Case Summary and Outcome

The Johannesburg High Court in South Africa held that a defamation case brought by a former politically-connected executive of the national electricity entity constituted a SLAPP suit. The executive had sought an apology, interdict and damages of R500 000 (approx. USD30 000 in 2022) and rejected the individual’s offer of a settlement before filing a defamation application. The Court held that the executive’s conduct demonstrated that he initiated the application merely to punish the individual concerned and deter others from making statements about him and did not seek to repair his allegedly damaged reputation, and therefore dismissed the application.

Facts

On October 25, 2020, the South African newspaper, City Press, tweeted a reference to Matshela Koko, the former Chief Executive Officer of South Africa’s electricity producer, Eskom, saying he had been “refusing to sign off 27 contracts with independent power providers that had already been negotiated by the Government”. Koko retweeted City Press’s tweet, with a comment about the costs of the purchase and sale of electricity from independent power producers (IPPs), saying that “@Eskom_SA can generate a unit of electricity for R0,42. It is obliged to buy it from IPPS for R2,13 & it sells it to its customers at R0,93.” Koko had been placed on special leave following allegations of a breach of fiduciary duties on May 16, 2017.

In response to Koko’s retweet, Barbara Tanton, a 72-year old principal of a preschool, tweeted “you stole so much I am so sick of your innocent ramblings”.

On November 5, 2020, Koko sent Tanton a letter of demand seeking an “unconditional public retraction of the publication and an apology for the unfounded allegations”, a commitment to “desist from publishing similar defamatory statements about” Koko and R500 000 (approx. USD30 000 in 2022) in damages, to be paid within ten days of the letter of demand.

In early January 2021, Tanton deleted the tweet and closed her twitter account. On January 21, 2022, Koko launched legal proceedings against Tanton. Tanton’s legal representatives proposed a settlement in which Tanton would reactivate her Twitter account and publish an apology (which would be visible for one week) and would undertake not to publish any statements about Koko in future, on any platform. Koko did not accept Tanton’s settlement offer. Tanton filed her opposing papers, and when Koko had not filed his heads of argument, filed an application to compel Koko to do so. Tanton, rather than Koko, enrolled the matter for hearing.

After launching the application, Koko appeared on a talk radio show and said that his reason for launching the application against Tanton was because “she needs a big klap [Afrikaans for slap] so that others can learn that the time for impunity is gone” [para. 26].

Decision Overview

Judge de Wet delivered the judgment of the High Court. The central issue for the Court’s determination was whether Koko’s application was an abuse of the court process.

Tanton argued that Koko’s application was an “abuse of the court process and is nothing other than Strategic Litigation Against Public Participation (“SLAPP”). She also argued that her tweet was not defamatory, that it was fair comment, that it was true and in the public interest, that it was “so trivial that it cannot be deemed wrongful” and that she had no animus injuriandi (intention to injure) [para. 15]. Tanton submitted that the purposes of a SLAPP case were all present: Koko launched it “merely to silence” and punish her “with exorbitant legal costs” and to deter others [para. 33]. She pointed to Koko’s radio statement which was intended to “warn other citizens that the same fate would await them if they were to similarly express themselves” and that Koko had been the subject of numerous “less than complimentary tweets” but had chosen Tanton against whom to launch a defamation application [para. 33]. She maintained that the case was an abuse of process, and referred to the case of Mineral Sands Resources (Pty) Ltd v. Reddell.

Koko indicated that – given the removal of Tanton’s tweet – he was not pursuing the request for an apology or an interdict preventing future statements, but was seeking costs from Tanton. He submitted that Tanton’s tweet had sent a message to her “limited and his very extensive followers on Twitter” which caused reputational damage and injured his dignity and would deter his clients from “continuing to do business with him on a large scale as a consequence of fears that he is a dishonest man” [para. 27].

The Court referred to the Economic Freedom Fighters v. Manuel case and noted the difficulties of providing simple solutions to the abuse of social media platforms while not stifling freedom of expression.

The Court noted Koko’s refusal to accept Tanton’s settlement offer and that he had declined to pursue the relief of the apology and interdict, stressing that this was in “circumstances where he contends that he finds himself most aggrieved by the conduct of [Tanton]” and that Koko had failed to take decisive action to bring the matter to court [para. 31]. Accordingly, the Court held that these actions illustrated that the legal proceedings were “not aimed at the reparation of his rights, constitutional or otherwise, and the restoration of his reputation or to assuage his injured feelings” [para. 39]. It held that Koko had intended to punish Tanton and that his actions were to serve as a warning to others to “prevent public comment on his conduct and/or matters of public importance in which he may have been directly or indirectly involved” [para. 39].

Accordingly, the Court held that Koko’s application was an abuse of the process of court. In addition, the Court held that the form of proceedings Koko had used was incorrect, and that it therefore did not have to consider Tanton’s defences. It therefore dismissed the application and awarded costs to Tanton.