STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION (SLAPP SUITS)

WHERE DO WE DRAW THE LINE?

Authored by Mandla Mogola (Candidate Attorney) & Andre Halgryn (Director)

The purview of section 39(2) of the constitution places a positive and proactive obligation on our courts to develop the law. It is against the backdrop of this important provision that our courts have developed a specific lens through which to view SLAPP (Strategic Litigation Against Public Participation) actions.

SLAPP suits are legal procedures which are brought for the purpose of preventing or discouraging political expression and comment on public issues. Moreover, their objectives are to limit protest and dissuade individuals, citizens, and activists from political participation. Accordingly, they are often brought to discourage a party from pursuing or vindicating their rights, often coupled with no real intention to even win the case. As such, SLAPP suits are often aimed at strategically wasting a political opponents’ time, resources and (sometimes most importantly) will to pursue their rights against the bringer of the SLAPP claim, usually in another unrelated matter.

SLAPP suits are frequently brought under the guise of a defamation claim, accompanied with an urgent “gagging” application and/or another delictual action which seeks to silence a party in an unjustifiable manner. The court’s role as contemplated in Mineral Sands Resources (Pty) Ltd v Reddell 2021 2 All SA 183 (WCC) is to “stop frivolous and vexatious proceedings which amount to an abuse of its processes”. It is clear that the courts have positioned themselves in order to prevent such abuse, and furthermore to discourage the use of SLAPP though inter alia, the granting of punitive cost orders against those who seek to abuse the uniform rules of court.

The purpose of litigation is relevant to the question of whether there is an abuse of process. Litigation that is brought for an ulterior purpose is impermissible and could be considered a SLAPP. Strategic lawsuits which are intended to intimidate or disable opponents and critics generally constitute such ulterior motive. SLAPP suits are designed to weaponize the justice system to intimidate people who are exercising their constitutional rights, restrain public interest in advocacy and activism and convert matters of public interest into technical private law disputes. Distinguishing between a SLAPP suit and a conventional civil lawsuit involves balancing competing policy considerations in determining which activities should be protected from legal action. In this instance, the court’s will weigh up the bringer of the SLAPP’s inherent right to approach a court for relief, and his opponent’s constitutionally developed right not to be subjected to an abuse of court process via a SLAPP proceeding. It is clear that this is a very delicate balancing exercise, and courts (as well as legal practitioners) should therefore be wary or perpetuating an unsustainable motive.

Accordingly, the recognition of SLAPP suits by our courts is both a necessary and a monumental accomplishment which ensures that the fundamental constitutionally enshrined rights of individuals are protected. These rights include, inter alia:

- The right to access of court (section 34 of the Constitution);

- The right to freedom of expression (section 16 of the Constitution); and

- The equality right (section 9 of the Constitution).

Recently, South African courts have indicated their increased willingness to recognize the progress towards addressing power disparity between high-profile individuals, large companies and smaller individuals advocating for public interest.