Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
17 November 2022

Slapp suit judgment paves way to shutting the door on Stalingrad tactics

The Constitutional Court judgment on Slapp suits reminds us that there may be ways to curtail the practice whereby well-resourced political actors implicated in corruption and other unlawful or unethical behaviour (often abetted by ethically tainted lawyers) make use of the ‘Stalingrad strategy’ to delay or even completely avoid accountability for their actions.

When individuals abuse the legal process or the rules of court, it will often impinge on the integrity of the courts or cause harm to parties against whom it is being used. But, in part, because section 34 of the South African Constitution guarantees everyone’s right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court, our courts have been reluctant to nip such abuses in the bud.

While the recent Constitutional Court judgment in Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others displays similar caution, it nevertheless provides helpful guidance on the mechanisms available to courts to curtail the kind of abuses that often arise when litigants deploy the “Stalingrad strategy” to try and avoid any accountability for their actions.

The judgment also sharply raises the question of whether our courts should do more to stop these abuses, given the fact that they impact the integrity of the courts and the judicial process, and given that they allow parties with deep pockets and few scruples to pervert the cause of justice.

This is not only because the court confirmed that defendants faced by defamation suits brought for ulterior or nefarious ends, and not to enforce any rights, would in some instances be able to rely on a so-called Slapp defence to stop the case brought against them in its tracks.

As the Constitutional Court explained (in a unanimous judgment penned by Justice Steven Majiedt), Slapp suits are often brought by well-resourced parties (in this case an Australian mining company) to “silence or fluster” their opponent, or “tie them up with paperwork or bankrupt them with legal costs”. Such suits often lack merit, and 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”.

The Constitutional Court thus held that courts may reject such suits if the defendants can prove at trial that the defamation suit brought by the plaintiffs is an abuse of process of court; is not brought to vindicate a right; amounts to the use of court process to achieve an improper end and to use litigation to cause the defendants financial and/or other prejudice in order to silence them; and violates, or is likely to violate, the right to freedom of expression entrenched in section 16 of the Constitution in a material way.

The Constitutional Court pointed out that our courts have over many years used their inherent powers to protect the institution from litigious abuse, and proceeded to discuss and analyse some of the mechanisms available to courts to do so.

Apart from the Slapp defence, our courts may take action to prevent abuse of the legal process (particularly the rules of court); and to halt frivolous or vexatious litigation and malicious prosecution. I discuss each of these in turn.

The abuse of process is most commonly associated with the abuse of procedures permitted by the rules of the court to achieve a purpose other than that intended by those rules. For example, if the rules of court are used to delay proceedings indefinitely in an attempt to avoid the merits of the case being heard and decided by the court, this will amount to an abuse of process.

Our courts have also stated that “where the procedures to facilitate the pursuit of the truth are used for a purpose extraneous to that objective” it will amount to an abuse of process.

The Constitutional Court approvingly quoted from the Supreme Court of Appeal (SCA) judgment in Phillips v Botha, where the court defined an abuse of process as follows:

The term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse for this purpose.

I would argue that a litigant who pursues a matter for an ulterior purpose, in a case where there is absolutely no prospect of success, also abuses the legal process. A prime example of such a case is the application of the suspended Public Protector to the Constitutional Court to rescind its decision not to rescind its judgment of February 2022 where it upheld the separation of powers arguments regarding the appointment of a judge to the Section 194 independent panel.

There is overwhelming evidence that this application was launched with the sole purpose of delaying the parliamentary inquiry into her impeachment.

Such abuses are often dealt with by slapping a personal cost order on the litigant who abused the process. But where the litigant is funded by public money, or is so wealthy that such cost orders will have little impact, something more may be required.

Thus, in Mineral Sands Resources the Constitutional Court noted that there are exceptional cases “where there is gross abuse by the procedure employed by a litigant” where the courts “will dismiss the claim, without any regard to the merits”. But in cases like the application to rescind the decision not to rescind, courts may have to devise other remedies to try and limit this kind of abuse of the process.

Apart from the legislative provisions allowing a court to declare someone a vexatious litigant, our courts have long held that they have the inherent power to regulate their own process and stop frivolous and vexatious proceedings before them. This happens when it can be shown that a litigant had “habitually and persistently instituted vexatious legal proceedings without reasonable grounds”.

The Constitutional Court confirmed that legal proceedings were vexatious and an abuse of the process of court if they were obviously unsustainable as a certainty and not merely on a preponderance of probability. But as the Constitutional Court warned in Maphanga:

In granting this type of relief, [courts must] proceed very cautiously and only in a clear case make a general order prohibiting proceedings between the same parties on the same course of action and in respect of the same subject matter where there has been repeated and persistent litigation, and craft such order to meet only the immediate requirements of the particular case. The stringent onus on the applicant who seeks the relief and the need for the court’s caution in exercising this power obviously arise from the fact that the relief curtails a litigant’s access to court.

This principle may apply to former president Jacob Zuma’s continued attempts to avoid criminal prosecution, essentially making the same arguments and relying on the same factually dubious claims that he is the victim of a political conspiracy and that those prosecuting him are biased.

Even in the Zuma case, claims that the former president has abused the process to delay his prosecution has not yet found favour with the courts, but this may be partly due to the fact that the arguments have not yet been forcefully and comprehensively put before the courts.

The third class of cases concerns the public or private prosecution of an individual. Here the position is different. Our courts have long held that a prosecution will not be unlawful merely because the charges were being pursued with an improper motive.

Nevertheless, if a prosecution was not being pursued with the ultimate purpose of securing the conviction of the accused, and if there was no reasonable or probable cause for instituting the prosecution, the prosecution could be declared unlawful.

Moreover, in cases of private prosecution, the prosecution will be unlawful if a nolle prosequi certificate was not issued by the NPA, or if the party wishing to prosecute cannot show that they have a unique and substantial interest in a matter, arising out of some injury which they had individually suffered in consequence of the commission of the offence.

This means that one would not be able to prosecute somebody lawfully if the alleged criminal offence did not affect them to any different degree than any other member of the public.

Lastly, a private prosecution embarked on for personal financial gain or in pursuit of some other private interest (such as an interest in avoiding prosecution oneself) would render the prosecution unlawful. The case in which Mr Zuma is seeking to prosecute Billy Downer and Karyn Maughan may fall into this category. As these prosecutions are clearly part of Zuma’s Stalingrad strategy, and as the prospects of success are slim to zero, the court may well throw out these prosecutions.

There are good reasons why courts are reluctant to deal with various abuses of court rules and other legal processes. Most notably, it is not always easy to determine whether a litigant is pursuing a matter for no other reason than to subvert the legal process for their own ends.

Often lawyers representing litigants advance hopeless or even bogus legal arguments because they know no better or because they hope that the court will develop or change the law in their favour.

But it may be time for our courts to confront the fact that the abuse of the legal process and of courts more generally undermines the integrity of the system and exacerbates the effects of inequality by allowing those litigants with deep pockets to game the system.

While the Constitutional Court’s judgment in Mineral Sands Resources represents a tentative and cautious step in this direction, it may have to become more forceful in future to ensure that the many charlatans and crooks (and their unethical lawyers) who abuse the system to evade accountability do not succeed in destroying the integrity of the entire system.

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