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Campaign for Freedom of Expression, Media Monitoring Africa, and the South African National Editors’ Forum welcome the“ resounding victory for media freedom” in the Moti-amaBhungane judgment

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 STATEMENT FOR IMMEDIATE RELEASE

3 July 2023

Campaign for Freedom of Expression, Media Monitoring Africa, and the South African National Editors’ Forum welcome the“ resounding victory for media freedom” in the Moti-amaBhungane judgment

The South Gauteng High Court has thrown out the attempt by the Moti Group to silence the journalists at amaBhungane and reaffirmed the public interest value of such investigative reporting. Deputy Judge President Ronald Sutherland ruled that the amaBhungane journalists can continue publishing their series on the Moti Group and they do not have to return the leaked Moti documents or identify their source.

Sutherland was scathing of the decision to allow the original Moti order to be heard ex parte (in secret). He said it was “a most egregious abuse of the process of court … there is not a smidgeon of justification for it being brought ex parte”.

Sutherland also came out in favour of a journalist’s right to hold and use leaked information when it is in the public interest. He affirmed that pre-publication censorship could only be used in extreme cases and journalists should be allowed as a rule to protect their sources.

Moti was ordered to pay all costs for all three hearings that led to this judgment.

Anton Harber of the Campaign for Free Expression said: “The original order concerned us greatly as it seemed that the judge was abandoning the courts’ protection of free media, but this powerful ruling has reaffirmed our faith in the protection of our constitutional rights. This is a resounding victory for media freedom.

“Moti will have to defend himself in the public arena – and that is how it should be.”

Sbu Ngalwa, Sanef’s chairperson, said: “We welcome the judgement. It’s a great victory for media freedom. We’ve always maintained that journalism is not a crime. No one, no matter how powerful they think they are, should ever think that they can abuse our court system to block journalists from doing their jobs. Sanity has prevailed.”

William Bird, director of Media Monitoring Africa, said: “It’s a critical victory for media freedom and a significant slap down for a SLAPP suit with costs being awarded to the amici as well.  We hope the ruling also serves to dissuade similar efforts to silence journalists. There are legitimate fora for cases against media to be dealt with, and we hope these will be drawn on in future.”

Partners

Campaign for Freedom of Expression, Media Monitoring Africa and the South African National Editors Forum welcome the dismissal of Zuma’s case against Downer / Maughan

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June 7, 2023

Campaign for Freedom of Expression, Media Monitoring Africa and the South African National Editors Forum welcome the dismissal of Zuma’s case against Downer / Maughan

The judgment handed down today in the Pietermaritzburg High Court is an overwhelming win for media freedom and freedom of expression in South Africa!

The judge’s action in throwing out former President Jacob Zuma’s case against journalist Karyn Maughan is a victory for all of journalism, as it reinforces the right of reporters to be free to do their job of covering important court cases without hindrance or harassment. Zuma’s attack on a journalist  has been decisively slapped down. Maughan was collateral damage in Zuma’s “Stalingrad” strategy to delay his trial and deflect from the accusations against him – and Maughan should be commended for standing firm against this onslaught.

A few other interesting points emerge from the judgment. Firstly, how flimsy the accusations made by Zuma and his lawyers against Maughan were; secondly, how Zuma’s family and supporters have relentlessly trolled Maughan online; thirdly, that the judgment strengthens the argument that we have to guard against SLAPP (strategic lawsuit against public participation) cases.

We entered this case to argue that it should be considered a SLAPP case – one that is intended not to serve justice but to silence a journalist or critic, and we urged the court to protect against this. This judgment has done so. We welcome the specific clause [192], which states “If one accepts the submissions of Maughan relating to the relief she seeks in the application to interdicts the Respondent, then we agree with the first to third amici that the Respondent’s private prosecution of Maughan has all the elements of a SLAPP suit in that, it relates to her obligations as a journalist to report on matters in the public interest. It infringes on her right to freedom of expression, specifically, press freedom and the public’s right to receive such information. It has the effect of intimidating, harassing and silencing her as its ulterior motive and for reasons already mentioned in the judgment, the prosecution lacks prospects of success. If one accepts Maughan’s submissions, then she has demonstrated that the Respondent’s private prosecution has been instituted for the sole purpose of silencing her and not to vindicate a right”.  The clause also stands in clear alignment with the Special Rapporteur 2023 Joint declaration on SLAPP suits. 

The court didn’t just accept Maughan’s submissions it also awarded costs against Mr Zuma.

We also welcome the precedent-setting comments in the judgment that amici do not have to be completely neutral in their contributions.

As we move into our election period in the lead up to the 2024 National Elections, this judgment stands as a shining defence of media freedom and a warning for those who wish to silence and intimidate journalists and media.

For further information or comment, contact:

Media Freedom

SANEF Condemns Any Attempt by the Moti Group to Gag or Threaten the Work of amaBhungane

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02 June 2023

The South African National Editors’ Forum (SANEF) condemns the attempts being made by the Moti Group to stop the publication of more articles written by amaBhungane.

SANEF has over the years been vocal about any threats or intimidation against journalists, including by those who abuse court processes to avoid transparency and public accountability.

amaBhungane only learned of the court action by the Moti Group the judge had granted the order. The publication was not given any opportunity to be heard during this application.

SANEF is encouraged that legal representatives of amaBhungane will challenge the unreasonable, urgent ex parte court order, issued by the Johannesburg High Court.

We believe the Moti Group sought to unreasonably gag further publication of any stories about their business, regardless of the public interest in their matters.

SANEF will closely monitor this matter, which cannot be left unchallenged because of the implications it may have on the work journalists do. The accusation by the Moti Group, that the said papers were illegally obtained, cannot be left unchallenged.

To say the least, the interdiction to stop amaBhungane from publishing any story is not only unreasonable, but tramples on the right of journalists to do their work, and the public’s right to know.

The South African Constitution, among many rights it protects, recognises the upholding of freedom of expression and media freedom.

The media, which is not above the law, has always sought to publish news that is in the public interest, with due diligence being done before any publication.

This matter is of public interest and thus fair and accurate reportage on it must be protected and the rights of its authors, upheld without fear or favour.

Note to Editors:

The South African National Editors’ Forum (SANEF) is a non-profit organisation whose members are editors, senior journalists, and journalism trainers from all areas of South African media. We are committed to championing South Africa’s hard-won freedom of expression and promoting quality, ethics, and diversity in the South African media. We promote excellence in journalism through fighting for media freedom, writing policy submissions, research, and education and training programmes. SANEF is not a union.

For more information please contact:

  • Sbu Ngalwa – SANEF Chairperson (073) 404-1415
  • Nwabisa Makunga – SANEF Deputy Chairperson (082) 555-1972
  • Qaanitah Hunter – SANEF Secretary-General
  • Tshamano Makhadi – Treasurer-General (082) 223 0621
  • Makhudu Sefara – SANEF Media Freedom Chair (079) 177-2134
  • Katy Katopodis – Wellness & Safety Chair (082) 805-7022
  • Judy Sandison – SANEF KZN Convenor (082) 571-3334
  • Glenda Daniels – SANEF Gauteng Convenor (083) 229-9708
  • Rochelle De Kock – SANEF Eastern Cape Convenor (072) 969-8028
  • Reggy Moalusi – SANEF Executive Director (071) 682-3695
Cases

South African Journalist Sam Sole on Landmark Court Victory: “2008 Surveillance Was the Tip of the Iceberg”

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South Africa’s highest court, the Constitutional Court, handed down a landmark judgment on February 4 that not only protects journalists and their sources from surveillance abuse, but also upheld a lower court’s ruling that the insidious practice of the bulk interception of ordinary citizens’ data and communication is illegal.

The ruling, documented by CPJ, was the culmination of a four-year legal battle by top investigative journalist Sam Sole and the award-winning media outlet he co-manages, the amaBhungane Centre for Investigative Journalism.

Please click on the following link here the complete article:

 

For more information please contact:

  • Mahlatse Mahlase – SANEF Chairperson, (083) 399-2852
  • Katy Katopodis – SANEF Deputy Chairperson, (082) 805-7022
  • Moipone Malefane – SANEF Secretary-General (082) 772-5861
  • Mary Papayya – SANEF Media Freedom Chair (082) 379-4957
  • Sbu Ngalwa – SANEF Eastern Cape Convenor (073) 404-1415
  • Janet Heard – SANEF Western Cape Convenor (078) 041-9528
  • Hopewell Radebe – SANEF Gauteng Regional Convenor (083) 582-1734
  • Judy Sandison – SANEF KZN Convenor (082) 571-3334
  • Kate Skinner – SANEF Executive Director – (082) 926-6404

Socials

Twitter: @SAEditorsForum

Email: [email protected]

Website: SANEF

 

Cases

SANEF Disappointed in Ruling to Broadcast Zandile Gumede Case

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The South African National Editors’ Forum (SANEF) notes the ruling by Magistrate Dawn Soomaroo on our application for the broadcasting of the court case involving the matter of former eThekwini Mayor Zandile Gumede and 16 others.

We are disappointed that our application to have the proceedings of the case broadcast has been denied. Although not clearly stated, the application to record for purposes of radio also appears to have been denied. The Magistrate has not yet issued reasons for her ruling, but this will be requested by SANEF. SANEF believes that there is a clear basis for an appeal to the High Court based on this ruling.

To download Magistrate Dawn Soomaroo’s ruling click here

The media will only be permitted to do the following:

1.​ Six journalists can attend court, subject to SANEF providing a list of attendees to the court manager five days prior to each court date. This ruling was made because the court manager requested that all parties must let the court know beforehand who is going to be present to enable them to control access to the building and manage the situation for Covid-19 purposes;

2.​ Photos and video recordings can be taken inside the courtroom for 15 minutes before court, during any adjournment and at the end of proceedings each day.

No photographs or videos may be taken in the corridors outside the courtroom. In court, on Thursday 10 December 2020, the Magistrate expressed concern about the fact that there are sexual offences courts that take place on the same floor and she doesn’t want the media to inadvertently disclose the identities of the people involved in those proceedings.

The only other aspect of the request that has been granted is that an additional empty courtroom will be made available for members of the media to use when attending court. The application for an additional room was made in order to link a TV screen broadcasting the proceedings to help an extra number of journalists report from there since the seats inside the court are limited due to COVID-19 protocols. While this will now be of limited use without the TV screens, it will assist with the accommodation of journalists at court.

SANEF also notes that this ruling will only apply to the pre-trial proceedings that this magistrate will be presiding over and not to the trial itself. SANEF has been informed that once the trial begins, a new presiding officer will be appointed and that the case may even be moved to the High Court. This presents an opportunity for the media to once again apply for media access once the trial begins.

SANEF has received legal advice that this ruling, unfortunately, deviates from the principles set out in the leading Supreme Court of Appeal case on the matter which endorses the approach that broadcasting should generally be permitted subject to reasonable restrictions unless there is a real risk that substantial prejudice will occur.

We also believe that Magistrate Soomaroo’s ruling does not accord with the approach stated in the Guidelines on Media Access to Magistrate Court Proceedings issued by the Magistrates Commission earlier this year which state that courts should not restrict the nature and scope of broadcasting unless prejudice is demonstrable and there is a real risk that such prejudice will occur.

In essence, what the Magistrate has done is ban all video coverage while court is in session – even broadcasts of counsel making an argument and of her handing down rulings, which the Guideline states should be allowed unless the presiding officer rules otherwise.

Meanwhile, SANEF will endeavour to persuade the Magistrates Commission to implement training for all Magistrates around the Guidelines to ensure that the principle of open justice is upheld without the need to resort to lengthy and costly litigation.

Note to Editors: The South African National Editors’ Forum (SANEF) is a non-profit organisation whose members are editors, senior journalists and journalism trainers from all areas of the South African media. We are committed to championing South Africa’s hard-won freedom of expression and promoting quality, ethics and diversity in the South African media. We promote excellence in journalism through fighting for media freedom, writing policy submissions, research and education and training programmes. SANEF is not a union.

For more information please contact:

  • Sbu Ngalwa – SANEF Chairperson (073) 404-1415
  • Adriaan Basson – SANEF Deputy Chairperson (082) 562-2113
  • Mahlatse Mahlase – Secretary General (083) 399-2852
  • Nwabisa Makunga – Treasurer (082) 555-1972
  • Mary Papayya – SANEF Media Freedom Chair (082) 379-4957
  • Asanda Ngoasheng – Western Cape Convenor – 082 610 9374
  • Judy Sandison – SANEF KZN Convenor (082) 571-3334
  • Katy Katopodis – SANEF Gauteng Convenor (082) 805-7022
  • Chiara Carter – SANEF Eastern Cape Convenor (082) 659-9162
  • Kate Skinner – SANEF Executive Director – (082) 926-6404

 

Cases

Advocacy Release: Concourt to hear amaBhungane’s Rica challenge

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On Tuesday 25 February, the Constitutional Court will hear argument in amaBhungane’s landmark challenge against South Africa’s surveillance law, Rica.

The Constitutional Court must decide whether to uphold the high court’s September 2019 ruling that found in amaBhungane’s favour and declared several provisions of Rica to be unconstitutional.

As we unpack below, the high court’s ruling was a major victory against the abuse of the state’s surveillance capacity – Judge Roland Sutherland ordered several immediate changes to how Rica surveillance operations must be conducted going forward, and flagged a number of key flaws that must be fixed through a parliamentary process in the next two years.

The Constitutional Court will also hear counter-argument from two entities whose spying powers were curbed by the high court’s ruling: the police and the State Security Agency (SSA).

The high court case
AmaBhungane launched its challenge to Rica – the Regulation of Interception of Communications and Provision of Communication Related Information Act – in 2017 after learning that state security operatives had listened in on the phone communication of Sam Sole, one of our managing partners.

This followed a wider pattern of evidence that state spies routinely snoop on journalists, among many others. The information we secured about Sam’s spying served as scaffolding for a long overdue challenge to the reckless spying that Rica had enabled.

The September 2019 ruling by Judge Sutherland (available here) was a victory for journalists’ right to communicate securely with their sources, and against the politicised abuse of the state’s surveillance capacity in general.

  • (Read Sam’s analysis of the judgment here.)

Most notably, Sutherland struck down Rica’s system of total secrecy that prohibits people whose communications have been targeted for surveillance from ever being notified of it, even long after an investigation has been concluded.

The high court’s ruling would require authorities to notify those they have spied on within 90 days, unless a judge can be persuaded to postpone such notification to protect an ongoing investigation.

Secondly, he declared the SSA’s “bulk interception” activities to be unlawful and invalid. This would end the agency’s practice – which it finally acknowledged in this court case – of tapping into communication networks to collect vast amounts of sensitive digital data from untold numbers of unsuspecting people.

As the high court found, this untargeted “dragnet” surveillance has occurred with no legal mandate.

Judge Sutherland’s other orders included boosting the independence of the judge who oversees Rica interceptions, by providing that they should be appointed by the chief justice instead of the executive.

Among the flaws he left to Parliament to fix was the need to add more checks and balances in the process of deciding whether a person should be targeted for interception, and to add safeguards for how officials should handle, store or dispose of any sensitive communication that has been intercepted.

Now to the Constitutional Court
All this comes before the Constitutional Court on Tuesday. The two agencies most accused of abusing their surveillance powers – the police and the SSA – are opposing the high court’s ruling: in the police’s case, they wish only to overturn the ruling on surveillance notification; the SSA has asked the Constitutional Court to overturn the entire thing.

In the high court, the police argued that post-surveillance notification would be fatal to any crime-fighting efforts – even though such notification is a feature of many countries’ surveillance laws, and would by definition only apply when an investigation is concluded or at a non-sensitive stage.

Having failed to persuade the high court, the police minister has doubled down for the constitutional court, declaring in his appeal that “the very purpose of the RICA [combatting crime] can only be achieved if there is a total ban on notification”.

The SSA on the other hand has sought to convince the Constitutional Court to throw out the entire judgment. In a woefully late filing, the SSA declares that every aspect of the high court’s findings are deficient and should be set aside.

Friends of the court
The court will also hear from parties who have been admitted as friends of the court to make independent submissions. The first submission is made jointly by the Right2Know Campaign and Privacy International, and the second is by Media Monitoring Africa.

What is at stake
We do not deny that the state may at times be required to intercept a person’s communication. However, what we have seen in South Africa – mirrored across the globe – is that this power has routinely been abused to target people whose work threatens the interests of corrupt individuals and institutions.

In South Africa, we believe the Rica law has helped enable such abuses. The lack of safeguards in Rica have helped corruption and politicisation to thrive in our security agencies, and have turned the state’s security powers against journalists, whistleblowers, and other perceived troublemakers.

Our hearing on 25 February marks the next step in a long-overdue process to roll back the state’s unchecked powers to spy, and the corrosive effect this has on the constitutional right to privacy, and freedom of expression.

  • Download our court papers, as well as those of the other parties, here.
Cases

SANEF Congratulates Professor Anton Harber and Thandeka Gqubule Mbeki For Winning the Defamation Case Against The EFF

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The South African National Editors’ Forum (SANEF) congratulates Prof. Anton Harber and Thandeka Gqubule-Mbeki for their well-deserved victory in their long battle for justice. The pair today won the defamation case against the Economic Freedom Fighters (EFF).

Judge LT Modiba of the Gauteng Local Division High Court in Johannesburg ordered the EFF and its National Spokesperson Dr Mbuyiseni Ndlonzi to apologise for calling them spies, and also ordered that they pay them each R40 000 in damages.

SANEF has always held the view that labelling of journalists as members of ‘Stratcom’ – which was a notorious propaganda and disinformation unit of the security police unit of the Apartheid era – was dangerous and demeaning.

The EFF peddled and perpetuated these statements on social media almost two years ago following the publication of a documentary on the Huffington Post in which the late Winnie Madikizela Mandela makes these unsubstantiated claims.

The Huffington Post subsequently apologised.

Today the court also interdicted the EFF from making such claims about Harber and Gqubule-Mbeki in future, with the judge further declaring that the allegations made about Harber and Gqubule-Mbeki in the EFF statements and twitter accounts are defamatory and false.

“It is declared that the respondents’ publication of the statements was and continues to be unlawful. The respondents are ordered to remove the statements within 24 hours of the granting of this order from all their media platforms including the first respondents’ (EFF) website and the second respondents’ (Ndlozi) Twitter account,” Judge Modiba stated.

“The respondents are ordered, within 24 hours of the granting of this order, to publish a notice on all their media platforms, on which the statements had been published, in which they unconditionally retract and apologise for the allegations made about the applicants in the statements.”

“The respondents are interdicted from publishing any statement that says or implies that the applicants worked for or collaborated with the apartheid government,” Judge Modiba concluded.

SANEF believes that journalists should remain vigilant and continue fact-checking when dealing with unsubstantiated and untested claims.

SANEF also wishes to remind all political formations and interest groups to use the services of the Press Ombuds’ office and the Press Council when feeling aggrieved or unfairly treated by the press. It is better to have an incorrect report properly investigated and sanctions imposed than resorting to social media attacks on journalists and creating a toxic atmosphere of conspiracy-mongering and hatemongering towards the journalists and media in general.

Note for Editors: The South African National Editors’ Forum (SANEF) is a non-profit organisation whose members are editors, senior journalists and journalism trainers from all areas of the South African media. We are committed to championing South Africa’s hard-won freedom of expression and promoting quality, ethics and diversity in the South African media. We promote excellence in journalism through fighting for media freedom, writing policy submissions, research, education and training programmes.

For more information contact:

  • Katy Katopodis – Acting SANEF Chairperson, (082) 805-7022
  • Mary Papayya – Acting SANEF Media Freedom Chair (082) 379-4957
  • Judy Sandison – SANEF KZN Convenor 0825713334
  • Sbu Ngalwa – SANEF Eastern Cape Convenor (073) 404-1415
  • Janet Heard – SANEF Western Cape SANEF Convenor, 0780419528
  • Hopewell Radebe – SANEF Acting Gauteng Regional Convenor 083 582 1734
  • Kate Skinner – SANEF Executive Director – 082 926 6404

Statement on court victory: Thandeka Gqubule-Mbeki and Anton Harber vs EFF and others.

24 January 2020

Judge LT Modiba of the South Gauteng High Court this morning ordered the EFF and its leaders to withdraw their statements about the two of us, apologise within 24 hours and pay damages. She declared the allegations linking us to Stratcom as untrue and unlawful.

The judgement is a victory for truth. It will be welcomed by all of those who want to see public figures held accountable for making unsubstantiated and defamatory attacks on journalists and other.

These statements were not just an attack on us as individuals, but an onslaught on our capacity as journalists to do our work unhindered. The ruling is a victory for journalism and journalists.

Thandeka Gqubule-Mbeki

Anton Harber

Cases

SANEF Drops Equality Court Appeal And Seeks Other Recourses To Tackle Harassment Of Journalists

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The South African National Editors Forum (SANEF) has decided on 06 November 2019 to not appeal the Equality Court’s judgment in the complaint against the Economic Freedom Fighters (EFF) and Mr Julius Malema.

After careful consideration and legal advice, SANEF accepts, with the benefit of hindsight, that the Equality Court was not the appropriate forum to air our concerns. We take note of the judgment that hate speech is very explicitly targeted against a person’s inherent features as prescribed by the Constitution.

Although SANEF finds certain aspects of the judgment problematic, we are pleased that the court has acknowledged the importance of protecting journalists. Judge Molefe stated that “it is thus incumbent on all organs of State, including the judiciary, to not only have regard to, but to take positive steps to protect the safety and independence of journalists”. We trust that state institutions, including the SAPS, and legislators have taken note of this.

SANEF maintains that the intimidation and harassment of journalists, in person or on social media, is unlawful. We encourage journalists targeted with threats and abuse that in any way endangers them or prohibits them from effectively doing their jobs to come to us.

For SANEF, this is not the end of the road in protecting journalists against hateful comments and intimidation. We intend to pursue all appropriate remedies available in terms of the law, including interdictory relief and criminal recourse. We will also continue to engage with political parties in our pursuit to agree on code for engagement between journalists and politicians in a Constitutional democracy.

For more information please contact:

  • Adriaan Basson – SANEF Treasurer – 082 562 2113
  • Moipone Malefane – SANEF Secretary-General 082 772 5861
  • Mary Papayya – SANEF Media Freedom, Acting Chair – 082 379 4957
  • Judy Sandison – SANEF KwaZulu Natal Regional Convenor 082 571-3334
  • Hopewell Radebe – SANEF Acting Gauteng Regional Convenor 083 582 1734
  • Kate Skinner – SANEF Executive Director – 082 926 6404
Cases

Equality Court Judgment Of SANEF vs EFF Case

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The South African National Editors’ Forum has noted on 24th October 2019 the judgment by Judge Daisy Molefe of the Equality Court, dismissing SANEF’s case that harmful and hateful statements made by EFF leader Julius Malema, his colleagues and supporters against journalists constitute hate speech and harassment.

We will be studying the content thereof before we make further decisions about the continuation of the legal process. You can download the Judgement here:

SANEF is disappointed that the ruling was not in our favour, but maintain we were fully justified to have approached the courts after numerous instances of threats and intimidation were issued by the EFF against journalists. We also wish to emphasize that the recourse to the courts was a last resort after efforts to meet the EFF failed.

We note that Judge Molefe states in her judgment: “It is incumbent on all organs of state, including the judiciary, to not only have regard to but to take positive steps to protect the safety and independence of journalists.”

We will continue our attempts to engage the EFF and all other political parties on mutually acceptable rules of engagement. We recently hosted a symposium on this topic. The EFF was invited but didn’t attend the event.

SANEF is also working on a memorandum of understanding between the media and political parties to SANEF welcomes the criticism of journalists and the titles they work for by the EFF and any other member of the public, but again we call on these critics to engage the media in a way that does not amount to intimidating or threaten the lives of reporters.

For more information please contact:

  • Kate Skinner – SANEF Executive Director 082 926 6404
  • Judy Sandison – SANEF Media Freedom Committee 082 571-3334
  • Sbu Ngalwa – SANEF Media Freedom 073 404 1415
  • Janet Heard – SANEF Western Cape SANEF Convenor, 0780419528

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