Significant Decision In Favor Of Media Freedom In South Africa

• According to a Johannesburg High Court judge, a party seeking urgent relief from a court order should explain why they did not seek faster relief through the Press Council, especially if they had threatened to do so.
• Lemane Sithole and Michael Maile sought an urgent injunction from News24, Netwerk 24, and several of its journalists forbidding them from referring to them as members of the “Alex Mafia” in the case that was before the court.
• The judge ruled that the matter was not urgent because the term “Alex Mafia” had been used extensively in other media and was first used roughly 16 years ago.
• 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 advised people who have complaints about the press to seek the Press Council’s “speedier remedies” rather than making urgent court applications.

Judge Ingrid Opperman stated in her decision on Tuesday that this did not preclude a party from seeking a remedy from a Press Council member without first addressing the council.

“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.”

Lemane Sithole and Michael Maile were seeking an urgent interdict from Media24 and several of its journalists banning them from referring to them as members of the “Alex Mafia” in their case before Judge Opperman.

Sithole and Maile threatened to continue their defamation lawsuit against the media outlet and the journalists in the meanwhile.

Both petitioners had strong relationships with the current Deputy President Paul Mashatile during the years of the struggle, according to Judge Opperman, who noted that these facts were largely uncontested. Later, they collaborated on projects and conducted business.

The “Alex Mafia” has been referred to in numerous articles since 2007. These have been published in a various media outlets.

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.”

Basson cited an interview Mashatile gave to the Financial Mail in which he claimed the phrase refers to a group of comrades from the 1980s who later entered politics.

According to Opperman, the applicants’ attorney stated that although it might have had a neutral meaning before 2022, that connotation altered when media began including adjectives like “gang,” “mob,” and “notorious” last year.

The judge stated that this did not support his claim that the case needed to be heard right away. The judge added that if the name “Alex Mafia” was defamatory as claimed, the applicants should have addressed the court much earlier—in fact, 16 years ago.

“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.” Saying;

“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,” 

The judge stated that a publication interdict, whether temporary or permanent, violated the right to free speech and the freedom of the press since it was a judicial prior restraint, sometimes known as a banning or gagging order. As a result, the courts had established a very high bar for a restraining order against purportedly defamatory speech.

Any interdict, if granted, would not “scrub the internet of the many existing references” or forbid other people from referring to them by that moniker.

“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 ordered Sithole and Maile to pay punitive costs and struck the case from the record.

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