Moti vs amaBhungane — judiciary once again protects South Africa’s constitutional values

Courts can be a significant protection of constitutional values or a Trojan horse that can destroy the foundations of constitutional democracy from the inside. The US Supreme Court, under the sway of five reactionary ideologues and a conservative Chief Justice, is an example of the latter. 

Not content with the destruction of 50 years of precedent protecting the right to an abortion in Dobbs v Jackson Women’s Health Organization, this Trump judicial brigade has eviscerated affirmative action and significantly weakened the protections of the constitution afforded to the LGBTIQA+ community. By contrast, this week the High Court in Johannesburg embraced its role as the custodian of constitutional democracy when it asserted the key role of a free media in the promotion of democracy.

The problem confronting the court began on 1 June 2023 when Mazetti Management Services (Pty) Ltd and an associate company, the applicants, obtained an order ex parte and in camera interdicting the amaBhungane Centre for Investigative Journalism and members of the centre from publishing any report that was based on digital documents which were alleged to have been stolen from the applicants by an ex-employee and which were now in the possession of the investigative journalists. This interdict was granted pending a final order by which the applicants sought that the digital documents should be returned within 48 hours.

That this order should not have been granted, and constituted, in the words of Deputy Judge President Roland Sutherland, “a most egregious abuse of the process of the court”, was manifest from the facts.

It appears that certain articles were published on 17 February, 28 April and 17 May 2023, all of which were severely critical of the applicants and in particular its principal, director Zunaid Moti. In particular, the articles emphasised the “curious” business activities of the applicant companies, and in particular the “intimate proximity of Moti to political elites in Zimbabwe”. As the court described it, “Dealings with South Africa that were supposedly dodgy if not downright criminal were also addressed.”

It appeared that much of the material was based on documents which were allegedly provided to the journalists by a whistle-blower and, accordingly, the applicants demanded that the journalists disgorge themselves of all of these documents which appear to have been in digital form. AmaBhungane took the view that as ethical and responsible journalists they had a duty not to reveal their sources, which would have occurred had the documents been produced as demanded.

The attorneys of the journalists wrote to the applicants stating, inter alia, “Our client is in any event under no legal obligation to provide you with any details pertaining to their sources or their journalistic research and there is no basis for your demand that they do so.”

As Judge Sutherland pointed out, the key to an urgent ex parte application of the kind launched by Moti’s companies was that there was a danger that the journalists would destroy any documents they had derived from the applicants.

But as Judge Sutherland pointed out, even absent the undertaking (so given) of the journalists that no documents would be destroyed, “There remains the inherent improbability of a journalist alienating the very evidence necessary to justify the publication of defamatory statements. In short, there was no basis by which an order granted ex parte and in secret and without notification to the journalists could be justified.” It was, as the court held, “an abuse of process the courts cannot tolerate”.

The applicants had argued that given that the whistle-blower had stolen documents, the journalists were accomplices after the fact. This argument was robustly rejected by the court.   

A positive and necessary good