Slapp suit: Media freedom vindicated in Zuma private prosecution verdict
The High Court in Pietermaritzburg says former president Jacob Zuma’s private prosecution of journalist Karyn Maughan had the hallmarks of a Slapp suit, designed to harass and intimidate.
The High Court in Pietermaritzburg has issued strong commentary against the abuse of legal process, cyberbullying of journalists and the use of “Slapp” lawsuits as an attempt to silence journalists in a case involving former president Jacob Zuma, journalist Karyn Maughan and NPA prosecutor Billy Downer SC.
The court interdicted Zuma from privately prosecuting Maughan after claiming she illegally accessed his medical records via Downer. Maughan was initially not included in Zuma’s complaint against Downer, but was added later.
He is also attempting to privately prosecute President Cyril Ramaphosa as an accessory after the fact, linked to the same allegations.
Read more in Daily Maverick: Slapp down — Jacob Zuma fails in attempted private prosecution of Billy Downer and Karyn Maughan
The court has put paid to Zuma’s first two private prosecution cases, leaving the potential success of his case against Ramaphosa in question.
In a judgment penned by judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa, Zuma was interdicted from proceeding with both private prosecutions. He was also ordered to pay the legal costs for Maughan and Downer.
Zuma had initially embarked on a prosecution of Downer for his alleged “leaking” of medical information to Maughan. The main bone of contention was a letter, written by the military health service in August 2021, that provided information on Zuma’s health.
Read more in Daily Maverick: Zuma’s still-mysterious ‘medical condition’ weaponised to prosecute journalist accused of disclosing it
He had submitted the letter as part of arguments over whether he was well enough to attend court proceedings. The letter did not stipulate any specifics of Zuma’s condition, but says he was “put under active care” by military doctors on 28 November 2020.
The letter also indicates that Zuma was admitted to hospital on 6 August 2021 and is “undergoing extensive medical evaluation and care as a result of his condition that needed an extensive emergency procedure”.
Social media abuse
In addition to considering the technical aspects of the case, the court said it was necessary to consider allegations that Zuma was abusing the court process to discredit Downer and intimidate Maughan.
“It is evident that the Respondent (Zuma) harbours great hostility towards her (Maughan) and this is demonstrated in his affidavit and by the Respondent’s associate and supporters,” the court said.
“The tweets annexed to the founding papers demonstrate that (Maughan) has repeatedly been maligned and threatened for her reporting on (Zuma) and his court matters. It is evident that this emanates from members of (Zuma’s) family, being his daughter, as well as Mr Manyi, the spokesperson for the Jacob Zuma Foundation.
“Her affidavit references instances of social media abuse by the Respondent’s daughter and the Jacob Zuma Foundation,” the court said.
The judgment noted that Maughan had been referred to as “a thing, a bitch, a lying bitch, a white bitch, a witch, a racist, a pig, an alcoholic, a criminal, a hypocrite, a propaganda journalist, a racist, a servant of white privilege, a hack and an askari (traitor)”.
“The fact that the tweets were sent and these comments were made was not disputed or denied. The Respondent (Zuma) in answer says he has no control over the tweets and posts. As attractive as the argument may be, Maughan, in our view, has been harassed and prohibited from proper reporting and does so with a cloud hanging over her head and with the threat of either private prosecution in a criminal court or possible civil litigation against her.
“In addition, some of these comments may incite physical harm,” the court said.
The court also noted that the letter which Maughan reported on “already formed part of court papers” when she wrote about it.
“She requested and obtained them from Breitenbach not Downer and did so in the public interest. In any event, by the time she published them, they were public documents.
“The Respondent (Zuma) has not disputed her averment that it is common practice among journalists to request court documents with a view of reporting on matters – that she has done so in the past in relation to (Zuma) has also not been disputed.
“As at the time of the publication of her article, the documents had been filed in court three times,” the judges said.
The court said that when “viewed holistically we agree with Maughan that the private prosecution constitutes a violation of the rights recognised in section 16(1) of the Constitution. The right to freedom of the media has been acknowledged by our courts”.
“Such right we agree encompasses the right of journalists to report freely on matters of public interest without threats and without intimidation and harassment.”
The court had also heard submissions from the Campaign for Free Expression (CFE), the SA National Editors’ Forum (Sanef) and Media Monitoring Africa (MMA), as friends of the court, regarding media freedom and the danger of Slapp lawsuits.
Slapp, meaning “strategic litigation against public participation”, is often aimed at silencing whistle-blowers and journalists to stop them from reporting on a particular issue.
During the hearing, Zuma had argued that his case did not constitute a Slapp lawsuit and that these kinds of cases did not extend to criminal trials “as this would frustrate the administration of justice and constitute an impediment to the NPA and private prosecutors from conducting fair criminal trials”.
“Slapp suits have specifically been recognised as a means by which lawsuits are instituted to quash criticism and debate through litigation that is deemed an abuse of process,” the court said.
“Slapp suits involving journalists are instituted to intimidate and harass them and prevent them from reporting. This has been a growing trend internationally and has been recognised by media bodies globally.
“Slapp suits are not used to vindicate any right but are used rather to silence journalists who are perceived to report in the public interest.”
The court said the three organisations argued that Zuma’s private prosecution could be viewed as a Slapp suit and the court agreed.
“We agree with the submissions of CFE, MMA and Sanef that there exists a need for protections against Slapp suits in criminal proceedings and that this is particularly evident where a private prosecution is permitted under the law.
“Essentially, a private prosecutor is ‘stepping into the shoes of the state to punish crime’. Without the inbuilt safeguards recognised in other jurisdictions, private prosecution creates an environment where criminal proceedings and the threat of criminal sanctions are used to intimidate, harass and silence critics,” the court said.
The court added that it agreed with the submissions made by CFE, Sanef and MMA that Zuma’s private prosecution “has all the elements of a Slapp suit in that it relates to her obligation as a journalist to report on matters in the public interest.
“It infringes on her right to freedom of expression, specifically, press freedom and the public’s right to receive such information. It has the effect of intimidating, harassing and silencing her as its ulterior motive and for reasons already mentioned in the judgment, the prosecution lacks prospects of success,” the court said.
In a statement released after the judgment, the three organisations said the ruling was a “victory for all of journalism”.
“It reinforces the right of reporters to be free to do their job of covering important court cases without hindrance or harassment. Zuma’s attack on a journalist has been decisively slapped down,” the organisations said.
“Maughan was collateral damage in Zuma’s ‘Stalingrad’ strategy to delay his [Arms Deal] trial and deflect from the accusations against him – and Maughan should be commended for standing firm against this onslaught.”
Read more in Daily Maverick: Jacob Zuma alleges ‘criminal intent’ in medical note ‘leak’
Meanwhile, Jacob Zuma Foundation spokesman Mzwanele Manyi said Zuma would appeal against the ruling, which he called “bizarre”.
“His Excellency President Jacob Zuma is going to appeal this judgment. We see this as a travesty of justice. We see this as people that are treated with laws that are not in existence in the country when the law is so clear about not giving out information prior to the permission of the National Director by the Public Prosecutions.
“How can it be that when that has happened, the court sees nothing wrong with this? We see this as one of those notorious Zuma laws. This must be appealed so it will be appealed,” he said. DM