Media watchdogs have reacted with shock to the gagging order placed on the Mail & Guardian newspaper by the Johannesburg High Court on Thursday night.
”We are deeply shocked by the judgement,” said the South African chapter of the Media Institute of Southern Africa and the Media Monitoring Project in a joint statement on Friday.
”This issue is of great public interest because of the improper use of taxpayers’ money and the judgment which has enabled legal censorship to be imposed on the newspaper.”
The watchdogs said the judgement is constitutionally questionable because it elevated a primary constitutional right, the right to privacy, above that of another primary constitutional right, that of press freedom.
”Both rights enjoy equal value under the Constitution, but the judge has chosen to afford a greater value to privacy,” they said. ”The right to privacy in this instance is questionable. Courts have ruled that public figures, given their roles, responsibilities and public accountability, have less claim to privacy than private individuals.”
According to the organisations, the Press Code states that ”in both news and comment, the press shall exercise exceptional care and consideration in matters involving the private lives of individuals, bearing in mind that any right to privacy may be overridden by a legitimate public interest”.
The organisations said: ”The judge’s strictures on the M&G because of its refusal to reveal its confidential sources take no account of the key journalistic ethic of maintaining the confidentiality of sources.
”It is well-known that journalists are prepared to go to jail for refusing to reveal confidential sources,” they said.
Others who responded critically to the judgement included the Democratic Alliance, the Freedom of Expression Institute, the South African National Editors’ Forum, the Inkatha Freedom Party Youth Brigade and the M&G‘s founding editor, Anton Harber.
‘Major blow’
Freedom of the media has suffered a major blow with the M&G being banned from printing their story, Harber and the DA’s Helen Zille said on Friday.
Harber said: ”The pre-publication censorship takes us back 15 years and is a very serious setback for media freedom.
”One understands people are entitled to their rights of privacy, but the story seems so important that I find it extraordinary that the courts should stop it coming out,” he said.
Zille agreed, and said that the public have a right to know how their taxes are being spent.
She said most revelations in the public interest come to light because of leaks and whistle-blowing, and not through official sources.
”It is crucial to the freedom of the press and the public’s access to information that revelations of alleged fraud and theft of taxpayers’ money are exposed.”
The DA does not agree that a company’s ”right to privacy” overrides this imperative.
”If the allegations are false, Imvume should take appropriate action against the M&G to protect its good name; if they are true, the public’s right to know is, in our view, overriding,” she said.
In most democratic countries, an allegation of this magnitude, if proved to be true, would bring down the government, Zille said.
‘Gagged’
On Friday, the M&G hit the streets with the word ”Gagged” in large red letters across its front page. Its latest revelations on the ”Oilgate” scandal — printed on page two — were totally blacked out.
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.
The gag order is the first time since the late 1980s that it has been muzzled.
On Thursday night, the Johannesburg High Court granted an interdict to stop the paper from running the report.
The newspaper’s entire print run of 45 000 had to be recalled and the costs associated with this are still being calculated.
Judge Vas Soni found Imvume’s constitutional right to privacy and the dignity of the company would be irreversibly damaged, and that the newspaper should have given Imvume more time to respond to the contents of the article.
The article was not of overwhelming public interest and was potentially defamatory, the judge said.
”The media cannot elevate itself to be above the law. I’m not satisfied that the respondents [the M&G] acted as responsibly as the Constitution requires them to. Their conduct should be condemned.”
ANC spokesperson Smuts Ngonyama said the party does not usually pass any judgement against judges, and ”in this case, would prefer not to comment”.
The South African National Editors’ Forum said there is no doubt that a report of taxpayers’ money going, even indirectly, to any political party is in the public interest.
”The granting of pre-publication restrictions constitutes a serious infringement of freedom of expression and would be justified only on the basis of compelling grounds being argued,” said the forum in a statement.
The Inkatha Freedom Party Youth Brigade called the interdict ”the greatest assault on freedom since 1994”.
‘We differ fundamentally’
On Friday, the M&G wrote in editorial comment on the matter: ”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.”’
In a twist, the reason for the police being present at the Media24 printers, who print the weekly newspaper, as the hearing was held on Thursday night is unclear.
Andre Smith, printing works manager at the printers in City Deep, confirmed police presence at the building, but said they were there because of an accident that took place on a railway metres away.
Malcolm Midgley, spokesperson for the Johannesburg emergency services, said they have no record of an accident in that area on Thursday night.
Police spokesperson Superintendent Chris Wilken said the police will not get involved in the gagging order as it is a government issue and not one for the police. He said he will investigate further.