Companies should think twice before gagging journalists
Why the ARTsolar case is important
Durban High Court Acting Judge Perlene Bramdhew interdicted a journalist and three “whistleblowers” from making “defamatory” statements about ARTsolar. Illustration: Lisa Nelson.
GroundUp has been covering a story about a Durban-based solar panel manufacturer, ARTsolar. In March, ARTsolar obtained a gag order against three whistleblowers and a reporter from Independent Media. ARTsolar wanted to stop the four from saying that it had claimed to manufacture its panels in South Africa when in fact they were imported from China.
The Industrial Development Corporation also has an interest in the case because it has invested R90-million in ARTsolar, apparently to support local manufacturing of solar panels.
We are not especially interested in the provenance of ARTsolar’s panels, and ARTsolar may have been entirely scrupulous in its dealings; we have no opinion on that.
But we have homed in on this story because ARTsolar went to court and effectively obtained a pre-publication interdict. Freedom of expression, including the freedom of journalists to report stories they believe to be in the public interest, is vital to the functioning of our constitutional democracy.
We were appalled by the decision of Acting Judge Perlene Bramdhew to grant ARTsolar’s request for a gag order. In 2023 Zunaid Moti obtained a similar gag order stopping amaBhungane from using leaked documents from his company. In overturning that gag order, Gauteng High Court Deputy Judge President Roland Sutherland scathingly wrote that the order was “a most egregious abuse of the court process”.
From Judge Sutherland’s ruling, coupled with section 16 of the South African Constitution (which gives all of us freedom of expression), we can only conclude that Judge Bramdhew’s order was grossly incompetent.
If the whistleblowers or the reporter lied about ARTsolar, the company would be within its rights to sue for defamation. But except for a few very rare cases, pre-publication bans should never be granted.
GroundUp was not subject to the court order and so we decided to cover the story, so that ARTsolar’s misguided court attempt would achieve precisely the opposite of what it intended — revealing exactly what the company wanted to keep hidden. We hope this will send a clear message to others, that they risk great embarrassment should they want to run to court to gag journalists.
Bebinchand Seevnaryan of ARTsolar wrote to us: “We have received a significant amount of negative publicity of late from various publications including GroundUp.” For this, ARTsolar only has itself, bad legal advice and a bad court decision to blame.
In a commentary for GroundUp, veteran journalist Anton Harber listed a bunch of recent cases where pre-publication gag orders — or, even worse, protection orders against journalists or whistleblowers — have been sought and often obtained. This is simply not acceptable.
John Milton told the English Parliament in 1644: “Let [Truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?” Milton’s speech became the foundational argument against pre-publication censorship. It is a pity that, nearly 400 years later, this principle is still infringed so often by companies, lawyers and judges.
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