Free media at stake in battle between amaBhungane and Moti Group

A court case between AmaBhungane and the Moti Group has implications for freedom of media in South Africa.

A bid by the Moti Group for an order which would effectively give its lawyers the power to determine which documents investigation agency amaBhungane can use in its reporting on the group, is “anathema to the freedom of the media”.

“It would drag us back into the darkest period of apartheid censorship, converting the court into the old Publications Appeal Board,” says amaBhungane journalist Dewald van Rensburg.

Van Rensburg has deposed to another affidavit in the ongoing “gagging” saga between the group, formerly headed by Zunaid Moti, and amaBhungane, a leading investigative journalist organisation, over a series of articles labelled the “#Moti Files”.

Following a “secret” ex-parte, in chambers court hearing on 1 June before Johannesburg High Court Judge John Holland-Muter, the group obtained an order directing amaBhungane to hand over all source material it had used to back up its articles within 48 hours.

Judge Holland-Muter also granted an interim “gagging order” stopping the journalists from further reporting on the activities of the group.

The group claims the documents in amaBhungane’s possession were stolen by its erstwhile legal advisor Clinton Van Niekerk and it has no right to them, nor to report on them.

Two days later, on a Saturday morning, amaBhungane made its own urgent high court application, overturning the order for the return of the documents. However, the “gagging” order remained.

While the return date for the ex parte application was set down for October, amaBhungane has now obtained a court date for 27 June.

AmaBhugane says Judge Holland-Muter’s entire order must be set aside, that it is a serious interference with freedom of expression, and there is no reason why the order should be tolerated longer than strictly necessary.

In reply, Moti Group CEO Andrew Mogajane has insisted that amaBhungane’s reliance on the “stolen” documents is unlawful and a breach of the Group’s rights to privacy and dignity.

The group also filed what it termed a “counter application”.

In that application it seeks various orders, including that amaBhungane has breached the provisions of the Press Code, that it be directed to retract the articles or supplement them with further comment from the group, and a “defamation interdict” preventing amaBhungane from continuing to publish “speculative articles” about the group.

It has also sought an order compelling amaBhungane to provide all documents to the Moti Group’s lawyers who would decide which documents they can report on “in the public interest” and which they will not.

In respect of any disputed documents, the parties shall exchange further affidavits and seek an order from the court.

AmaBhungane says the entire counter-application is irregular and an “impossible attempt to amend the original ex parte order” with a host of new allegations.

Van Rensburg, in his affidavit filed on Tuesday, said this was an abuse of the court process. Beyond that, the application was also without merit.

Regarding the allegations of breaches of the Press Code, he said a court cannot enforce the code – this could only be done by the Press Council and the group could still use this complaints mechanism.

AmaBhungane had also not breached the code which did not require that any document be presented to the subject of an article for their perusal before commenting.

He said the documents were leaked “in the strictest confidence and we are precluded from disclosing the source of the leak”.

The group, he said, had not shown that they originated from Van Niekerk nor that they were stolen.

“The relief sought for the return of the documents is so outlandish and unprecedented that it would require the court to develop the common law.

“The remedy proposed constitutes a serious incursion into the journalistic process. It seeks not merely to impose a prior restraint on publication but to foist on us an onus to justify the proposed use of each document individually before we can publish. That is an anathema to the freedom of the media.

“It would drag us back into the darkest period of apartheid censorship, converting the court into the old Publications Appeal Board.

“This prior classification regime will shatter the assurance of confidentiality that journalists give to their sources and potential sources. The relief sought is not only incompetent but unconstitutional,” he said.

Both parties have filed Rule 16A notices (advising interested parties that constitutional issues will be raised).

Several parties, including the South African National Editors Forum and Corruption Watch, have asked to be joined in the proceedings as amicus curiae (friends of the court).

AmaBhungane, in its notice, says the case will raise the constitutional right for journalists to receive information on a confidential basis and to report in the public interest.

“A prior restraint on journalistic publication — or an order that they hand over their source documents — can only be granted in exceptional circumstances and never on an ex parte basis,” the notice reads.

The Moti Group, in its notice, says the case gives rise to intersecting fundamental rights, including the right to human dignity and privacy and whether a journalist’s right not to reveal confidential sources, as implied in the Constitution, may be limited by controlled disclosure directed by the court.

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