Courts uphold media freedom in SA as the surge in prior restraint cases fails

In recent months there have been a flurry of court cases where courts have refused prior restraints — urgent interdicts to stop publication — against media and streaming companies. 

Two weeks ago, the convicted rapist and murderer Thabo Bester, and his former girlfriend Dr Nandipha Magudumana, lost urgent applications which they had separately brought to stop Netflix from broadcasting the documentary series Beauty and the Bester. Bester and Magudumana argued that the documentary would harm their rights to a fair trial in relation to the upcoming trial where, among other possible crimes, Bester is accused of unlawfully escaping from custody and Magudumana is accused of aiding and abetting this escape.

In August, investigative journalist Pieter-Louis Myburgh and Daily Maverick resisted an urgent application by businessman Collen Mashawana to prevent Myburgh from repeating allegations at The Gathering that Mashawana had made payments towards a luxury house linked to the suspended CEO of the Independent Development Trust, Tebogo Malaka. 

The Sunday Times successfully opposed an urgent interdict application brought by Malusi Shezi, the CEO of the Construction Education and Training Authority (Ceta), to prevent the repetition of allegations published about him in relation to an ongoing investigation of Ceta by the Auditor-General. 

And Carte Blanche repelled an attempt to stop its broadcast about the company and owner behind Rolkem cake glitter; the programme alleged the company was selling non-edible colouring in cake decorating products. 

July was also a busy month for urgent interim interdicts. Showmax fended off an urgent application by former minister Malusi Gigaba to prevent an interview with his ex-wife on the show Untied, where she discussed her marriage to Gigaba, including the infamous leaking of a private sex tape he had made. 

ARTsolar dropped its case to confirm an interim interdict granted in March against Independent Newspapers journalist Bongani Hans and his sources who had alleged the company misled customers about whether its solar panels were locally made. 

And Carte Blanche was again in the firing line, ultimately overturning an initial court order from June granting a cardiologist, Dr Ntando Duze, an interim interdict against a story, “Dr Stent”, in which he was alleged to insert stents in some of his heart patients even though they were not medically necessary. 

Now every year, there are attempts to stop media reporting — it comes with the territory. Probably the most egregious attempt to do so in recent years was the ex parte application brought by Mazetti Management Services (a member of the Moti Group of companies) to stop amaBhungane from publishing stories based on information in a leaked database. 

Plethora of prior restraints

But the plethora of prior restraints this year shows a worrying upward trend, not least in the context of the increasing use by the powerful strategic lawsuits against public participation (Slapps) to stifle critical commentary. 

This despite the fact that the law on prior restraints has been clear for almost two decades. As Judge Roland Sutherland held in amaBhungane’s case, “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 the publication”. This reflected a settled legal position; as the Constitutional Court said in 2012: “The case law [from 2007 onwards] recognises that an effective ban or restriction on a publication by a court order even before it has ‘seen the light of day’ is something to be approached with circumspection and should be permitted in narrow circumstances only”.

Add to this the stringencies of the urgent court and the evidentiary rules that favour the respondent in these types of proceedings, and it is no surprise that in all the cases mentioned above, the end result was victory for the media. 

But there is another reason why the prevalence of gag attempts is counterintuitive for the applicant. It is the Streisand effect.

As readers of a certain generation will know, Barbra Streisand is a famous American singer and actress, having sold more than 150 million records and starred in such hits as Yentl and The Prince of Tides. But she is also famous among media lawyers for the “Streisand effect”. 

This is not a reference to the effect of her music on her listeners, but a reference to what happened following her attempt in 2003 to stop the continued publication of a photograph of her clifftop home in Malibu, California. Not only did Streisand lose the case, but by bringing it, she drew attention to what she wanted to protect. Only six people had downloaded the photograph before her lawsuit (two of whom were her lawyers). This increased to more than 420,000 in the month after she brought her lawsuit. 

“The Streisand effect” is now known, according to Wikipedia, as “an unintended consequence of attempts to hide, remove or censor information, where the effort instead increases public awareness of the information”.

The Spear

In South Africa, the textbook example of the Streisand effect was the exhibition in 2010 of Brett Murray’s work of art The Spear, depicting Jacob Zuma in the well-known iconic image of Vladimir Lenin, but with genitals exposed. Zuma and the African National Congress brought urgent proceedings to have the artwork removed from the art gallery and its website. 

Yet the very act of suing meant that the image went viral around the world — as the gallery put it in its affidavit: “Prior to the controversy concerning The Spear that has been sparked by the [Zuma’s and the ANC’s] objection to the work of art, the exhibition proceeded very much as exhibitions usually do… It was viewed by no more than a few hundred people and its inclusion on our website is an ordinary incident of exhibiting artistic works … [I]t was ironically largely as a consequence of the launching of this application that there has been widespread national and international dissemination of the work. As the applicants say, the image is now accessible to millions within and outside the country.” 

Bester, Magudumana, Gigaba, Duze and others have not only suffered legal defeats in court (wasting money on their own legal costs and being liable for the costs of their opponents), they have scored stunning own goals. The Spear effect — as I think we should call it in South Africa — means that by suing they have only succeeded in giving oxygen to the allegations and self-inflicted further harm to their reputations. DM

Dario Milo is a media lawyer practising at Webber Wentzel. He is an adjunct professor at Wits University and a member of the High Level Panel of Legal Experts on Media Freedom.