Chief Justice’s office publishes “gag” order
An interim order by an acting judge in the Western Cape High Court that has caused substantial controversy has been made public by the Office of the Chief Justice. Archive photo: Ashraf Hendricks
A “gagging” court order against Open Secrets — under which the organisation claimed it could not reveal any details of the dispute or even which judge or which court heard the application — has now been made public by the Office of the Chief Justice (OCJ).
In what is possibly an unprecedented move regarding a dispute between two parties before the court, the OCJ issued a statement on Thursday, distributed over its media WhatsApp platform, giving details of the order, how it came to be granted, and attaching the order itself.
This is in light of reports that Open Secret had been “gagged” by an unknown judge, in an unknown court, possibly in an ex parte (without notice to the other side) application.
In a statement, Open Secrets said: “Open Secrets is presently unable to speak on a matter of significant public importance. We are not permitted to disclose anything related to the matter, including the names of the parties that may be involved. What we can say is simple: efforts to muzzle public-interest journalism endanger everyone’s right to know.”
Approached by GroundUp earlier this week - based on the release issued by Open Secrets - its lawyers confirmed: “We are, unfortunately, not in a position to comment at this stage of the litigation.”
The OCJ now says the interim order, granted by Acting Judge Gavin Cooper in the Western Cape High Court, was a “standard and proportionate measure to preserve the status quo until all arguments can be properly heard and considered.”
A GroundUp report earlier on Thursday implied that the application was brought by Integrated Convoy Protection, a South African armoured vehicle manufacturer.
This has now been confirmed by the OCJ.
It said the urgent application by Integrated Convoy Protection against Open Secrets served before Acting Judge Cooper — who was on “urgent” duty — on 5 November.
“The hearing took place in open court, where several people attended. Open Secrets was represented by Tina Power, an attorney from Power Law. Parties presented arguments in open court. Given the short time periods, Open Secrets had not yet filed papers.
“It was clear that the matter had to be postponed. The judge heard further argument on this and ultimately granted an order postponing it to 18 December 2025, provided that the date was confirmed with the Acting Deputy Judge President.”
The OCJ said a timetable was established for the filing of further papers and granted “brief, temporary relief”.
In terms of the temporary interdict, it was ordered that Open Secrets not publish any articles containing the material which formed the subject of the application; that pending the next hearing, they were interdicted and restrained from publishing the contents of and facts relating to the application and the order, and were directed to keep the contents of this application confidential to the parties; and, that given the allegations of confidentiality, the papers did not have to be filed on Court Online/Case Lines.
The OCJ said the parties had met with the Acting Deputy Judge President, and it had been agreed that the matter would be heard on 27 November.
“The order expresses no view on the merits of the application. The order is temporary and procedural, designed to allow for a fair and orderly judicial process,” it said.
“The court set a truncated timetable for the swift exchange of papers, ensuring that both parties will have an opportunity to present their case.”
“Characterising the legal process followed by the court as a ‘gag order’ is an unfortunate misrepresentation and undermines the role of the courts in adjudicating disputes.”
GroundUp has reported that the hearing on 27 November is to be presided over by Judge Nathan Erasmus.
GroundUp approached Power Law for comment on these further developments, but received no reply.
Comment by GroundUp Editor
The intervention of the OCJ in this matter is surprising. But it is good that there is clarity on this matter now and that the order by Acting Judge Cooper has been made public. Three points:
- It’s unequivocally a gag order. It prevents Open Secrets from reporting on the contents of the application, albeit temporarily. It’s unfortunate and misleading for the OCJ to claim otherwise.
- But the order did not gag Open Secrets from making the actual order, court and parties public. Open Secrets’ lawyers interpreted the judge’s words too broadly. Lawyers should generally interpret orders as restrictively as possible.
- Perhaps the salient lesson, though, is that judges (and lawyers) should write in plain language. Cooper’s order is almost impenetrable. Here is the part of his order that has caused all the trouble: “Pending the hearing referred to above the Respondents are interdicted and restrained from publishing the contents of and facts relating to this application and this Order and are directed to keep the contents of this application confidential to the parties.” Talmudic scholars may debate the meaning of this for centuries to come.
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