When David met Judge Goliath – SLAPPs in SA law

A partner of mine at Webber Wentzel, Odette Geldenhuys (who works in the pro bono unit) and I recently wrote a piece in the Sunday Times on the unprecedented introduction of a SLAPP defence in a case decided by the Western Cape High Court on 9 February 2021. We act for the six defendants in the case, who are alleging that the case is a classical SLAPP lawsuit. You can read the case here. It has made waves around the country.

Here’s our original piece:

In a groundbreaking judgment, Deputy Judge President Patricia Goliath of the Western Cape High Court recognised that defendants may in principle raise a SLAPP defence in defamation cases. SLAPP stands for Strategic Litigation Against Public Participation; and it refers to meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics, individuals and organisations acting in the public interest.

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The spy who notified me: Six-love to amaBhungane in the RICA Constitutional Court case

I wrote a piece on the seminal victory for amaBhungane in its RICA and bulk surveillance challenge for Daily Maverick – published here The case itself is available here and the High Court’s decision (which was essentially upheld) can be read here

It’s also available on amaBhungane’s website here

Lavanya Pillay from my team and I acted for amaBhungane and Sam Sole, assisted by three fantastic counsel – Steven Budlender SC, Stuart Scott and Itumeleng Phalane.

Here’s my piece. I think my original suggested headline was nice (the subs didn’t) – The spy who notified me (post-surveillance notification has been carved into our law).

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Manuel v Malema in the Supreme Court of Appeal

The Supreme Court of Appeal handed down a significant (and lengthy) judgment on defamation law on 17 December 2020, in the defamation case brought by Trevor Manuel against the Economic Freedom Fighters. You can read the judgment here

In short, the SCA held that the EFF had unlawfully defamed Manuel (ie they published a defamatory media statement alleging he as corrupt and nepotistic without any legal basis at all), and granted Manuel declaratory and interdictory relief. The SCA referred the issue of whether the EFF should apologise to Manuel, and the quantum of damages, for oral hearing.

I wrote a piece in Daily Maverick a few days after the judgment: read it here . I also reproduce it below – as my students know, it’s always nice to be able to quote Shakespeare.

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Season 1 of media law podcasts now complete: Publish responsibly

All five of our media law podcasts have now been uploaded. You will find episode 5 here.

It is one of my favourites. To properly understand the case we discuss – where two veteran journalists sued the Economic Freedom Fighters (EFF), and won – you need to go back over 30 years. My guests are the journalists who brought the case – Thandeka Gqubule-Mbeki and Prof Anton Harber, accused by the EFF of being Stratcom agents. Read the case before you listen to the podcast here.

For the full season 1 podcasts, you can find links in my blogs below. Or if you prefer, search for “Webber Wentzel Legal Insights” wherever you get your podcasts (Apple, Google, Spotify). You will find them easily (and other interesting podcasts from Webber Wentzel, eg the impact of COVID19 on the tech sector). You can access the Spotify podcasts here.

Criminalising fake news about COVID-19

Criminalising fake news is usually not a good thing in a democracy. These kinds of laws have frequently been abused by authoritarian regimes to punish critical reporting. As panic about the spread of COVID-19 around the globe set in, so too did the dissemination of false information about the pandemic.

The South African government’s response was to create a criminal offence in its regulations issued last week about the pandemic.

While these regulations were being passed, somewhat ironically, I was on a panel at Webber Wentzel (streamed live over Twitter but not open to the public on account of social distancing guidelines) where Media Monitoring Africa relaunched its Real 411 campaign. This campaign inter alia seeks to address disinformation on digital media. I was honoured to share the panel with retired Constitutional Court judge Zak Yacoob – one of my favourite judges – and my former Webber Wentzel colleague, the brilliant Avani Singh. You can watch a news report about the relaunch here and visit the Real 411 site here

Johan Thiel and I penned a piece for Daily Maverick on the South African government’s false Covid-19 news regulations. The piece is here. It was also republished by the UK media law site Inforrm here.

Another interesting piece on the issue is Advocate Michael Laws’ well-argued article in Daily Maverick, with a catchy title including “Corona Censorship”, here

I reproduce our Daily Maverick piece below. The bottom line in my view is that whatever the wisdom of the fake news law, it would probably in this specific and exceptional context pass constitutional scrutiny. This is not at all to say that false news laws generally are justifiable; they are not. But this law sets the bar for prosecution very high – essentially only publishing information you know to be false about COVID-19 would be punished. Freedom of expression cannot, at least in this context, be used to justify the publication of statements that the speaker knows to be false, and with the intention to deceive the public.

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