/ 26 May 2005

Oilgate: We’ve been gagged

The Johannesburg High Court interdicted the M&G from running a follow-up to its report that oil company Imvume paid millions to the ANC.

The Johannesburg High Court interdicted the Mail & Guardian on Thursday night from running a follow-up to its report last week that oil company Imvume paid R11-million of taxpayer's money to the African National Congress.

Judgement in favour of Imvume was handed down at 9.15pm, forcing the paper to stop the presses and rework pages. The result is that the M&G will hit the streets only late on Friday.

This is the first time since the apartheid state's banning of the M&G under emergency regulations in the late 1980s that the paper has been muzzled. It is the first time since the mid-Eighties that the newspaper once again features blacked-out text to illustrate that it has effectively been banned, as our counsel argued on Thursday evening.

The story the M&G planned to publish was a sequel to last week's "Oilgate" exposé, which revealed that Imvume Management, an oil company closely linked to the African National Congress, siphoned money from the parastatal PetroSA to the ANC before last year's election. The upshot was that PetroSA eventually used public money to duplicate payment, this time to Swiss-based oil supplier Glencore.

The story has already had major fallout, with opposition parties calling for a commission of inquiry and referring our disclosures to Parliament's minerals and energy committee for investigation.

This week's story would have provided further information about high-profile individuals who benefited from the Imvume deal, which we believe is unequivocally in the public interest.

Judge Vas Soni took a different view. He ruled that Imvume, and its boss Sandi Majali's right to privacy, dignity and reputation, trumped both freedom of expression and the public's right to know about the conduct of their elected government.

Protecting free speech, he said, was "cold comfort to someone whose privacy has been invaded and whose reputation is in tatters, where there is an opportunity to stop [it] … The harm to reputation cannot always be restored, especially where a public figure is involved."

The M&G argued that the legality of the sourcing of the information was irrelevant in determining the story's public interest. The judge found that journalists "should not publish from a tainted source. It will allow journalists to taint society as a whole."

The M&G is considering its legal options. We will also go on trying to tell South Africans what we believe they need, and have a right, to know. While the judge ruled that the M&G "had not acted as responsibly as the Constitution demands", we differ fundamentally and believe that we have acted in the interests of a robust free press and within the Constitution's stated right of freedom of expression.

To quote Judge Soni: "In a democracy as young as ours, it is essential there is vigorous and robust debate about clean government."

Imvume's advocate, Nazeer Cassim, opened the hearing by arguing that the information on which the article was based had been obtained unlawfully.

"In principle, once you have obtained information unlawfully, you cannot use it unless there is compelling circumstances," he said. "It is an intrusion of privacy."

Cassim referred to the case of the Financial Mail v Sage where a recording of a board meeting had been illegally slipped to a journalist, who later used it.

He said there was evidence in last week's article suggesting that the newspaper had obtained its information illegally.

Cassim said Imvume's lawyers had written to the newspaper on May 23 demanding that the information not be used.

On May 25 the M&G sent a draft of the story to Imvume for comment, leaving little time for Imvume to respond before Thursday's noon deadline for printing.

Advocate John Campbell, for the M&G, argued that the information

in the article had been confirmed by another source implicated in the story. It was therefore not only a matter of the company's right to privacy.

"The information does not come from one side, and it is in the public's interest as it involves public figures," he said.

"Withdrawing the article would have catastrophic effects. The printing process is under way and some newspapers are in trucks already."

During the hearing, the article was studied in great detail, but in his ruling, Soni ordered the journalists attending not to reveal any of the allegations in it — or face prosecution.

The newspaper chose not to reveal how it had obtained the information.

The issue of the article being defamatory to the company was strongly argued by counsel for both sides.

"In a democratic society where there is a free flow of information from and about government this article has great public interest," said Campbell.

At the end the decision came down to whether the article's public interest outweighed the questionable ways by which the information may have been obtained.

Soni began his judgement at about 8pm, forcing the newspaper to start the process of pulling back copies and stopping the printing process.

Soni found that the constitutional rights to privacy and dignity of the company would be irreversibly damaged, and that the newspaper should have behaved better by giving Imvume more time to respond.

Soni also found that the article was not of overwhelming public interest, and would be potential defamatory. He added that if he knew where the information came from his decision may have been easier.

"The media cannot elevate itself to be above the law," he said.

"I'm not satisfied that the respondents [M&G] acted as responsibly as the Constitution requires them to. Their conduct should be condemned."

Soni ordered the newspaper to stop the article from being distributed and to pay the costs of the application.

Reacting to the ruling, editor Ferial Haffajee said the right to privacy had defeated the freedom of speech.

"We've been gagged," she said.

"Our biggest concern is press freedom but we will respect the court's [ruling]." – M&G reporter, Sapa