The recent interdict against amaBhungane by the Moti Group raises three critical issues. First, a travesty of justice. Second, it highlights once again the key role of whistle-blowers and investigative journalism. Third, it highlights just why existing mechanisms for addressing complaints are so important.

Travesty of justice

Amabhungane, experts and the South African National Editors Forum have already issued clear condemnations of the effort to silence amaBhungane.

Last week, without seeking a response from amaBhungane, the Moti Group secured an interdict that would have seen amaBhungane handing over all the files they had on the Moti Group and also being prevented from reporting further on the Moti Group.

In an urgent application, amaBhungane challenged the interdict, and while some elements remain, notably the restriction on further reporting on Moti, amaBhungane does not have to hand over the files.

Read more in Daily Maverick: Judge slams ruling against amaBhungane ordering journalists to hand over Moti files

It seems absolutely extraordinary in a democracy that efforts to silence media and compromise sources can occur without even hearing the other side’s story.

It seems from some expert legal advice, there are occasions where an interdict such as the one sought can be granted. For instance, in a case where a woman is seeking an order protecting herself from imminent harm against her abusive partner – in such cases where clear evidence is shared, an order that would seek to prevent imminent harm to a person may be granted without hearing from the other side.

In the current instance, however, where there is obviously a need to balance freedom of expression against the possible harm to the Moti Group, it is unfathomable that such an order was granted without hearing from amaBhungane.

The Moti Group argued that “if notice had been given to amaBhungane, the documents could have been ‘concealed, wiped from their servers, or even destroyed’ ”.

Even if we accept this argument, had amaBhungane sought to delete the documents, they could still have concealed the material even after the order was granted.

It would appear that the judge who heard amaBhungane’s urgent application on 3 June agreed it was not reasonable to grant such an extensive order, as the justice is quoted as saying:

“I cannot understand how this order was granted.”

It would appear a central argument made by the Moti Group was that the material amaBhungane has in its possession was stolen from the Moti Group and was altered. Amabhungane disputed that the material was stolen, and argued that if they were to return it the identity of their source would be compromised.

The public may well wonder why they should be concerned about the fight between a news organisation and a company.

A central reason is that had the order been allowed to stand, it would likely have had an even greater chilling effect on whistle-blowers – for why would they run the risk of whistle-blowing if they knew an entity could say the material was stolen, where the media house would then be forced to return the material and in so doing the whistle-blower would run the real risk of being exposed.

Whistle-blowers and investigative journalism

Over the past few years, the role of whistle-blowers has been highlighted across our media. To be a whistle-blower requires great courage, and in most instances, whistle-blowers will suffer significant consequences for their bravery, from losing their jobs, having their reputation destroyed to losing their lives.

Babita Deokaran was murdered for seeking to expose grand theft at Thembisa hospital through corrupt tenders. Had dogged journalists at News24 not followed the trail Deokaran left and sought to expose the wrongdoing, it is more than likely that not only would her death have been in vain, but also that the scumbags behind the corruption would not have been exposed.

Closer to the case, let’s imagine that the Guptas had sought a similar interdict against Daily Maverick and amaBhungane over the Guptas’ leaked email database. Not only would the names and identities of the whistle-blowers almost certainly have been exposed, but we would not have learnt as the public of the extent of corruption and State Capture.

Whether one chooses to believe the various stories of corruption at Eskom, for example, the reality is that there is widespread corruption that is putting our nation’s democracy at risk.

Corruption at almost every level, in almost every institution, both public and private, threatens our existence as a democratic state. While there is much that must be done urgently to address these issues, without whistle-blowers and investigative journalism, our young democracy simply doesn’t stand a chance.

So, the current Moti v amaBhungane case matters to every person in South Africa because of the principles involved; because if we let the interdict stand, whistle-blowers will be exposed to greater risk and the job of investigative journalists will be even harder and may see them shut down.

Alternative remedies for Moti

Another striking aspect of the Moti interdict is that the group seemingly made no effort to have their concerns addressed through existing mechanisms. The most obvious would have been for the Moti Group to lodge a complaint with the Press Council.

The Press Council covers almost every single credible journalism media entity in South Africa. It is fast (compared with a normal court case process), cheap (it costs nothing to submit cases, and you don’t even need to use expensive lawyers); it is transparent, and if you aren’t happy with the outcome, you can appeal and if you are still not happy you could always take a case on judicial review.

Moti Group legal representative Ulrich Roux was quoted in News24 as saying the “Ombudsman process is a long and cumbersome one, so is the process of lodging a civil claim for damages emanating from defamation”.

While defamation cases usually do take a long time, it doesn’t explain why the Moti Group has not lodged a complaint about any of the amaBhungane stories with the Press Council. It is also concerning that despite the evidence of the effectiveness of the Press Council and Broadcast Complaints Commission, the group opted for such a widespread interdict.

In a piece published in IOL (notable for its having withdrawn from the Press Council), Zunaid Moti sets out a counter argument, saying that amaBhungane is biased and harassing the Moti Group.

Moti also says: “Again, the Moti Group’s legal complaint against amaBhungane is not about ‘gagging’ media – it is about the boundaries of media rights, and holding specific individuals and journalists accountable for actions that are unethical at best, and criminal at worst.”

We do not know whether the material has been stolen; we do know that the media were not afforded the opportunity to put their case forward; and that this particular element of the order was overturned.

Moti’s piece also states: “Their claims that their stories were written according to the ‘highest journalistic standards’ are laughable to anyone who pauses to consider the issue. It is deeply hypocritical to accuse the Moti Group and myself of ‘gagging’ their journalists when the situation is the exact opposite.”

What Moti’s piece does serve to achieve is to highlight exactly why the Moti Group should have taken the stories that appeared earlier in April this year to the Press Council. There the evidence could have been set out in public and if amaBhungane had contravened the Press Code, apologies and corrections would have been forthcoming.

Read more in Daily Maverick: The Moti Files: How businessman Zunaid Moti cosied up to the Mnangagwa regime

Regardless of whether one supports Moti or amaBhungane, the interdict sought needs to be condemned for the extreme risk it poses to media freedom, whistle-blowers and due process.

As things stand, we have a series of stories in amaBhungane from April that have not been challenged in an independent forum. Amabhungane has a proud history of excellent investigative journalism.

While we should always treat all news stories with scepticism, we should also be alive to the possibility that many will go to extreme lengths to prevent dirty laundry from being aired. I would urge the Moti Group to use existing mechanisms like the Press Council, or to launch an urgent case for defamation. DM