Johannesburg attorney Barry Aaron, it might be said, is the perfect gentleman. He doesn’t kill journalists.
Reporters without Borders records that, worldwide, 51 journalists have been slain in the course of their duties this year. If another three are dead by December 31, it will be the bloodiest year in a decade.
Africa, mercifully, represents only one-tenth of the fatalities. But that is where the tolerance ends. Our continent has imprisoned 26 journalists this year — one in four worldwide.
Aaron has not locked us up yet, but it may be one outcome of the campaign he has conducted on behalf of his client, Oilgate company Imvume Management, against us and other media. Though his campaign is, to our knowledge, perfectly legal, it does not relieve us of the impression that he is out to intimidate.
From his monumental office overlooking Nelson Mandela Square in Sandton (a place where the walls would look bare were it not for prominent photographic evidence of his role as trustee of the Thabo Mbeki Crossroads Education Fund), Aaron sends our lawyers faxes (six a day is his record), issues threats and summonses, and prepares for litigation with inexhaustible prolificacy.
Intimidation has its advantages. Were it not for the defamation claims that the African National Congress and Imvume lodged against the Mail & Guardian when we first exposed the very close relationship between the ruling party and the oil company, in February last year, Oilgate might have been still-born.
A defamation suit is like a red rag to a journalist who believes he or she is right. Efforts are redoubled. We found proof that Imvume had channelled R11-million of public money to the ANC before last year’s elections.
Another advantage is more specific to this case: Aaron is entertaining. We have an agreement with Imvume that we will seek comment by noon on a Wednesday if we intend to publish an Oilgate follow-up that week.
On weeks that we don’t have a story, and therefore no questions, Aaron sends this missive to our lawyers: “12h00 has come and gone and we have received no communication from your client …” I suspect our lawyers set their clocks by that fax.
Recently he sent this missive: “On instructions from our clients, we usually respond to the communications addressed by your clients to us … What also then usually happens is that your client publishes selectively from the response.”
Because of this, he said, we were unlikely to get replies in future. He has a way with words and we will miss them.
But legal intimidation has a downside. While it would be arrogant to compare our plight with that of our colleagues who are shot, kidnapped or tortured, the constant legal battles constitute a real threat to our ability to get the story out.
Here’s a brief legal history of Oilgate:
- After we published our first major story in February last year, Imvume filed a R1-million defamation suit. The ANC, separately, demanded R3-million. (Imvume also sued the Sunday Times and Cape Argus for similar articles.)
- In March this year we published our scoop on the R11-million Imvume had channelled to the ANC. When we wanted to publish a follow-up story on payments to one Cabinet minister’s brother and towards another’s home improvements, Imvume obtained a High Court order gagging us
.
- When our gagged information leaked via Parliament anyway, Aaron signalled that his client was ready to remove the gag. Wary of the pending defamation hearing, Imvume offered to withdraw that complaint too.
In the event, Imvume withdrew both matters, but we had to agree to pay our own legal costs. We also agreed on practicalities — we would pose our questions early and they would warn us of new gag attempts in good time. Our right to publish was vindicated, but we had been hit in the pocket and lost some manoeuvrability.
- The ANC defamation suit, however, stayed on the books. Pleadings closed in June last year, but the party’s lawyers have not yet applied for a court date. As was our right, we asked the ANC to define the case against us properly. The party refused.
Keen to bring the matter to a head as we were wasting time preparing to meet very vague charges, we obtained a court order for the ANC to provide proper further particulars. Rather than comply, the party applied for leave to appeal. That application was turned down a week ago, but we are still waiting. Two High Court sessions and great expense later, we still don’t know what case we must meet and when.
- In July, Imvume sought a court order that we disclose whether we had passed on any of its banking information (among other things, we obtained bank statements in the course of our research) to third parties and, if so, to whom. This application is pending.
- In August, Imvume filed a further application — this time wanting an order forcing us to reveal our sources for their banking information. This may be heard as early as next month and may be an epic battle. Both sides have hired top legal guns. Four media representative organisations have applied to join as “friends of the court” in support of the principle that journalists must protect their sources.
We cannot reveal our sources. If we lose, we appeal. If we lose again, we turn to the Constitutional Court. If we lose there, we may go to jail. That is a huge amount of time, money and risk expended simply to defend our right to have researched and published the information that R11-million of public money went to the ANC. No one has seriously disputed our facts, but we are paying the price for daring to publish.
- Finally, there is the criminal investigation against us, conducted from police headquarters with the support of a police intelligence front company. Again, this relates to the Imvume banking information we had obtained. Although Aaron denied he was involved in pressing the charges, he acknowledged that his clients were.
The criminal investigation has, so far, resulted in a police subpoena being served on our online partners, M-Web, to hand over documents. Another battle over principle was averted only because M-Web had nothing to show.
In 20 months, hardly a week has passed in which we and our lawyers have not had to devote time to these threats. It was time that could have been spent pursuing Oilgate and other stories.
Our legal bill is close to R1million already; a significant blow to a newspaper that has only recently turned the corner financially.
Were it not for the support the M&G editorial team has received from our proprietor, from other media and from civil society at large, Aaron and his kind might have succeeded in their attempts to shut us up.