‘This is not harassment’: Sunday Times journalist fights NYDA chair’s gag order

National Youth Development Agency (NYDA) chairperson Sunshine Myende abused the Protection from Harassment Act for ulterior motives, namely to punish and silence media reporting on matters of legitimate public interest.

This was argued in an answering affidavit filed by Sunday Times journalist Sisanda Mbolekwa in response to an application concerning an interim order obtained by Myende. The order prevented Mbolekwa from reporting on Myende, sending her questions, or using her photograph.

Mbolekwa argued that Myende’s application was fundamentally misconceived and should be dismissed because her complaint was not about harassment.

Myende obtained interim relief against Mbolekwa, without prior notice, under the Protection from Harassment Act.

The order, served on Mbolekwa on June 10, prohibited her from engaging with Myende in any manner, threatening or intimidating her, or publishing any photograph of her.

The sheriff who served the interim order informed Mbolekwa that she was required to appear before the Randburg magistrate’s court on Tuesday to provide reasons why the order should not be made final.

Mbolekwa’s affidavit was filed in support of an application to have the interim order set aside, with costs.

The matter was postponed until August 14.

Mbolekwa said Myende had complained that she [Mbolekwa] and Sunday Times deputy editor Kabelo Khumalo had posed questions concerning allegations received from whistleblowers and other sources.

Myende also complained that the journalists sought comment from the NYDA before publication and that articles were published concerning allegations relating to the governance and administration of the agency, which she said reflected adversely upon the NYDA and/or herself.

“Even if all these allegations are accepted for purposes of argument, they do not establish harassment as contemplated in the act. At its highest, the applicant’s complaint is one of alleged reputational harm arising from media reporting,” Mbolekwa said.

She argued that such complaints might potentially fall within the realm of defamation or media regulation but did not constitute harassment.

Mbolekwa said the interim order prevented her from doing her job as a journalist.

“As a journalist, I am obliged to seek prior comment from the subjects of reportage. The manner in which I went about it … does not constitute harassment.”

She said the public was entitled to seek information concerning the affairs of public institutions, the manner in which they are administered, the expenditure of public resources, and the conduct of those entrusted with their leadership.

According to Mbolekwa, the media performs a vital constitutional role in facilitating such scrutiny.

She said the public interest in these issues was demonstrated by the fact that the governance of the NYDA, the expenditure of public funds, the leasing of office accommodation, and the treatment of whistleblowers had attracted attention beyond the reporting complained of by Myende.

These matters, she said, had been reported on by multiple media organisations and had generated broader public and political scrutiny.

Mbolekwa further argued that questions concerning governance, procurement, whistleblower allegations, and executive decision-making within a publicly funded institution such as the NYDA were matters of public interest and fell squarely within the scope of legitimate journalistic inquiry.

She said Myende’s senior position within the NYDA did not place her beyond public scrutiny and that she should expect a higher degree of scrutiny than private individuals.

Myende had also alleged that emails sent by Mbolekwa on March 12 and 13 constituted harassment. Mbolekwa responded that, properly construed, the emails were plainly media enquiries directed at obtaining comment on allegations received from sources before to publication.

She said the emails were not even sent directly to Myende but rather to the NYDA communications officer and spokesperson.

Mbolekwa said the Protection from Harassment Act was enacted to protect individuals from conduct that threatens their safety, privacy, dignity and well-being through stalking, intimidation, threats and other forms of genuine harassment.

“It was not enacted to regulate journalistic activity or to provide a mechanism through which public officials may shield themselves from scrutiny concerning matters of public interest.”

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