AmaBhungane fights back

The investigative journalist outfit has applied to court to urgently reconsider the “gagging order” curbing its reporting on the Moti Group

By Tania Broughton

10 June 2023

AmaBhungane has applied to court to urgently reconsider the “gagging order” curbing its reporting on the Moti Group using “leaked” documents.

Investigative journalist outfit AmaBhungane has applied to court to urgently reconsider the “gagging order” curbing its reporting on the Moti Group based on “leaked” documents.

The journalists want the court to reconsider the order granted ex parte and in camera, following a “secret hearing” in chambers at the Johannesburg High Court with Judge John Holland-Muter on 1 June.

While the return date for the interim interdict was October, amaBhungane has applied to be heard on 27 June.

“The ex parte interim interdict is a serious interference with the freedom of expression, both the right of the press to publish and the right of the public to know, what is contained in the leaked documents to the extent that they are in the public interest,” journalist Dewald van Rensburg said in his affidavit filed on Friday.

“Currently we are banned from using the documents.

“We contend there is no reason why we should tolerate it (the order) for longer than strictly necessary.”

The Moti Group has until this Thursday to file opposing papers.

Van Rensburg, in his affidavit, said amaBhungane has access to a large quantity of documents concerning the group.

Most emanate from the Moti Group and were made available on a confidential basis by sources “who we are not at liberty to identify and indeed whose identities we must protect”.

“We refer to these as the leaked documents.

“Others have been gathered through other means over the course of long-standing investigations.”

He said apart from the “gagging order” – preventing amaBhungane from publishing any articles based on the order – Judge Holland-Muter had granted a final interdict directing amaBhungane to return the documents in their possession within 48 hours.

“Even if it had been possible to ‘return’ the documents within 48 hours, which it was not, doing so would violate the core principle of investigative journalism, which is to protect the confidentiality of source material.

“It would enable them to know what documents we had access to and ascertain how we obtained them and from whom.

“It would provide them with insight into our confidential sources and investigative methods.”

Van Rensburg said amaBhungane had moved an urgent application last Saturday, 3 June, before Acting Judge Stephan van Nieuwenhuizen who, during the hearing, had said he could not “understand how the order was granted”.

The parties reached agreement on a variation order, which was made an order of the court, in which amaBhungane was directed not to delete, destroy or alter the documents, pending further litigation.

“The interim interdict against publication, however, remains in place and constitutes a serious interference with the right to freedom of the press and the public’s right to know,” Van Rensburg said.

Van Rensburg said there was no basis for the urgent, ex parte, in camera application and it was an abuse of the court process because amaBhungane had already, through its lawyers, given an undertaking that it would not destroy the documents for at least a year.

The Moti Group had stated as far back as 17 February that it believed the documents had been “stolen” from them (by their erstwhile legal consultant Clinton van Niekerk) but waited 14 weeks before launching the “urgent application”.

“This was obviously precipitated by the publication of the Moti Files exposés,” he said.

“An interdict against publication – whether interim or final – can never be granted on an ex parte basis.

“On the basis alone, the order should be set aside with punitive costs against the Moti Group.”

Van Rensburg said, further, the Moti group had not shown the documents were confidential in any way and even if they were “the horse has long since bolted”, because they had been published in amaBhungane’s exposés.

He said, regarding the allegation that they were stolen, “our law does not regard possession by the press of such information as unlawful. On the contrary, the law recognises an entitlement to publish in the public interest”.

“In any event, journalists’ sources’ confidentiality enjoys legal and constitutional protection and this extends to documents provided on a confidential basis.

“If people cannot trust their identities will be kept secret, they will not give sensitive information to the press. Then corruption and other malfeasance in the public and private sectors would not be exposed and democracy and the rule of law would be eroded.”

He listed examples of exposés which would not have been possible if journalists’ access to and reliance on leaked documents were not permissible and if sources could not be assured of complete confidentiality. These include: the Gupta Leaks, the McKinsey, Regiments, Bosasa and VBS Bank scandals and the Panama Papers.

The Moti Group, Van Rensburg said, were already in possession of the originals or copies of the documents and “do not require them from us”.

He described the ex parte application as a SLAPP suit brought without the genuine purpose of protecting any legitimate rights.

He said recent reports and interviews emanating from the group and (former CEO) Zunaid Moti himself showed the “true motive” for the ex parte application: That was to ascertain what documents amaBhungane had, how they obtained access and from who, and to “punish us financially for, and intimidate and deter us and other journalists from, investigating the Moti Group and publishing critical reportage on them”.