There have been a number of similar applications published here https://afrinic.net/court-cases and I don't remember you asking the plaintiffs to share such court documents that are subject to proceedings *publicly* especially when the matter is *sub judice*.

I encourage you to respect the court process, her ladyship, the Hon.judge and the legal teams.

*Sub iudice* does not mean what you think it means. There are rules and practices designed to promote the sanctity and authority of courts in addressing matters before them and this relates to the fact that a matter is under the aegis of the judicial authority. *Sub iudice* does not mean that you can use the court as an excuse against valid disclosure. Doing so is actually disrespectful to the court.

The TISPA injunction application failed to name the individuals who are nominees for the board, it fails to name parties who have ongoing (that is *sub iudice*) proceedings which are affected by the injunction. Any one of these affected parties who wishes to contemplate entering an application to be joined to the proceedings or to file cause for the *ex parte nisi* not to be made interlocutory. For this reason alone it is highly dishonest to not inform Andrew – and the public at large – of those particulars necessary to enable same to step in prior to the order being made interlocutory.

If the affidavit makes untruthful claims then any claim that the public interest of not having pre-emptive knowledge of evidence to be lead in court circulating is overridden by the judicial interest in persons with knowledge that the claims are untruthful being afforded the ability to step forward with that knowledge.

Let me step in as somebody who not only has experience in litigation in Mauritius (including dealing with Afrinic) but also on a near daily basis engages with Mauritius legal practitioners in a professional context. Mauritius has developed a bit of an odd – and open to legitimate criticism but frankly it's been the recipient of uninformed diatribe – culture and ethos around the dissemination of information around legal proceedings. A lot of this stems from Mauritius as an offshore jurisdiction with parties engaging in arbitration which is confidential. What has taken hold is the idea that until proceedings have happened in open court and been brought to finality there is a general confidentiality adopted on the documents. This is quite different from the situation in South Africa where I can request to be afforded access to a file that is at the court either as a researcher or because an NGO wishes to make an informed position. However, anybody involved in professional journalism will know that you don’t publish certain information prior to it being heard in court and the basic fact that documents can’t magically lose confidentiality considerations just because somebody makes them an annexure to an affidavit still holds. All matters I’ve been involved in with telcos have publicly accessible redacted records and records which are only for the legal team (not even the parties themselves) and the judge. Sensitive commercial information presents a challenge conceptually to the idea of open justice and different jurisdictions tackle this differently. Mauritius is chosen often because it's perceived to be more tolerant of secretiveness.

More to the point here though: The contents of the application – particularly its affidavit – has already been considered by the court, the parties to the proceedings have been served and no harm to proceedings arises from the contents being in the public domain. It is therefore entirely a feature of practice (more than law) in Mauritius that litigants are afforded a greater room to assert confidentiality than in most other jurisdictions. And the *sub iudice *rule and doctrine is not the reason Noah does not want people to read the documents. If it was genuine deference to legal advice to be cautious then he would have no difficulty giving his consent to the documents being published.

As I’ve repeatedly indicated Crystal Web (Pty) Ltd consents to the dissemination and publication of those documents pertaining to judicial proceedings to which Crystal Web is a party and which documents have not been “read in open court”. Unfortunately, Afrinic (and the $1000 per hour legal practitioners) will not consent to resource members knowing what is actually happening. I naturally cannot speak for any other party to litigation but my own experience is that even if there is no good reason for Afrinic to wish to keep information hidden – with selective and misleading disclosures – that the executive employees will oppose the publication of documentation in the public interest.

So yes – it is true that a person with possession of copies of the documents pertaining to TISPA’s application should refrain from publishing and widely disseminating those documents. This is until the consent of the parties to publication is given and the court is informed. It is equally true that neither Noah Maina (who is commenting as if he has actual knowledge of the documents and is likely an affiant) nor TISPA have expressed their consent to the documents being published in the public interest. It is equally true that affected parties have a right to request a copy of the documents in the possession of Maina and TISPA and Afrinic and the Receiver.

More importantly, TISPA probably have more to worry about from ICANNs lawyers than anybody else.

Paul

Speaking on behalf of Crystal Web (Pty) Ltd

But also a beach town quasi hippy with a British law degree

Paul AH Hjul

BA (Rhodes University), LLM (University of London, specialism in Corporate and Commercial Law)

Member of the Chartered Institute of Arbitrators.