RE Capital Holdings and Another v Mail & Guardian Media Limited and Others
Case: RE Capital Holdings and Another v Mail & Guardian Media Limited and Others (2024/005491)
Court: High Court of South Africa, Gauteng Division, Johannesburg
Next hearing: N/a
Status: Finalised (access the judgment)
Last updated: 1 March 2024
*****
Case overview: Power & Associates successfully represented the Mail & Guardian, its Acting Editor-in-Chief Luke Feltham, and one of its journalists Lyse Comins (“the Respondents”) in opposing an urgent application for, among others, a prior restraint on publication brought by RE Capital Holdings and Newman George Leech (“the Applicants”). Prior restraint orders are colloquially known at “gagging” orders.
The application sought a declarator stating that an article written and published by the Respondents was defamatory, a final interdict preventing the Respondents from publishing further articles about them containing similar allegations, and an apology and retraction of the article.
In the alternative, the Applicants sought an interim interdict, pending the outcome of defamation proceedings, whereby the Respondents would be directed to remove the article from their website and be prohibited from publishing other articles containing substantially similar allegations.
The Respondents argued that the matter was an attempt to seek judicial prior restraint against journalists, which is antithetical to the constitutionally enshrined right to freedom of expression, press freedom, and the freedom to receive and impart information and ideas.
On 21 January 2024, the Applicants approached the Johannesburg High Court on an urgent basis. The hearing took place on 8 February 2024.
The Respondents opposed the application on the following grounds:
- The application was not urgent. By the time this matter was heard, the article had been publicly available online for just under a month. Further, the article has been republished on other platforms which are not in the Respondents’ control. The proverbial horse had therefore bolted, and the relief sought by the Applicants was fatally defective.
- The Applicants failed to address the constitutional implications of the relief they sought and did not exercise alternative remedies available to them, including approaching the Press Council.
- The contents of the article are true and in the public interest. Alternatively, the defence of reasonable publication applies.
- The requirements for an interdict, final or interim, were not met.
Media Monitoring Africa and the Campaign for Free Expression were admitted by the Court as amicus curiae. MMA and CFE made submissions regarding the effectiveness and suitability of the Press Council given the facts at hand; constitutional principles concerning the reasonable reader and related to directing a media defendant to apologise; and protections that should be afforded to investigative journalists to enable them to fulfill their crucial function.
In a judgment dated 28 February 2024, Makume J struck the matter from the roll due to a lack of urgency and ordered that the Applicants pay the Respondents costs.
The matter was argued by Michael Power. He was supported by S’lindile Khumalo and Claire Dehosse.
Court papers:
- Applicants’ Heads of Argument (1 February 2024).
- Respondents’ Heads of Argument (5 February 2024).
- Judgment (28 February 2024).
Attorneys:
