High court strikes down bid to gag Mail & Guardian

The Johannesburg high court has struck an application for a prior restraint of publication order against the Mail & Guardian off the urgent roll.

In a ruling handed down on Thursday, Justice Motsamai Makume ordered the applicants, United Kingdom-incorporated RE Capital Holdings and director Newman George Leech, to pay the newspaper’s costs.

The judge said the case involved some novel points of law which could not be given appropriate attention in the urgent court. Nor would the urgent court grant a final order prohibiting what is in the public interest.

Makume stressed that a free press was not protected purely for its own sake, but for that of the wider public.

RE Capital Holdings and Leech filed the application following an article published on 10 January which noted apparent links between them and Global & Local Financial Advisors, one of the companies that allegedly encouraged South Africans to invest in the BHI Trust suspected Ponzi scheme.

Global & Local representative Michael Haldane was a director of RE Capital Holdings until 30 October last year, when the trust collapsed. 

Leech is listed as a director of a Swiss-based company, Geneva Management Group, which appears to be linked to Global & Local, as evidenced in a share certificate the M&G filed in court.

The applicants asked the court to grant an order declaring the article to be false and defamatory, and directing the M&G to remove it from all its platforms and to publish an apology. 

It also asked the court to indefinitely interdict the newspaper from publishing “any future articles with substantially similar allegations regarding the applicants as the M&G article”. 

“It is clear that the applicants seek the final interdict to stop the respondents publishing what is in the public interest whether that is true or not. That is an issue not capable of being decided in the urgent court.”

The court agreed with the M&G’s argument on urgency that by the time the application was heard the article had already been in the public domain for four weeks and had moreover appeared on other platforms. 

The newspaper argued that the order sought would therefore not have the intended effect.

“The respondents have correctly indicated that the article also appeared in other publications to which they have no control and in any event those publications not having been joined, the harm has already been done and that the horse has bolted.”

Makume admitted Media Monitoring Africa (MMA) and the Campaign for Free Expression who applied to be joined as amici curiae.

The applicants failed to issue a rule 16A notice, which allows interested parties to apply to be admitted as amici curiae in cases with constitutional ramifications. 

The M&G’s attorneys filed notice on 2 February and the two organisations filed papers shortly after. The MMA noted that there seemed to be a sudden tendency to ask the courts for gagging orders as part of a legal strategy to intimidate the media, the same having happened to the AmaBhungane Centre for Investigative Journalism last year.

The MMA rejected the applicants’ suggestion that in this instance the order would not undermine the media’s ability to report in the public interest.

The court again agreed, saying the matter was clearly about asserting the constitutional right to press freedom. 

In closing Makume quoted from the supreme court of appeal decision in Midi Television Pty (Ltd) v Director of Public Prosecution (Western Cape), where the court said: “It is important to bear in mind that the constitutional provision of a free press is not one that is made for the special interests of the press.

“The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information which is possible only if there is a free press.”