Judge Sutherland handed down judgment in the Johannesburg High Court on Monday, 3 July 2023, in our case with the Moti Group. The judgment set aside, in its entirety, the ex parte order granted in the Moti Group’s favour on 1 June 2023. This confirms that amaBhungane is not obligated to “return” documents to the Moti Group and lifts the prohibition on publishing further articles on the Moti Group based on the documents to which we have access.
Despite the exceptionally clear and comprehensive judgment, the Moti Group’s spokesperson and attorney continue to misrepresent the nature of the case and the effect of the judgment in their media appearances.
This risks contributing to an incorrect perception of the case, amaBhungane’s interests and the Moti Group’s motivations. It also undermines the integrity of the media and the courts.
This is a response to the main points the Moti Group has raised.
- The ex parte process is a process available in law
AmaBhungane has never denied that the ex parte procedure is one provided for in law; we have consistently maintained that it is not appropriate in this case. Judge Sutherland confirmed this:
“The facts demonstrate an egregious example of the abuse of the ex parte procedure”
“the interaction between the legal representatives over this period and the express caution against taking an order behind [amaBhungane’s] back are material factors why any legal proceedings to determine the rights and wrongs of the parties’ respective well-known stances could not justifiably have been brought ex parte. The decision to do so was an abuse of process. The courts cannot tolerate abuse of the process.”
- AmaBhungane is basing their reporting on “stolen” documents, to which they are not entitled to have access and are not legally entitled
The characterization of the documents as “stolen” has been the Moti Group’s main argument throughout the legal process and, even before that, in their legal team’s engagement with amaBhungane’s attorneys.
Judge Sutherland stated, unequivocably, that the nature of the documents is irrelevant to amaBhungane’s possession of them. He said:
“The [Moti Group] contend[s] that [amaBhungane] are, at best for them, accomplices, after the fact, to theft. This belief is incorrect.” (emphasis added)
The Judge accepted that there is a crime of possession of stolen property – but definitely rejected the argument that it could be applied to journalists in possession of documents that may have originally been obtained unlawfully. He said:
“Contraband information in the hands of a journalist is certainly not in such a category [as, for example, uncut diamonds or unwrought gold]; on the contrary, there is overwhelming support for such activity being a positive and necessary good in society. In contemporary South African society there could be a cogent argument advanced that such activity is an essential good without which our country cannot crawl out of the corrupt morass in which we find ourselves”.
The Judge questioned why criminalising the media’s possession of unlawfully-obtained information could be contemplated:
“On what grounds would it [be] thought useful to society that a journalist who is granted access to a digital data file by a person not authorized to do so, i.e. a thief, be also committing the crime of theft?”
It is important to maintain the distinction between the civil case brought by the Moti Group against amaBhungane and the criminal charges the Moti Group laid against its former employee, Clinton van Niekerk. There are problems with the Moti Group’s reliance on the criminal case:
- Although the Moti Group states that it is known that van Niekerk provided amaBhungane with the documents, this has never been confirmed or accepted by amaBhungane: we have not and will not reveal the identity of our sources.
- Van Niekerk has not been found guilty of theft, and so it is imprecise to refer to the documents as “stolen”
- No criminal charges have been laid against amaBhungane or its journalists.
The only possible criminal charge of theft that could be brought against amaBhungane would be under the Cyber Crimes Act. Judge Sutherland noted that this piece of legislation could not be used:
“In the reconsideration hearing, an attempt was made to suggest that the Cyber Crimes Act 19 of 2020 which declares the crime of theft to encompass not only the misappropriation of data but also the possession of data helped to overcome the proposition upheld in WasteTech [that copies of information could not be considered property, and so not susceptible to theft] … In my view, this text does not assist. The text suggests that possession must be unlawful possession independently of knowledge of its being wrongfully procured.”
AmaBhungane is not in unlawful possession of any document.
- The case was decided on technicalities
The Moti Group maintain that the case was decided on technicalities, and not the merits of the case, and so the constitutional questions of their right to privacy and the limits of media freedom and the right to freedom of expression were not determined.
This is disingenuous. It is true that Judge Sutherland decided the case on a technical ground, in that he ruled that the ex parte order obtained by the Moti Group should not have been granted. But this was precisely because of the Moti Group’s abuse of process. Judge Sutherland mentioned “abuse of process” nine times in the judgment, in finding that the Moti Group was not entitled to bring an application against amaBhungane on an ex parte basis and that they were not entitled to seek to strengthen their initial case at a later stage.
“The elephant in this case is not press freedom or a violation of privacy. Rather, it is a most egregious abuse of the process of court. It is manifest that the order granted on 1 June should never have been sought ex parte, still less granted. There is not a smidgeon of justification for it being brought ex parte.”
AmBhungane has characterized this case as a SLAPP suit – strategic litigation against public participation. One characteristic of a SLAPP suit is an abuse of the court process as a strategy to silence the media through intimidation or bankruptcy.
The Moti Group’s insistence that this case was “decided on technicalities” evades their role in forcing the Judge to determine the matter on the technicalities, and fails to acknowledge the finding that they abused the court process.
More importantly, although Judge Sutherland acknowledged that it “could be argued it is unnecessary” to address the merits of the case, he nevertheless did so. Judge Sutherland made several important pronouncements on the importance of the right to freedom of expression and the necessary protections for the media:
In respect of a journalist’s obligation to protect the confidentiality of a source: “The resistance to disgorgement of information on the ground of protecting a source is functional and not optional to the work-process of investigative journalism”
In respect of a court prohibiting the publication of an article before that article has been published: “an aspect seemingly ignored in the application is the well-established norm against pre-publication restraints on the media. This norm does not articulate an absolute prohibition, but rather, that such an order should be made only where the public interest is not served by publication”.
“A South African court shall not shut the voice 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.”
- The Moti Group is entitled to protection of its right to privacy, and to retain control of confidential documents
Judge Sutherland noted that the case involves a balance of the rights to privacy and freedom of expression: “The function of the courts in holding an appropriate balance between the rights of privacy and confidentiality in private matters, on the one hand, and the public interest in the free flow of news and especially news exposing skulduggery, on the other, is a well-traversed terrain”.
Judge Sutherland dismissed the Moti Group’s contention that the documents were confidential:
- “the first question that arises is whether the information in the data files is indeed ‘confidential’? The [Moti Group’s] mere say so is unhelpful in establishing that proposition.”
- “The relevant question is whether the attribute of confidentiality was lost as a result of the leak? The decision in SABC v AVUSA is direct authority for the proposition that there is a forfeiture of confidentiality upon the information being leaked to the world at large”
5) Zunaid Moti’s gratuitous attack on amaBhungane and Sam Sole
Zunaid Moti has made a scurrilous claim relating to amaBhungane’s former chair, stating that amaB and Sam “protect sexual predators”.
The facts are as follows:
- Sam was unaware of any allegations of impropriety against our former chair until a news report on 14 June indicated Tawana Kupe was resigning as Vice-Chancellor of the University of Pretoria before the end of his contract, after having been cleared of allegations of sexual harassment.
- In discussion with Kupe, the former chair did not provide any additional information about the allegations and although he had been “cleared” we considered it appropriate that he step down at our next board meeting, which was due in August.
- On Saturday 24 June, a new report revealed that he was found guilty of sexual harassment in 2016 while at WITS and issued with a final warning. Kupe had not disclosed this to us and the Wits documents were sealed. Within an hour Sam wrote to him asking him to submit his resignation letter immediately.
- Our independent non-executive board members receive no remuneration for their board service and are not involved at all in the management of amaBhungane or its editorial decisions.
- The board meets virtually and its role is restricted to exercising oversight over compliance issues, such as budgets, spending above a certain threshold and our annual financial statements and annual narrative report.