Whistle-blowers launch constitutional challenge to solar panel firm's gag order in battle over ‘defamatory allegations'
The three 'whistle-blowers' who were recently gagged by solar panel company ARTsolar from making 'defamatory allegations' that it was importing rather than locally manufacturing its solar panels, have challenged the order on constitutional grounds.
The AmaBhungane Centre for Investigative Journalism has also applied to join the case.
An interim interdict by Durban High Court acting Judge Perlene Bramdhew issued on 26 March barred KwaZulu-Natal businessman and former ARTsolar client Brett Latimer, and former ARTsolar employees Kandace Singh and Shalendra Hansraj, from claiming the company conducts its business unethically and dishonestly.
Latimer, Singh and Hansraj contend the order violates their right to freedom of expression, as enshrined in the Constitution, which includes press and other media, 'as well as freedom to receive and impart information and ideas'.
In terms of the same order, Independent Media journalist Bongani Hans was also specifically gagged from publishing their allegations.
The Industrial Development Corporation (IDC), which provided R90-million funding for ARTsolar's new factory in New Germany, was also mentioned in the interdict as one of the organisations with whom Latimer, Singh and Hansraj were not allowed to communicate.
In early April, the IDC launched urgent proceedings against the order, arguing it was hampering its investigation into the allegations.
Acting Judge Paul Wallis agreed that the IDC should have been joined in the original proceedings. Wallis ruled that there was 'no absolute right to be protected from being the subject of defamatory allegations' and given the aims and objectives of the IDC, the prohibition was not justified.
He amended the order, removing the reference to the IDC.
Latimer, Singh and Hansraj have since issued a Rule 16A notice, challenging the constitutionality of the gagging order and opening the door for other interested parties to join the proceedings. (A Rule 16A notice informs the public that a constitutional issue is being raised in a particular court.)
The notice, which was issued out of the Durban High Court on 14 April, calls on interested parties to join the proceedings as amicus curiae.
AmaBhungane applies to be part of the court case
In a letter to lawyers representing all the parties, dated 17 April, attorney Dario Milo has given notice that amaBhungane wants to join the proceedings.
Milo, acting for amaBhungane, said that in addition to its journalism, the organisation actively advocates for media freedom and access to information.
'This includes engaging in litigation to challenge laws and practices that undermine the constitutional rights to freedom of expression and access to information. Their many successful legal challenges have helped to shape a legal environment that protects journalists and enables investigative reporting,' he said.
Amabhungane, he said, had recently been involved in litigation relating to an attempt to prevent it from reporting on certain business affairs of the Moti Group of companies.
In that matter, the interdict granted had been set aside as 'an abuse of process and an unjustifiable prior restraint on media freedom'.
Milo said amaBhungane, if admitted as an amicus curiae (friend of the court), would make submissions that orders for prior restraint (gagging orders) constituted one of the most serious infringements on press freedom and were only justified in exceptional cases. They should almost never be granted without affording the journalist concerned a full and fair opportunity to present a defence.
The interim order imposed a 'sweeping prohibition' on any defamatory statements or implications about ARTsolar's business practices, regardless of whether they may be justified.
'This is overbroad and deprives the public of information and ideas which may well be in the public interest,' Milo said.
Even where a journalist did not oppose an application for prior restraint, a court should not treat the matter as unopposed as the right to freedom of the press consists not only of the freedom of a journalist to speak, but also the freedom of the general public to know.
The parties have until 22 April to consent in writing to amaBhungane being admitted as an amicus curiae.
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