SOUTH AFRICA: DO NOT ABUSE PROCESS TO SILENCE CRITICS

By Tori Herholdt,Richard Shein Wednesday, December 14, 2022
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Civil society advocates, activists, and journalists play, among other things, a role in exposing or holding corporations accountable on matters of public interest. When confronted with negative publicity or scrutiny, well-resourced corporations have, on occasion, brought substantial claims against these groups or individuals. Strategically, these claims are sometimes aimed at ultimately silencing the criticism by dragging the critics through a lengthy and expensive court case.

Where these suits are brought solely in an effort to silence these critics and constitute an abuse of court process, our Constitutional Court recently confirmed that a defence to dismiss the suit before a long, expensive court case ensues is available to defendants. This is referred to as the ‘SLAPP’ suit defence and is recognised as part of our law.

What is a SLAPP suit?

A ‘SLAPP’ suit is the acronym for Strategic Litigation Against Public Participation or exaggerated defamation lawsuits, brought with the intention of intimidating and discouraging individuals from challenging the organisation in question. Often, by the time the merits of the case are finally decided, the defendant’s resources will be exhausted, and the plaintiff will have achieved its main goal of silencing and frustrating the critic.

As SLAPP suits intrinsically take advantage of existing legal procedure, there are few (if any) procedural defences against them. As such, many foreign jurisdictions such as the United States of America, Canada and Australia, have enacted anti-SLAPP legislation which makes provision for a defendant to apply for a plaintiff’s case to be struck out quickly (and more cost effectively) should it meet the legal requirements of a SLAPP in that jurisdiction. Similar legislative measures are currently under consideration in the United Kingdom. However, until recently, SLAPP suits have received comparatively little attention in South African courts.

Changing tides

In the recent Constitutional Court case of Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others (CCT 66/21) [2022] ZACC 37 (14 November 2022) (Mineral Sands), a mining company and its executives (plaintiffs/applicants) brought an appeal against a judgment handed down in the Western Cape Division of the High Court.

In the High Court the plaintiffs launched proceedings against environmental lawyers and activists (defendants/respondents) claiming millions of rands in damages for defamation. In response, the defendants submitted that the plaintiffs brought the claim with the ulterior motive to silence them (i.e. alleging that they had been the victims of a SLAPP suit) from making public statements related to environmental activism.

The respondents therefore requested that the court dismiss the plaintiffs' claim on the basis of ulterior purpose, irrespective of the merits of the claim. The plaintiffs raised a technical objection to this defence on the basis that it did not disclose a valid defence under South African law. The High Court dismissed the objection, and it is this judgment that the plaintiffs sought to appeal in the Constitutional Court.

Following an extensive consideration of the common law and precedent on abuse of process and an examination of how anti-SLAPP legislation operates in other jurisdictions, the Constitutional Court ultimately concurred with the decision of the High Court and found that there is room for the SLAPP suit defence in South African law as part of the broader doctrine of abuse of process. The Court however held that considerations of both motive and merits are required in considering whether a valid SLAPP suit defence has been raised, as a lack of merit is evidence of ulterior purpose/motive.

The Court further provided a list of requirements to be proven by a defendant who wishes to successfully raise a SLAPP suit defence against a claim of defamation, namely that the defamation suit brought by the plaintiffs: ‘(a)  is an abuse of process of court;  (b) is not brought to vindicate a right; (c) amounts to the use of court process to achieve an improper end and to use litigation to cause the defendants financial and/or other prejudice in order to silence them; and (d) violates, or is likely to violate, the right to freedom of expression entrenched in section 16 of the Constitution in a material way’.

Although the Court recognised the SLAPP suit defence as valid in our law, the Court found that the defendants had failed to plead that each of these requirements had been met and the Court ultimately therefore had to uphold the plaintiffs’ exception and accordingly the appeal. The Court did however afford the defendants 30 days to seek leave to amend their defence in order to plead facts or allegations which would, at least on paper (and subject to meeting the burden of proof in due course), meet the requirements to succeed with the SLAPP suit defence.

The road ahead

There is a delicate balance to be struck between protecting the reputation of corporate entities and the right to freedom of speech. The Constitutional Court has however opened the door to raising the SLAPP suit defence and having such claims dismissed where the criteria are met. The idea being that freedom of speech and the public interest should not be muzzled because of litigation against the critics where that litigation does not have good prospects at trial and is an abuse of process aimed at silencing the critics.

In this case, if the defence is amended appropriately and the Court finds that the merits of the plaintiffs’ claim are poor and that the motive in bringing the suit was to silence critics, it may be that, while the defendants lost the battle on the technical objection, they ultimately may win the war.