The abuse of court processes to target journalists and activists is increasing. Public interest lawyers have been warning for years that courts and legal processes are increasingly being co-opted to silence those who dissent.
Judges can, however, play a pivotal role in halting these suits or at least mitigating their devastating impact.
Poor and working-class activists have been subjected to predatory suits for years with few safeguards from courts. These suits, better known as Strategic Litigation Against Public Participation (or Slapp suits) weaponise legal processes for the underhanded purpose of curtailing dissent. Slapp suits are a way of targeting persons who, in the public interest, seek to advance a constitutionally protected right.
In the landmark Constitutional Court judgment of Mineral Sands Resources v Reddell and Others, the court ruled that:
“Litigation that is not aimed at vindicating legitimate rights but is part of a broad and purposeful strategy to intimidate, distract and silence public criticism constitutes improper use of the judicial process and is vexatious.”
In recent months, journalists too have been targeted and victimised through these suits.
Although the case has been pivotal to shaping anti-Slapp jurisprudence in South Africa… the victims themselves continued to face the financial, mental and emotional burden of litigation for years.
By their nature, Slapp suits are constructed to punish anyone who tries to challenge power and make an example of them to anyone else who dares to do the same. Slapp suits, therefore, by design threaten a free civic space and thus suppress accountability, transparency and public participation. This is why there remains an urgent need to be responsive to these suits in the pursuit of protecting democracy and our foundational constitutional principles.
But how can we combat Slapp suits? Of course, Parliament needs to enact comprehensive legislation that will, among others, outlaw Slapp suits; instruct courts on how to adjudicate these suits, including creating legal mechanisms that allow for early intervention and dismissal of Slapp suits; guide victims on how to successfully plead the defence; and regulate the issue of costs and provide effective remedies.
But, while we await legislation, courts can and must adopt a more hands-on approach in preventing the success of Slapp suits.
In the Maughan v Zuma case, the High Court in Pietermaritzburg held that courts not only have the inherent power to avert an abuse of process, but they also have an obligation to prevent it. And, because Slapp suits unjustly bring their targets before courts, it is essential for courts to identify and respond proactively to these suits.
Proactive judicial intervention against Slapp suits can occur in various forms. Three key ways include judges first being cognisant of the complexity of these suits and the various forms this litigation takes. This allows courts to promptly identify a Slapp suit and take the necessary steps to prevent its success.
For instance, the urgent ex parte application of Mazetti Management Services to stop investigative journalists at amaBhungane from publishing documentation about the company should have raised red flags for the presiding judge hearing the application.
Being alert to Slapp suits could have made the judge probe the suspicious application more intently and, instead of granting the application, take more proactive measures such as requiring that amaBhungane be duly served and provided with an opportunity to respond to the application.
Read more in Daily Maverick: Moti interdict a ‘most egregious abuse’, judge rules in massive vindication for amaBhungane and journalism
The second way proactive judicial intervention can take place is through striving for early intervention. Slapp suits succeed through prolonged legal processes which demobilise dissent and drain the resources of their victims.
Funding, energy and attention are pulled away from the expressions of rights, dissent and acts of public participation to the court process. Therefore, the longer the case runs, the more the Slapp suit succeeds.
It is important for judges to decisively and systematically root out Slapp suits.
It would not be amiss to argue that the Slapp suit by Australian mining company Mineral Sands Resources against environmentalists and activists has largely succeeded. This is because of the prolonged nature of the case and the fact that it has taken years to resolve.
Although the case has been pivotal to shaping anti-Slapp jurisprudence in South Africa, particularly where there is no legislative guidance, the victims themselves continued to face the financial, mental and emotional burden of litigation for years, with legal proceedings having begun back in 2016.
Third, the courts must signal in no unclear terms the unacceptability of such suits and respond by issuing costs in favour of the victim of the Slapp if successful in proving an abuse of court process. It is important for judges to decisively and systematically root out Slapp suits. By doing this, courts both safeguard the legitimacy of their own processes and advance South Africa’s constitutional dispensation of free expression of rights and public participation without fear of reprisal.
The judiciary must protect the integrity of the courts. This protection requires preventing the delegitimisation of courts and court processes through the systematic targeting of journalists and activists who act in the public interest.
Requiring courts to act swiftly and decisively against Slapp suits prevents their success, while judgments that specifically State displeasure in such suits signal to the public the courts’ intolerance of its intended abuse.
The courts are a guardian of the Constitution. The repression of journalists and activists through Slapp suits undermines both the integrity of courts and the constitutional principles of an open and free society where public participation must be encouraged, and not muzzled. DM