Two very different cases in South Africa this week have both confirmed the country’s position as a bastion of the free press, and conversely also shown how the media is under threat.
In the latter case, investigative news website amaBunghane was slapped with a gag order after an influential businessman went to court alleging leaked documents — which amaBunghane had used in reporting critical of his company — had been stolen.
AmaBhungane was ordered by a judge to return the documents and cease any further reporting on the company, Moti Group – which is alleged to have been involved in wrongdoing and then orchestrating a PR blitz to try and cover it up. The company denies the charges.
When amaBhungane was informed of the judge’s order, which had been heard in secret, the media group sought an urgent reconsideration, and a second judge decided they would not be forced to hand over the leaked documents. The second judge expressed surprise and consternation at the first judge’s decision.
However, the journalists are still barred from further reporting on the Moti group until the case is heard in court.
“Were this order to stand, it would set a dangerous precedent. … Such an order undoubtedly has a chilling effect, especially on investigative journalism,” Sam Sole, a journalist with amaBhungane, told VOA.
Angela Quintal, head of the Committee to Protect Journalists’ Africa Program, echoed his concerns.
“We hope that when the matter is fully ventilated in open court, investigative journalism in the public interest and the protection of confidential sources that are key to exposing massive, alleged corruption in South Africa and elsewhere will be vindicated and not eroded,” Quintal said.
“Not to do so would mean any party can stop investigative journalists from exposing corruption or any other matter of public interest by claiming that the information relied upon is stolen, endangering the lives of whistleblowers or confidential sources by forcing disclosure,” she added.
Investigations essential to democracy
From being one of the countries with the most censored press during the apartheid regime, the advent of democracy in 1994 saw South Africa – which now has one of the world’s most liberal constitutions – become one of the globe’s best places for journalists to work.
Reporters Without Borders’ 2023 Press Freedom Index ranked South Africa as the 25th most free country for press in the world, out of 180 countries. It beat the U.S., which ranked 45th, as well as the U.K.
South African journalists work to expose wrongdoing with strong investigative units at outlets like amaBhungane, Daily Maverick and elsewhere, informing the public about the numerous corruption scandals in government – especially under former President Jacob Zuma.
Without the digging by the media, the influence peddling and assault on state institutions during Zuma’s tenure that became known in South Africa as “State Capture,” might never have come to light. Zuma is currently on trial in a separate corruption case.
A lot of that reporting relied on leaks and whistleblowers, which is why the Moti Group’s gag order poses such a threat, according to independent experts.
“The original judge set a very worrying precedent – of the sort we have not seen since the apartheid days,” Anton Harber, professor of journalism at the University of Witwatersrand in Johannesburg, told VOA.
“If you label leaks like this as stolen goods then you would put an end to most journalism-based leaks,” he added, pointing to the Pentagon Papers and Edward Snowden’s revelations as examples.
Sole said the Moti Group’s allegation that the documents were stolen was unproven.
“And we maintain that the constitutional protection of free expression entails, inter alia, that regardless of the manner in which information has been obtained by a source, it is not unlawful for journalists to hold any information provided by a source, provided they do so in the public interest,” he added.
The South African National Editors’ Forum (SANEF) is supporting amaBhungane in the case, with executive director Reggy Moalusi telling VOA, “The gag is certainly a threat to press freedom as it seeks to stop any publication of the work that amaBhungane does, despite this being in the public interest.”
A court date to try to overturn the entire initial order is set for June 27.
The pen is mightier than … the president
While experts agree the amaBhungane case is concerning, there was also a positive story this week relating to journalism in South Africa.
One of the country’s most renowned legal reporters, Karyn Maughan, was victorious when a court prohibited former President Zuma from continuing his private prosecution of her.
Quintal said the throwing out of the case was “a legal smackdown for former South African President Jacob Zuma and a massive victory for Karyn Maughan.”
Zuma had tried to prosecute Maughan, who writes for online publication News24, along with state advocate Billy Downer, after Downer allegedly leaked the ex-president’s confidential medical records to the reporter. The court found that the information was already public.
Such so-called SLAPP lawsuits (strategic litigation against public participation) are often aimed at silencing whistleblowers or preventing media from reporting.
But the court found Zuma’s private prosecution amounted to an “abuse of power,” which stemmed from his “personal animosity” toward the reporter. The judges also said Maughan’s constitutional right to freedom of expression had been violated.
“I’m very grateful that I live and operate in a constitutional democracy that recognizes the right to freedom of the press, and that that right has been explicitly referenced in this judgment,” Maughan told VOA.
“I think it’s a victory for all the people living in South Africa, because ultimately if you want an effective democracy, you need a free press that’s able to operate without fear or favor, and that’s what this judgment recognizes,” she added.