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Moti interdict a ‘most egregious abuse’, judge rules in massive vindication for amaBhungane and journalism

Moti interdict a ‘most egregious abuse’, judge rules in massive vindication for amaBhungane and journalism
(Image: iStock | amaBhungane logo)

In setting aside a gag order obtained against the investigative news agency amaBhungane, Judge Roland Sutherland reaffirmed some of the key principles of media freedom.

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

Gallery

Comments - Please in order to comment.

  • dBritBoer Maverick says:

    Boo Moti!!!
    The judge that granted the order without instant dismissal in the first place???

  • Barry Taylor says:

    I just wish you everything of the best and may you keep up the good work,

  • Dennis Bailey says:

    Good news. Well done. But it’s concerning the gagging order was given legs and that people with money can still do this in our 30-year-old democracy.

  • Trevor Pope says:

    Looking forward to see what’s hidden in this particular ball of dung.

  • Alley Cat says:

    This is great news. Without press freedom and an impartial judiciary our country would be further down the toilet than we already are!
    Just wondering whether the JSC will take a look at the judge who granted the original gag order?? From the outset this seemed totally unjust!

  • Katharine Ambrose says:

    The moti lot have no truth in them. As for spinning lies and misinformation on media platforms.. you are 100%right. The media should challenge this abuse of their microphones in no uncertain terms even where a competitor is being castigated.

  • James Miller says:

    No mention of a cost order. Surely abusing the court process should require the Moti group to pay amaBhungane’s court costs?

  • Bomi Hloba says:

    Imagine our country without the sovereignty of the media? Lord only knows what crucial information we would be unjustly deprived of! I concretely stand for freedom of speech, expression and access to pivotal information. I applause the court for upholding the most fundamental rule(s) of law.

  • quintusn says:

    Respect and gratitude for the work DM’s newsroom is doing.

  • Stuart Hulley-Miller says:

    Great judgement and news but this just shows again how incompetent and pliable people in positions of authority and influence, as are most ANC “Deployee’s”, can have a huge effect on our society if not policed and disciplined. Thank goodness for people like Judge Sutherland. We should all be aware of the general “attack” on such people by the ANC.

  • iemrahnh says:

    The truth will come eventually
    A good judgement for SA
    This is the tip of the iceberg

  • Confucious Says says:

    How do you put a champagne cork in a bottle??? Ask Moti!!! Congrats amaBhungane! The truth must be told! Stay strong!

  • Rae Earl says:

    The Moti Group cares not a fig for the well being of South Africa. They used underhand methods to attack SA’s most trusted media outlets. Most of our major media houses (with the exception of the evil Independent News group) have been lauded internationally for their very high standards of ethical journalism. Daily Maverick and amaBhungane are at the forefront of the country’s fight against corruption in the ANC government and various businesses. The Moti Group used underhanded methods to launch an attack on amaBhungane and were ably assisted by an obviously seriously misdirected judge. Moti CEO Dondo Magujane is doing irreparable harm to his once stellar reputation by pursuing ill conceived litigation on behalf of a highly suspect group of companies. He’ll join the long list of failures involved in entities like the Moti Group and he’ll have to endure that downside on his CV.

  • Graeme Bird says:

    You guys are one of the true heroes in SA. From early M&G days until now. Keep up the great work.

  • William Dryden says:

    As I’ve always said, when dubious companies and people are investigated. they go on the offensive and use the old method to exonerate themselves Ie, the best form of defence is attack.

  • Wanda Hennig says:

    Good to read that sanity — and the law — prevailed. But I still cannot fathom the actions of that earlier judge who granted that initial order, ex parte and in camera. And it seems shocking that a “legitimate” news source gives voice to the spreading of false news, as in the Radio 702 interview mentioned. Keep up the incredible work so valuable to South Africa, amaBhungane and all the incredible (credible) investigative journos out there. Thank you.

  • Johan Buys says:

    “ 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.”

    A hundred cheers for THAT common sense being added to the legal system! It is a bit like improperly obtained evidence that confirms the DNA of a rapist having to be disallowed. What? So now we must ignore the DNA hoever obtained???

  • Nanette JOLLY says:

    When press freedom goes, truth is buried and our country is doomed.

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