Defamation / Reputation, Press Freedom, SLAPPs
VanderSloot v. Mother Jones
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A High Court in South Africa refused to enroll an urgent application for an interdict against a media house on the grounds that the application constituted a SLAPP suit. Two prominent businessmen sought an urgent interdict to prevent one specific media house from using a nickname for them which had been in the public domain for 16 years and had been used by multiple newspapers. The Court found there was no urgency in the application and noted that the businessmen had not brought any actions for defamation in the 16 years and that any interdict would be ineffective because many media houses other than the party in this case used the nickname. The Court described the application as an abuse of process and an attempt to punish the media house and its journalists and to send a “chilling example” to other journalists.
In July 2023, two South African businessmen, Lemane Bridgman Sithole and Michael Maile approached the High Court in Johannesburg, on an urgent basis, seeking an interdict against news media publication, News24 and a number of named journalists. The businessmen asked the court to prohibit the journalists from referring to them as members of the “Alex Mafia”.
During the apartheid era in South Africa, the Alexandra Youth Congress was a “political organization that played a role in the struggle for a democratic South Africa”. [para. 5] Alexandra is a township in Johannesburg, and is commonly referred to as “Alex”. The current deputy president of South Africa, Paul Mashatile, was a member of the Alexandra Youth Congress, along with Sithole and Maile. Sithole and Maile were given prominent political roles when Mashatile was in the provincial executive in the 2000s, and, in 2004, formed three investment companies with Mashatile and other former Alexandra Youth Congress members. These companies benefited from provincial tenders awarded while Mashatile was in the provincial government.
There have been various references to Mashatile, Sithole and Maile as part of the “Alex Mafia” in South African media: the first time, in July and August 2007, in the newspaper, the Mail and Guardian; in May 2009, in the Sunday Times newspaper, and in August that year, another newspaper, in The Sowetan newspaper; in March 2011, in the Mail and Guardian again; in April 2012, on online news website Daily Maverick; in 2014, on the news channel eNCA’s website; in August 2022, in a News24 article written by Adriaan Basson; in December 2022, on the Daily Maverick; in June 2024, in a News24 special project on Mashatile and in a News24 podcast; in July 2023, in a News24 invitation to a webinar and on its website and its Afrikaans-language news website. In total, between 2007 and 2023, there were 46 mainstream media references to the “Alex Mafia”, and a google search of the term resulted in 38 1000 results and 3500 articles. [para. 9]
In August 2022, Mashatile was quoted in a Financial Times article as calling the “Alex Mafia” a term that “simply refers to a group of 1980s comrades from the township who went on to serve in government” that denoted a political grouping rather than anything illegal. [para. 13] Pieter du Toit, a journalist at News24, had spoken to a confidential source who had said “[e]veryone calls them the ‘Alex mafia’. They call themselves that. People in Alex call them that.” [para. 13]
The initial relief Sithole and Maile sought was a “wide banning order prohibiting the repeating of the contents of a 16-year-old article published by an uncited third party, the Mail and Guardian (so too the co-author, Mr Brummer)” which was about Mashatile and the “so-called ‘Alex Mafia’ of which he was a leading member”. [para. 30] Sithole and Maile maintained that the interim sought was interim, and “should be operative pending the final determination of an [defamation] action to be instituted against [News24] in this Court within 30 days of the granting of the interdict”. [para. 4] Sithole and Maile later amended their plea to seek only a prohibition on News24 from referring to them as members of the “Alex Mafia”, abandoning the relief to prevent any reference to the original article from 2007.
Judge Ingrid Opperman delivered the judgment of the High Court in Johannesburg. The main issue for determination was whether the urgent, interim interdict could be legitimately granted.
In explaining why the matter should be heard on an urgent basis, Sithole and Maile argued that, despite the use of the term before, it was only Basson’s August 2022 article where Basson added words like “gang”, “mob”, and “notorious” which is why they only brought the application now.
News24 argued that their affidavit in the case “demonstrated, overwhelmingly, that the facts reported in the 2007 Mail and Guardian article were true and for the public benefit, and that those facts would more than justify referring to [Sithole and Maile] as ‘Alex Mafia’”. [para. 26] It submitted that Sithole and Maile were attempting to “sever their case from the 2007 Mail and Guardian article, its original anchor” and that by abandoning their most serious relief initially sought, “reveals that the original notice of motion was a gross overreach, and thus an abuse”. [para. 26]
The Court noted that Sithole and Maile had not instituted any legal proceedings in 2007 or August 2022, and that no action for defamation had been instituted in August 2023. Accordingly, the Court held that the matter was not urgent. It said that “if the term ‘Alex Mafia’ was innocuous until the words ‘gang’, ‘mob’ and ‘notorious’ were added, then the relief sought should address this which it does not”. [para. 18] This was because Sithole and Maile amended the relief sought, to seek only to prohibit “the publication of references to [Sithole and Maile] as members of the ‘Alex Mafia’.” [para. 18] The Court noted that this could not have any urgency as the use of the term, “Alex Mafia”, had been in the public domain since 2007 and that Sithole and Maile “did nothing about it, despite their claims that the core of their case is about these impugned allegations first arising in 2007 and being defamatory then”. [para. 20]
The Court noted that Sithole and Maile had not approached the Press Council of South Africa, “the body recognised by statute as an effective regulator”. [para. 27] It accepted that a litigant can approach the courts before or without approaching the Press Council, but that they “should explain why they have not pursued the potentially speedier remedies available from the Press Council”. [para. 28]
The Court concluded that “this application is an abusive attempt by two politically-connected businessmen to gag a targeted newsroom from using a nickname – ‘Alex Mafia’ – by which [Sithole and Maile] are popularly known and called by the public, politicians, political commentators, other newsrooms, and themselves – and have been for at least 16 years”. [para. 29] It found that Sithole and Maile “have abused the court process, by claiming urgency where there is none, by materially altering their case in reply, and by seeking relief which will have no purpose other than to improperly punish and make a chilling example of [News24 and the journalists].” [para. 29] It noted that no action was taken against the other media houses which had also used the term “Alex Mafia”.
The Court described an interdict prohibiting publication as a “judicial ‘prior restraint’, or more colloquially as a ‘banning order’ or ‘gagging order’.” [para. 31] It stressed that this infringes the right to freedom of expression. With reference to the old apartheid-era case of Publications Control Board v. William Heinemann, as well as the democratic era cases of Print Media South Africa v. Minister of Home Affairs, Midi Television v. Director of Public Prosecutions (Western Cape) and Mazetti v. amaBhungane the Court noted that prior restraints must only be granted rarely and that “the courts have set a very high threshold for an interdict (whether interim or final) against allegedly defamatory speech”. [para. 36] The Court referred to Malema v. Rawula where the Supreme Court of Appeal had examined the jurisprudence on prior restraints and the use of interdicts to prevent publication of defamatory statements and had held that “a party is not entitled to approach the court unless it is clear that the defendant has no defence”. [para. 37] The reason for this high threshold is because it deprives the respondents “of the truth-finding facilities of trial proceedings” and because there are alternative options for the applicants [para. 37]
The Court held that the application was an abuse of process and that there was no “bona fide basis” for approaching the court so long after the first publication of the term. It also held that the relief sought would be ineffective because the nickname would remain online and an interdict would not ban other parties from using it. The Court described the “irresistible inference” as being that the “true purpose” of the application was not to preserve Sithole and Maile’s reputations because allegations of their membership of and the use of the nickname “Alex Mafia” were already widespread. The Court found that the application was “designed to punish [News24], to make an example of them, and thereby to send a chilling message to other media and members of the public that they risk being hauled to urgent court to face opprobrium from politically connected figures of influence and resources and the risk of heavy costs orders if they use the nickname”. [para. 41]
The Court acknowledged that the case didn’t “bear all the hallmarks of a SLAPP suit” but that it did have two of then – “the ulterior objectives of punishment and deterrence”. [para. 42] It added that, irrespective of the SLAPP nature of the case, “it is an abuse of process to bring a civil action or application for any purpose ulterior to the genuine protection or vindication of a right”. [para. 42]
The Court refused to enroll the matter as an urgent one, and noted that it would have, in any event, dismissed the application on its merits, based on the delay in bringing the application as Sithole and Maile had “forfeited their right to interim relief” by not bringing any action in 2007 or August 2022.
In awarding News24 punitive costs, the Court held that the “application had manifestly an intimidatory componentry, as evidenced by the personal citation of the various individual journalists and seeking costs against them personally”. [para. 47] The Court said it had analyzed various factors in determining the costs order – “the unreasonably truncated time periods allowed to respond to the very wide relief sought and which was then abandoned”; the political connections of Sithole and Maile and that they hadn’t “suffered any stated prejudice” from the use of the term in the 16 years since it was first used”; the citing of the individual journalists; that “[p]rior restraints on speech are invidious” and infringe the right to freedom of expression and should only be used in narrow circumstances; that the Mail and Guardian and author of the original article were not cited; that any relief would have been ineffectual; and that there have been no defamation cases filed since 2007. [para. 48] The Court accordingly awarded punitive costs, on an attorney and client scale.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s recognition of the use of an abusive process to punish specific journalists and chill media freedom, and strong defence of media freedom contributes to the growing jurisprudence in South Africa on the use of SLAPP suits against journalists.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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