Slapping down SLAPP suits in South Africa: The need for legislative protection and civil society action

• Author: Emmamally, Z.
• DOI: https://doi.org/10.47348/SALJ/v139/i1a1
• Published date: 23 February 2022
• Date: 23 February 2022
• Citation: (2022) 139 SALJ 1
• Pages: 1-31

1

VOL 139

(Part 1)

2022

THE

SOUTH AFRICAN

LAW JOURNAL

SLAPPING DOWN SLAPP SUITS IN SOUTH

AFRICA: THE NEED FOR LEGISLATIVE

PROTECTION AND CIVIL SOCIETY ACTION*

ZEENAT EMMAMALLY†

Independent Researcher

A pernicious strand of legal proceedings, instituted by auent parties to cow their

critics into silence, is sweeping through the world, discouraging engagement on

issues of public interest. These proceedings, termed strategic litigation against public

participation (SLAPP) suits, have had deleterious eects on a range of rights,

prompting civil society to push for targeted legislative protection against these

lawsuits. After examining the phenomenon of SLAPP suits in South Africa and

the inecacy of existing protections, this article acknowledges that the enactment of

anti-SLAPP legislation is necessary, and considers what this legislation should look

like in South Africa. However, since the experience of other jurisdictions reveals that

anti-SLAPP laws have occasionally been ineective or have been subverted to create

further injustice, this article recommends a range of civil society initiatives that could

be employed concomitantly with legislation to curb SL APP suits.

SLAPP suit s — freedom of expression — abuse of process — ant i-SLAPP

I INTRODUCTION

‘For pity is the v irtue of the law,

And none but ty rants use it cruelly.’1

States, companies, and other private parties are exploiting the judicial

system to silence their critics, converting the courts from havens of justice

into unwitting dens of censorship. This tactic, called a SLAPP (strategic

* The nancial assistance of the National Research Foundation (‘NRF’)

towards th is research is her eby acknowledged. O pinions expre ssed and conclusions

drawn are those of the author, and are not necessarily to be attributed to

the NRF.

† BA LLB LLM (Witwatersrand).

1 William Shakespeare Timon of Athens Act 3, Scene 5.

https://doi.org/10.47348/SALJ/v139/i1a1

(2022) 139 SALJ 1

© Juta and Company (Pty) Ltd

2 (2022) 139 TH E SOUTH AFRICA N LAW JOURNAL

https://doi.org/10.47348/SALJ/v139/i1a1

litigation against public participation) suit,2 occurs when lers3 portray

their critics as a threat to their rights or interests,4 creating the impression

that the lawsuit constitutes valid legal proceedings while concealing that

their true objective is to muzzle opponents and punish criticism.

SLAPP suits are generally instituted against activists and human rights

organi sations, but even the ‘ordinar y’ populace risks bei ng ‘SLAPP-ed’ for

dari ng to voice dissatisfac tion with services t hey have received, abuses they

have endured, or malfeasance they have observed. SLAPP suits are thus

everyone’s problem, and must be curbed not only because they stie public

criticism and debate, but also because they allow potential wrongdoing to

continue unopposed.

Although SLAPP suits may conceivably be rooted out by the courts

if they dismiss abusive cases or make adverse costs awards against lers,

the South African experience suggests that these are ineective and

uncertain solutions, since courts have often failed to exercise these powers

and have instead upheld the case made out by the ler. Therefore, anti-

SLAPP laws equivalent to those enacted in other jurisdictions may serve

as a more eective model for curtailing the proliferation of SLAPP suits.

This may present its own complications, however, as some jurisdictions

have witnessed the continuing perversion of such legislation. While

punctilious drafting may prevent some abuses, legislation on its own can

never be a panacea. This article suggests, therefore, that civil society must

employ other tactics, in combination with anti-SLAPP legislation, to

eradicate SLAPP suits.

This article comprises four parts. Part II examines the controversy

surrounding the denition and features of a SLAPP suit, and explores the

impact of these lawsuits. Part III surveys the SLAPP-suit experience in

South Africa and, with reference to a SLAPP suit that is currently before

the South African courts, assesses the adequacy of existing mechanisms

that might be used to avert a SLAPP suit. Part IV discusses the benets

and shortcomings of specialised statutory protection against SLAPP suits.

The nal section looks at the link between civil society and the law,

considers four strategies that civil society can engage in to avert SLAPP

suits, and assesses South Africa’s civil society response to SLAPP suits.

2 International authors refer to ‘SLAPPs’, but this article follows the South

Afric an terminology of ‘ SLAPP suits’.

3 Since a SLAPP suit may take the form of action or application proceedings,

this article refers to those who institute such lawsuits broadly as ‘lers’, as does

other literature on SLA PP suits.

4 George W Pring & Penelope Canan SLAPPs: Getting Sued for Speaking Out

(1996) 10.

© Juta and Company (Pty) Ltd