Zunaid Moti. File photo
The Johannesburg High Court has set aside the ex parte order handed down against amaBhungane last month in which it was ordered to return leaked documents pertaining to the operations of the Moti Group and banned from publishing articles based on these papers.
“The order granted to the applicants on 1 June 2023 and amended on 3 June 2023 is set aside in its entirety,” Gauteng deputy judge president Ronald Sutherland held.
He ordered that the Moti Group bear the costs of amaBhungane on an attorney and client scale including the costs of two counsel.
Sutherland prefaced his ruling with a reminder that ex parte orders are a rare deviation from the principle of audi alteram partem, which translates as “hear the other side”, and only indicated against someone when giving of notice that a particular order is sought would defeat the legitimate object of the order.
He said that with regard to the first part of the order, namely returning the documents, that it was “a nonsense” as compliance within 48 hours would have preceded the return date, which being in October was four months away.
The Moti Group had in opposing amaBhungane’s challenge to the order persisted with the argument that there was a risk that the publication would destroy documents, though it had in an exchange of legal letters prior given an undertaking that it would not.
Sutherland said a sincere fear on the part of the company that amaBhungane would indeed shred the material was “hard to credit”. He had while hearing the matter last week, noted that it would be baffling for a media group to destroy the same source material that would represent its sole defence in a defamation suit.
“The contention that a refusal to show the documents – on the principled ground of protecting a source – lends weight to the notion that the undertaking given was false and deceitful is unsustainable,” the judge said.
“The elephant in this case is not press freedom or a violation of privacy. Rather, it is a most egregious abuse of the process of court. It is manifest that the order granted on 1 June should never have been sought ex parte, still less granted,” Sutherland said.
“There is not a smidgeon of justification for it being brought ex parte.”
Sutherland added that a key aspect of the work of investigative journalists was the protection of sources.
“Much of what has been argued in this hearing has addressed the age-old debate about the scope which ought to be allowed to the press to snoop uninhibited into the affairs of people and entities and publish information about them that reveals to the world what they would prefer to remain unknown.
“A key dimension of effective investigative journalism is receiving information from sources that wish to remain anonymous. This in turn precipitates an ethical obligation to protect their anonymity. Within limits, in general, the law acknowledges the propriety of protecting sources from being unmasked.”
Sutherland further noted that there was a well-established norm in law against pre-publication restraints on the media, dictating that these should be granted only where publication of the material was not in the public interest.
Crucially, he dismissed the suggestion by the applicants that the amaBhungane were “at best for them”, accomplices to the theft of the documents in question by a former employee of the Moti Group.
“This belief is incorrect.”
Sutherland said there were laws to shield critical information from being published, where publication would flout the national interest.
However: “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.
“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.”
Sutherland stressed that this principle was enshrined in a multitude of international covenants.
“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. This is likely to be rare,” he said.
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