Judge Roland Sutherland issued a scathing rebuke of the Moti Group and its lawyers in a judgment on Monday which overturned an earlier gag order obtained against amaBhungane in a secret ex parte hearing.

Judge Sutherland did not mince his words, calling the Moti Group’s interdict a “most egregious abuse” of the court process.

“[T]he order granted on 1 June should never have been sought ex parte, still less granted. There is not a smidgeon of justification for it being brought ex parte.”

Judge Sutherland noted that amaBhungane had given an undertaking to preserve the thousands of documents that make up the #MotiFiles pending any open legal challenge to our right to have them and use them.

He also noted the explicit warning given by our lawyers that any ex parte approach to a court (ie, without hearing our side) would be unlawful.

Despite this, the Moti Group approached the court in secret, alleging that amaBhungane might destroy the documents if it was given prior warning of the case.

But why, Judge Sutherland questioned, would any journalist destroy “the very evidence necessary to justify” the articles they had published?

He added, “Moreover, the interaction between the legal representatives over this period and the express caution against taking an order behind the respondents’ back are material factors why any legal proceedings… could not justifiably have been brought ex parte. The decision to do so was an abuse of the process.”

Not only that, but when amaBhungane sought to vindicate its rights and be heard for the first time in front of Judge Sutherland, the Moti Group attempted to bolster its original case on which the gag order was granted. The judge said this too was an abuse of process.

“To belabour the point – an applicant cannot make out a better case for the ex parte order than the case it put before the court when the order was granted. It was for this reason that an attempt by [the Moti Group] to bring a counterclaim to seek further relief was dismissed by me out of hand. It was irregular and yet another abuse of the process.”

Judge Sutherland did not only dismiss the Moti Group’s underhanded action on technical grounds. He examined the core arguments raised by the Moti Group and found them wanting.

In doing so he reaffirmed some of the key principles of media freedom and delivered a rebuke of the Moti Group’s unrelenting propaganda.

The ‘return’ of the data

Judge Sutherland noted that the first point of contestation was whether amaBhungane should be compelled to “return” the “stolen” Moti Group documents. For months the Moti Group has argued that amaBhungane were “accomplices, after the fact, to theft”.

“This belief is incorrect,” Judge Sutherland ruled.

Being in possession of leaked information was not the same as being in possession of stolen goods, he argued:

“Contraband information in the hands of a journalist is certainly not in such a category; 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 activity is an essential good without which our country cannot crawl out of the corrupt morass in which we find ourselves.”

On source protection, he was equally clear:

“The resistance to disgorgement of information on the ground of protecting a source is functional and not optional to the work process of investigative journalism. This conduct is not mala fide but is rooted in a norm both practical and ethical.”

The publication of confidential information

The second point of contestation was whether amaBhungane should be interdicted from publishing more articles using the Moti Group’s data.

Judge Sutherland said the Constitution required that 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”.

In this instance, he said, “No cogent case has been made out to interdict the respondents from publishing articles which refer to the data files provided to them.”

He pointed out that the Moti Group could use its right of reply, or sue for unlawful defamation. But “prior restraint” of the media – or a gagging order – was not justified.

So where to from here? 

Worryingly, the Moti Group’s chief executive, Dondo Mogajane, went on Radio 702 on Monday evening to declare that this was only the first round in the legal battle.

Attempting to spin the judgment in its favour, he told Bruce Whitfield the Moti Group had not sought a gagging order.

Fact: Under the now-overturned interdict, we were not allowed to publish from the documents, or even access the documents. This, the judge said, amounted to prior restraint, which is a gagging order.

Bizarrely, Mogajane also claimed that the Moti Group “did not go behind closed doors”.

Fact: The original interdict was obtained ex parte and in camera. That means we were not told about the court hearing, we weren’t given an opportunity to respond in court, and every other member of the public was barred from attending. That is the very definition of “behind closed doors”.

Mogajane tried to justify the Moti Group’s actions, saying an ex parte application is “allowed in law”.

Fact: The judge used the phrase “abuse of court process” nine times in the 33-page judgment. Ex parte applications are allowed only in the most extreme circumstances and Moti’s case in no way met that bar.

He finished by saying: “If anything is found untoward, the media should take us on.”

On this point, at least, we agree: we plan to continue now that our hands have been untied.

No complacency

What this whole saga has demonstrated is that our courts are vulnerable to a Blitzkrieg offensive – not just to a Stalingrad defence.

And our media are just as vulnerable.

Moti has been able to procure an enormous level of access and spin – which, even where it is not paid for, simply barges over the weak ethical and professional barriers that much of our media maintain.

Moti has given every indication that it’s not going to back down.

AmaBhungane will need to bolster its financial resources to resist this onslaught.

The courts – along with scores of amaBhungane supporters – have stood up for the right and proper functioning of the media in a democratic society.

But the media more broadly need to introspect about whether they have the will, capacity and professionalism to do justice to the faith that Judge Sutherland and our country have placed in us.

At all levels, we need to show every day that we are deserving of the extraordinary trust and protection extended to us. DM