By Nkululeko Conco
Image: GroundUp
Corruption Watch is pleased with the outcome of the AmaBhungane v Mazetti matter where the High Court in Johannesburg handed down its judgment on Monday, 3 July 2023, setting aside a previous order which aimed to muzzle the AmaBhungane Centre for Investigative Journalism (AmaB).
AmaB has been publishing a series called #MotiFiles which detail allegations of corruption by the Moti Group of companies, founded by controversial billionaire Zunaid Moti.
The group sought to silence AmaB through the courts. On 30 May 2023 the applicants, Mazetti Management Services and Ammetti Holdings (two of over 200 companies in the Moti Group), approached the South Gauteng High Court requesting that their application be heard as an urgent ex parte in camera basis and that it not be made public until the service of the order they sought – which was that AmaB must return a cache of documents leaked to the organisation, and stop publishing articles based on that cache.
An ex parte in camera hearing means that only one of the parties in a case is present and further, that the meeting’s occurrence will be made known but not the contents thereof. Such hearings are highly irregular as they are held in private, and the respondent(s) are not notified of the proceedings until the order is granted.
It would be akin to an ambush in this instance, or guerilla warfare tactics.
This form of litigation fits into the class of Strategic Litigation Against Public Participation, or SLAPP, suits aimed at silencing public participation or gagging voices that call for transparency and accountability of the private sector.
Freedom of expression is a fundamental right
AmaB fought back, applying to the High Court for it to hear the matter on 27 June 2023. Corruption Watch (CW), the South African National Editors’ Forum (SANEF), Media Monitoring Africa (MMA), and the Campaign for Free Expression (CFE) were admitted as amici curiae (friends of the Court). CW was fourth amicus.
The amici sought to assist the Court in deciding the constitutional issue raised in respect of freedom of expression and the role of the media in bringing corruption to light, where the parties have not addressed these specific issues. The Court thanked the amici for their contributions, and CW’s unique contribution was found to be valuable.
Our submission drew the Court’s attention to the need for the protection of journalistic sources as the media plays an important role in uncovering corruption, ensuring transparency and fostering accountability. Essentially, we said that an effective investigative media plays a critical role in South Africa’s anti-corruption efforts and this role should be supported by the courts when they consider our international obligations to fight corruption.
We argued that the applicants had failed to establish grounds for the relief they sought, which grounds included the unlawful infringement of their rights, a sufficiently important public interest to justify the disclosure of AmaB’s sources, and the absence of any alternative remedy.
Overturning an unjust court decision
In the first judgment handed down on 30 May, the High Court, per Judge John Holland-Müter, granted an order that the respondents (AmaB and three of its journalists, cited in their personal capacities) return any and all documents in their possession or under their control alleged to have been stolen from the applicants by a former employee; and be restrained from publishing any further articles based on the documents to be returned or using or sharing any such documents.
The order was interim in nature and the respondents were to return after four months, on 2 October 2023, to argue why it should not be made final.
This was effectively a gag order to silence AmaB. The gag order was modified on 3 June 2023, to allow the respondents to retain the documents in their possession or under their control, pending the finalisation of the matter.
However, AmaB approached the Court, noting that the matter raised certain constitutional issues relating to the right to freedom of expression. They also noted that the right to human dignity, of a juristic person, was a further constitutional issue that had been raised in the matter.
Egregious abuse of the courts
On 3 July 2022 Judge Roland Sutherland, deputy judge president of the Johannesburg High Court, set aside the highly irregular Order of 1 June 2023, describing the case as being “a most egregious abuse of the process of court” which resulted in the order granted on an urgent basis and without notice to the respondents.
This is quite unlike the expected level of transparency expected of court hearings and denies the other side the right to be heard.
The Court also noted that it is essential that journalists have access to information that would not otherwise be in the public domain to uncover corruption. In contemporary South African society such activity could be regarded as an essential good to “crawl out of the corrupt morass in which we find ourselves”.
In addition, both the UN Convention against Corruption and section 16 of the South African Constitution support the freedom to seek, receive, publish, and disseminate information concerning corruption.
The Court agreed with foreign case law, cited in a 2022 article by Bill Goodwin, that press freedom is important in a democratic society and an order of journalistic source disclosure would have a potentially chilling effect on the exercise of press freedom which should only be justified by an overriding requirement in the public interest.
The High Court held that: “A South African court shall not shut the mouth of the media unless the fact-specific circumstances convincingly demonstrate that the public interest is not served by such publication. This is likely to be rare”. [paragraph 34]
The Court further held that where the broader public interest (such as weeding out corruption) is best served by publishing, a court would place greater weight on the prevailing social context and the public interest despite the source of the information published or the manner in which it was obtained. [paragraph 43]
