By Franny Rabkin, Business Day Live
Photo: the Sunday Times
THE High Court in Johannesburg on Thursday set aside a gagging order obtained by South African Airways (SAA) against media houses, saying the public interest outweighed the cash-strapped airline’s right to keep a damning internal legal opinion under wraps.
The judgment is a boost for media freedom, saying that the public interest may override even legitimate claims of confidentiality and that attorney-client privilege does not apply to information already in the public domain.
SAA spokesman Tlali Tlali said it was too early to say whether the airline would appeal. But SAA officials were studying the judgment to "properly understand" its implications if it were to be "left unchallenged".
The airline obtained an interim interdict against Media24, Moneyweb and BDFM Publishers — which publishes Business Day — in the early hours of November 24.
The court had ordered that the media houses could not publish the contents of a legal opinion from SAA’s internal legal counsel, Ursula Fikelepi, to the board.
SAA had argued that the legal opinion was protected by attorney-client privilege.
The opinion laid bare SAA’s dire financial position and advised the board to secure an equity injection from the state or apply for business rescue.
It warned that to continue trading under current circumstances was "reckless".
It also recommended that the board of the airline abandon its attempts to renegotiate an Airbus transaction to lease five A330 aircraft, and revert to an old deal structure that was negotiated in March.
On Thursday Johannesburg High Court Judge Roland Sutherland reversed the court’s earlier decision to grant an interdict. Though he was emphatic that the contents of the document were confidential to SAA, the interdict was futile because by the time SAA obtained it, the information had already been published.
He said that the right to claim attorney-client privilege, or to make any claim of confidentiality, was not absolute.
It always had to be balanced with other contending values "in a fact-specific context". In this case, most of what was in the document was by then already known.
Also, the controversies around SAA and "its dependence on taxpayer funds" were a "demonstrably obvious topic" about which every citizen had an interest to be informed, said Judge Sutherland.
The judge also closely examined the right to attorney-client privilege and decided it could be only claimed in legal proceedings.
But once the information had already been leaked — to "strangers" to the legal proceedings — attorney-client privilege could not apply.
"The law gives to the client … a ‘privilege’ to refuse to disclose, not a right to suppress publication if the confidentiality is breached," he said.
He was scathing about SAA’s efforts to contact the media houses to notify them of its intention to get an interdict.
"Service was a farce," the judge said.
He said SAA’s founding affidavit contained misrepresentations "calculated to positively mislead" the judge who had given the earlier interim order.
Business Day editor Songezo Zibi said the judgment was an "important victory" for transparency, enabling South Africans to participate meaningfully in the affairs of their country.