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 13 9

(Par t 1)

2022

THE

SOUTH AFRICAN

L AW JO U R NA L

SLAPPING DOWN SLAPP SUITS IN SOUTH

AFRICA: THE NEED FOR LEGISLATIVE

PROTECTION AND CIVIL SOCIETY ACTION*

ZEENAT EMMA MALLY†

Independent Researcher

A perniciou s strand of legal proceedin gs, instituted by auen t parties to cow th eir

critics int o silence, is sweep ing through the world, dis couraging engageme nt on

issues of public int erest. These p roceedings, term ed strategic litigation agai nst public

participatio n (SLAPP) suits, ha ve had deleterio us eects on a ran ge of rights,

prompting civil so ciety to push for targ eted legislative prote ction against the se

lawsuits. Afte r examining the phen omenon of SLA PP suits in South Afr ica and

the ineca cy of existing prote ctions, this art icle acknowle dges that the enac tment of

anti-SLA PP legislation is n ecessary, and conside rs what this legisl ation should look

like in South Afr ica. However, sinc e the experie nce of other jur isdictions revea ls that

anti-SLA PP laws have occ asionally been in eective or hav e been subverted to c reate

further inju stice, this articl e recommends a range o f civil society initi atives that could

be employed conc omitantly with legi slation to curb SL APP suits.

SLAPP suit s — freedom of expression — abu se of process — ant i-SLAPP

I IN TRO DUC TIO N

‘For pity is the v irtue of the law,

And none but ty rants use it cruell y.’1

States, companies, and other pr ivate part ies are exploiting the judicia l

system to silence their crit ics, converting the courts f rom havens of justice

into unwitt ing dens of censorship. This tactic, ca lled a SLAPP (strategic

* The nancia l assist ance of the Nation al Research F oundation (‘N RF’)

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

drawn ar e those of the author, a nd are not necessa rily to b e attribut ed to

the NRF.

† BA LLB LLM (Wit watersra nd).

1 Willia m Shakespea re Timon of Athens Act 3, Scene 5.

https ://doi.org /10.47348 /SALJ/v13 9/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/v13 9/i1a1

litigat ion again st public part icipation) suit,2 occurs when ler s3 portray

their crit ics as a threat to their rig hts or interest s,4 creating the impression

that the lawsu it constitutes valid lega l proceeding s while concea ling that

their true objective is to muzzle opponents and punish criticism.

SLAPP suits are general ly instit uted agai nst activ ists and hum an right s

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 ma lfeasance they have observed. SLAPP suits a re thus

everyone’s problem, and must be c urbed 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 cour ts

if they dismiss abusive ca ses or make adver se costs awards against lers,

the South African exper ience suggest s that these a re 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 equ ivalent to those enacted in other jur isdict ions may serve

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

This may present its own complicat ions, however, as some jurisdictions

have witnessed t he continuing perversion of such legislation. W hile

punctil ious draf ting may prevent some abuses, legis lation on its own ca n

never be a panacea. Th is art icle suggests, therefore, that civ il societ y must

employ other tactics, in combinat ion with anti- SLAPP legi slation, to

eradicate SLAPP suits.

This ar ticle comprises four parts. Part II exa mines the controversy

surround ing the den ition and features of a SLAPP su it, and explores the

impact of these l awsuits. Par t III survey s the SLAPP-suit experience in

South Afr ica and, with reference to a SLAPP suit that is cur rently before

the South African courts, asses ses the adequac y of existi ng mechanisms

that might be used to avert a SLA PP suit. Part I V discusses the benets

and shortcomings of speci alised st atutory protection aga inst SLAPP suits.

The nal section looks at the li nk between civil societ y and the law,

considers four st rategies that civil society can eng age in to avert SL APP

suits, and a ssesses South A frica’s civil society respon se to SLAPP suits.

2 Int ernation al authors ref er to ‘SLAPPs’, but this a rticle fol lows the South

Afric an terminology of ‘ SLAPP suits’.

3 Since a SLAPP suit may t ake the form of ac tion or applicat ion proceedin gs,

this ar ticle refer s to those who ins titute such law suits broad ly as ‘ler s’, as does

other litera ture on SLA PP suits.

4 George W Pring & Penelope Can an SLAPPs: Getting Sued for Sp eaking Out

(1996) 10.

© Juta and Company (Pty) Ltd