M&G gagged over SABC report

The Mail & Guardian has been gagged. Again. In the early hours of Friday morning in the Pretoria High Court, Judge Lettie Molopa interdicted the M&G from publishing the details of an explosive final draft of an internal report into alleged corruption, abuse of power and intimidation at the South African Broadcasting Corporation (SABC).

The judge granted an interim interdict against the M&G preventing the newspaper from printing its front-page lead. The interdict was brought by Barry Aaron & Associates on behalf of his client in a matter related to the SABC.

Barry Aaron & Associates was objecting to the publication of an article related to an internal audit report, which contains a long list of damning allegations, including financial irregularity, intimidation and violation of the Public Finance Management Act and SABC internal policy.

It argued that its client had not seen the audit report, which the SABC had not given to him, and therefore its client did not have sufficient opportunity to respond meaningfully to the allegations as presented to him by the M&G. The firm also took issue with the amount of time the M&G gave its client to respond. The report landed at the M&G‘s door on Thursday morning, the day the newspaper publishes.

The M&G argued that it was not the newspaper’s responsibility to give Aaron’s client the full audit report, but rather present the essence of the allegations, which the M&G intended to publish in order to seek comment.

The M&G also argued that the newspaper took all reasonable steps to enable Aaron’s client to respond to the allegations. The M&G first contacted SABC spokesperson Kaizer Kganyago who, as per SABC policy, spoke on behalf of SABC employees. Kganyago then contacted Aaron’s client, who contacted the M&G.

However, rather than taking the opportunity to respond, Aaron’s client remained silent, and less than an hour before print deadline Aaron sent an SMS to the M&G saying he was taking legal action and warned the M&G that it “print and/or [distribute] at [its] peril”. He gave no indication of why the M&G should not publish and only served unsigned papers at 7.30pm on Thursday.

Balancing rights

In its argument, the M&G‘s legal representatives asked the judge to balance the rights to freedom of expression and dignity. Regarding the applicant’s allegation of irreparable harm, the M&G argued that Aaron’s client would have a full right of reply in next week’s publication and the right to institute further legal action for damages to vindicate his reputation.

They also argued the balance of convenience favoured the M&G, as an interdict would mean recalling and pulping thousands of newspapers that had already been printed and distributed.

The judge failed to respond to any of the arguments made by the M&G and instead focused on her belief that printing the story would destroy the reputation of Aaron’s client. She said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the M&G. The return date for the matter is July 25.

In the past 18 months, the M&G has faced six interdict attempts, three of them brought by the SABC. It has won four cases and was gagged twice.

“We accept the court’s decision, but remain steadfastly opposed to pre-publication censorship—which is emerging as a major threat to investigative journalism in South Africa. The one ray of hope is the suggestion in a number of recent judgements of growing judicial impatience with attempts to staunch the free flow of news,” said M&G editor Ferial Haffajee.

“We remain convinced that the SABC executive was given adequate time to respond within our tight deadlines yesterday [Thursday]. It is also worth noting that the SABC does not allow anybody other than spokesperson Kaizer Kganyago and group chief executive Dali Mpofu to comment to the media. The SABC was given questions by midday on Thursday; the executive was informed by his bosses shortly afterwards.”

She added: “The truth will out—and we hope to bring it to you in the next edition.”

The M&G apologises to readers for late deliveries of newspapers on Friday

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