27 June 2023
The court case between AmaBhungane and the Moti Group has implications for freedom of speech in South Africa. Illustration: Lisa Nelson
It was hard to imagine a more obvious attempt at bullying than the “gagging” case brought by the Moti Group against amaBhungane, its counsel, Advocate Steven Budlender said on Tuesday.
“This is the archetypal SLAPP (strategic litigation against public participation) suit brought by corporations with deep pockets in an attempt to intimidate the media into silence and make it as difficult as possible for them to do their job,” he said, noting that the Moti group had engaged eight advocates to handle the matter.
Budlender was presenting argument before Gauteng Deputy Judge President Roland Sutherland in a bid by amaBhungane to overturn an ex parte order in which Judge John Holland-Muter ordered its journalists to return, within 48 hours, all “leaked” documents it was using as the basis of a series of articles labelled “#MotiFiles”.
Judge Holland-Muter also gagged the journalists, until a return date in October, from using the documents to report further on the group, which up until recently was headed by businessman Zunaid Moti.
In an urgent application brought by amaBhungane two days later, the order for the return of the documents was set aside. At the urging of that judge, the parties agreed to an order that amaBhungane would not destroy or alter the documents.
AmaBhungane then set the matter down before Judge Sutherland, saying it could not tolerate Judge Holland-Muter’s order any longer than necessary and it must be set aside urgently to protect the rights of journalists, their confidential sources and media freedom.
The Moti Group, in a nutshell, claims the documents were stolen by its erstwhile legal consultant Clinton van Niekerk who, it said, was not a whistleblower but a thief.
In argument on Tuesday, Moti Group advocates insisted that in terms of the Cyber Crime Act, amaBhungane had become party to Van Niekerk’s crime.
The documents, which included personal documents of no journalistic interest, were privileged and confidential. The journalists had no right to them nor to report from them, the Moti Group argued.
Judge Sutherland made short work of an attempt by the Moti Group to amend the relief it had sought from Judge Holland-Muter through what it called a “counter-application”, in which it now wanted amaBhungane to return the documents to the Moti Group’s lawyers, who would go through them to determine what could and could not be reported on. Any dispute between the parties could be adjudicated by a judge.
The judge said, “I think it’s quite a cheek”, and said he would not deal with it.
However advocate Vincent Maleka, for the Moti Group, insisted that this was a compromise, and one the judge could consider when he weighed up the competing rights in the case.
Judge Sutherland asked, on several occasions, what Judge Holland-Muter had before him when he made the ex parte order. “I would like to know what was said to the judge to persuade him that various cases – dead in point against the relief sought – were distinguishable in his view. Those cases, ethically, should have been made available to him.”
Advocate Paul Strathern, also for the Moti Group, conceded that those cases were not before the judge.
Judge Sutherland also noted that there had been communication between the parties and, at one point, the attorney for amaBhungane had written expressing concern that the Moti Group might be considering an ex parte application.
In that letter, amaBhungane gave an undertaking not to destroy the documents.
“How on earth, given that background, could anyone have contemplated that an ex parte application, in camera, was appropriate,” the judge commented.
Advocate Budlender said in light of the Gupta and other leaks, it was an “extraordinary” proposition to suggest that if someone steals documents, and gives them to the press, both are guilty of a crime.
“If this were right, the Guptas missed a trick. They should have run off to court and got a Moti-type order and everything would have been just fine.
“Either they didn’t think about it or were advised that it was hopeless,” he said.
He said the Moti Group had not ever justified why they went to court ex parte, and this was a patent abuse.
He said the letter from amaBhungane’s lawyers had been “buried” in the ex parte application and not mentioned in the founding affidavit. The Cyber Crime Act had also not featured.
“The applicants [the Moti Group] claim that journalists have the right to make the call on what is in the public interest and that makes them a law unto themselves.
“That is half right. The media does make the call on whether a matter is in the public interest. But that doesn’t mean they are a law unto themselves. If they get it wrong, the consequences are calamitous.”
Budlender said amaBhungane had properly avoided not disclosing its sources by refusing to hand back the documents.
He said prior publication restraint orders could only be granted in the most extraordinary circumstances, and never ex parte, and this had been confirmed by the Supreme Court of Appeal.
The entire order should be dismissed with costs “on the highest scale possible” against the Moti Group, he said.
Submissions in favour of amaBhungane were also made by amicus curiae: The South African National Editors Forum, Media Monitoring Africa Trust, Campaign for Free Expression and Corruption Watch.
Judge Sutherland reserved judgment and said he will hand down judgment no later than Monday.
See comment by amaBhungane: Zunaid Moti’s war on amaBhungane and on journalism
See also amaBhungane’s reports on the Moti Group