Judge slams ruling against amaBhungane

“I cannot understand how this order was granted” - Judge.

By Tania Broughton

3 June 2023

AmaBhungane has had an order to hand over documents to the Moti Group within in 48 hours set aside

An order taken secretly compelling the amaBhungane Centre for Investigative Journalism to hand over documents to the Moti Group of companies within 48 hours, has been effectively set aside.

The order has been replaced with one in which amaBhungane will preserve and not alter or destroy the documents.

On Saturday, lawyers for amaBhungane launched an urgent application before Johannesburg High Court Judge Stephan Van Nieuwenhuizen, asking for a variation of the order granted on Thursday by Judge John Holland-Muter following an ex parte (without notice), in chambers application launched by the group.

In that application, the Moti Group alleged amaBhungane possessed documents stolen by erstwhile employee Steven van Niekerk, and were using them to write a series of articles labelled the “Moti Files”.

AmaBhungane’s lawyers said while they intended to oppose the finalisation of the interim interdict granted by Judge Holland-Muter, in the meantime they believed the order was fatally flawed. They disputed the documents were stolen, and said handing these over would mean revealing confidential sources.

They said in any case they could not comply because the documents were stored on a server overseas, and the journalists did not want to be held in contempt.

“I cannot understand how this order was granted”, said an obviously annoyed Judge Van Nieuwenhuizen.

He ordered the parties to “negotiate” a resolution which would maintain the status quo and accused the Moti Group of being “unreasonable” in not accepting an offer from amaBhungane’s attorney that his clients would agree not to dispose of the documents until the matter returned to court.

“It may well be that you will easily succeed in a reconsideration of the order,” he told amaBhungane’s advocate Isabel Goodman.

He told advocate Paul Strathern, for the Moti Group, to be reasonable.

Referring to attempts to negotiate between the parties on Friday, with the Moti Group insisting the documents must at least be given to a third party, such as an independent firm of attorneys, the judge said: “If you hadn’t added on strings, this could all have been sorted out yesterday … This half-baked order of yours can be reconsidered in due course.

“You baked this cake. You caused the trouble. You came up with 48 hours. It’s just not acceptable.”

The Judge also had harsh words for Paul O’Sullivan, who put up an affidavit in support of the original Moti application with “proof” through metadata analysis that some of the documents, which were attached to articles published by amaBhungane, had been stolen by Van Niekerk.

“I don’t profess to know how these things work,” Strathern said, to which the judge responded: “Well I do … Mr Paul O’Sullivan doesn’t know anything about computers … He must have an employee who does this. Where is the affidavit where he qualifies himself? So Judge Holland-Muter had no expert in front of him.”

He gave the parties 45 minutes to negotiate and come up with a draft order that “maintained the status quo”.

This was then made an order of court.

What this means is that amaBhungane does not have to hand over any documents, but is still gagged from using or publishing anything based on the documents.

AmaBhungane has indicated it will “anticipate” the return date of 3 October and apply for an earlier date in its bid to have the entire order overturned.

In a statement, amaBhungane said it welcomed the undoing of the worst aspects of the court order.

“We were seriously concerned about the damage to source protection … On Friday morning already we had made an offer to preserve the documents pending the proper ventilation of the matter in court. This was rejected by the Moti Group.

“While we are disappointed that the gag order issued against us - unjustifiably and abusively in our view - remains in place for now, we will fight this in due course.”

In a statement, the South African National Editors’ Forum (SANEF) condemned the attempt to muzzle amaBhungane.

“We believe the Moti Group sought to unreasonably gag further publication of any stories about their business, regardless of the public interest in their matters.”

“SANEF will closely monitor this matter, which cannot be left unchallenged because of the implications it may have on the work journalists do.”

It said Thursday’s interdict was “not only unreasonable, but tramples on the right of journalists to do their work, and the public’s right to know”.