prevails!

  • Geoff Woodruff says:

    At least we still have some honest judges left. Very disappointed with O’ Sullivan’s part in this saga.

  • Chris 123 says:

    How did the first judge come to that conclusion??

  • Rae Earl says:

    I have never doubted Paul O’Sullivan’s loyalty and support of honest advocates or his frequent slamming of those who are hired by the Moti’s of this world do do their evil bidding. Is this an awful example of “Et tu Brutè”? as he swings over to the’dark side’?

  • louis viljee says:

    Thanks for continuing bravely to fight for the light and clean up the corruption! And thank goodness for proper law, lawyers and judges!

  • Joe Public says:

    Moti’s dirty money seems to have reached the pockets of Mr O’Sullivan.
    At least this judge has applied his mind and wasn’t so easily bowled over as the previous one. May the forces of good always triumph over evil.

    • Deon Botha-Richards says:

      I’m extremely disappointed in O’Sullivan. He’s always been on a crusade against corruption and yet here he is chasing dirty money.

  • William Dryden says:

    Obviously the Moti group of companies has something to hide as they wouldn’t have gone to extreme measures to block the reporting by Amabhungane.

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