Protection orders are being repurposed as gag orders across SA

Across the country, a disturbing pattern has emerged: powerful individuals, public officials and private entities are exploiting the Protection from Harassment Act 17 of 2011 (the Act) to silence reporters and disrupt investigations. The Campaign for Free Expression has documented at least nine recent cases in which protection orders or their functional equivalents have been used to gag or intimidate journalists, whistleblowers and activists.

Two weeks ago, the chairperson of the National Youth Development Agency (NYDA), Sunshine Myende, obtained an interim protection order from the Randburg Magistrates’ Court against Sunday Times journalist Sisanda Mbolekwa. The order prohibits Mbolekwa from reporting on Myende, sending her questions, or even using her photograph. Mbolekwa sent Myende a right-of-reply request, a standard practice required by the South African Press Code before publication. Myende’s court papers describe this as “forced communication” and “harassment”.

The Act and its original purpose

The Protection from Harassment Act’s primary purpose was to provide an accessible and affordable legal remedy for victims of stalking, cyberbullying and harassment. The Act allows an applicant to approach a magistrates’ court for an interim protection order without the alleged harasser being present (an ex parte application), followed by a date for the return of the order, at which point the respondent may contest it. This low-threshold mechanism was intentionally designed to ease access for domestic violence survivors and vulnerable individuals who might otherwise be intimidated into silence.

During the parliamentary hearings on the Protection from Harassment Bill in October 2010, serious concerns were already raised. Both the South African National Editors Forum (Sanef) and Print Media South Africa submitted to the Portfolio Committee on Justice and Constitutional Development that the Bill’s definition of “harassment” was too broad and risked capturing legitimate journalistic conduct within its reach. Avusa – then publisher of the Sunday Times, Business Day and other major titles – went further, warning that the Bill could be used by “a prominent public figure that was being tried for a crime [who] could just say that they were being harassed and obtain a protection order against the media”. These warnings, largely dismissed at the time, have proven prophetic.

The Act does not contain an explicit public interest defence for journalists. The committee, at the time, expressed confidence that the courts would exercise appropriate discretion, and that the test of reasonableness built into the definition of harassment would suffice to protect legitimate journalistic practice. More than a decade later, the evidence suggests that confidence was misplaced.

A pattern of abuse

Sisanda Mbolekwa

On 23 June, Mbolekwa appeared in the Randburg Magistrates’ Court to contest Myende’s interim order. The case was postponed to 14 August and the interim protection order against Mbolekwa remains in place. Because the order was granted under the Protection from Harassment Act, a matter between a reporter and a public official was heard in the family court. This means members of the press and the public were barred from entering the courtroom.

The reporting Myende sought to suppress was squarely in the public interest. In September 2025, her entourage spent R1-million in public funds on a business class trip to the UN General Assembly in New York. Months later, the NYDA’s annual report – filed four months late – revealed more than R71-million in irregular expenditure, ending a run of nine consecutive clean audits. A Sunday Times investigation found the agency’s head office had been declared structurally unsafe in two independent risk assessments, while the NYDA continued paying R6.2-million for a seven-year lease on the building. Staff wrote to President Cyril Ramaphosa, asking him to intervene.

Rather than address these concerns, the NYDA fast-tracked the hiring of a digital forensic firm to identify employees who had leaked to the press, granting investigators access to staff phones, emails and geolocations, with a mandate to recommend criminal referrals. Parliament’s Portfolio Committee on Women, Youth and Persons with Disabilities warned that hunting for whistleblowers, rather than investigating the substance of the allegations, would breach the Protected Disclosures Act.

It was in this context that Mbolekwa contacted Myende for comment. The protection order followed.

Thomo Nkgadima

Perhaps no case more starkly illustrates the vulnerability of journalists – particularly those working without institutional support – than that of Nkgadima, a freelance journalist based in Limpopo’s Fetakgomo Tubatse municipality. Nkgadima had been investigating alleged irregularities in the construction of a local hospital.

In 2023, a protection order was obtained against him by a ward committee member, Mampuruburu Machubeng, who claimed that Nkgadima’s inquiries amounted to harassment. The order, which barred Nkgadima from “insulting” or tarnishing Machubeng in “any form of media in any manner”, effectively constituted a blanket prohibition on his reporting about individuals connected to the hospital project.

In February 2025, when Nkgadima contacted Machubeng for comment about fresh investigations into the same hospital project, police detained him on suspicion of breaching the protection order. The charges were subsequently withdrawn when it became apparent that no breach had occurred. In November 2025, the Praktiseer Magistrates’ Court set aside the underlying protection order. But the damage to Nkgadima had already been done: multiple online publications became reluctant to commission his work, and his side-income from a farming project suffered as a result of the time consumed by the legal proceedings. A journalist had been effectively neutralised not by any formal conviction, but by the mere existence and weaponisation of a protection order process.

The constitutional framework

What makes these cases constitutionally significant is who is bringing them. Myende is not a private individual seeking protection from a stalker. She is a public official, exercising power over an institution funded by public money. The Constitution allows such people to be subject to press scrutiny, not insulated from it. A law designed for victims of domestic violence cannot legitimately be repurposed to shield a public official from investigative journalism.

When a protection order is granted for conduct that amounts to nothing more than standard journalistic practice – requests for comment, door-stopping sources – it limits the constitutional right to press freedom. That limitation must be proportionate to the harm it seeks to prevent on behalf of the applicant. Where the applicant is a public official and the reporting concerns public functions, it almost never will be.

There is a higher bar for orders that prevent publication before it happens. South African law treats prior restraint as constitutionally more serious than liability imposed after the fact. As the court held in the amaBhungane case, a gagging order requires compelling evidence that publication will harm the public interest – not merely that it will embarrass the applicant. That bar is high, and deliberately so.

What the law requires: Proposals for reform

The solution is not to dismantle the Protection from Harassment Act, which serves a vital purpose for genuine victims of stalking, cyberbullying and intimate partner harassment. The solution lies in a combination of legislative amendment, judicial training and the development of clear jurisprudential principles to prevent the Act’s abuse.

The legislature should consider amending the Act to introduce an explicit public interest defence along the lines proposed by Sanef and Avusa during the 2010 parliamentary hearings. This defence should not create a blanket immunity for journalists, but should require a court, when considering an application for a protection order against a journalist, to take account of whether the conduct complained of constitutes legitimate journalistic activity in furtherance of the public interest.

Conclusion

The harm does not require the applicant to win. That is the point of strategic litigation against public participation (Slapp suits): the mere existence of proceedings forces a journalist to hire lawyers, appear in court and divert months of time from reporting. For freelancers like Nkgadima, without institutional backing or in-house legal support, that cost can be career-ending. It is no coincidence that the worst cases tend to emerge in rural municipalities and local governments – precisely where accountability journalism matters most, and where journalists are most vulnerable.

The cumulative effect of this pattern is a chilling of investigative journalism. Editors who observe a reporter being arrested or compelled to spend months in legal proceedings may conclude a story is too high-risk. Sources who watch journalists get served with protection orders may decide that coming forward is too dangerous. The use of protection orders as Slapp-suit vehicles is designed precisely to produce this chilling effect without the need for legal success. DM

Nkanyiso Ngqulunga is a legal researcher and Ella Morrison a communications officer at the Campaign for Free Expression.