The judgment of Gauteng deputy judge president Roland Sutherland in the battle between the Moti Group and amaBhungane is a resounding victory for freedom of expression and for press freedom in SA.

The rights to protect bona fide sources from being identified and to retain and publish “confidential” leaked information in the public interest have been vindicated in terms that will render it difficult for any “whistle-blown” litigant to venture to emulate the snafu perpetrated on behalf of the Moti Group in its efforts to keep its activities away from public scrutiny and those involved in them free of accountability for those activities.

When amaBhungane first hit back urgently on the Saturday morning after an ex parte order had been granted behind its back, the duty judge could not understand how the order had been granted, especially without any form of notice to amaBhungane.

The Sutherland judgment expresses the same mystification. Legal representatives have a duty to inform any court in which they appear of the relevant case law, whether or not it favours their client’s case. Judges rely on counsel to do so. It would appear likely that this was not done when the Moti Group first went behind amaBhungane’s back to get the order now set aside in the light of the legal position explained in clear and concise language in the Sutherland judgment.

Those responsible for making the decision to proceed without notice to amaBhungane should be held to account by their professional bodies (the Legal Practice Council, the Law Society and the General Council of the Bar).

It is not enough that their clients have been mulcted in costs via the punitive award against them. The effective and efficient workings of our overburdened courts, and the reputations of hard-pressed duty judges who hear urgent cases, are at stake.

Paul Hoffman SC
Accountability Now