Judge Roland Sutherland has reserved judgment in the case between South African Airways (SAA) and Media24, BDFM, and Moneyweb until December 17 to decide whether a gag order will be granted for SAA.

The media has a right to keep the public informed, Media24 (Fin24 and City Press), BDFM, and Moneyweb told the High Court in Johannesburg on Wednesday as SAA attempted to have a gagging order against the three media outlets made final.

The case relates to a leaked memo SAA wants kept secret, because it says it could harm the state-owned company in litigation over disputes with companies like Airbus.

Business Day’s advocate, Anne-Marie de Kok said the media was not made aware of SAA's intention to obtain the gag order over the weekend.

Sutherland also asked why SAA lawyers didn’t alert the journalists about their intention to get a court order.

The media groups maintained it was not said once that the document from SAA was confidential and that head of legal, risk and compliance at SAA, Ursula Fikelepi, was aware that the media was in possession of the memo and made no attempt to stop them from publishing.

De Kok said it was not true that SAA spokesperson, Tladi Tladi, tried to stop journalists from publishing, and that Tladi only communicated with the publications to find out when and where they were going to publish their material.

They said that by the time City Press and Moneyweb were made aware of the urgent interdict, they had already published their articles and Businesses Day had set its printing process in motion.

Judge Roland Sutherland said it could be asked why SAA had shown 'clumsiness' when it alerted the media groups about the interdict not to publish.
It was argued that SAA should have communicated with the appropriate people, and that it should also have alerted the respondents while giving them enough time to respond.

The media group argued that SAA had lost any privilege that may have been attached to memorandum. They said the speed in which the media publishes in the modern era requires a speedy response from holders of privilege when replying to emails sent out by publications over weekend.

SAA had not replied early enough, said the media group.

Advocate Timothy Bruinders who is representing SAA argued that they accept that the media has rights to publish privileged documents if public interest overrides it, which they believe in this case it doesn’t.

He said that the content of the memo is privileged and even though it's now in the public domain, it can be used against the airline by any company it’s in dispute with, including Airbus.

Sutherland reserved judgment until December 17.

News24.com