Media accountability: amaBhungane receives a proper ‘klap’

By Zunaid Moti

In the highly publicised legal dispute between the Moti Group and controversial tabloid amaBhungane, many have been quick to take sides and fall for amaBhungane’s framing of the case as a challenge to media freedom instead of case about criminal theft.

But in an era where information flows at lightning speeds, it’s even more imperative to safeguard citizens' rights and ensure that tabloids and media organisations are notallowed to trample upon those rights in the interests of making headlines.

As background, in 2022, an employee of the Moti Group, Clinton van Niekerk, stole over 4,000 private and confidential documents from the Group. He then shared these stolen documents with third parties and media in an attempt to tarnish the Group’s reputation.

AmaBhungane has then used these documents as the basis of a series of sensational and seriously flawed articles about myself and the Group – despite being warned by myself, Paul O’Sullivan and the Moti Group that these documents had been stolen and potentially altered.

Furthermore, its journalists had continuously denied that they have access or control of the documents, instead coyly claiming that the documents are in the possession of an overseas publication, the Sentry.

However, when a recent article by amaBhungane revealed beyond doubt that amaBhungane had copies of or access to these documents, the Moti Group exercised its legal rights by launching an urgent application against the tabloid to prevent them from publishing any further articles on the stolen documents, and ordering them to return these documents as the Moti Group’s property.Recognising the seriousness of the case, the High Court granted this order – which amaBhungane has quickly labelled a “gag” order.

But the legal dispute between the Moti Group and amaBhungane is in no way about supposedly “gagging” media. Instead, it is specifically about preventing journalists from reporting upon stolen information.

In a functional democracy, media serve as watchdogs – but they cannot also be allowed to act as judges, juries, and executioners, and operate above the purviews of the law like the rest of us mere mortals. AmaBhungane hasused the flimsy excuse of “public interest” to participate in theft; published stolen, altered documents and convoluted conspiracy theories as fact; and has even gone as far as to share private banking details and other personal information on public platforms.

Alarmingly, it has then proven all too easy for itsjournalists to cry wolf and “gag” order to win media and public sympathy, preventing other platforms from considering the very real legitimacy of the Moti Group’s complaints. Consider: are all South African media now to be allowed to steal documents from private individuals, households and businesses, alter them and publish excerpts in the name of “public interest”? Is all information fair game? How far does this extend?

For example, should anyone be allowed to share the private banking details and correspondence of well-known figures such as Johann Rupert, Nicky Oppenheimer, or Patrice Motsepe?

Should all employees be able to shareany confidential documents from private or publicly listed companies with journalists at any time, and should journalists be allowed to publish these documents – even if they have been stolen or tampered with?

Again, the Moti Group’s legal complaint against amaBhungane is not about “gagging” media – it is about the boundaries of media rights, and holding specific individuals and journalists accountable for actions that are unethical at best, and criminal at worst.

Furthermore, in direct contravention of their responsibility to fair and balanced reporting, they have repeatedly refused to allow the Moti Group to see copies of the stolen documents in question.

Whether the documents are on an overseas server or not, they clearly have access and control over the documents in question, and should not be allowed to participate in theft.

By refusing to allow the Moti Group to see the documents, this means that the Group has also not been allowed to determine the documents’ authenticity or refute their information – a basic right that is allowed to any other citizen, including witnesses in legal cases.

Their claims that their stories were written according to the “highest journalistic standards” are laughable to anyone who pauses to consider the issue. It is deeply hypocritical to accuse the Moti Group and myself of “gagging” their journalists when the situation is the exact opposite.

Additionally, it is more than clear that the Moti Group has no intention of stifling the media given that the Group is merely seeking to prevent the publication of articles based on stolen and potentially doctored documents.

For instance, the Group has not challenged any media’s right to publish negative stories about them, or even prevented journalists from listening in to amaBhungane’s recent court application which attempted to amend or even overturn the court order against them. And, in our entire history, neither myself in my personal capacity nor the Group have ever attempted to gain a court interdict supposedly “gagging” the media before.

Where the Moti Group used the proper legal channels available to obtain an ex parte hearing and gain an urgent interdict against amaBhungane, amaBhungane and itslegal representatives attempted to use improper processes to have the court order set aside, serving an order at 9pm on a Friday night to go to court at 09:30am on a Saturday.

Adding insult to injury, amaBhungane’s prayers in its application were to first get a punitive cost order against the Moti Group, and second to have the entire interdict nullified and set aside.

But in a reality check, even after hearing amaBhungane’s response, the Judge took exception to the urgency, did not grant a cost order, and refused to set the initial court order against the tabloid aside, which effectively means that they still may not publish further articles based on the stolen documents. Notwithstanding that, amaBhungane and its conies are attempting to spin the story as a win or paint it as a success – which is blatantly false.

Tellingly, the Judge also strongly emphasised that the matter must be allowed to proceed through normal legal channels to ensure the rights of both parties to be heard.

The important role of media in society is not in question.

I have the greatest respect for the role of journalists, and know that the Moti Group has the same. Instead, the primary goal of its legal action as a company is to safeguard its property rights and put an end to amaBhungane’s harassment.

By persistently using stolen documents as the foundation of their one-sided articles, amaBhungane has shown a blatant disregard for the Moti Group’s rights. And despite their awareness of the theft, they continue to peddle a predetermined narrative.

They have cherry-picked torn snippets from the documents to shape public opinion, maliciously distorting the documents and taking them out of context to fuel their innuendo against myself and the Group – all in the name of making a name for themselves.

Their actions display a clear trend of dishonesty and harassment, violating the very standards they claim to uphold.

Contrary to popular belief, media freedom does not extend to acting however they would like, saying whatever they would like, and indulging in a public relations smear campaign to hide their wrongdoings and dirty deeds.

There are always two sides to the story – and the otherside deserves to be heard.

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