Legal Gaslighting – SLAPP-ing back at abusive process

In a case involving former President of the Republic of South Africa Jacob Zuma, journalist Karyn Maughan, and a Senior State Advocate of the National Prosecuting Authority William Downer SC, the High Court has delivered a resolute judgement condemning the abuse of legal procedures, and the utilisation of "SLAPP" lawsuits as a means to stifle freedom of the press.

Strategic Litigation Against Public Participation, commonly known as "SLAPP suits," are often used to intimidate or silence individuals who speak out on matters of public interest. The main objective is to burden the defendant with the costs, time, and stress of litigation, thereby discouraging them from pursuing critical or investigative activities.

In an effort to address the apparent unfairness presented in suits of this nature, a specific legal defence, initially introduced by the courts of the United States and Canada, has recently been recognised as forming part of South African law. In the USA and Canada, SLAPP defences are frequently raised in response to defamation claims, malicious prosecution, or liability cases.

While South African courts have previously acknowledged the existence of this defence, its practical application requires further development. In the case of Maughan v Zuma and Others ("Maughan"), the court further elaborated on the defence in South African law and confirmed that it can be raised as a defence whenever appropriate and not only limited to defamation cases.

Karyn Maughan, a seasoned journalist who has been reporting on Zuma's ongoing criminal investigation for several years, became the most recent target of a SLAPP suit. Maughan's reporting on Zuma included references to documents concerning his health, and he alleged that Senior State Advocate Downer had leaked a letter marked "Medical Confidential" to Maughan. Maughan argued that since the letter was included in the court bundle, it formed part of the court record, and was, therefore, a "public document" and could be reported on.

The court concluded that Zuma's private prosecution of Maughan exhibited all the characteristics of a SLAPP suit because:

• It related to her journalistic obligations to report on matters of public interest.
• It infringed upon her right to freedom of expression and the public's right to access such information.
• It aimed to intimidate, harass, and silence Maughan as its underlying motive.
• It had poor prospects of success.

In the Maughan case, the court referred to several international examples in which courts acknowledged the need to protect journalists from SLAPP suits and emphasised that courts should safeguard against the misuse of their processes to maintain their integrity. This approach aligns with the provisions of section 16 of the Constitution, which guarantees freedom of expression, including freedom of the press and media.

The use of SLAPP suits as a means to suppress criticism and control public discourse is a growing global phenomenon. Media organisations, journalism associations, and human rights groups have acknowledged the detrimental impact of SLAPP suits on freedom of expression and the media. They have condemned the use of such suits as tools of intimidation and harassment, highlighting the "chilling effect" they have on investigative journalism and public accountability.

To counter the abuse of SLAPP suits, some jurisdictions have implemented anti-SLAPP legislation or legal mechanisms aimed at protecting individuals from frivolous or malicious lawsuits intended to stifle free speech. These laws often provide expedited procedures to dismiss SLAPP suits, shift the burden of proof onto the plaintiff, and allow for the awarding of attorney's fees and damages to the defendants.

In South Africa, although there is no specific anti-SLAPP legislation, the Western Cape High Court recently dismissed a series of defamation lawsuits filed by the Australian mining company Mineral Commodities Ltd ("MRC") and its local subsidiary against six environmental activists. The court deemed these lawsuits an abuse of the legal process, highlighting that SLAPP suits undermine fundamental principles of justice. This decision demonstrates that courts have the authority to protect defendants from this type of abusive litigation, even in the absence of explicit anti-SLAPP laws.

Efforts are also underway to raise awareness about SLAPP suits, educate journalists and activists about their rights, and advocate for stronger legal protections against such abusive litigation practices. Recognising SLAPP suits as a threat to free speech and public participation has prompted increased scrutiny and calls to safeguard the integrity of journalism and the fundamental right to express critical opinions.