The Mail & Guardian was interdicted from publishing a major story on Thursday when Maanda Manyatshe, the boss of cellphone giant MTN South Africa, applied for an interim interdict in the Johannesburg High Court to prevent its publication.
After a request from Manyatshe’s lawyers, Judge Mohammed Jajbhay granted the applicants more time to respond to the M&G‘s answering affidavit.
This put the matter beyond the paper’s print deadline meaning that the story could not be published.
Judge Jajbhay then granted an interim order prohibiting the M&G from ”publishing, disclosing, or in any way disseminating information or documentation in any manner relating or pertaining to or arising from” a set of questions that the M&G had earlier sent Manyatshe.
Jajbhay stressed that he was not making his ruling on the merits of the matter, and that the M&G might be permitted to publish the story once the application had been fully ”ventilated” in court.
He ruled, however, that the rigours of court process demanded that Manyatshe and his legal team be given more time to respond to the papers that the M&G had filed in answer to the original application. The M&G had annexed a lever arch file of supporting material.
Manyatshe was represented by attorney Barry Aaron, who previously secured an interim interdict for oil company Imvume during one phase of the M&G‘s major Oilgate exposé last year.
Manyatshe applied for the court order in his personal capacity, and not as MTN boss. Manyatshe, who left the South African Post Office in October 2004, to take up his post at MTN, was widely credited with helping to turn around the fortunes of the parastatal, bringing it to profitability for the first time.
He was succeeded in June 2005 by Khutso Mampeule. After receiving questions on the matter, Aaron directed a letter to M&G associate deputy editor Nic Dawes demanding an undertaking that the paper not publish the story, failing which he would seek an urgent interim interdict.
The M&G declined to give such an undertaking and took legal advice on opposing the application on Thursday morning. The paper gerenally regards the application of pre-publication restraint as a significant leash on press freedom.
The matter was set down to be argued before Judge Jajbhay at 2pm on Thursday, but was postponed by an hour for the M&G to complete an affidavit in reply to the application delivered by Aaron at just after 10am on Thursday.
Reacting to the application, the Freedom of Expression Institute’s executive director, Jane Duncan, said she was ”very disturbed to hear that yet another urgent interdict is being sought against the media, particularly the M&G”.
”Powerful institutions in South Africa have clearly learnt that it is extremely easy to get interdicts against the media in the wake of the interdicts granted against the M&G in the Oilgate matter and various Sunday newspapers to stop them from publishing the Danish cartoons before they had even decided to do so.”
Duncan said interdicts had become too easy to obtain and that the urgent nature of the matters meant that they could often not be aired properly until the return date.
”It seems that more and more judges are making the assumption that the applicants in these matters must have a case, and tend to look favourably on the applications at the expense of the freedom of expression rights of South Africans.”
Duncan said newspapers needed to make editorial decisions to publish when news was still breaking.
”For judges to usurp the editorial freedom of editors to decide is not acceptable. Editors should make editorial decisions, not judges.”
She added that she hoped that the judge hearing the M&G case ”will not follow what has become a firmly established trend in South African courts”.
M&G editor Ferial Haffajee commented: ”This is the third pre-publication interdict granted against the media this year. This is becoming a very disturbing trend which undermines press freedom.
”After this afternoon’s interdict, it is clear that an indaba between the judiciary and the media is necessary. Such a meeting would thrash out mutual areas of concern, like the time required for adequate right to reply, as well as the implications of such interdicts on the ability of newspapers to undertake investigative journalism.â€