South Africa: Judgments Dealing With Press Freedom And "Gag" Orders In South Africa

ALEX MAFIA

In Sithole and Another v Media24 (Pty) Ltd and Others, the applicants Lemane Bridgman Sithole and Michael Matshidiso Maile approached the Johannesburg High Court urgently to interdict the respondents from referring to them as members of a so-called "Alex Mafia". The interdict was sought against a large media house, two of its editors-in-chief and four of its journalists.

Facts

During the struggle years, the first and second applicants formed close relationships with the current Deputy President, Paul Mashatile. In addition, from 2004 to 2007, it was alleged that Mr Mashatile, Mr Maile and Mr Sithole were involved in different business ventures together.

The editor of the first respondent stated in his affidavit that the term "Alex Mafia" originated in political circles and within the ANC. The applicants argued that insofar as the term "Alex Mafia" might previously have had an innocuous meaning, this changed in July 2023 when the respondents started adding words such as "gang", "mob", and "notorious". In this regard, the court observed that the applicants put forward this argument to bolster the urgency of their argument. This then fell by the wayside when the relief in paragraph 2.2 of the applicants' notice of motion was abandoned by the applicants, who sought leave to amend their notice of motion by deleting paragraph 2.2. This reads as follows: "repeating any unsubstantiated and/or unproven allegation contained in an article authored by the second respondent titled 'Mashatile and the Alex mafia', published during August 2007 by the Mail & Guardian". The effect of the amendment was to limit the relief to paragraph 2.1 which was designed to prohibit the publication of references to the applicants as members of the "Alex Mafia".

The judgment of the High Court

In summary, the Johannesburg High Court held that:

• The relief as formulated by the applicants did not seek to prohibit the publication of references to the applicants as members of a "gang", "mob", or of being "notorious", and therefore, the term "Alex Mafia" is defamatory per se as argued by the applicants, then they ought to have approached the court much sooner – 16 years ago or at least after the 22 August 2022 publication;
• The second respondent's affidavit demonstrated that the internet has been replete with references to the applicants as members of the "Alex mafia", and the applicants did nothing about it, despite their claims that the core of their case is about these impugned allegations first arising in 2007 and being defamatory then; and
• The fact that the reference has been repeated more recently does not make the matter suddenly urgent. The allegedly defamatory matter was firmly in the public domain and has been for at least 16 years.

The court concluded that the application was an abusive attempt by two politically connected businessmen to gag a newsroom from using a nickname by which the applicants are popularly known and often called by the public, politicians, political commentators, other newsrooms, and themselves, and have been for at least 16 years. In addition, the court held that the applicants abused the court process by claiming urgency where there was none, materially altering their case in reply, and seeking relief that had no purpose other than to improperly punish the respondents.

Finally, the court held that South African courts have set a very high threshold for an interdict (interim or final) against alleged defamatory speech. The court referred to the Supreme Court of Appeal case of Malema v Rawula, where the SCA held that in relation to an interdict to restrain the imminent or continued publication of defamatory statements, a party is not entitled to approach the court unless it is clear that the defendant has no defence. A good reason for setting such a high threshold for an interdict against speech is that the respondents are deprived of the truth-finding facilities of trial proceedings, for example, discovery, subpoena, and cross-examination.

The court ultimately struck the matter from the urgent roll and awarded costs in favour of the respondents.

MOTI CASE

In Mazetti Management Services (Pty) Ltd and Another v Amabhungane Centre for Investigative Journalism NPC and Others, the Deputy Judge President of the Johannesburg High Court heard arguments on the age-old debate about the scope that ought to be given to the press to pry uninhibited into the affairs of people and entities and to thereafter publish information about them.

Facts

In February 2023, Mazetti Management Services (Pty) Ltd and Ammetti Holdings (Pty) Ltd (the "applicants") were confronted with questions posed to them by the respondents (Amabhungane Centre for Investigative Journalism NPC and others) prior to the publication of an article. The questions evidenced a critical and unwelcome intrusion. Thereafter, articles were published on 17 February, 28 April and 17 May, respectively. These publications were severely critical of the applicants and in particular, Mr Zunaid Moti. The content of the publications demonstrated that the respondents had read and either possessed or had access to the internal documents of the applicants.

The applicants demanded that the respondents return the documents. The applicants further contended that it was unfair for them to be asked to comment on allegations based on documents that were not first shown to them, notwithstanding that the documents had emanated from their own records. The respondents, however, advised the applicants that they were under no legal obligation to provide the applicants with any details pertaining to their sources or their journalistic research and that there was no basis for the applicants to demand that they do so.

The applicants initially obtained an urgent order without first giving notice of the application to the respondents and in camera on 1 June 2023. The relief sought and obtained was twofold:

• First, a final order that digital documentation allegedly stolen from the applicants by an ex-employee and allegedly in the possession of the respondents be returned within 48 hours; and
• Second, an interdict prohibiting publication of anything that was based on the documentation or in any other way using the documentation.

The respondents, after getting notice of the order, which was granted without notice, applied for reconsideration of the abovementioned order.

The High Court's judgment following reconsideration

At the outset, the court held that the applicants' ex parte application was an abuse of court process. In this regard, the court held that it was improbable that the respondents would destroy documents derived from the applicants, or alienate evidence necessary to justify the publication of defamatory statements.

On the merits, the court held that a journalist who has received information in confidence is justified in refusing to perform an act that would unmask the source unless the refusal would be inconsistent with the public interest. The court observed that a South African court shall not gag the media unless the fact-specific circumstances convincingly demonstrate that such publication does not serve the public interest.

In conclusion, the court found that no cogent case had been made to compel the respondents to disgorge the data files or to interdict the respondents from publishing articles that refer to the data files.

The court accordingly set aside the initial order granted to the applicants and awarded punitive costs against them.

Key takeaways

Parties should tread carefully before approaching a court for an interdict (whether interim or final) against allegedly defamatory speech, as South African courts have set a very high threshold for such relief.

In addition, South African courts will not gag the media unless the facts convincingly demonstrate that the publication does not serve the public interest. A publication will be unlawful and could be interdicted only if the prejudice that the publication may cause to the administration of justice is demonstrable and substantial,. There is a real risk that prejudice will occur if the publication occurs. The mere conjecture or speculation that the prejudice might occur is insufficient to secure the interdict. The publication will not be unlawful unless a court is satisfied that the disadvantages of curtailing the free flow of information outweigh the advantages.

These applications for an interdict, more often than not, turn out to be counter-productive because it does not bring an end to the defamatory allegations but rather it gives the allegations more impetus. This results in other media houses reporting about the court proceedings. In our view, attempting to interdict the media houses often turns out to be a losing strategy. Individuals and entities that are concerned about protecting their reputations are better off using communication and public relations experts to assist them in presenting their side of the story.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.