Blow for Zunaid Moti as court ungags amaBhungane

The Gauteng High Court has overturned the Moti Group’s gag order against the amaBhungane investigative unit, setting aside a previous order preventing it from using documents leaked by a whistleblower.

Gauteng High Court Deputy Judge President Roland Sutherland also ordered the Moti Group to pay the costs on a punitive scale.

Gag order

The Moti Group, led by controversial businessman Zunaid Moti, approached the Gauteng High Court to prevent the publication of new articles and force the journalists to return all the ‘leaked’ documents in a series labelled the MotiFiles

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AmaBhungane argued that the Moti Group’s legal action against their publishing of the Moti files was nothing more than a SLAPP (strategic lawsuit against public participation) suit intended to intimidate and stop the investigative journalism unit from doing its job.

In a scathing ruling, Judge Sutherland found the Moti Group’s application to prevent amaBhungane from reporting on and using the leaked documents was an “abuse of the process of court”.

Judgement has been handed down in our case to set aside the Moti Group’s unprecedented gag order against the #MotiFiles. We are happy to announce a resounding victory handed down by Judge Sutherland.

— amaBhungane (@amaBhungane) July 3, 2023

The “gagging” order granted by Judge John Holland-Muter on 1 June stopped amaBunghane from using the documents as the basis for its series of articles on the Moti Group.

Abuse of court process

The original order also directed the journalists to return all the documents within 48 hours. This was revised following an urgent high court application launched by amaBhungane two days later, at which the parties agreed to an order that amaBhungane would not destroy or alter the documents.

AmaBhungane then launched another urgent application, seeking to overturn the order in its entirety, which was heard by Judge Sutherland last week.

“The elephant in this case is nor press freedom or a violation of privacy. Rather it is most egregious abuse of the process of court. It’s manifest that the order granted on1 June should never have been sought ex-parte (in secret) still less granted,” Judge Sutherland ruled.

“There is not a smidgeon of justification for it being brought ex-parte.”

Read the judgment here:

Free press

Sutherland also emphasised the importance of a free press saying there is a clear difference between stolen goods and leaked information.

“In South Africa ‘contraband information in the hands of journalists’ is an essential good without which our country cannot crawl out of the corrupt morass in which we find ourselves.”

Judge Sutherland confirmed that the media can possess documents obtained unlawfully.

“On what grounds would it thought useful to society that a journalist who is granted access to a digital data file by a person not authorised to do so, i.e. a thief, be also committing the crime of theft? This belief is incorrect.”

Media cannot be muzzled

On the original pre-publication ban, Judge Sutherland cautioned that the media cannot be muzzled.

“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,” he ruled.

Judge Sutherland said in law, as a general principle, a journalist should not unmask a source and any interdict to restrain publication must be brought on appropriate notice.

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