At least nine recent cases document protection orders being used to gag journalists, whistle-blowers and activists in South Africa.
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I was back in court last week for two protection order applications that were brought against me by two persons of interest in an investigation that I am involved with, where my client lost around R2 million in allegedly misappropriated funds.
I have had many protection order applications brought against me by suspects and persons of interest in investigations being undertaken by IRS Forensic Investigations, a financial crime investigation firm in South Africa specialising in financial fraud, asset tracing and corporate intelligence.
Two standout cases were brought by Cathy Scrooby and Dean Visagie. Neither were able to obtain permanent orders against me. Over the last 10 years, no person of interest or suspect has been successful in obtaining a permanent order against me.
Multimillion-rand fraud accused Peet Viljoen tried to obtain a permanent protection order against Kate Barry of Carte Blanche and recently Renaldo Nortje claimed to have applied for a protection order against Devi Sankaree Govender from The Devi Show.
According to a Daily Maverick article in June, “the chair of the National Youth Development Agency, Sunshine Myende, obtained an interim protection order from the Randburg Magistrate’s Court against Sunday Times journalist Sisanda Mbolekwa. The order prohibits Mbolekwa from reporting on Myende, sending her questions, or even using her photograph”.
Mbolekwa sent Myende a right-of-reply request, a standard practice required by the SA Press Code before publication. Myende’s court papers describe this as “forced communication” and “harassment”.
The Campaign for Free Expression has documented at least nine recent cases in which protection orders or their functional equivalents have been used to gag or intimidate journalists, whistle-blowers and activists.
A pattern has emerged where powerful individuals, public officials and private entities are exploiting the Protection from Harassment Act 17 of 2011 to silence reporters and disrupt investigations.
Ironically, it was IRS Forensic Investigations that brought the Protection from Harassment Act into the spotlight in 2013. IRS assisted in obtaining a protection order on behalf of a client who had gone to hell and back in respect of the severe harassment he suffered at the hands of his former domestic partner.
This case was front page of The Star newspaper, in You magazine and on Carte Blanche.
Every time I have successfully opposed a protection order and requested the courts sanction the applicant, the courts have not granted costs. In some cases, I had to travel to Port Shepstone Magistrate’s Court, Pinetown Magistrate’s Court and local courts such as Germiston and Benoni.
Daily Maverick reported that the potential abuse of protection orders was identified as far back as 2010.
“During the parliamentary hearings on the Protection from Harassment Bill in October 2010, serious concerns were already raised.
“Both the SA National Editors’ Forum and Print Media SA submitted to the portfolio committee on justice and constitutional development that the Bill’s definition of harassment was too broad and risked capturing legitimate journalistic conduct within its reach.
“Avusa – then publisher of the Sunday Times, Business Day and other major titles – went further, warning the Bill could be used by a prominent public figure being tried for a crime [who] could just say they were being harassed and obtain a protection order against the media. These warnings, largely dismissed at the time, have proven prophetic.”
The Daily Maverick article added: “The committee, at the time expressed confidence the courts would exercise appropriate discretion, and the test of reasonableness built into the definition of harassment would suffice to protect journalistic practice.
“More than a decade later, the evidence suggests that confidence was misplaced.”
