Case Summary and Outcome

A South African High Court set aside an interim injunction which had ordered a media outlet to return documents it had in its possession and restrained them from further publication. After a series of articles critical of a group of companies were published, the group of companies obtained an ex parte order from the High Court which ordered the return of documents the companies believed had been stolen from them and prohibited further publication of articles based on those documents. In a reconsideration hearing, the Court found that the application and granting of that order was an abuse of process and constituted a SLAPP suit. The Court confirmed that South African law protects the confidentiality of sources and allows for prior restraints on publication only in exceptional circumstances.

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Facts

In February 2023, the South African media outlet, the amaBhungane Centre for Investigative Journalism, sent questions to South African businessman, Zunaid Moti, and representatives of the group of companies – the Moti Group – that he had founded. The questions were related to an investigation amaBhungane was conducting.

On February 17, April 28, and May 17, amaBhungane published three articles critical of the Moti Group and Moti and their business activities in Zimbabwe and South Africa which were “supposedly dodgy if not downright criminal”. [para. 8.1]

It was clear that amaBhungane “either possessed or had access to internal documents” of the Moti Group, and, on April 12, 2023, the Moti Group sent them a letter accusing them “with being in improper possession of documents which [the Moti Group] alleged had been ‘stolen’ by an ex-legal advisor”. [para. 8.2] Throughout February to May 2023, amaBhungane and the Moti Group communicated regularly, with the Moti Group seeking return of the documents and indicating that they believed it was “unfair” for amaBhungane to expect them to comment on “allegations based on documents that were not first shown to [them] notwithstanding that the documents emanated from their own records.” [para. 8.3] AmaBhungane maintained that they would not return the documents as doing so could reveal their source which would violate their duty to maintain a source’s confidentiality.

On April 13, 2023, amaBhungane’s legal representative sent a letter to the Moti Group’s lawyer in which they reiterated that amaBhungane would not return the documents and that they, in any event, were not in direct possession of the documents. The letter also expressed concern that the Moti Group was contemplating launching ex parte legal proceedings – proceedings brought without notifying one party – and that the requirements for an ex parte proceeding could not be met. The letter stated that “any relief granted against our client would seriously harm threaten our client’s rights and obligations to freedom of expression and the media”. [para. 8.4]

On June 1, 2023, Mazetti Management Services and Ammetti Holdings – two member companies of the Moti Group – obtained an urgent ex parte order in camera (in secret), which required that amaBhungane returned any digital documents within 48 hours and interdicting amaBhungane from publishing anything further based on the documents. The return date for the interim relief was set at October 2, 2023.

The Moti Group had argued that the matter was urgent because “there is a real apprehension that if the interim order that is sought is not granted or if Amabhungane were to receive notice of this application, the information that they have collected will be concealed, wiped from their servers or even destroyed.” [para. 10]

On June 3, 2023, amaBhungane brought an urgent motion for a reconsideration of the ex parte order. A modification to the requirement to return documents was made, now requiring amaBhungane to not destroy any documentation until a full reconsideration hearing.

The matter came before the High Court for a full reconsideration on June 27, 2023.

The South African Editors Forum, and civil society organizations, Media Monitoring Trust, the Campaign for Free Expression and Corruption were admitted as amici curiae.

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Decision Overview

Judge Sutherland delivered the judgment of the High Court. The central issue for the Court’s determination was whether the two orders against amaBhungane – that they return the documents and that they cease publishing articles based on the documents – were legitimately granted.

In examining whether the order should have been granted ex parte, the Court referred to the “sacred right of audi alterem partem” – that “no decision adverse to a person ought to be made without giving that person an opportunity to be heard.” [para. 1] It accepted that ex parte orders can be granted, but only in exceptional circumstances “when the giving of notice that a particular order is sought would defeat the legitimate object of the order.” [para. 1]

The Court looked at the nature of the litigation brought against amaBhungane and defined SLAPP suits as “any legal proceedings by a well-resourced entity aimed at harassing a vulnerable person or entity by outspending them in litigation and thereby forcing a capitulation.” [Footnote 4] In finding that there was an abuse of process in seeking and obtaining the ex parte order, the Court stated that “[t]he elephant in this case is not press freedom or a violation of privacy … it is a most egregious abuse of the process of court.” [para. 7] The Court found that there was no justification for the Moti Group’s belief that amaBhungane may destroy the documents because “there remains the inherent improbability of a journalist alienating the very evidence necessary to justify the publication of defamatory statements.” [para 12]

The Court accepted that there had been nothing to justify the order being granted on an ex parte basis and so that was “sufficient reason to set aside the order in its entirety” on that ground. [para. 15] Nevertheless, the Court did examine the merits of the case and the right to freedom of expression. In noting the role the courts play in balancing rights, it stated that “the function of the courts in holding an appropriate balance between the rights of privacy and confidentiality in private matters, on one hand, and the public interest in a free flow of news and especially news exposing skulduggery, on the other, is a well-traversed terrain.” [para. 6] The Court described this case as representing “the age-old debate about the scope which ought to be allowed to the Press to snoop uninhibited into the affairs of people and entities and publish information about them that reveals to the world what they would prefer to remain unknown.” [para. 5]

In examining the Moti Group’s arguments that amaBhungane should “return” the data, the Court focused on the South African action rei vindicatio – an action of an owner to sue to regain possession of their property. The Court discussed the nature of the documents, and said that there are “[s]everal tricky legal and forensic issues [that] bedevil the notion of ‘documentation’ in digital form being, by unauthorised means, downloaded and copied into other digital data bases constituting theft.” [para. 19] With reference to Waste-tech (Pty) Ltd v. Wade Refuse (Pty) Ltd, the Court noted that “[i]t was doubted whether copies of information could be classed as property.” [para. 20] The Court accepted – for the purposes of this judgment – that the Moti Group’s former employee, van Niekerk’s, conduct “probably” was criminal under the Cybercrimes Act. [FN 6] But it stressed that it was irrevelant to this case whether van Niekerk was a “thief” (“leaving aside whether that label is jurisprudentially accurate or is merely a colloquial usage”) or met the criteria of a whistleblower. [para. 19]

The Court made it clear that amaBhungane’s possession of the documents was legitimate: “The [Moti Group] contend that [amaBhungane] are, at best for them, accomplices, after the fact, to theft. This belief is incorrect.” [para. 22] It accepted that there are crimes of possession – for example of uncut diamonds or unwrought gold – and that there are societal benefits from maintaining this category of offences, however the Court underlined that “[c]ontraband information in the hands of a journalist is certainly not in such a category; on the contrary, there is overwhelming support for such activity being a positive and necessary good in society.” [para. 24] It concluded by asking “[o]n what grounds would it [be] thought useful to society that a journalist who is granted access to a digital file by a person not authorized to do so, ie a thief, be also committing the crime of theft? … [i]n contemporary South African society there could be a cogent argument advances that such activity is an essential good without which our country cannot crawl out of the corrupt morass in which we find ourselves.” [para. 23-24]

In looking at the journalist’s responsibility to protect the identity of a source, the Court referred to the cases of Bosasa Operation (Pty) Ltd v. Basson and AmaBhungane v. Minister of Justice, and noted that “[t]he resistance to disgorgement of information on the ground of protecting a source is functional and not optional to the work-process of investigative journalism” and that the practice was “not mala fide but is rooted in a norm both practical and ethical.” [para. 25] The Court stressed that a key feature of investigative journalism is receiving information from anonymous sources and that this requires protection of that anonymity. It looked at various international and regional instruments – including the 2023 UN Joint Declaration on Media Freedom and Democracy, the African Commission on Human and Peoples’ Rights’s Declaration of Principles of Freedom of Expression and Access to Information, the UN Convention against Corruption, the International Covenant on Civil and Political Rights and its General Comment no.34 and the European Court of Human Rights case, Goodwin v. United Kingdom – which support the protection of source anonymity.

The Court then examined whether the interdict preventing amaBhungane’s future publications should have been granted. It referred to section 16 of the Constitution and noted that the critical part of the right to freedom of expression is the “freedom to receive or impart information or ideas”. With reference to Print Media South Africa v. Minister of Home Affairs and Midi Television v. Director of Public Prosecutions, the Court stated that “[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.” [para. 34]

The Court asked whether, in the present case, the information was confidential and stated that “the [Moti Group’s] mere say so is unhelpful in establishing that proposition” but accepted that there may be at least some information that was confidential and said the “relevant question is whether the attribute of confidentiality was lost as a result of the leak?” [para. 27] The Court said that for information to be confidential it had to meet three requirements: it must be useful in trade or industry; it must not be public knowledge or property; and it must be of economic value.

The Court referred to SABC v. Avusa and SAA v. BDFM Publishers which had held that confidentiality is forfeited when information is leaked “to the world at large.” [para. 38] The Court also rejected the argument that the documents were protected by legal privilege and noted that this is not a “right to suppress publication if the confidentiality is breached.” [para. 40] The Court accepted that there are some categories of documents which should not be publicly disclosed irrespective of the subject’s public profile – for example, the medical information of a cabinet minister in Tshabalala-Msimang v. Makanya – because the disclosure would not be in the public interest. However, the Court held that it should not follow the pre-constitutional case Financial Mail (Pty) Ltd v. Sage Holdings from 1993 where the court had interdicted a newspaper from publishing information on a company’s confidential business dealings, commenting that the “prevailing social context” should be considered in determining whether an intrusion is lawful and that “[i]the context of 2023, the broader public interest about the need to weed out corruption would be a factor of foremost importance, lending itself to perhaps a more generous pragmaticism than in the relatively innocent age of 1993.” [para. 43]

In assuming that the statements about Moti were defamatory, the Court assessed whether his “legitimate interests” could be protected in a way that was “consistent with the public interest.” [para. 44] The Court stated that whether or not the defamation was lawful could only be determined in civil defamation proceedings, but did note that amaBhungane’s articles had included “prolific citations of denials and challenges” from the Moti Group and that Moti had used social media to put across his and the Moti Group’s perspective. [para. 44]

The Court concluded with two general principles that “a journalist who has received information in confidence is justified in refusing to perform an act which would unmask the source unless the refusal would be inconsistent with the public interest” and that “an interdict to restrain or forbid an intended publication by a journalist must be brought on appropriate notice to the journalist.” [para. 45] The Court also reiterated that there had been an abuse of process and that “no cogent case” had been made out to compel amaBhungane to “disgorge” the documents or for the Court to interdict amaBhungane from publishing any further articles based on those documents. [para. 45]. Accordingly, the Court set aside the original order in its entirety.

The Court handed down a punitive costs order, and noted that “[t]here must be consequences” for the abuse of process and that “[i]n the circumstances the appropriate order is to mulct the [Moti Group] by an order of costs on an attorney and client scale.” [para. 46-48]

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