For the second time in recent months, a high court judge has issued a broad gagging order on the media preventing them from reporting information already in their possession.
When, late last Friday, Johannesburg High Court Judge Francois Malan ordered environmental group Earthlife Africa not to disseminate documents about potential business risks involved in producing pebble-bed modular reactors (PBMRs), he moved the case into the realm of freedom of expression.
The order prevents Earthlife and the media from ”in any way disclosing, disseminating or in any way dealing with” the documents, and orders anybody in possession of the documents to return them to Eskom, developer of the PBMRs.
Jane Duncan of the Freedom of Expression Institute said this week the court and Eskom were effectively enforcing a ”form of prior restraint” on journalists. A similar tactic was used to gag the Mail & Guardian from reporting on documents exposing the Oilgate saga at the end of May this year.
Duncan said her institute was discussing a challenge to the order with Earthlife and the Open Democracy Advice Centre. Eskom Holdings obtained the ex parte order without giving the environmental NGO the chance to oppose it.
”Sources of information in possession of the media are sacrosanct. This order is part of an ongoing attack on sources, not just in South Africa, but internationally,” she said.
The 126 pages of documents were mistakenly given to Earthlife by an attorney acting for Eskom in June, as part of drawn-out litigation between the two parties. They included a business-risk assessment by accounting firm PricewaterhouseCoopers that indicated PBMRs were not ”competitive in South Africa”.
Earthlife has been trying to get Eskom to release minutes of its board meetings in which the financial feasibility of PBMRs has been discussed. The NGO argues that Eskom is a public entity and it is in the public interest to know this information.
Eskom counters that the information is confidential and the attorney who gave the documents to Earthlife breached attorney-client privilege.
Judge Malan set a return date of October 18 for a hearing into whether the documents should remain confidential.
Business Day, which reported some of the details in the documents before the order was granted, said they included a business-risk assessment in 2000 that indicated the business plan for the reactor was ”inherently risk intensive”. Cost estimates made then indicated ”an equal probability” of a loss of $122-million or a profit of $399-million, and the results were ”outside the benchmark parame-ters for projects of this nature”.
The papers also showed the uncertainty of other participants in the project, increasing the potential liability for Eskom.