Major ruling for media freedom in South Africa

• A Johannesburg High Court judge says a litigant approaching the urgent court should explain why they have not pursued faster remedies through the Press Council, particularly where they threatened to do so.
• The case before the court was an urgent application brought by Lemane Sithole and Michael Maile against News24 and Netwerk 24 and some of its journalists, for an interim interdict prohibiting them from referring to them as members of the “Alex Mafia”.
• The judge said that because the term “Alex Mafia” had been used by many other publications and had first been used about 16 years ago, that the matter was not urgent.
• She also found that the application was “an abusive attempt by two politically-connected businessmen to gag a targeted newsroom”.

A Johannesburg High Court judge has urged those with grievances against the press to use “speedier remedies” available through the Press Council rather than making urgent court applications.

Judge Ingrid Opperman, in her ruling on Tuesday, said this did not mean that a litigant could not approach a court for relief against a Press Council member, without approaching the council itself first.

“Of course they can. Rather it means that a litigant approaching the urgent court should explain why they have not pursued the potentially speeder remedies available from the Press Council, particularly where they have threatened to do so.”

The case before Judge Opperman was an urgent application brought by Lemane Sithole and Michael Maile, against Media24 and some of its journalists, for an interim interdict prohibiting them from referring to them as members of the “Alex Mafia”.

This was pending defamation action Sithole and Maile said that they would still launch against the media house and the journalists.

Judge Opperman said the largely undisputed facts were that both applicants had close relationships with current Deputy President Paul Mashatile during the years of the struggle. They subsequently worked and did business together.

Since 2007 various articles have been published naming them as the “Alex Mafia”. These have appeared in a wide range of publications.

Judge Opperman said News24 Editor Adriaan Basson had, in his affidavit, said: “We did not coin the term Alex Mafia. It originated in political circles, in fact with the ANC itself.”

He pointed to an interview Mashatile had done with the Financial Mail in which he said the term referred to a group of 1980s comrades who went on to serve in government.

Opperman said the applicants’ advocate argued that while it might have had an innocuous meaning up until 2022, this changed when the journalists started adding words such as “gang”, “mob” and “notorious” last year.

The judge said this did not bolster his argument that the matter should be heard urgently. And if the term “Alex Mafia” was defamatory, as had been argued, then the applicants ought to have approached the court much sooner, in fact 16 years ago, the judge said.

“For many years, as Basson’s affidavit has demonstrated, the internet has been replete with references to the applicants as ‘Alex Mafia’. The applicants did nothing about it. The fact that the reference has been repeated more recently does not make the matter suddenly urgent.”

On the Press Council’s role, Judge Opperman said: “An urgent remedy at the Press Council was apparently there for the taking.”

“I am driven to conclude that this application is an abusive attempt by two politically-connected businessmen to gag a targeted newsroom from using a nickname by which the applicants are popularly known and called by the public, politicians, political commentators, other newsrooms and themselves — and have been for at least 16 years.

“They have abused the court process, claiming urgency where there is none … multiple other media houses have published pieces along the same lines, yet no interdict is sought against them,” she said.

The judge said an interdict prohibiting publication, whether interim or final, was known as a judicial prior restraint, or more colloquially as a banning or gagging order, which infringed on the right to freedom of expression and freedom of the media. Because of this, the courts had set a very high threshold for an interdict against allegedly defamatory speech.

If granted, any interdict, would not “scrub the internet of the many existing references” and would not ban third parties from calling them by that nickname.

“What then is this application about? It appears … designed to punish the respondents, to make an example of them and thereby to send a chilling message to other media and members of the public that they risk being hauled to the urgent court to face opprobrium from politically connected figures of influence and resources and risk heavy costs orders, if they use the nickname.”

Judge Opperman struck the matter from the roll, and ordered Sithole and Maile to pay costs on a punitive scale.