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SA judge slams Moti Group over media gagging order

· SAM COLE

A court interdict obtained by a South African business group against the AmaBhungane Centre for Investigative Journalism was a “most egregious abuse” of the court process, a senior judge of the Gauteng High Court said in a scathing judgement this week.

The court order obtained by the Moti Group of companies on 1 June should never have been applied for or granted without notice being given to amaBhungane, Gauteng High Court deputy judge president Roland Sutherland remarked in a judgement on Monday.

Sutherland noted that amaBhungane had given an undertaking to preserve thousands of documents in its possession, pending any open legal challenge to its right to have the documents and use them.

He also noted an explicit warning given by amaBhungane’s lawyers that any approach to a court without notice to amaBhungane would be unlawful.

Despite that, the Moti Group approached the court in secret, alleging that amaBhungane might destroy the documents if it was given prior warning of the case.

Sutherland questioned why any journalist would 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 [amaBhungane’s] back are material factors why any legal proceedings […] could not justifiably have been brought ex parte [without notice]. The decision to do so was an abuse of the process.”

Sutherland not only dismissed the Moti Group’s legal action on technical grounds, but also examined the core arguments raised by the group of companies, and found them wanting.

In doing so he reaffirmed some of the key principles of media freedom.

LEAKED INFO

The Moti Group has argued that amaBhungane was “accomplices, after the fact, to theft” – a belief that was incorrect, the judge stated.

Being in possession of leaked information was not the same as being in possession of stolen goods, he noted: “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, Sutherland 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 [in bad faith] but is rooted in a norm both practical and ethical.”

Sutherland said South Africa’s 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 was made out to interdict amaBhungane from publishing articles which refer to the data files provided to it.

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.

Sutherland used the phrase “abuse of court process” nine times in his 33-page judgment.

Court applications without prior notice to affected parties are allowed only in the most extreme circumstances, and Moti’s case in no way met that bar.

Daily Maverick