Courts are being used to silence journalists and activists

Companies and state officials are increasingly abusing protection orders to try to stop journalists and activists from doing their work. Illustration: Lisa Nelson

When journalist Bongani Hans of Independent Newspapers received a court order last week to stop him publishing allegations against a Durban solar energy company, it was the ninth recent case to enlist such an order to gag journalists, activists and whistleblowers.

Companies and state officials are increasingly abusing court processes to try to stop journalists and activists from doing their work, cynically accusing them of harassment and invasion of privacy.

As well as the Hans case, the Campaign for Free Expression has recorded these others:

• A few weeks ago, Limpopo freelance journalist Thomo Nkgadima was arrested, allegedly for breaching a protection order against him. Nkgadima had been reporting on the building of a local hospital, and the order came from those he was reporting on. When he appeared in court, there was no evidence that he had breached the order and the matter was dropped.
• In February, News24’s Karyn Maughan and Kelly Anderson faced a protection order from Mossel Bay magistrate Ezra Morrison following a report on the magistrate’s handling of a murder case. The two had to fly across the country to appear in court, but the matter was withdrawn.
• Earlier this year, when Sunday Times journalist Thanduxolo Jika phoned the Department of Basic Education’s deputy director-general for comment on a story, she filed a complaint of harassment and intimidation and told police she had a protection order against him. There was no such order.
• Surgeon Soraya Patel applied for a protection order against Carte Blanche reporter Lourensa Eckard, after Eckard door-stopped her to put to her allegations of botched surgeries. The interim order was refused and the final order is due to be argued in court in May.
• In 2023, the Pretoria Central Magistrate’s Court refused an application for a protection order to stop Carte Blanche producer Kate Barry from reporting on allegations against Tammy Taylor Nails South Africa. It was referred to trial for a final order, where it was dismissed.
• Gender activist Caroline Peters is contesting a protection order after she published on Facebook a photograph of a court roll and a picture, taken from behind, of the accused in a rape case. The identification of a rape accused is forbidden until they have been formally charged in court.
• Ian Erasmus, a SASOL whistleblower, had a protection order taken out against him by four of the accused in a trial where he is a key witness. The matter was repeatedly postponed, so Erasmus is uncertain of the status of this order.
• Last year, controversial businessman Zunaid Moti went secretly to court to get an order stopping the Amabhungane Centre for Investigative Journalism from using leaked documents from his company.

Protection orders were introduced largely to make it easy, quick and cheap for victims of domestic violence to get protection. One can get an interim order without informing the other party and then a date is set to argue a final order, where the subject of the order could be present.

This was expanded in the Protection from Harassment Act, which allowed for such orders when there is no intimate relationship between the parties, making it a valuable tool against stalking, cyberbullying and other threats to personal safety.

But now it is being used to gag journalists who are doing no more than their job of asking questions and probing wrongdoing.

Even if many of the applications for such orders are refused, they lock the journalist up in court and cost them or their employer time and money to defend themselves. This has a chilling effect that might make the journalist or their editor think twice about the costs and risks of tackling a company or individual. In short, a law meant to protect against harassment can also be abused to harass those going about their regular work.

In the Moti-Amabhungane case — where an interim interdict as opposed to a protection order was obtained, but with the same effect was granted — Judge Roland Sutherland described the order against the journalists as “a most egregious abuse of the court process”. He pointed out that Moti could use the right of reply or sue the journalists if he was defamed, but prior restraint (gagging) should never be used unless there was evidence that the publication would harm the public interest.

Of course, there might be a legitimate occasion to get such an order against a journalist, activist or whistleblower – but it needs to be weighed up against the risk of impeding standard journalism practice that serves the public interest.

The newly-formed Free Expression Legal Network is taking this matter up, engaging with bodies such as the Magistrate’s Commission to urge them to consider the consequences carefully when dealing with cases involving journalists, activists or whistleblowers.

Harber is a director of the Campaign for Free Expression. Views expressed are not necessarily those of GroundUp.

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