Amabhungane journalists gagged

AmaBhungane Centre for Investigative Journalism says it is under “legal assault” and has been “gagged” by a court order, granted in chambers and without prior notice.

This has effectively stopped it from reporting on documents pertaining to controversial Johannesburg businessperson Zunaid Moti and his group of companies.

The order was granted by Johannesburg high court judge John Holland-Muter. It directs amaBhungane to return, within 48 hours, documents which the Moti Group claims were “stolen” and which amaBhungane is accused of using to write a series of articles labelled the “Moti files”.

The rule nisi (interim interdict) granted by the judge operates with immediate effect. The respondents, including journalists Sam Sole, Micah Reddy and Dewald van Rensburg, have until October 2 to oppose it being made final.

The order gives the journalists the right to come back to court before October (the return date for the possibly finalisation of the order) if they give the applicants 24 hours notice.

Moti recently stepped down as CEO of the 250 companies in the group.

The affidavit in the behind-closed-doors court application was deposed by the newly appointed CEO Andrew Dondo Mogajane. He claims the documents in amaBunghane’s possession were stolen by erstwhile employee Clinton van Niekerk late in 2022, just prior to his hurried resignation. This was evident from the articles written, the questions sent, and the documents attached to those questions.

Metadata analysis showed that the attached documents were created by scanning through a printer at the Moti Group offices, he said.

Mogajane said the documents “stolen” by Van Niekerk, which had made their way to amaBhungane and US investigative organisation The Sentry, contained confidential information.

The group’s lawyers, Ulricht Roux and Associates, had written a letter of demand for the return of the documents from amaBhungane in April.

AmaBhungane had refused to provide the documents, as this might reveal the identity of its confidential sources. It also said it was not currently in possession of the documentation either in physical or virtual form.

However, from subsequent articles, it was clear that its journalists had access to them, Mogajane said.

“AmaBhungane utilises the selective excerpts from these stolen documents to feed its false narrative that there is something untoward about the manner in which the Moti Group conducts its business.

“AmaBhungane appears intent on ruining the reputation of the Moti Group,” Mogajane said.

On the issue of the urgency of the court application, he said the “crusade was far from over” and each day that passed, the applicants ran the substantial risk that the information and documents would be “concealed, disseminated and or unlawfully utilised” by amaBhungane.

On why the application had to be heard ex parte, Mogajane said that if notice had been given to amaBhungane, he documents could have been “concealed, wiped from their servers or even destroyed”.

On why the application should be heard in chambers, he said the dispute had garnered significant public attention and if the matter were placed on the ordinary roll there was a likelihood that it would come to the attention of amaBhungane and the journalists who could “take steps to defeat its purpose”.

On the issue of media freedom, Mogajane said, “amaBhungane and the journalists cannot assert that they are being gagged when it is their failure to play by the rules that has compelled the applicants to approach this court.”

He said Van Niekerk was not a “whistleblower” and that there was no proof that he was in witness protection, as was claimed in a court application in Durban.

Sole said amaBhungane planned to fight the interim interdict.

“This kind of ex-parte prior restraint of publication and incursion into media freedom is unprecedented in the democratic era. Nowhere in his papers does Mr Mogajane remotely demonstrate that amaBhungane has acted outside of the public interest or outside of the highest journalistic standards. Despite his protestations it is a measure of what the Moti Group is desperate to conceal that it has taken this drastic step.”

Sole said Mogajane openly said he hoped the interdict will muzzle amaBhungane and shut down the negative flow of publicity that the Moti Group has been receiving as a result of the #MotiFiles revelations.

Sole said amaBhungane’s lawyers had previously indicated to the Moti Group that copies of the documents were held on an offshore server that amaBhungane did not control.

That meant that amaBhungane had no power to “give back” all copies of documents that were in any case still in the Moti Group’s possession:

“The only conceivable reason why they would need copies from us is to identify our sources,” he said.

In May, GroundUp reported that Sole, Reddy and Van Rensburg believed they were under threat of arrest because of an exposé they wrote on the “Moti files” implicating businessman Zunaid Moti in a mining deal with Zimbabwe’s President Emmerson Mnangagwa.

GroundUP