It is hard to understand how a judge could have granted the Moti Group an order compelling amaBhungane to hand over leaked documents and refrain from publishing articles based on these without hearing argument from the media group, Gauteng deputy judge president Ronald Sutherland said on Tuesday.
Sutherland asked Vincent Maleka SC, for the Moti Group, what was said to Judge John Holland-Muter when he heard an urgent application by the company on 1 June to persuade him that the relief sought should be granted despite case law indicating otherwise.
The high court order comprised a final interdict giving amaBhungane 48 hours to return all documents to the Moti Group and an interim interdict barring it from reporting on information they contained.
AmaBhungane filed an application for reconsideration of the order and, on 3 June, the high court amended it to the effect that the news group did not have to hand over the documents pending a full hearing of the dispute between it and the Moti Group. The gagging order was not lifted, although like Sutherland, Judge Solly van Nieuwenhuizen expressed surprise at the court’s decision.
Sutherland was hearing an application by amaBhungane on Tuesday to set aside the order.
“I’m very curious to know what the judge in the urgent court was told. I have seen the heads and … I presume that that is not all that was said to the judge,” Sutherland said.
“Given the fact that it was an ex parte [from side only] application, I would like to know what was said to the judge to persuade him that the various cases dead in point against the relief sought were distinguishable in his view.
“How on earth did he manage to decide that it was appropriate to grant this relief ex parte if he had applied his mind to those disclosures, which should ethically have been made available to him. How did that happen?”
Maleka replied that he was not present in court for the urgent application.
He submitted that the documents were unlawfully obtained by a former legal adviser to the group, Clinton van Niekerk, and that by publishing information in the trove of documents, amaBhungane has made itself party to that conduct.
He said the British Steel Corporation case had established that when someone took information belonging to a company, was not driven by public interest duty and handed it to third parties, the balancing act a court had to perform must be weighted in favour of those who seek to retrieve their information, and to force the disclosure of the source.
“Conspicuously, they [amaBhungane] have not even put up a version to explain how the stolen documents came into their possession,” he argued in papers filed to the court.
“They have not put up any evidence to support their claim that their confidential source or sources are whistleblowers within the contemplation of the applicable legislative provisions. That is significant, and the court should, with respect, draw the appropriate adverse inference against them.”
Sutherland pointed out that amaBhungane has argued that the case concerned the right of journalists to protect the confidentiality of their sources.
It argues that, if confirmed, the court order would extinguish the right of journalists to receive and impart public interest information that is leaked by confidential sources.
But Maleka said it was common cause that in this instance the source was Van Niekerk, therefore this was not what his clients were seeking.
“Well then, if it is so clear, then what is the fuss about?” Sutherland asked.
“If the only reasonable inference to draw is that Van Niekerk is the source, either directly to the respondent or via the sentry, well then, so what?
Maleka replied that amaBhungane could not rely on this in refusing to return the documents.
“Well, that doesn’t really follow, does it?” Sutherland said, adding that he was happy to accept for argument’s sake that Van Niekerk obtained and disseminated the documents for nefarious purposes.
His motives were not at issue and he was not party to the case, which revolved around interdicting a media group from performing a public service in publishing matters of public interest.
He then asked Maleka, if the essence of the relief the Moti Group wanted was for amaBhungane reporters to stop publishing articles based on the information in the documents Van Niekerk released, why it had demanded the return of the documents.
“This rei vindicatio [return of property] aspect is the fifth wheel on the wagon,” he said.
Maleka countered that Van Niekerk had leaked documents containing “privileged and proprietary information” and that the applicants had a right to “dictate the destiny of the information belonging to them”. This included being entitled to argue that it was released unlawfully and to demand its return.
Sutherland then noted that in the to and fro between the Moti Group and amaBhungane over documents for a period of some three months, the latter had given the undertaking that it would not destroy the documents. It was common sense that it would not do so, he added.
“Throughout that period the respondent and the applicant are either in direct contact or in contact via their attorneys about what they want to publish, seeking questions to be answered and indicating what the position is,” he said.
“The high point is when the respondents’ attorneys make the point explicitly that the tone of your letter suggests that you’re plotting to bring an ex parte application, we give you an unequivocal undertaking we will not in any way destroy or dispose of the documentation. How on earth, on that background of over three months, could anybody have contemplated an ex party application, in camera nogal, was appropriate? Help me understand that.”
Maleka said his clients were asserting that they were trying to protect confidential information.
Sutherland said this did not escape him but asked how they could tell the court that if they had given notice of the application, which was heard in camera, amaBhungane would conceal or destroy the documents, notwithstanding the undertaking not to do so.
“This is not an application dealing with a thief who might want to destroy the evidence of his unlawful behaviour. This is a newspaper whose function it is to publish, who has published and I don’t know if National Media v Bogoshi is tattooed on the forehead of every investigative journalist but I’m pretty sure they are familiar with the fact that that case in particular makes it quite clear that woe betide the journalist who publishes a defamatory statement that turns out to be untrue.
“On a scale of between a hundred and minus a hundred, what are the probabilities of a journalist destroying the only evidence that is available to demonstrate that he acted bona fide and reasonably. The needle of probability must be close to minus one hundred.”
Advocate Steven Budlender SC, for amaBhungane, noted that an ex parte application to prohibit publication was unheard of in South African law. The media may be given short notice of an application, but notice was given.
“This was a drastic and draconian violation, not only of the respondents’ right of access to courts (which includes the right to be heard before an order is granted against them), but also of the right to freedom of the press and the public’s right to know.”
Moreover, he said, the Moti Group vacillated on what their real concerns were that drove them to apply for the order. At times it was to have the documents returned so they could establish who leaked these, at others it was to stop publication.
In either event, he argued, their case must fall.
Deviations from the audi alteram partem rule required truly compelling reasons, he said.
But there were no exceptional circumstances because the applicants did not even meet the standard of “a real and well-founded apprehension that this evidence may be hidden or destroyed” which applies in so-called Anton Pillar orders, which are considered draconian and only granted as a temporary form of relief.
Here the court had gone beyond that to grant final relief, without hearing from amaBhungane, that once implemented would mean the Moti Group would irrevocably know what documents had been leaked to them and by whom. It would have the twin effect of depriving amaBhungane of their source material.
“There is simply no authority for the notion that such relief can be obtained on an ex parte basis,” Budlender said.
“On the contrary, the fact that all of the authorities on Anton Piller orders restrict such orders to interim procedural relief, and that these orders are described as the ‘outer extreme of judicial power’, supports the conclusion that substantive relief can never be obtained against a respondent without notice.
It was granted, Budlender said, on the strength of the say-so of the applicants that amaBhungane would destroy the documents while there was no evidence to support this.
The Moti Group’s case was simply that if someone stole a document and gave it to the press then both the person who leaked the document and the press are guilty of a crime and the person to whom the document belonged could obtain a court order without even citing the media in question.
“That is an extraordinary proposition and it is one that is incredibly damaging in our democratic state. After all, if they are right, then the Guptas just missed a trick. The moment there was first a mention of the Gupta leaks they should have run off to court.”
It was simply wrong in law, Budlender said, because it was not unlawful for journalists to receive and retain leaked information, regardless of the source and because rei vindicatio relief did not apply in this kind of case.
The Moti Group was not arguing that amaBhungane was in possession of original documents belonging to them, but of copies made by Van Niekerk.
“There is no proprietary interest in the copies or the information contained in them. And the applicants cannot vindicate that which is already in their possession,” Budlender said.
The group, founded by Zunaid Moti, has extensive mining interests in Zimbabwe.
The articles amaBhungane has published showed that Moti sought to ingratiate himself with Zimbabwe’s political elites, and revealed financial flows through the Moti Group in that country, as well as a secret loan to an Investec employee tasked with limiting the bank’s exposure to the Moti Group’s debt.
