Defamation / Reputation, Digital Rights, Press Freedom
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Bosnia and Herzegovina
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A High Court in South Africa dismissed a private prosecution brought by the former president, Jacob Zuma, against a journalist as an abuse of process. The journalist had published an article that included information about the president’s medical condition which had been obtained from the public court documents. When Zuma issued summons against the journalist on grounds that she had disclosed confidential information unlawfully, the journalist applied to have the summons set aside. The Court held that the concept of an abuse of process as a SLAPP suit can apply in criminal proceedings, and found that the private prosecution had no merit and had been brought solely for the purpose to intimidate and harass the journalist.
On August 10, 2021, South African journalist, Karyn Maughan, published an article referring to a letter explaining why former South African president, Jacob Zuma, would not be attending his upcoming criminal trial. Zuma’s defence team and the prosecutors had agreed to a postponement of the trial due to a medical condition suffered by Zuma. The letter had been attached to both the defence and prosecution’s affidavits confirming the postponement, and Maughan had received a copy of the prosecution’s affidavit when it had been submitted to court but not officially filed. The article was only published after all the affidavits have been filed and received by the court.
On September 5, 2022, Maughan received a summons, ordering her to appear in the Pietermaritzburg High Court on October 10, 2022 to face charges of unlawfully disclosing confidential information. The summons was issued by Zuma, in his capacity as a private prosecutor. It emerged that Zuma had sought a nolle prosequi certificate – a certificate confirming that the National Prosecuting Authority (NPA) would not be prosecuting the lead prosecutor in the criminal case against Zuma Billy Downer for disclosing the medical information to Maughan. The nolle prosequi was issued on June 6, 2022 but did not refer to any prosecution against Maughan.
On September 21, 2022, Maughan filed an application to have the summons set aside.
On November 21, 2022, the DPP issued a second nolle prosequi certificate, which again did not specifically identify Maughan.
Three media-freedom organizations – the Campaign for Free Expression, Media Monitoring Africa and the South African Editors Forum – applied to be admitted as amici curiae (“friends of the court”). Another non-governmental organization, Democracy in Action, was also admitted as amicus.
Judges Kruger, Henriques and Masipa delivered a unanimous judgment. The central issue before the Court was whether the summons issued against Maughan was lawful.
Maughan argued that the summons was invalid as there was no valid nolle prosequi certificate issued in respect of prosecutions against her and because Zuma did not have the requisite legal standing to bring a private prosecution. Maughan argued that the private prosecution was “a gross abuse of process as the summons in the private prosecution has been obtained for the ulterior purpose of intimidating, harassing and preventing her from performing her job as a journalist by freely reporting on [Zuma’s] criminal trial.” [para. 66] In support of her argument, she referred to comments made by Zuma’s representatives, associates and family and his affidavit which “demonstrates his animosity towards her” as he described her as “the propaganda machine of the media, a tool used by the NPA to perpetuate falsehoods, a hostile journalist who is incapable of balanced reporting and an ‘anti-Zuma crusader’.” [para. 66] She also submitted that there were no prospects of success of a private prosecution and that it infringed the right of media freedom.
The amici Campaign for Free Expression, Media Monitoring Africa and the South African Editors Forum argued that there were three contextual factors that courts should consider when determining whether there had been an abuse of process: “the growing trend to attack journalists, specifically female journalists; the private prosecution in the context of SLAPP suits; and the exercise of freedom of expression by the press in the context of section 41(6) of the NPA Act”. [para. 170] These amici argued that “the private prosecution of Maughan by [Zuma] must be viewed in the context of SLAPP suits”. [para. 186]
Zuma argued that he was a “victim” of a crime which had been committed by Downer providing the letter to Maughan and Maughan publishing it and that he had “suffered personal injury as a consequence of the criminal leaking of [his] medical reports”. [para. 59] He submitted that the three freedom of expression amici should not have been admitted as they were partisan, advancing only Downer and Maughan’s cases. Zuma argued that SLAPP suits are not applicable in criminal proceedings, as the leading case Mineral Sands v. Reddell “did not extend the scope of the defence to criminal matters or beyond the scope on which the United States developed it, it being limited to defamation suits”. [para. 136] He also submitted that a SLAPP suit defence could only be raised in the criminal trial and no in a civil review application and could not be used by amici in a civil case. He argued that the law should not be developed to include SLAPP suits in a criminal context.
The Court found that the nolle prosequi certificates did not apply to Maughan and so a private prosecution was invalid. Accordingly, the Court set aside the summons issued against Maughan.
However, the Court did address all the other issues raised by Maughan in her attempt to have the matter set aside.
The Court accepted that section 7 of the Criminal Procedure Act permits private prosecutions, but only when an individual has an “interest in the issue of the trial”; “that the interest is substantial and peculiar to him”; “that the interest arises from some injury which he individually suffered”; and “that the injury was suffered as a consequence of the commission of the alleged offence”. [para. 55] The Court held that the letter was a public document and did not include anything confidential, and that any public criticism Zuma received was not due to Maughan’s publication of the letter. Accordingly, it held that there was no violation of Zuma’s right to privacy and no injury in terms of section 7.
In analysing the abuse of process, the Court stressed that there is no “all-encompassing definition of what is meant by an abuse of process” but that the Courts have accepted the need to protect their own process. [para. 70] In essence, an abuse occurs when legal action is brought to facilitate an ulterior purpose, and the Court stressed that “where there is an attempt made to use for ulterior purposes machinery devised for the better administration of justice, a court has a duty to prevent such abuse”. [para. 77] The Court added that the jurisprudence confirms that, while abuse of process is most often found in civil proceedings, it is also applicable to private prosecutions. In these cases, the Court must ask “whether such private prosecution was either instituted or thereafter conducted for some collateral and improper purpose, rather than with the object of having criminal justice done to an offender”. [para. 77] The Court has a duty to act – but must exercise that duty “with great caution”. [para. 78] The Court also noted that “not only is it vexatious but also constitutes an abuse of process to institute and pursue proceedings which are unsustainable as a certainty”. [para. 79]
The Court referred to the Constitutional Court’s decision in Mineral Sands on SLAPP suits which had held that “a consideration of both motive and merits play a role in the enquiry into an abuse of process”. [para. 82] It added that a court must consider the facts and circumstances of the case, the intention of the legislature in creating the private prosecution provisions, “the prosecutor’s conduct, the nature of the alleged offence/s and the effect of the prosecution on the accused”, amongst others. [para. 82]
Accordingly, the Court held that when a private prosecution is brought for an ulterior purpose “it constitutes a breach of the principle of legality and amounts to an abuse of the process of the court”, and that an unsustainable prosecution is also an abuse. [para. 85]
In respect of the charge against Maughan, the question was how the document got to Maughan. On August 6, 2021, the spokesperson for Zuma’s foundation announced on social media that Zuma had been admitted to hospital. Given that he was facing a criminal trial, Downer and Zuma’s representatives agreed to a postponement. On August 8, a doctor in the South African Military Health Service wrote a letter explaining the medical need for a postponement and Downer informed the criminal court, via affidavit, that they would seek a postponement on August 10. A member of the NPA knew that Maughan would be covering the trial in person, and so sent her a message about the upcoming postponement to save her travelling from Johannesburg to Pietermaritzburg. However, Maughan had already travelled to Pietermarizburg, and then asked for a copy of Downer’s affidavit. She was given the unsigned affidavit, on condition that she did not publish anything until the signed copy was filed in court. Zuma submitted his postponement application to the criminal court, with the doctor’s letter and his affidavit. On August 10, Downer filed his signed affidavit and her NPA contact updated Maughan, and Maughan published an article about the hospitalization an hour later.
The Court held that the criminal trial judge was correct in finding that Downer’s affidavit was not confidential “and, in any event, confidentiality had been waived by the filing of [Zuma’s] affidavit”. [para. 107] The Court stressed that “that these documents are public documents and can be made available is something that must not be lost sight of” and so, as part of the record, were not confidential. [para. 107]
The Court noted that Maughan was one of the few remaining journalists who continues to report on all Zuma’s litigation “despite the media comments and harassment she has been subject to.” [para. 119] It said that it was “evident” that Zuma “harbours great hostility towards her”, and referred to examples of harassment and hostility on social media in which she was described as a criminal, and “a thing, a bitch, a lying bitch, a white bitch, a witch, a racist, a pig, an alcoholic, a criminal, a hypocrite, a propaganda journalist, … a servant of white privilege, a hack and an askari (traitor)”. [para. 122] The Court found that she had been “harassed and prohibited from proper reporting and does so with a cloud hanging over her head and with the threat of either private prosecution in a criminal court or possible civil litigation being instituted against her”. [para. 123] The Court also noted the threats of physical harm in some comments.
The Court accepted that Zuma said that he could not be held responsible for comments made by his Foundation, family or supporters, but found that his affidavit demonstrated his personal animosity towards Maughan. The Court quoted a section from Zuma’s affidavit where he described Maughan’s adoption of the State’s argument that he was seeking to constantly delay his criminal trial and then seeking to set aside the summons against her as “nothing but duplicity and disingenuity laced with a touch of racist bigotry”. [para. 125]
The Court concluded that the private prosecution charges were “unfounded and baseless”, and that Maughan had obtained the documents, in the public interest, and when they were already public documents. [para. 127] It noted that it is common practice for journalists to access court documents to inform their reporting. It found that when Zuma filed the private prosecution against Maughan he knew that she had accessed the documents only once they were public documents and so “the only inference to be drawn from this coupled with the social media attacks on her are done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist”. [para. 129]
Accordingly, the Court held that the private prosecution of Maughan was an infringement of the right to freedom of expression protected by section 16(1) of the Constitution.
In assessing the position of SLAPP suits in South African law, the Court confirmed that the “applicability of SLAPP suits in our law is the subject of a unanimous Constitutional Court decision in Mineral Sands”. [para. 172] The Court described SLAPP suits as “a means by which lawsuits are instituted to quash criticism and debate through litigation that is deemed an abuse of process” and that SLAPP suits “involving journalists are instituted to intimidate and harass them and prevent them from reporting”. [para. 185] With reference to a 1998 case on private prosecutions, Phillips v. Botha, the Court held that “there seems to be no merit in [Zuma’s] assertion and that of [Democracy in Action] that SLAPP suits ought not to apply to criminal proceedings or private prosecutions”. [para. 187]
The Court agreed with the amici that there must be protection for SLAPP suits in criminal cases – particularly in private prosecutions because of the lack of safeguards that exist in state-led prosecutions. It noted that without these safeguards criminal proceedings and the threat of them “are used to intimidate, harass, sensor and silence critics”. [para. 188] It agreed with the amici that the private prosecution “has all the elements of a SLAPP suit in that, it relates to her obligations as a journalist to report on matters in the public interest … It infringes on her right to freedom of expression, specifically, press freedom and the public’s right to receive such information [and] has the effect of intimidating, harassing and silencing her as its ulterior motive”. [para. 192]
The Court stressed the importance of freedom of expression and a free press to democracy, and that the constitutional protection of this right requires a recognition of the need for protection against SLAPP suits brought against journalists. It noted that South African jurisprudence established that “it is quintessential to the freedom of expression and freedom of the press to protect the abuse to intimidate, censor and silence journalists by means of SLAPP suits”, and that international instruments, such the UN Special Rapporteur, the OSCE, the OAS Special Rapporteur, the ACHPR Special Rapporteur and the UN Human Rights Council have recognized “attacks on journalists, specifically female journalists” and that SLAPP suits give recognition to this [para. 190].
Accordingly, the Court held that Maughan’s private prosecution “arises from her reporting specifically on [Zuma’s] criminal cases”, and that her reporting “is 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” [para. 190] With reference to Khumalo v. Holomisa and Maharaj v. M&G Centre of Investigative Journalism the Court stressed that Maughan has a right and a duty to report on these issues. It noted that the attacks Maughan had detailed in her submissions were “examples of online intimidation, which demonstrate the harmful environment in which journalists, specifically female journalists, have to conduct their work”. [para. 193]
The Court rejected Zuma’s argument that interdicting his private prosecution would “result in the media and journalists acting with impunity” and held that the present case was not a blanket protection against private prosecutions, but that it simply protected the media against “a meritless private prosecution which amounts to an abuse of process”. [para. 194]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In expanding the concept of a SLAPP suit to abuse of process in criminal proceedings, this judgment contributes to a growing SLAPP jurisprudence in South Africa.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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