Court’s ruling against the Moti group protects journalists sources and allows publication on corruption to continue

On 3 July 2023, the Deputy Judge President of the Gauteng High Court, Mr Justice Sutherland, ruled that an earlier order made in favour of the Moti Group ought not to have been granted and is set aside. The order required that investigative journalists Amabhungane hand over the Group’s leaked documents and refrain from publishing articles based on their content. In a decisive judgment, Judge Sutherland found that the orders should not have been granted without notice and in camera, and that to do so was an abuse of court process.

The Court found that there is no societal benefit to criminalising journalists who come into possession of information from a person not authorised to share the same. He went on to note that “In contemporary South African society there could be a cogent argument advanced that such activity is an essential good without which our country cannot crawl out of the corrupt morass in which we find ourselves”.

In evaluating whether the journalists were required to hand over the Moti Group’s documents, the Court accepted that journalist have practical and ethical reasons for not handing over information which risks disclosing their confidential sources. This principle is well established in international and comparative law.

It was held that a prohibition on future publication should only be permitted where publication is not in the public interest. South Africa’s international law obligations to promote the freedom to seek, receive, publish, and disseminate information concerning corruption was recognised. The judge found that “In the context of 2023, the broader public interest about the need to weed out corruption would be a factor of foremost importance [when determining whether to grant an interdict against publication].”

Confidential information loses it classification as such once leaked into the public domain. Legal privilege gives the holder the right not to disclose publication but not the right to supress publication.

Corruption Watch, represented by Norton Rose Fulbright’s Impact Litigation team, is pleased with the outcome and the court’s recognition that the need to expose corruption is a critical and weighty factor to be considered when evaluating pre-publication restrictions and that sources, often whistleblowers, ought to be protected.