SAA gag order: Media groups strike back

Cape Town – Three South African media groups have teamed up in a court application to dismiss an urgent interdict brought against them by South African Airways (SAA) to prevent publication of a board memorandum.

The group filed its affidavit in the Gauteng High Court on Monday and set the matter for 8 December, giving SAA until 16:00 on 3 December to file a replying affidavit.

Media24 (representing Fin24 and City Press and owned by Naspers), BDFM (representing Business Day) and Moneyweb have asked the Gauteng High Court to reconsider the order that was granted and refuse the application brought by SAA with costs.

The four publications had published various stories stemming from a leaked memorandum, but in the early hours of Tuesday morning were ordered to halt publication and remove references to it on its electronic formats.

SAA has recently been making headlines in the media consistently as the ailing state-owned company faces an internal power struggle amid increasing financial turbulence. It has had "repeated guarantees on an enormous scale from the state through the fiscus," said Business Day editor Songezo Zibi, on behalf of the applicants. "Such guarantees are not available to ordinary private entities."

In court papers submitted to court on Monday, Zibi said the interdict should not have been granted because sufficient notice was not given and no signed affidavit was served prior to the application being heard.

Additionally, he said the information and documentation was, and is, already in the public domain, such as on cloud servers, social media platforms and on the Legal Brief website. Columnist Max du Preez also published the memo on his Facebook account, but was legally threatened by SAA to remove it.  

Zibi also said the document is not legally privileged, as indicated by SAA. “The document does not constitute independent legal advice as required in order to assert this privilege,” he said.

“I am advised that whatever SAA’s objections to the publication of these parts of the document, whether it be commercial embarrassment or otherwise, legal professional privilege does not apply,” he said.

The document over which legal privilege is claimed is a memorandum from acting CEO of SAA (at the time) Thuli Mpshe to the board, Zibi said.

It is expressly addressed from the acting CEO to the board, as appears from the title line and it is “signed and approved” by the acting CEO, he explained.

“There is accordingly no basis upon which it can be contended that the contents of the document, even in so far as it may contain legal contentions, is independent legal advice to the board,” he said.

Zibi said the requirement of independence is a “fundamental element where assertions of legal professional privilege are relied upon in respect of internal legal advice”.

He said the order constitutes a limitation on the media’s constitutional right to freedom of expression, as well as the public’s constitutional rights to have access to information of public interest.

The publications that used the report are all business publications – Business Day, Moneyweb, City Press Business and Fin24. “We serve the business community, many of whom may be creditors of SAA,” said Zibi.

“I am advised that suppression or prohibition of the media’s right to publish and the public’s right to receive such published information is a serious encroachment on a number of mutually supporting constitutional rights, central to which is the right of expressive freedom,” he said.

“The interdict, for as long as it remains in place, is an ongoing incursion into these rights. The interdict was sought and obtained, as indicated, on an extremely urgent basis which made effective opposition impossible,” he said.

SAA argued that the memo, which was prepared by the head of legal, risk and compliance at SAA, Ursula Fikelepi, contained “privileged” and “highly confidential” information of a “very sensitive nature”.

The information could have “the potential of causing real and serious reputational and financial damage to [SAA] and the government”, Fikelepi said in an affidavit.

Fin24

This article first appeared via News24 – see here.