South African court’s gag on amaBhungane raises fears for investigative journalism, sources

New York, June 7, 2023—The Committee to Protect Journalists on Wednesday expressed concern that a South African high court judge’s temporary injunction, if made final, against the amaBhungane Centre for Investigative Journalism, a nonprofit investigative outlet, could imperil the country’s investigative journalism, journalists’ confidential sources, and whistleblowers.

In April, amaBhungane published a series of articles based on leaked documents about South African businessman Zunaid Moti and the Moti Group of companies, which he led as CEO until resigning in March. The Moti Group alleged a former employee stole those documents.

On May 30, the Moti Group launched an urgent application to be heard in secret, in terms of a legal process where no notice needs to be given to the other party concerned, to force amaBhungane to return the documents in its possession and to bar it from any further reporting on the company. On June 1, Judge John Holland-Muter granted an interim order effectively gagging amaBhungane until the matter could be argued in open court on October 3 and ordering it to return the documents within 48 hours, according to a report by the outlet and a statement by the industry body South African National Editors’ Forum. AmaBhungane’s lawyer was only informed about the interim order after it was granted.

“We hope that when the matter is fully ventilated in open court, investigative journalism in the public interest and the protection of confidential sources that are key to exposing massive alleged corruption in South Africa and elsewhere will be vindicated and not eroded,” said Angela Quintal, CPJ’s Africa program coordinator. “Not to do so would mean any party can stop investigative journalists from exposing corruption or any other matter of public interest by claiming that the information relied upon is stolen, endangering the lives of whistleblowers or confidential sources by forcing disclosure.”

Quintal has been an amaBhungane board member since October 2013.

David Frankel, executive director of The Sentry, a U.S. outlet that collaborated with amaBhungane on its investigations into the Moti Group, in an email to CPJ described amaBhungane’s reporting as “public interest journalism of the purest kind.”

“Questions about Moti Group’s apparent payments to firms linked to the President and Vice President of Zimbabwe, a cozy relationship with an official at a major South African bank, and the financial motives behind donations to a Presidential candidate in Botswana–these are all important and appropriate subjects for investigative journalism,” Frankel said.

Moti has denied the allegations of impropriety and state capture in media interviews, opinion articles, a TikTok campaign, and paid-for media articles, as reported by amaBhungane.

To protect its sources and not hand over the documents, as well as to continue reporting on the Moti Group, amaBhungane sought an urgent reconsideration of the order on Saturday morning, June 3, ahead of that evening’s deadline to return the documents.

Judge Stephan van Nieuwenhuizen dealt only with the order to return the documents and granted a variation of the order. As a result, amaBhungane would not be compelled to hand over the documents, although the bar on publishing further articles would remain until the case was eventually heard in court.

Van Nieuwenhuizen reportedly said he could not understand how Holland-Muter granted the interim order and criticized Moti Group’s legal representatives for being “unreasonable.”

“While we are disappointed that the gag order issued against us–unjustifiably and abusively in our view–remains in place for now, we will fight this in due course and believe today’s variation was necessary to protect our sources,” amaBhungane tweeted after the revised order was issued.

In its court papers filed on June 6 challenging the interim order, which CPJ reviewed, amaBhungane said that Section 16 of the South African Constitution permitted journalists to receive information from sources on a confidential basis.

“Regardless of the manner in which information has been obtained by a source, it is not unlawful for journalists to hold any information provided by a source, provided they do so in the public interest,” the outlet wrote in those court papers.

Journalists had a right and duty to keep their source material and the identity of anonymous sources confidential, the document said, adding that it was unlawful and unconstitutional to order a journalist to hand over their source material or identify a source to any other party.

“A prior restraint on journalist publication can only be granted in exceptional circumstances and never without notice,” the document said, adding that it was “unlawful and unconstitutional to interdict a journalistic publication without notice, whether on an interim or final basis.”

AmaBhungane is expected to return to court within the next few weeks.

In an opinion article published Sunday, Zunaid Moti said the legal dispute was “in no way about supposedly ‘gagging’ media” but “preventing journalists from reporting upon stolen information.” 

In that article, Moti accused amaBhungane of having “used the flimsy excuse of ‘public interest’ to participate in theft; published stolen, altered documents and convoluted conspiracy theories as fact; and has even gone as far as to share private banking details and other personal information on public platforms.”

This justification was repeated in a statement to CPJ by the Moti Group’s lawyer Ulrich Roux, which said the June 1 order was not a “gagging order” against the media and amaBhungane but had to be seen in the context of a “clear case of theft committed by an ex-employee,” who downloaded more than 4,000 “editable” Moti Group documents before resigning. 

The statement said these documents included proprietary information and intellectual property, which could cause significant monetary damages to the group if confidentiality was not maintained, adding that the papers were not in the public interest and denied that the former employee was acting as a “whistleblower.”

In interviews, Moti said the secrecy of the June 1 hearing was necessary because he believed amaBhungane could have concealed or destroyed the documents if they had received prior notice about the group’s court action.

In an opinion column published Monday, William Bird, executive director of the local press rights group Media Monitoring Africa, labeled the June 1 interim court order a “travesty of justice” and said, “Even if we accept this argument, had amaBhungane sought to delete the documents, they could still have concealed the material even after the order was granted.”