The Limpopo Mirror succeeded with its application to have a gagging order lifted. In September last year, the newspaper was prohibited from writing about the feud between a local building contractor and one of his customers.

Magistrate BVM Bvuma ruled in December that the gagging order should not be made permanent. He refused the request of Robert Mulaudzi, the applicant, and stated that pre-publication interdicts could not be entertained by the court.

The legal battle started on 24 September last year when court papers were served on the editor of the Limpopo Mirror. It then materialised that a building contractor from the Vuwani area, Robert Mulaudzi, had instructed his lawyer to obtain an interim court order forcing the paper not to write about a dispute between him and a client, Mrs Azwitamisi Minah Mutheyiwana. The dispute concerns a house that Mulaudzi had renovated for the Mutheyiwana family. He claims they did not make payments as they were supposed to, whereas they claim that he didn’t deliver on his promises. The family contacted one of the Mirror’s reporters and asked him to investigate the matter.

Instead of commenting on the allegations and trusting the newspaper to write a balanced report, Mr Mulaudzi approached the Vuwani Magistrate’s Court. In the absence of any of the defendants, he managed to obtain an interim court interdict, prohibiting the newspaper from disclosing any details about the feud. The gagging order stated that the newspaper could not publish “any article about the applicant and/or his business, which publication may have the current or long-term potential to adversely impact on (the applicant) or his business.”

The Limpopo Mirror opted to challenge the gagging order, but did so without any legal representatives in court. On October 30 last year, Anton van Zyl, manager of Limpopo Mirror, argued in court that the interim order was obtained in an irregular manner. The newspaper was never given the opportunity to oppose the application. He also argued that a permanent interdict, such as requested, would lead to a ludicrous situation where the Limpopo Mirror would, in perpetuity, be barred from writing anything that is perceived to be negative about the applicant, irrespective of the applicant’s actions. “Newspapers play an important role in disseminating information … and also need to play a watchdog role should there be transgressions,” he said and made reference to various laws that protect consumers. “Should the applicant not abide by any such legislation, consumers must feel free to complain about this and the press should not be afraid to write about it,” he argued.

Mulaudzi’s lawyer, TA Netshinombelo, argued that publication of such articles would tarnish his client’s good reputation and would also affect his business. “No publication has a licence to publish malicious rumours and/or personal vendetta(s) against a person … particularly if the motive of publication is pressure from the first respondent,” the court heard. The first respondent in the case is a family member of Mrs Mutheyiwana, a certain Mr Joseph Mulaudzi. Joseph Mulaudzi contacted the newspaper and asked that the reporter investigate what was happening. Joseph was also being accused of sending threatening SMSes to Robert Mulaudzi (the applicant in the case).

Magistrate Bvuma eventually made a ruling on 14 December last year. He referred to the rights of the applicant in the case and said Mr Robert Mulaudzi had been within his rights when he approached the court to try and protect his good name and his business. He referred to cases where the courts had ruled that people did not have to wait for the actual damage to happen, but should try and stop such action. He felt, however, that Mr Mulaudzi had had other remedies available and should not expect the court to issue pre-publication interdicts for protection. Magistrate Bvuma referred to the fact that the Limpopo Mirror subscribes to the Press Ombudsman’s Code of Conduct and stated that Mr Mulaudzi was at liberty to approach this body and complain about any perceived biased reporting.

The Limpopo Mirror was assisted in this case by Willem de Klerk, an attorney specialising in media law. He was delighted with the outcome of the case and described it as a victory for press freedom in South Africa.

Van Zyl said that this was part of an escalating problem where the freedom of expression was being suppressed by litigation. “People should not be afraid to ask courts to protect their individual rights, but these rights should be weighed up against the rights of the broader public,” he said. “The media should be held accountable and should act in a responsible manner,” he said but urged readers to trust the newspaper to report in a fair and unbiased manner. “If we do not live up to the expectations, readers should rather approach the relevant industry bodies, such as the Press Ombudsman,” he said. The services of the Press Ombudsman are free of charge, whereas civil court cases can end up costing hundreds of thousands of rands.