It is hard to understand on what basis a judge could have granted an order in favour of the Moti Group prohibiting news organisation amaBhungane from publishing more articles based on documents apparently leaked by a former employee, Gauteng Deputy Judge President Ronald Sutherland said yesterday.

As previously reported, amaBhungane is attempting to set aside the Moti Group’s gag order against its work. This case has major implications for investigative journalism in SA, as well as for whistle-blowers.

amaBhungane published a series of articles on Zunaid Moti and the Moti Group that revealed Moti’s efforts to ingratiate himself with Zimbabwe’s political elites, and exposed suspicious financial flows via the Moti Group’s operations in Zimbabwe.

In addition, it flagged a secret loan to an Investec employee tasked with limiting the bank’s exposure to the Moti Group’s ballooning debt.

Moti and his group are using an aggressive civil legal strategy and threats that the journalists may be pursued criminally in SA and Zimbabwe.

Sutherland asked Vincent Maleka SC, for the Moti Group, what was said to Judge John Holland-Muter when he heard an urgent application by the company on 1 June to persuade him that the relief sought should be granted despite case law indicating otherwise.

The Mail & Guardian reports that the High Court order comprised a final interdict giving amaBhungane 48 hours to return all documents to the Moti Group and an interim interdict barring it from reporting on information they contained.

AmaBhungane filed an application for reconsideration of the order and, on 3 June, the court amended it to the effect that the news group did not have to hand over the documents pending a full hearing of the dispute between it and the Moti Group.

The gagging order was not lifted, although like Sutherland, Judge Solly van Nieuwenhuizen expressed surprise at the court’s decision.

The M&G notes that Sutherland was hearing an application by amaBhungane to completely set aside the order.

‘I’m very curious to know what the judge in the urgent court was told. I have seen the heads and … I presume that that is not all that was said to the judge,’ Sutherland said.

‘Given the fact that it was an ex parte application, I would like to know what was said to the judge to persuade him that the various cases dead in point against the relief sought were distinguishable in his view.

‘How on earth did he manage to decide that it was appropriate to grant this relief ex parte if he had applied his mind to those disclosures, which should ethically have been made available to him. How did that happen?’

Maleka replied that he was not present in court for the urgent application.

Full Mail & Guardian report