The high court has dismissed with costs an attempt by friends of deputy president Paul Mashatile to “gag” News24’s associating them with the so-called “Alex mafia” as “an abuse of court process”, which had “manifestly ... intimidatory” components, to punish and deter.
Businessmen and longtime friends of Mashatile, Bridgman Sithole and Michael Maile, were listed by journalist Adriaan Basson in a 2007 article as being part of a “mafia” group in Alexandra township. At the time, Mashatile was the Gauteng finance MEC to whom this “Alex mafia” allegedly answered.
Basson, now editor-in-chief at News24, claimed Mashatile obtained control of various agencies, while MEC, by appointing “friends and comrades” including Sitole and Maile. Basson and his reporters have repeated these claims in more recent articles.
As the court noted, however, other media houses and writers have also made similar allegations and connections for some time, but were not cited by Sithole and Maile.
Sithole and Maile said Media24’s allegations were “unsubstantiated and unproven”. They sought an interdict to stop Media24 from referring to them as members of the “Alex mafia”. They indicated they still wish to bring a defamation case.
They argued that they had not approached the court sooner because the allegations of their connection recently became more frequent in publications, with Mashatile’s spotlight in the media. With these recent and more frequent publications about the “Alex mafia”, Sithole said “it became clear to us that the current focus on Mr Mashatile would be sustained, and that we were likely to continue to be identified as members of the so-called Alex Mafia.”
Johannesburg high court judge Ingrid Opperman on Tuesday dismissed their “gagging order” application.
She said the application had the hallmarks of a SLAPP (strategic litigation against public participation) suit, which are brought to silence journalists, usually, noting the application’s possible “ulterior objectives of punishment and deterrence”.
Opperman struck the matter from her roll due to lack of urgency. “The fact that the reference has been repeated more recently,” she ruled, “does not make the matter suddenly urgent. The allegedly defamatory matter is firmly in the public domain and has been for at least 16 years.”
Any interdict she could grant would, in any event, be “ineffective”, since it “would not scrub the internet of the many existing references to the applicants as ‘Alex Mafia’, and would not ban third parties from calling them by that nickname.”
Opperman noted that Sitole and Maile had not approached the Press Council, which has “potentially speedier remedies” than a court. Despite “having threatened” to approach the Press Council, Opperman noted there was no explanation why they had not done so and approached the urgent court first.
“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,” she concluded, “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.”
Courts set a “high threshold”, she said, when asked to prohibit publication — also known as a “gagging order”. It will only be allowed where the publication will cause severe prejudice to the administration of justice itself. Barring that, she said, affected parties can “vindicate their reputational” rights through defamation actions, which Sithole and Maile indicated they may yet do.
“This application is an abuse of the urgent court’s process,” she said. “After 16 years, the applicants cannot have any bona fide basis for approaching the court on the basis of extreme urgency.”
She awarded costs in favour of News24.
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