22 June 2023
Media freedom organisations have joined court proceedings in the Moti Group’s “gagging” of amaBhungane investigations agency.
Freedom of expression organisations have labelled court action by the Moti Group against amaBhungane investigations agency as tantamount to a SLAPP (strategic lawsuit against public participation) suit and have cautioned against the “weaponisation of the courts”.
The South African National Editors Forum, Media Monitoring Africa Trust and the Campaign for Free Expression have applied to be amicus curiae (friends of the court) in the ongoing legal wrangling between the Moti Group and amaBhungane.
This after the group, in an ex parte hearing (i.e. where the other side isn’t present, and wasn’t even aware of the case) before Johannesburg High Court Judge John Holland-Muter, obtained an order directing that the journalists return documents. The group claims these were stolen by its former legal advisor Clinton Van Niekerk and that these were the basis of a series of amaBhungane articles labelled #TheMotiFiles.
The judge interdicted amaBhungane from publishing any further articles based on the documents, pending a return date for further consideration of the matter in October.
AmaBhungane has applied to the court urgently for a reconsideration of the orders. It has been set down for hearing on 27 June.
In support of amaBhungane’s stance, the three media freedom organisations have submitted a joint submission to the court.
“The issues to be determined in this matter will have a significant impact on the constitutionally enshrined right to freedom of expression in general, and the freedom of the press and other media in particular,” they say.
“We seek to provide context, particularly in relation to the heightened protections which must be afforded to journalists in their own right and for the sake of their readers, audience and the public at large.”
They said SLAPP suits were part of an “eroding climate for media freedom”.
The Holland-Muter order, coupled with the persistence in the litigation (by the Moti Group) “collectively amounts to weaponisation of our courts and pose serious threats to media freedom”.
They referred to the recent judgment handed down in which three KwaZulu-Natal judges quashed a private prosecution initiated by former President Jacob Zuma against journalist Karyn Maughan (and senior state advocate Billy Downer).
In that ruling, the judges noted the abuse of SLAPP suits “to intimidate, censor and silence journalists”.
They also referred to a recent report to the United Nations Human Rights Council (UNHRC) which emphasised that journalists and news outlets were being increasingly targeted with litigation.
This was in an attempt to “intimidate or exhaust the resources and morale of journalists”.
“Forum shopping, gagging journalists, legal action with the aim of intimidation, and excessive defamation suits fall within the realm of the legal and judicial harassment of journalists. This complex mesh of threats, legal restrictions, and orchestrated campaigns against journalists, among others, leads to a grim prognosis for media freedom and the safety of journalists,” the report stated.
The organisations said that UNHRC had called on member states to “discourage frivolous or vexatious legal action against journalists and news outlets and take measures to protect journalists and media workers from SLAPP suits.”
“South Africa’s international obligations bind, not only the executive and the legislature, but also the judiciary. It has an obligation to ensure that court processes cannot be used or abused in a way that undermines media freedom.
“So for democracy to function, journalists must be able to protect – subject to reasonable exceptions – the confidentiality of their sources.
“That requires that courts will not order the disclosure of information that would reveal confidential sources.
“If sources can be disclosed, merely so they can be punished by the person whose secrets they revealed, the media cannot do its job.
“If journalists can be banned from publishing stories merely because they obtained information from confidential documents, the media cannot do its job. If the media cannot do its job, democracy will not function.”
The organisations said the case should never have been brought.
“But now that it has, it presents an important opportunity for our courts to discourage such conduct and enable an environment that allows media actors to contribute to public debate, effectively and without fear of court processes that seek to intimidate, distract from, or silence public criticism.”
Corruption Watch, which has also applied to join as an amicus, said the outcome of the case would have far-reaching consequences “beyond its particular facts”, because the role played by whistle-blowers and the media in exposing corruption, fostering transparency and accountability, and protecting the victims of corruption, were also implicated.
“It has been accepted in courts that corruption is pervasive in South Africa,” Corruption Watch said.
The Moti Group had failed, in its papers, to put forward any “overriding requirement in the public interest” for amaBhungane to disclose to them the documents it has.
On the other hand, amaBhungane had an impressive track record of exposing corruption in the public interest.
“In short, the public interest weighs heavily in favour of non-disclosure of the documents (and in all likelihood the journalists’ sources).”
The Moti Group had also failed to satisfy the requirements for a pre-publication interdict.
Corruption Watch urged the court to find that “any litigation proceedings instituted with the ulterior purpose of revealing the identity of corruption whistleblowers or prohibiting journalists from exercising their constitutional right and duty to inform the public about allegations of corruption constitute an abuse of the legal process”.