The Johannesburg High Court has removed from the emergency register an application for a preliminary injunction to stop publication of the Mail & Guardian newspaper.
In a judgment handed down on Thursday, Judge Motsamai Makume ordered the applicant, British company RE Capital Holdings, and director Newman George Leach to pay the newspaper's costs.
The judge said the case involved several new legal issues that could not be adequately considered in an emergency courtroom. Nor will an emergency court issue a final order banning something that is in the public interest.
Makume stressed that freedom of the press is not protected purely for its own sake, but for the wider public.
RE Capital Holdings and Reach point to the company's apparent links to Global and Local Financial Advisors, one of the companies that allegedly encouraged South African citizens to invest in BHI Trust's Ponzi scheme The application was made in response to an article published on January 10th.
Global & Local Managing Director Michael Haldane was a director of RE Capital Holdings until October 30 last year, when the trust collapsed.
As evidenced by share certificates filed with the court by M&G, Mr Leach is listed as a director of Geneva Management Group, a Swiss-based company that appears to have links to Global and Local. It will be done.
The applicants asked the court to grant an order declaring the article false and defamatory and directing M&G to remove it from all platforms and post an apology.
It also asked the court to indefinitely prevent the newspaper from publishing “any future articles containing allegations substantially similar to the M&G article about the applicant”.
“It is clear that the applicants are seeking a final injunction to prevent the publication of material that is in the public interest, whether or not it is true. That is a matter that cannot be decided in an emergency court.”
The court agreed with M&G's argument regarding urgency, as the article had already been in the public domain for four weeks when the application was heard, and had also been published on other platforms.
The paper therefore argued that the sought order did not have the intended effect.
“Respondents argue that the article has also appeared in other publications over which they have no control, and that in any event, even if those publications had not participated, the damage has already been done and that they are putting the cart before the horse. He correctly pointed out that.”
Mr Makume confirmed that Media Monitoring Africa (MMA) and the Freedom of Expression Campaign had applied to join as tribunal amici.
The applicants did not issue a Rule 16A notice under which interested parties could apply to be recognized as a tribunal in cases of constitutional impact.
M&G's lawyers filed the notice on February 2, and both organizations filed documents shortly thereafter. MMA points out that there has been a sudden trend of seeking court gag orders as part of a legal strategy to intimidate the media, something similar happened to the Amabhungane Center for Investigative Reporting last year.
The MMA rejected the applicant's submission that in this case the order would not impair the media's ability to report in the public interest.
The court again agreed, stating that the issue clearly concerns an assertion of the constitutional right to freedom of the press.
Finally, Mr. Makume quoted from the Supreme Court's appellate judgment. Midi Television Pty (Ltd) v Director of Public Prosecutions (Western Cape); Here the court stated as follows: “It is important to remember that the constitutional freedom of the press provisions were not created for the special interests of the press.
“Rather, the constitutional promise was made in response to the interest of all citizens in the free flow of information, which is only possible with a free press.”