By Dondo Mogajane
As was widely published on 02 June 2023, the Moti Group recently sought and obtained an interim interdict prohibiting amaBhungane from publishing any articles based on the documents stolen by former employee Clinton van Niekerk. This application was necessitated by the fact that amaBhungane have steadfastly refused to provide the Moti Group the right to view the documents that they are basing their articles on.
The Group has reason to believe that Clinton Van Niekerk significantly altered the documents he provided to amaBhungane, and could not answer its journalists’ questions fully without understanding the exact alterations that had been made. Again, these reasonable requests have been repeatedly denied.
It should be noted that at no point has amaBhungane denied that the documents are stolen or expressed or denied that it was obtained from Clinton van Niekerk. Instead, they have relied on the argument that they believe the documents are in the public interest. They have then chosen to use the documents despite the fact that theft is a continuing crime, and understanding that the documents used as the basis for their articles may be unreliable.
We have never considered gagging the media in any sense, but merely aim to stop amaBhungane from publishing articles based on stolen and altered documents. We have respect for the media in general, as evidenced by the fact that journalists were permitted to attend today’s session without objection, and that the Moti Group has not prevented any other media from reporting on the matter or upon the Group.
However, we stand by our right to retrieve our property and not be harassed by the media. The South African Constitution offers all members of society protection against theft and crime, and amaBhungane’s rights are not more important than any other citizen’s.
The urgency of our application was based on our belief that amaBhungane would imminently publish further negative articles using stolen and potentially altered information which would cause irreparable harm to the Group’s reputation.
As to the fact that we applied for an ex-parte hearing, the correspondence received from amaBhungane's attorneys stated that the tabloid had no access to the documents in question.
However, in consideration of the recent articles published by their journalists, they have attached various of the stolen documentation, confirming that they were indeed in possession of and had access to this documentation. We have further conclusively proven through a professional forensic digital analysis by Paul O’Sullivan and Cyanre, who are known experts in the field, that most, if not all of the documents were downloaded off our server.
It is clear that amaBhungane was reluctant to allow the Moti Group access to the stolen documentation, and purposefully and dishonestly created the impression that they themselves could not access it. If they had been made aware of the application, they could have therefore very well turned to destroying, hiding the documentation or publishing the documents on the internet. If this was not their intention, they would have permitted the Moti Group or our attorneys to access to the stolen documentation or even copies thereof from the outset.
AmaBhungane has not denied that the stolen documents originated from the Moti Group, nor do they deny that they received the stolen documents from van Niekerk, who is the subject of a criminal investigation. AmaBhungane is well aware of the fact that the documents in their possession have been stolen from The Moti Group, yet they still persist in using said documents as the basis of their one-sided articles in order to push a certain narrative. For example, their articles specifically feature selected torn excerpts of documents to prevent them from being shown within context.
The Moti Group has not blocked any adverse reporting. The article published by amaBhungane on 02 June 2023 about the court order against them illustrates that they have not been blocked from reporting against the Moti Group and from reporting negatively about the company. They have merely been blocked from reporting on stolen documentation that they were never entitled to.
The SAPS is actively pursuing the investigation into van Niekerk, and further civil action will also be taken against the source of the documents in due course. These documents have not been “leaked” and there is no evidence or proof that Clinton van Niekerk is in witness protection. He can accordingly not be seen as a whistle-blower and should instead be regarded as a disgruntled former employee of the Moti Group who has stolen documents and unlawfully distributed these to various third parties with the sole intention to cause severe hardship and prejudice for his former employer.
The documents stolen by Van Niekerk are confidential and intellectual property belonging to the Moti Group which have been unlawfully altered and tampered with in the interests of stirring a damaging media campaign against the company. The documents have also been taken out of context in order to portray a one-sided narrative to the detriment of The Moti Group.
In our previous correspondence with amaBhungane they have consistently denied having access or control over the documents, and yet they are able to publish selected samples of documents. It appears that amaBhungane “hid” the documents on an overseas server deliberately in order to prevent any civil action against them by the target of their media campaign, which in this instance is the Moti Group.
AmaBhungane, by continually publishing subjective articles against the Group, have now stepped over the line into harassment. Violating the standards of the Press Code of Conduct, they have irresponsibly published personal information which is decidedly not in the public’s interest, such as private banking details. Simultaneously, they have continuously denied the Moti Group the right to proper and fair response by refusing us the opportunity to see, verify or refute the stolen documents that they are using as the basis of their sensationalised stories.
We strongly believe that no South African would want their bank details, personal information or confidential information published by a journalist with a vendetta. amaBhungane rely on the Press Code of Conduct, and yet they don’t follow their own “rules”. The Press Code specifically states that journalists must obtain information legally and fairly, and prohibits them from publishing sensitive information if it is not in the public interest.
Ultimately, amaBhungane has consistently infringed upon the rights of the Moti Group by reporting upon stolen documents. While the terms of the court order directing amaBhungane to return the documents may have been amended, it is telling that they were not able to have the case overturned given the seriousness of the matters in question. AmaBhungane were also not able to prove urgency and were not granted a cost order.
The Moti Group has great respect for journalists and the unique rights afforded to them through the Constitution and the Press Code. But this should never override or supress any citizen’s rights in terms of the Constitution, namely with regards to their property and theft.
Dondo Mogajane is the CEO of the Moti Group
** The views expressed do not necessarily reflect the views of Independent Media or IOL.
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