'Muishond' case: Whatsapp group chat messages subpoenaed in landmark ruling
The ruling came in the wake of an application by former Glitter Magazine column writer, Muishond Malan (Rudi Ferreira), which was granted in the Kimberley Magistrate’s Court on Wednesday.
Ferreira brought the application to have the messages contained in the WhatsApp group “No Filter Admin” handed over in response to a harassment protection order filed against him by Allen earlier this year.
Ferreira, in his application, indicated that he needed the information (the messages contained in the No Filter Admin group) to enable his legal representative, Riaan Bode, to thoroughly cross-examine Allen in regard to the harassment protection order.
Allen earlier this year obtained an interim protection order against Ferreira, prohibiting him from contacting, threatening, intimidating, provoking or harassing her and related persons.
Ferreira is also prohibited from making any false statements and posts on any social media site about Allen, her business and related persons.
This comes after Ferreira allegedly threatened Allen under his own name and under his alias, Muishond Malan, on social media (Facebook and WhatsApp).
Bode on Wednesday submitted that Ferreira needed the requested documentation relating to the WhatsApp group in order for him to properly cross-examine Allen and tender his own evidence in this regard.
Ferreira submitted that Allen, as well as members of the WhatsApp group, discussed him, in his personal capacity and his nom de plume, Muishond Malan, on the group.
Ferreira stated that this was also the case with his (former) employer, the DFA, his business, Cell C and Find It in Kimberley, in which his girlfriend, Jana Grobbelaar, who was initially a co-respondent in the matter, has an interest.
Ferreira on Wednesday handed in printouts of relevant messages on the WhatsApp group (where he, Muishiond Malan, the DFA and Find It in Kimberley were discussed) as evidence. He stated that this information had been obtained from a member of the public who did not want to be identified and to whom he gave the assurance that the person would not be identified.
Ferreira submitted that it appeared that several police officials were part of the group and participated through messages, while “freely distributing sensitive police information”.
He also submitted that the documentation would indicate police brutality, irregularities by police members and also possible benefits that they could receive from participants of the group, adding that the information contained could be considered “extremely sensitive, shocking, and of a sexual nature”.
During her judgment yesterday, Magistrate Celeste Nameka started off by saying that it was a fact that there was a growing scourge of cybercrime.
“This rapidly-growing crime in its many forms knows no boundaries and is evolving at a speed our legislation cannot and is not on par with. However, we are faced with cases that make us realise the shortcomings in our legislature and the importance of our Constitution. The messaging platform WhatsApp recently came under the spotlight in India, where an incident saw the administrator of a WhatsApp group face arrest after a defamatory image of the prime minister of the country was shared on a WhatsApp group created by the administrator. The court in India pronounced that admin users of WhatsApp could indeed be held accountable for the content posted in group chats. The case sparked debate in South Africa around whether a WhatsApp group admin could be held liable for defamatory content shared in the group, even if the admin did not share the content themselves,” Nameka said.
She added that, according to Simon Coleman, executive head of digital distribution at SHA Specialist Underwriters, “it was not clear whether South African courts would adopt the same approach as in India”.
Nameka added that there was “a properly nuanced consideration required in order to determine especially the issue of whether the statements constitute harassment”.
“This impacts on a final determination on whether the statements are defamatory and whether the applicant is entitled to any declaratory relief sought,” Nameka stated.
She then ordered Allen, who is the group administrator, to make available the chats in the group created by herself in July 2018.
“Such information is to be made available to the court within 48 hours and the court will determine the relevant parts for the purpose of this trial. The court will then strike out the names and identities of others belonging to the group. Upon scrutiny, the court will make the relevant sections available to both parties and proceed in terms of the Protection from Harassment Act,” Nameka said.
She further ordered that the identities and personal details of the other members not be revealed to the opposing party, as they were not part of the proceedings.
Allen was also ordered to make available the registration of her security company, Northern Cape Security Systems, to the clerk of the court within 48 hours.
Nameka stated that there would be no need for the electronic service providers’ information of other members to be revealed but added that if Allen failed to comply with the first order then her particulars and the chats would be requested.
The cost order was reserved.
Several members, including police officials, of the WhatsApp group, who were on Monday named in an article published by Find It in Kimberley, a local online news site owned by Grobbelaar, attended Wednesday’s court proceedings.
Allen’s legal representative, Mark Fletcher, indicated to Nameka that the persons named in the article wanted to address the court in terms of their right to privacy.
Nameka, after giving her judgment in the application, warned the media to respect the privacy of all people (in the WhatsApp messages) not involved in the matter and not to publicise any names or details of any parties, besides that of Ferreira and Allen.
The matter was postponed to June 4 2019 for legal representatives to decide on the way forward.