In 2010, a new South African investigative journalist project, amaBhungane, was founded. In isiZulu, amaBhungane means dung beetle. Their slogan is DIGGING DUNG, FERTILISING DEMOCRACY. This week the High Court of South Africa, Gauteng Division, confirmed not only the work of amaBhungane but also the importance of investigative journalism to the work of democracy. The case involves amaBhungane and its reporting on the Moti Group, a South African conglomerate with extensive international holdings.
The story in a nutshell: amaBhungane received files concerning the Moti Group. In late April and early May, amaBhungane published three articles exposing attempts by the Moti Group and its owner, Zunaid Moti, to cozy up to the leadership in Zimbabwe as well as to surreptitiously influence an employee at Investec who was charged with protecting the bank against the Moti Group’s quickly expanding debt. The Moti Group immediately launched a campaign to silence, and ultimately crush, amaBhungane. On June 1, the Moti Group went to court, on an ex parte and in camera basis, meaning the proceedings were behind closed doors and amaBhungane was not allowed to attend. The judge issued a gag order and told amaBhungane to return all leaked documents, by this time known as the #MotiFile. On June 3, amaBhungane went to court. They were allowed to retain the documents, which, by the way, they did not actually have possession of, but the gag order remained until a further court hearing. That hearing occurred June 27, in the High Court of South Africa, Gauteng Division, with Judge Roland Sutherland. Judge Sutherland issued his ruling yesterday, “a scathing rebuke for the Moti Group and its lawyers” as well as for the lower court.
Judge Sutherland decreed that there was no compelling reason for an ex parte and in camera hearing. He went further and declared that holding such a proceeding was a violation of all juridical procedure as well as an assault on judicial integrity, journalistic freedom, justice and democracy. The decision has been hailed far and wide. Needless to say, the Moti Group continues to spin the results and promises to continue its campaign against amaBhungane.
While many note Judge Sutherland’s step by step evisceration of the Moti Group’s arguments for secrecy, Judge Sutherland was clear to explain that the role of the media is critical to the functioning of democracy: “A South African court shall not shut the mouth of the media unless the fact specific circumstances convincingly demonstrate that the public interest is not served by such publication. This is likely to be rare.”
In 2010, amaBhungane chose as its slogan, DIGGING DUNG, FERTILISING DEMOCRACY. In February 2017, the Washington Post started using that line, “Democracy Dies in Darkness” as its slogan, its first slogan in its then 140-year existence. The Post credited Bob Woodward with the line, and Woodward credited Judge Damon J. Keith, who had presided over a First Amendment case in 2002, Detroit Free Press v. Ashcroft. In 2021, that decision was cited in South Africa, in a decision by the High Court of South Africa, Gauteng Division, in which the Open Secrets and the Unpaid Benefits Campaign sued the government for cancelling pensions and withholding access to information: “In Detroit Free Press v John Ashcroft, the United States Court of Appeal for the Sixth Circuit held that: `Democracies die behind closed doors. The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately …When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.’ The reason being is that `in darkness of secrecy, sinister interest and evil in every shape have full swing.’ It is for that reason that the Constitutional Court has stated that openness is the default position, and it refuted an approach that proceeded from a position of secrecy. The principle of open justice is an incident of the values of openness, accountability, and the rule of law. Included in this is the notion of a participatory democracy. These are the foundational values upon which our Constitution is based, and which are entrenched therein.” The lessons of democracy, of preserving and strengthening democracy, travel, quickly. This week, the courts of South Africa are teaching the world a thing or two about keeping the lights of democracy on and bright.
(by Dan Moshenberg)
(Image Credit 1: Smithsonian) (Image Credit 2: amaBhungane)