There are few people who hate us more than Iqbal Survé, the chairperson of Independent Media.
Over the years, he and his employees have called us various names – from racists to “Stratcom” – and for our 15-year anniversary his publications made our cute little dung beetle look like a monster.
So why would we spend the limited resources we have fighting to defend Independent Media in court?
The reason is that judgments that may appear to limit one journalist’s ability to practice their profession have a profound impact on the media landscape.
And so, when one of Independent’s journalists was gagged by a High Court judge in Durban, amaBhungane applied to join the case as amicus curiae (‘friend of the court’).
International Press Freedom Day
Every year on the 3rd of May the world celebrates International Press Freedom Day. The day was established in response to the Windhoek Declaration – the product of a workshop of African journalists that became the benchmark for principles of media freedom and independence globally.
Much of the focus of the last few Press Freedom Days has been on the unconscionable death toll of journalists in Gaza, with the global media community being criticized for their lack of solidarity and collective outrage.
Solidarity between members of the media cannot be underestimated as a force for furthering media freedom and responding to attacks on journalists.
In 2023, businessman Zunaid Moti sought to gag amaBhungane from reporting on his business and to obtain details of the documents we received from a source. The South African Editors Forum, Media Monitoring Africa, the Campaign for Free Expression and Corruption Watch joined our urgent court proceedings as amici.These entities assisted in putting important information before the court on principles of journalistic independence and the role of the media in uncovering corruption.
In the Moti case, the Johannesburg High Court delivered a stirring endorsement of the importance of a free and independent media that is able to operate in a system where source confidentiality is protected and where prior restraints on publication of stories are only granted in exceptional circumstances.
However, despite the precedent set in the Moti case (which, in turn, had built upon the strong precedents supporting media freedom in numerous other South African cases), Acting Judge Perlene Bramdhew of the Durban High Court issued a deeply regressive judgment in March this year.
Muzzling the media
Bongani Hans, a journalist with Independent Newspapers, had sent a list of questions to a solar company, ARTsolar Pty Ltd. The questions were based on allegations made by a businessman who bought solar panels from ARTsolar, allegedly on the belief that they were made in South Africa when, he claimed, they were in fact produced in China.
ARTsolar brought an interdict application against Hans, the businessman and two former ARTsolar employees. The Court granted the order, preventing Hans and the others from making ‘defamatory’ statement’s about ARTsolar.
Whatever we may think of Independent and the quality of some of its articles, the judgment serves to severely limit freedom of expression and the ability of the media to operate in South Africa.
First, Hans and his publisher, Independent Newspapers, did not initially oppose ARTsolar’s interdict.
We do not know why, but there are many reasons why a journalist, facing legal action, may not be in a position to oppose it.
Legal defence costs money. Lots of money. It is also a highly specialized field and frequently requires the presentation of complex legal arguments. For many journalists working in under-resourced newsrooms, mounting a defence against these types of lawsuits is impossible.
In a case of such critical public interest, however, a court faced with a litigant who chooses not to defend themselves should recognise that there are other important considerations.
This focus only on the people before court betrays a lack of acknowledgement that the the right to freedom of expression does not belong only to the media; it belongs to the public through the right to know. This is because the right to freedom of expression, in section 16 of our Constitution, includes the freedom to receive or impart ideas.
The order also gags the media – Hans in his personal capacity as well as Independent Newspapers – from communicating allegations about a private company, ARTsolar.
As Judge Sutherland stated in the Moti case, “[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”.
The court order does “shut the mouth of the media” in two important ways.
Most obviously, it prevents Independent Media from publishing its investigation into ARTsolar.
- For more on this, read GroundUp’s “Gagged” businessman seeks to prove he was right
Perhaps more concerningly, however, Judge Bramdhew also gagged the businessman who had first raised the alarm about ARTsolar and extended the gag order to two other former ARTsolar employees.
This amounts to gagging ordinary citizens from speaking out about something they believe is wrong and from talking to the media about their concerns.
Journalism relies on sources.
We need ordinary citizens to trust that they can bring us tipoffs about wrongdoing or criminal conduct and that we will be able to hear their concerns and then protect their anonymity.
The first High Court judgment in the Moti case threatened source confidentiality and the ARTsolar case now prevents the ability of sources to even approach the media.
And so, on this year’s International Press Freedom Day, we are preparing to intervene in the ARTsolar case.
It is in solidarity with journalists and sources that we do so.
