SLAPP suits – lessons for the UK from the South African experience

Introduction

In February, a private member’s bill to stamp out SLAPP (strategic lawsuits against public participation) suits was before the House of Commons and enjoyed overwhelming support.

The need for, and good purpose served by, such anti-SLAPP legislation can hardly be disputed. Abuse of courts to pervert the administration of justice; muzzling of journalist, activists, whistleblowers; and chilling of the freedom of expression are all things sensible legislators would wish to legislate against.

But how best to achieve it is a matter of some controversy. Concerns have been raised that an anti-SLAPP statute could constrain and suppress legitimate litigation. The argument goes that all litigants must be treated fairly and substantively equally, and the doors of court must remain open to those who intend to pursue worthy cases, irrespective of any perceived or real David and Goliath power imbalance. A balanced regulatory response must be crafted in which any competing rights and freedoms are balanced.

The intention of this piece is to provide a discussion on the recent South African experience dealing with SLAPPs, that this might provide insights for consideration by UK lawmakers and participants in the processes presently tackling these concerns. A recent report from the Future of Free Speech project analysing 22 of the world’s open democracies highlights actions undertaken to protect speech. Around the world, many of these have occurred through the courts. This is an area where South Africa is one of the leading countries under analysis, with the report describing the Constitutional Court as a ‘sophisticated and influential supreme court on expression matters.’

We do so alive to the important work presently being done in the UK on SLAPP legislation. The private member’s SLAPPs Bill is not only underway, but has already passed its second reading in the House of Commons (and the UK already has the Economic Crime and Corporate Transparency Act 2023 with its own anti-SLAPP provision on the books). The comparative insight in this article is naturally no replacement for, or improvement upon, the detailed and local experience of the UK as it plots its own unique response to managing SLAPPs.

The landmark case of Mineral Sands I

The South African Constitutional Court in 2022 delivered a landmark judgment on SLAPP suits in Mineral Sands I (Mineral Sands Resources (Pty) Ltd v Reddell [2022] ZACC 37; 2023 (2) SA 68 (CC)).

The facts of Mineral Sands I are straightforward: Mineral Sands I concerned an action instituted against environmental attorneys and community activists who actively engaged in criticising mining and excavating activities, and its environmental, ecological and economic impact on the development potential of the Wild Coast.

The mining companies instituted action proceedings against the environmental attorneys and community activists for defamation, and claimed damages for many millions. The environmental activists delivered special pleas alleging that they had been SLAPPed. The mining companies alleged – by way of exceptions to those pleadings – that a SLAPP suit defence is not available in South African law.

The matter ultimately came before the highest appeal court, the Constitutional Court. The Court first tackled the threshold question of determining what constitutes a SLAPP. SLAPP suits are, as explained by the Constitutional Court, “primarily legal proceedings that are intended to silence critics by burdening them with the cost of litigation in the hope that their criticism or opposition will be abandoned or weakened”. But, recognised the Court, SLAPP suits “take a wide range of forms”. While defying an all embracing definition, the Court recognised certain distinctive features, notably that those most commonly targeted by SLAPP suits are “media institutions, whistleblowers, and activists”; that the merits of a suit are relevant to determining whether it constitutes a SLAPP suit; and that SLAPP suits limit public participation and the constitutional right of freedom of expression “by abusing the legal process to silence and deter public participation”.

The Court held that a SLAPP suit special plea did disclose a proper defence in South African law to a defamation act. The Court recognised the SLAPP suit defence as a species of the common law doctrine of abuse of process, with the consequence that a court may reject a suit if the defendant can prove that the suit is lacking in merits and is brought with the intention not to vindicate a right, but to silence the defendant.

The Court recognised that SLAPPs impinge upon the integrity of the courts, pervert the course of justice and violate fundamental rights, and held that courts have not only the power, but a duty, to prevent this type of abuse. The recognition of the SLAPP suit defence as part of South African law “ensures that courts can protect their own integrity by guarding over the use of their processes” and “ensures that the law serves its primary purpose, to see that justice is done, and not to be abused for odious, ulterior purposes”.

Finally, the judgment recognised that abusive litigation in the form of a SLAPP suit “has nothing to do with the right of access to courts in [the Constitution]”. While the South African Constitution guarantees everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, the judgment makes it clear that upholding a SLAPP suit defence does not limit the constitutional right of access to courts. That is because properly understood, access to court is not implicated by rejecting a meritless case brought with the intention not of vindicating a right, but of silencing the defendant.

From Mineral Sands I to former president Zuma – lessons learned and applied

Various lessons can be learned, both in South Africa and abroad, from the Mineral Sands I judgment.

The first observation is that the South African response to the threat of SLAPPs has been – thus far at least – dealt with through judicial craftmanship, rather than a legislative approach. It was left to the court to provide its own solution. It is a response which is typically South African: crafted through creative lawyering and a robust and proactive bench. It presents an option for how to address the problem of SLAPPs other than through Parliament, within the existing power of the courts to prevent abuses of its processes – particularly if the problem of SLAPPs continues to bedevil the courts and vulnerable defendants, without a legislative solution in place.

The second observation is that the broad definition of a SLAPP in Mineral Sands I has enhanced the utility of the judgment. Proof of this is in the pudding – hot on the heels of the Mineral Sands I judgment, former president Jacob Zuma, who has faced a long-delayed and much reported-on criminal trial for corruption and fraud, tested the application of the Mineral Sands I dicta when he instituted an abusive private prosecution of the senior legal journalist reporting on his criminal trial, along with the prosecutor prosecuting his criminal case, on bogus charges. A full bench of the High Court in Maughan v Zuma and Others 2023 (5) SA 467 (KZP), quickly slapped down Mr Zuma’s private prosecution as a SLAPP. In so doing, the High Court applied the principles from Mineral Sands I (developed in the context of abusive civil proceedings), holding that they were broad enough to find application to a criminal private prosecution where criminal proceedings were abused in the same way.

The third observation is the growing trend of SLAPPs, and the importance of international law lessons. In Maughan v Zuma, amici curiae intervened to assist the Court with relevant submissions contextualising the matter through reference to international legal instruments, such as the UN Human Rights Council which have recognised ‘attacks on journalists, specifically female journalists’ and highlighting the need for SLAPP suits to be dealt with (and disposed of) expeditiously to mitigate the risk posed merely through their abusive institution.

Embracing these submissions, the Court heard the matter on an expedited basis and expanded – as we have said – the concept of a SLAPP suit to abuse of process in criminal proceedings. The Court found that the private prosecution had no merit and had been brought solely for the purpose of intimidating and harassing the journalist arising from her reporting specifically on Zuma’s criminal cases, which reporting, the Court noted, was essential to ensure that the public learns the truth about the criminal allegations, sees justice being done, and maintains trust in the criminal justice system.

Fourthly, the reasoning of the Constitutional Court, that a SLAPP suit “has nothing to do with the right of access to courts in [the Constitution]” (at least insofar as the merits of the claim are considered and determined as part of the SLAPP) provides a helpful counter-argument against the suggestions that SLAPP legislation might close the door on the legitimate exercise of rights to access courts.

Please note the authors acted as counsel for the media amici curiae mentioned in the Zuma v Maughan matter, discussed herein.