Courts can be a significant protection of constitutional values or a Trojan horse that can destroy the foundations of constitutional democracy from the inside. The US Supreme Court, under the sway of five reactionary ideologues and a conservative Chief Justice, is an example of the latter. 

Not content with the destruction of 50 years of precedent protecting the right to an abortion in Dobbs v Jackson Women’s Health Organization, this Trump judicial brigade has eviscerated affirmative action and significantly weakened the protections of the constitution afforded to the LGBTIQA+ community. By contrast, this week the High Court in Johannesburg embraced its role as the custodian of constitutional democracy when it asserted the key role of a free media in the promotion of democracy.

The problem confronting the court began on 1 June 2023 when Mazetti Management Services (Pty) Ltd and an associate company, the applicants, obtained an order ex parte and in camera interdicting the amaBhungane Centre for Investigative Journalism and members of the centre from publishing any report that was based on digital documents which were alleged to have been stolen from the applicants by an ex-employee and which were now in the possession of the investigative journalists. This interdict was granted pending a final order by which the applicants sought that the digital documents should be returned within 48 hours.

That this order should not have been granted, and constituted, in the words of Deputy Judge President Roland Sutherland, “a most egregious abuse of the process of the court”, was manifest from the facts.

It appears that certain articles were published on 17 February, 28 April and 17 May 2023, all of which were severely critical of the applicants and in particular its principal, director Zunaid Moti. In particular, the articles emphasised the “curious” business activities of the applicant companies, and in particular the “intimate proximity of Moti to political elites in Zimbabwe”. As the court described it, “Dealings with South Africa that were supposedly dodgy if not downright criminal were also addressed.”

It appeared that much of the material was based on documents which were allegedly provided to the journalists by a whistle-blower and, accordingly, the applicants demanded that the journalists disgorge themselves of all of these documents which appear to have been in digital form. AmaBhungane took the view that as ethical and responsible journalists they had a duty not to reveal their sources, which would have occurred had the documents been produced as demanded.

The attorneys of the journalists wrote to the applicants stating, inter alia, “Our client is in any event under no legal obligation to provide you with any details pertaining to their sources or their journalistic research and there is no basis for your demand that they do so.”

As Judge Sutherland pointed out, the key to an urgent ex parte application of the kind launched by Moti’s companies was that there was a danger that the journalists would destroy any documents they had derived from the applicants.

But as Judge Sutherland pointed out, even absent the undertaking (so given) of the journalists that no documents would be destroyed, “There remains the inherent improbability of a journalist alienating the very evidence necessary to justify the publication of defamatory statements. In short, there was no basis by which an order granted ex parte and in secret and without notification to the journalists could be justified.” It was, as the court held, “an abuse of process the courts cannot tolerate”.

The applicants had argued that given that the whistle-blower had stolen documents, the journalists were accomplices after the fact. This argument was robustly rejected by the court.   

A positive and necessary good

In coming to this decision, Judge Sutherland said, “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.”  

Indeed, to have found to the contrary would have been to significantly reduce the importance of journalistic sources and hence the exercise of press freedom in a democratic society.

A further question arose as to whether the information in the data files held by the journalists was confidential. In this connection, what is of particular significance is a decision in 2010 in SABC v Avusa Ltd and Another that there is a forfeiture of confidentiality upon information being leaked to the world at large.

This important judgment was not drawn to the attention of the urgent court judge in the ex parte hearing which gave rise to the interim interdict in the first place.

In summary, the Avusa case also noted that an interim interdict is an appropriate form of relief to prevent future harm and is not designed to deal with the redress of past harm which has already occurred. It is therefore, as the court noted, the obvious legal root for someone such as Moti to exercise a right of rebuttal to the publications which were generated by the journalists and, if he deemed fit, to sue for unlawful defamation.

This judgment is important for a series of reasons.

In the first place, it is deeply disturbing that the initial order was granted seemingly on the basis of the omission to inform the urgent court of the relevant law, which a hard-pressed judge in an urgent court faced with a welter of urgent cases certainly required to come to a sensible decision.

Second, the court has upheld the principle that a journalist who receives information in confidence can refuse to unmask the source unless that refusal is inconsistent with the public interest.

In general, if a party wishes to interdict an intended publication, appropriate notice to the journalist must be granted before any relief is sought. Commendably, the court also made an order that the applicants pay costs on a punitive scale, given their highly questionable conduct.

The upshot is that this case revealed the best and worst sides of our legal system.   

The court eloquently defended the centrality of freedom of the media in a democracy and hence the need for the public to have the benefit of such a media.

The applicants, on the other hand, abused the law egregiously and were deservedly rebuked. Sadly, this reflects a tendency which continues to blight our legal system.

The bright side is that our courts continue to defend and protect our hard-won constitutional rights. The US example shows yet again the importance of the appointment of judges for constitutional democracy, itself another reason to pay close attention to the Judicial Service Commission. DM