The High Court on Thursday set aside a gagging order obtained by
South African Airways (SAA) against media houses, including the
publisher of Business Day.
SAA had urgently gone to court in the middle of the night of November
24 to prevent Business Day, Moneyweb and Media24 from running a story
based on a legal opinion from its internal legal counsel, Ursula
Fikelepi, to the board.
The opinion advised that SAA should secure an equity injection from
the state or apply for business rescue. It said to continue trading
under current circumstances was “reckless” and recommended that the
board abandon its attempts to renegotiate the Airbus transaction to
lease five A330 aircraft and revert to the old deal structure that was
negotiated in March.
SAA said that the document was protected by attorney-client privilege and so could not be published.
But by the time the interdict was obtained, the City Press and
Moneyweb had already published and Business Day had gone to the
printers.
In setting aside the interdict, Johannesburg High Court Judge Roland
Sutherland said that the metaphor of the horse having bolted was
“inadequate”.
He said the document had also been disseminated widely. “A better
image might be that virus has infected the world’s literate population”.
The order “was futile even as the ink dried upon it,” he said.
Judge Sutherland was scathing about SAA’s attempts to contact the
media houses to notify them of its intention to get an interdict.
“Service was a farce,” he said.
He also said SAA’s founding affidavit contained “falsehoods” and were
misrepresentations “calculated to positively mislead the judge”.
He was referring to Judge Fayeeza Kathree-Setiloane who was on urgent duty and granted the interdict.
While it was a “certain fact” that SAA’s right to confidentiality had
been violated, privilege could not be invoked when confidentiality had
already been breached and the information had become known outside of
the litigation context.
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