Gag order against Open Secrets lifted
Case brought by Integrated Convoy Protection, which sells armoured vehicles to UAE, dismissed
An armoured vehicle at Camp Victory, Iraq, in 2006. This vehicle is a REVA APC made by the South African company Integrated Convoy Protection (ICP). Open Secrets was until Thursday gagged from publishing that ICP sells armoured vehicles to the UAE. While it is not known what the UAE does with these vehicles, the UAE has been accused of being the main backer of the RSF in Sudan, which is accused of committing genocide. Source: Wikimedia (CC BY-SA 2.5)
A gag order against Open Secrets was overturned in the Western Cape High Court on Thursday afternoon by Judge Nathan Erasmus.
Open Secrets is a non-profit organisation whose mission is to “hold the profiteers of economic crime, human rights abuses, and war to account”.
The applicant, Integrated Convoy Protection (ICP), a South African armoured vehicle manufacturer, wanted the court to prevent the publication of an investigation by Open Secrets.
Thursday’s hearing came after an urgent application by ICP on 5 November resulted in Acting Judge Gavin Cooper ordering a temporary gag on Open Secrets.
During Thursday’s hearing, it came to light that Open Secrets was given very short notice, only about 2 hours, to come to court on 5 November. The urgent application by ICP was made following right-of-reply questions sent to them by Open Secrets for their investigation.
Judge Erasmus was critical of the short notice given to Open Secrets by ICP to appear in court. He suggested that the urgent hearing could have taken place later that day or the following day on 6 November, which was still before Open Secrets’s deadline for their questions sent to ICP.
At the outset of the hearing, Erasmus said to the respondent that he needed to determine “whether this is litigation by ambush”.
Erasmus also suggested that Acting Judge Cooper had not “known the whole picture”.
Robert Stelzner, representing ICP, argued that the consequences of the publication of Open Secrets’ article would have “demonstrable real risk”, “financial consequences”, and “irreparable harm” to the reputation of the company.
“The applicant stands to lose business from this client if the client’s identity becomes known,” said Stelzner. The client in question is a state-owned company in the United Arab Emirates (UAE). While it is not known what the UAE does with these vehicles, the UAE has been accused of being the main backer of the RSF in Sudan, which is accused of committing genocide.
Geoff Budlender, representing Open Secrets, said that ICP withheld information from Acting Judge Cooper prior to his granting of the gag order on 5 November.
He said that some information had been “redacted in order to conceal the nature of the contract” for the supply of armoured vehicles to the UAE.
Budlender argued that ICP had “unclean hands” and had abused the court process.
He explained that, ironically, ICP sought confidentiality, yet “we’re sitting here in open court” with the media present.
Mitchell De Beer, representing investigative news organisation Amabhungane, which was admitted as an amicus in the case, argued ICP had a “myopic” view of what the “public interest” entails.
“The public has the right to know … parts for armoured vehicles are exported to the UAE and ending up in war-torn countries,” said De Beer.
Following the court proceedings and the reading of the order, Hennie Van Vuuren, director of Open Secrets, expressed delight that “the court has ruled in the public interest”.
“It’s ensured that corporations, including companies that are involved in the arms trade around the globe, can’t prevent public interest investigations from being published,” he said.
“It’s not only a win for Open Secrets; it’s a win for investigative journalists in South Africa,” said van Vuuren. “Now we can go ahead and publish.”
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