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Published by: Power & Associates

CFE in court to prevent silencing of investigative journalists

June 16, 2023

The matter concerned an order of the High Court obtained on an urgent, ex-parte (only one party present), and in-camera (closed to the public) basis by the Moti Group, the applicants. The order directs amaBhungane, the respondents, to hand over certain documents to the Moti Group and interdicts them from reporting on such material. The Moti Group argued that the documents were stolen and sought the immediate return of the documents that contain confidential and proprietary information. amaBhungane sought to have the matter urgently reconsidered arguing that the order should not have been granted and should be set aside.

As amici curiae, SANEF, MMA, and CFE made three submissions:

  • First, on the importance of the obligations of States to ensure a favourable environment for media freedom that protects and enables journalists, journalistic sources, and other media actors to contribute to public debate effectively and without fear of court processes that seek to intimidate, distract from, or silence public criticism;
  • Second, on the impact and harm of in-camera and ex parte applications and orders in the context of investigative journalism, inclusive of the potential for discouraging the participation of the media in debates over matters of legitimate public interest; the potential for abuse of process or SLAPP style litigation; practical considerations around digital journalistic sources; and the availability of alternative remedies; and
  • Third, on the essential role of journalistic sources for effective newsgathering and timely reportage on public interest matters, taking into consideration that the disclosure of information runs across a broad spectrum and the relationship between journalists and journalistic sources can extend beyond the newsgathering phase into the publication phase.

In advancing these arguments and highlighting the role of freedom of expression in constitutional democracies, SANEF, MMA, and CFE drew on international and comparative foreign law.

Michael Bishop and Michael Power were on brief in this matter.

On 3 July 2023, Sutherland DJP handed down judgment, setting aside the urgent, ex parte, and in-camera order in its entirety, and ordering the costs to be paid by the Moti Group. In his findings, Sutherland DJP noted that the “facts described demonstrate an egregious example of the abuse of the ex parte procedure (para 11)” and he expressed appreciation for the contributions made by the amici curiae (para 5). On 26 September 2023, the Constitutional Court of South Africa issued an order refusing to hear a direct appeal by the Moti Group, with costs.

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