“When you tear out a man’s tongue, you are not proving him a liar, you are only telling the world that you fear what he might say.” — Tyrion Lannister in George RR Martin’s A Clash of Kings.

Tomorrow, Tuesday, marks a significant battle in the ongoing public war being waged against amaBhungane by the Moti Group and Zunaid Moti personally.

The stakes are high.

This war is potentially existential for amaBhungane — and has implications for the survival of public interest journalism in South Africa.

This case goes to the heart of the right to know.

It concerns a court order which, if confirmed, will effectively extinguish the right of journalists to receive and impart public interest information that is leaked by confidential sources.

The question before the high court is whether it is intrinsically unlawful for journalists to receive, retain and preserve leaked information and to publish from it in the public interest.

We submit that it clearly is not unlawful.

In fact, these duties are fundamental to journalism, to the protection of sources and to the free flow of information.

The story so far

To recap:

• AmaB published a series of articles on Zunaid Moti and the Moti Group that revealed Moti’s efforts to ingratiate himself with Zimbabwe’s political elites, and exposed suspicious financial flows via the Moti Group’s operations in Zimbabwe, as well as a secret loan to an Investec employee tasked with limiting the bank’s exposure to the Moti Group’s ballooning debt.
• Partly as a result of these hard-hitting exposés, but also, we suspect, because of what we have yet to publish, we are in the thick of a multipronged campaign to silence us.
• Moti and his group are fighting on multiple channels: using a public charm offensive, matched with an aggressive civil legal strategy and threats that the journalists may be pursued criminally, both here and in Zimbabwe.
• On the legal offensive, the Moti Group on 1 June obtained an order on an urgent, ex parte and in camera basis (meaning it was held in secret without the judge hearing our version) containing a final interdict directing us to “return” our source material and an interim interdict restraining us from reporting on such material or even “utilising” it.
• On 3 June, amaBhungane went to court and a variation of the draconian order was issued, which meant we did not have to return the documents, but the gag remained until we had a chance to challenge the outcome of the original secret hearing. This article by the Committee to Protect Journalists summarises the events to date. Our summary is here.
• We return to court on Tuesday, 27 June, to set aside the Moti Group’s unprecedented gag order against the #MotiFiles — but also to vindicate the rights of all journalists to receive leaks, and to manage and publish information from them professionally in the public interest without jeopardising sources.

Journalism is not a crime

The campaign being pursued by the Moti Group is premised on amaBhungane being in possession of “stolen documents” and seeks to portray the young man Moti accuses of leaking them — Clinton van Niekerk — as a “thief”, not a whistle-blower.

This characterisation is a fig leaf for a desperate effort to stop any more of the story coming out, using lawyers and the courts in an attempt to gag us and to force us to reveal confidentially acquired documents and sources.

It is being waged via a slick social media campaign by Zunaid Moti who, since the scandal broke, has restyled himself as an “influencer” complete with luxury cars, cigars and a self-serving promotion of his advice and mentorship, which is supposed to recast the controversial businessman in a charitable light.

It is being waged via an expensive public relations campaign, with paid articles, a stream of press releases and an influence operation which has gone so far as to distribute (and presumably solicit) letters of support from entities such as the police and prisons union Popcru and the Black Business Council.

The latest tack is to get these entities and other sympathetic commentators to condemn amaBhungane and our reporting on the Moti Group as having an anti-black agenda, driven by nefarious local and foreign sponsors.

It has also persuaded them to chime in on the Moti Group’s repeated refrain that the leaked documents on which some of our reporting is based are “stolen” and “confidential” and therefore should be out of bounds to us.

This isn’t just an amaBhungane issue

Moti’s argument would essentially outlaw all leaks-based journalism — or make it practically impossible.

Every “leaker”, by definition, commits a transgression and if Moti succeeds in putting the lid on this one then so can everyone else — from governments to corporations to other powerful individuals.

The arguments Moti is making would apply to everything from the Pentagon Papers to the #GuptaLeaks. It would result in prepublication censorship and shift the focus from the public interest to whether the journalist is guilty of violating confidentiality.

Initially, Moti asked for two things.

First, he wanted amaBhungane to stop reporting on him using leaked documents.

Second, he wanted us to “return” everything — effectively depriving us of further access and allowing him to take an inventory, analyse the files and figure out how we got access to the documents and from whom.

The danger to sources is obvious — as is the motivation: to try to shut down the story, or at least get ahead of it.

Since this court case began, Moti’s team has been forced to pivot somewhat — but what they now demand is no better.

Among a range of demands, they want the court to rule that their privacy rights imply there should be a court-managed disclosure and sifting process prior to publication.

This would mean checking every single document to decide — in isolation — whether it is confidential or meets (on its own) the test of public interest disclosure.

Moreover, this prior classification regime will shatter the assurance of confidentiality that journalists give to their sources and potential sources.

That is anathema to the freedom of the media.

Both for source protection reasons and for the practical integrity of the process, leaks are indivisible.

That is because, by definition, large data sets contain much information that is irrelevant.

But the relevance of individual documents to legitimate public interest issues is never certain and may change over the course of an investigation. As we saw from the #GuptaLeaks, small details such as a calendar entry can provide key clues or vital corroboration.

In any event, the extensive nature of data leaks means that a “manual” checking process is often practically impossible.

Moti is arguing that source protection should take a back seat and that journalists cannot be trusted to judge what is and what is not in the public interest.

Solidarity

That stance represents a broad threat to investigative journalism and to whistle-blowing — so much so that the South African National Editors’ Forum, Media Monitoring Africa and the Campaign for Free Expression, jointly; and Corruption Watch, independently, have added their arguments as amicus curiae (friends of the court) to our case.

Corruption Watch said in its written submissions, “The outcome of this application will have far-reaching consequences… The roles played by corruption whistle-blowers and the media in exposing corruption, fostering transparency and accountability, and protecting the victims of corruption against wrongdoing are also implicated.”

They argued this meant that the public interest in the integrity of investigative journalism clearly outweighed the Moti Group’s alleged  “proprietary” interest in the leaked documents.

The media organisations said in their submission, “Journalism that is limited to information that governments and corporations voluntarily supply is little better than a public relations exercise… Where confidential information reveals illegal, unethical behaviour, journalists have not only a right, but a duty to publish it… Corporations have no right in a democracy to object to publication of embarrassing information merely because they intended that information to be confidential.”

As the Moti Group’s campaign against amaBhungane has intensified and the implications for media more broadly became evident, a shared sense of solidarity has emerged.

As journalism became the protagonist of the story, our peers in the field, including GroundUp, News24, The Sentry, Media Monitoring Africa and Daily Maverick have shone the spotlight on this case and highlighted the chilling implications for media, access to information, freedom of expression, and ultimately democracy.

Others have issued statements of solidarity and shared public messages of support. These include the Committee to Protect Journalists, Open Secrets, IFEX and Reporters Without Borders.

All of these have given strength to our arm.

AmaBhungane readers and supporters have responded with continued generosity and confidence in our work.

We value this commitment to public interest journalism. We need public support and vigilance to continue the work of digging dung and fertilising democracy. DM