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Preserving our democracy requires two crucial pillars: an independent judiciary and a free, vibrant press. Regrettably, these pillars collided recently, sounding a disconcerting alarm about the perils of judicial incompetence. In a disheartening turn of events, Judge John Holland-Müter of the Johannesburg High Court issued a secretive ex parte restraining order against amaBhungane, a group of independent investigative journalists, effectively silencing them from publishing damning accounts of alleged corruption involving the Moti group, its leader Zunaid Moti, and high-ranking officials in the Zimbabwe government. Under a subsequent variation order, amaBhungane is not required to immediately return thousands of leaked documents allegedly taken by a former employee but is still prevented from publishing any accounts from the leaked documents. Judge Holland-Müter received a permanent appointment to the Gauteng High Court just a few days ago. He wasted no time in turning the courtroom into a theatre of the absurd, flouting the principles of fairness and equity delivering a secret and highly misguided prior restraint order. This order, replete with misguided notions of fairness, raises eyebrows among seasoned legal minds.

At its core, prior restraint entails the suppression of expression, such as speech or publication, before it reaches the public domain. This practice is widely considered an infringement on free speech and press freedoms, as it restricts the flow of information and ideas. Granting a prior restraint in an ex parte application, where one party presents arguments without the presence or input of the opposing party, is even more contentious, raising concerns about due process and fairness. Ex parte applications and prior restraints are uncommon and require compelling justifications. Unfortunately, in this case, the absence of an adversarial process undermined fairness, due process, freedom of speech, and press freedom. Moreover, ex parte prior restraints (as can be seen from this order) can be easily exploited by powerful business interests seeking to suppress information or quash criticism without proper scrutiny or justification.

Even if the information in question was obtained illegally by a third party, as alleged, if it holds public importance, as allegations of corruption undoubtedly do, journalists should have the freedom to report on it to hold those in power, including business interests, accountable. A preferred approach is typically a post-publication review of the material, allowing for a balanced and thorough evaluation of the competing interests at stake. If the information proves false, the aggrieved party may seek remedies through damages. The judge’s order, however, undermined a vital democratic institution and left freedom of the press gasping for breath.

The ramifications of prior restraint extend far beyond the immediate case; they have significant implications for society at large. Such restrictions curtail open dialogue, stifle dissent, and undermine democratic principles. They enable the powerful to selectively control and censor information, thereby suppressing criticism, controlling the narrative, and manipulating public opinion. Prior restraint fosters a lack of transparency, as certain issues or perspectives are silenced or distorted. Without the ability to freely disseminate information, accountability of public officials and businesses is hindered.

Internationally, prior restraint is widely frowned upon and is an obstacle nearly impossible to surmount in mainstream democratic practice. In the case of Print Media South Africa and Another v Minister of Home Affairs and Another, our Constitutional Court aligned itself with this democratic international practice, considering prior restraints constitutionally suspect. The court held that prior restraint constitutes a drastic interference with freedom of speech and should be reserved for instances where there is a substantial risk of grave injustice. The court further emphasized that speech limitations may be justified in cases such as propaganda for war, incitement of imminent violence, or advocacy of hatred based on certain specified grounds—none of which remotely apply to the Moti case.

Disputes regarding alleged corruption do not fall within the purview of exceptions outlined in the Constitution. Other potential restrictions on speech, such as obscenity, child pornography, or, in some jurisdictions, national security, are similarly absent in the Moti case. Furthermore, the limitations clause of our Constitution, Section 36, offers avenues to restrict freedom of speech. Yet, permissible restrictions in comparative jurisprudence typically relate to areas such as obscenity, child pornography, or time, manner, and place restrictions, like prohibiting loudspeakers in residential areas or evening assemblies—none of which pertain to the Moti case. At its core, the Moti case involves allegations of corruption by a powerful economic actor and its head Zunaid Moti who seeks to prevent the disclosure of that information. In the Laugh it Off Promotions case, Justice Sachs highlighted the potential ramifications of powerful corporations leveraging their financial resources to suppress public discourse through litigation. This situation underscores the notion that when money speaks, its influence cannot be ignored. It is worth noting that both the police service and the National Prosecuting Authority (NPA), which have a troubling track record in investigating and prosecuting corruption cases, are now pursuing legal action against the whistleblower who brought to light the purported corruption within the Moti Group.

We need an independent and competent judiciary and vibrant and free media to protect against malfeasance. In the realm of judicial fallibility, there is a distinction between a judge making a legal error and one who embodies legal incompetence. Legal incompetence is a stain on the very fabric of justice. A legal error may be an unfortunate misstep, a momentary lapse that can be rectified through the course of the legal process. However, we can ill afford legal incompetence that filters through the judicial system. 

Judge Holland-Müter’s order against amaBhungane is an altogether different beast— it eroded our democracy and the very foundation of justice. Our democracy is in grave peril with corruption permeating almost every level of society. The consequences of Judge Holland-Muter’s order are that whistleblowers and investigative journalists will be constrained in exposing corruption, human rights abuses, or other misconduct. The public’s right to know is hindered, making it harder to hold those in power accountable. If left uncorrected, our democracy is in grave peril.

Zunaid Moti fought the law, and the law won.

Read the judgment of Deputy Judge President Roland Sutherland: