Judge denies gag bid over Ponzi scheme report

The Gauteng High Court (Johannesburg) has struck off an application for a prior restraint of publication order against the Mail & Guardian. Justice Motsamai Makume ordered the applicants, UK-incorporated RE Capital Holdings and director Newman George Leech, to pay the newspaper’s costs. The judge said the case involved some novel points of law which could not be given appropriate attention in the urgent court. Nor would the urgent court grant a final order prohibiting what is in the public interest. Makume stressed that a free press was not protected purely for its own sake, but for that of the wider public. RE Capital Holdings and Leech filed the application following an article published on 10 January which noted apparent links between them and Global & Local Financial Advisers, one of the companies that allegedly encouraged South Africans to invest in the BHI Trust suspected Ponzi scheme. The applicants asked the court to grant an order declaring the article to be false and defamatory, and directing the M&G to remove it from all its platforms and publish an apology. It also asked the court to indefinitely interdict the newspaper from publishing ‘any future articles with substantially similar allegations regarding the applicants as the M&G article’. ‘It is clear that the applicants seek the final interdict to stop the respondents publishing what is in the public interest whether that is true or not. That is an issue not capable of being decided in the urgent court.’ Makume admitted Media Monitoring Africa (MMA) and the Campaign for Free Expression as amici curiae. The MMA noted that there seemed to be a sudden tendency to ask the courts for gagging orders as part of a legal strategy to intimidate the media. The court agreed, saying the matter was clearly about asserting the constitutional right to press freedom.