/ 11 May 2023

AmaBhungane journalists versus Zunaid Moti and Paul O’Sullivan

Zunaid Moti
Zunaid Moti. File photo

Journalists Sam Sole, Micah Reddy and Dewald van Rensburg, of the amaBhungane Centre for Investigative Journalism, believe they are under threat of arrest because of an exposé they wrote implicating businessman Zunaid Moti in a mining deal with Zimbabwe’s president, Emmerson Mnangagwa.

Their attorney, Stephen May, says in letters to senior South African Police Service (SAPS) and National Prosecuting Authority (NPA) officials that: “I have been informed that a criminal complaint has now been laid against amaBhungane and one or more journalists by Zunaid Moti or another employee in his group of companies.”

May says his clients will cooperate with any investigation and will present themselves at court if summonsed.

He says any arrest would be “patently unlawful” and would infringe on their constitutional rights, including media freedom, and any case against them is weak.

The first letter, dated 5 May this year, is addressed to the station commander at Sandton SAPS, Gauteng provincial commissioner Lieutenant General Elias Mawela, national commissioner, Lieutenant General Fannie Masemola; and to NPA boss Shamila Batohi, NPA Gauteng head Andrew Chauke, and the Senior Public Prosecutor at Randburg court.

May says any charge against his clients is likely to be connected with the matter against Clinton van Niekerk, a former employee of the Moti Group who was arrested on charges of theft of information at Durban’s King Shaka Airport earlier this year as he was about to board an international flight.

He was held overnight and taken to Randburg magistrate’s court but he was released without charge after he obtained a court order from Acting Judge Warren Shapiro in the Durban High Court.

During that hearing, it was alleged that van Niekerk feared being taken to Sandton (and Randburg) because Moti, who was described as a dangerous man, had police connections there.

Van Niekerk is reportedly now in witness protection. A director of one of the Moti group of companies subsequently launched a court application in an attempt to overturn Shapiro’s order claiming it was a travesty of justice. That application remains part-heard.

In his letter, May says his clients had published several investigative news articles about Moti and his group of companies based on documents disclosed to them in the course of their work as journalists. He says Moti has claimed that the documents were provided by van Niekerk, and that van Niekerk had stolen the documents. Van Niekerk is also May’s client.

May said the journalists were not aware of the precise nature of the charges although it could be assumed that these arose from the same allegations as those against Van Niekerk.

“This letter is therefore written out of an abundance of caution … to bring facts and information to your attention which are material to any prospective decisions by SAPS or the NPA whether or not to arrest my clients and whether to enrol the matter at court.”

He said his clients would give every assistance required and would attend any court which they are legally requested to attend.

But an arrest was unnecessary – and would be disproportionate and implicate their rights to media freedom – and they could simply be summonsed to appear.

May said the stories published by amaBhungane indicated the possible involvement of Moti and his group of companies in several crimes including fraud, corruption, money laundering and racketeering in South Africa and abroad.

Moti had been given a right-to-reply but had delayed giving any answer. There had been no application to interdict the publication of the articles.

“My clients and I have every reason to believe that the recently laid criminal charges, if they exist, are merely an attempt to achieve a de facto gagging order by abusing criminal procedure. This would be tantamount to a strategic lawsuit against public participation (SLAPP) which the Constitutional Court has recently recognised as an illegitimate tactic designed to intimidate and undermine freedom of expression.”

He said the allegation that the publication of the information involved receiving “stolen property” was mere speculation.

“It is abundantly clear that any case against my clients is very weak,” May said, requesting that “we simply arrange that my clients be summonsed to come to court on a date that is mutually acceptable.”

On 9 May, in a further letter, May notes that neither SAPS nor the NPA has responded.

He says he infers from this that they do not view his clients as a risk to any ongoing investigation (if there is one), do not view them as flight risks and do not view the matter as urgent.

Based on this, any arrest would be “patently unlawful”.

Paul O’Sullivan

May says his clients had received email correspondence from Paul O’Sullivan, who has been acting in a “quasi representative capacity” for the Moti group, in which he had indicated that he knew that May was now representing the journalists “when this had not been disclosed to anyone except the recipients of my correspondence of 5 May 2023”.

May said this suggested that his letter had been sent to O’Sullivan who then used it to “intimidate, harass and defame my clients”.

“This correspondence indicates a blurring of the line between the state and complainant and calls into question who is, in fact, driving any intended arrest, detention and prosecution of my clients.”

In the correspondence, which was sent on 5 May to attorney Dario Milo (who also represents the journalists) O’Sullivan accuses them of being criminals masquerading as journalists, of using “stolen goods” and choosing to collude with “the criminal” (van Niekerk).

He says he is “thinking of his options” including getting the state to criminally charge them, “because there can be NO DOUBT whatsoever, that you were BOTH in possession of stolen property and KNEW it”.

“I also heard that you guys appointed the lawyer of the thief Stephen May, who was on record for the thief at the Randburg Court, to look after your backsides.

“Where am I going with this? Well, I did warn you that, if you want war, you’ll get it … You try to destroy my reputation and I’ll try to destroy yours – your move Sam.”

Approached by GroundUp for comment, O’Sullivan said he had not written the email on behalf of the Moti group but in his personal capacity.

He said he had been told by a well-informed source that May was now acting for Sole. “Amabhungane are not the only people in South Africa with well-placed ‘sources’ as they very well know.”

“The truth here is – Stephen May, in order to try and get some leverage for his criminal client, has teamed up with the same journalists that his criminal client supplied, either directly or indirectly, stolen documents to.”

“Thereafter, Stephen May has fabricated a story, in writing, falsely pretending that the arrest of the journalist recipients of the stolen files is imminent, in the hope that he can interfere in the decision that has already been taken, to arrest and prosecute his first client (van Niekerk).”

“Yet he cannot state the docket number, or who may arrest his new clients. He cannot state who is funding him either, the person who stole the documents, or those caught in possession of them. If that’s not obstructing justice, I don’t know what is,” O’Sullivan said.

Moti response

In a statement, Zunaid Moti, who recently resigned as CEO of the group, says any warrants of arrests for the journalists had nothing to do with him and he had “not yet laid any criminal complaints”.

“AmaBhungane’s latest allegations are completely false and the entire story is disingenuous, to say the least. AmaBhungane is clearly using cheap media tactics in an attempt to gain sympathy among other journalists and the public for its unprofessional and unethical behaviour in using stolen information,” he said.

He said the group had laid charges against van Niekerk after a digital forensic investigation confirmed that he was responsible for the theft of more than 4,000 confidential company documents.

“These documents were shared with various third parties, including The Sentry, an international investigative journalism organisation based in the United States of America. The Sentry then collaborated with amaBhungane to release a sensationalised article about Moti’s business dealings in Zimbabwe.”

Moti said the “stolen documents” had been used by amaBhungane “to pursue sensationalist accusations which they cannot prove”.

“This latest story about their fear of arrest or persecution is clearly a sign of a guilty conscience, as they have made themselves party to a crime. They cannot hide behind the fact that they are journalists – they knew that they were dealing with stolen documents, and that doing so has made them complicit. No one is above the law, not even journalists, and justice will eventually take its course.”

Neither the NPA nor SAPS responded to GroundUp’s requests for comment.

This article first appeared in GroundUp.