SLAPPs in South Africa: The Karyn Maughan Case

Private prosecutions are rare in South Africa. That is particularly true when an individual accused in another criminal case prosecutes a journalist who is reporting on their case. They are even more unprecedented when the accused who is pursuing the private prosecution is a former president of the country. Such a case, initiated by former South African President Jacob Zuma against journalist Karyn Maughan, has now been interdicted by the Pietermaritzburg High Court. The High Court ruled that the private prosecution was a Strategic Lawsuit Against Public Participation (SLAPP) and therefore constituted an abuse of process.

Private prosecution of legal reporter Karyn Maughan

Zuma initiated the private prosecution of legal reporter Karyn Maughan. He argued that Maughan had published documents concerning his corruption trial before they had been tabled in court. Zuma had first laid a conventional charge against her, but the National Prosecuting Authority ultimately decided not to pursue the case due to a lack of legal merit. As a result, Zuma embarked on a private prosecution under the National Prosecution Authority Act. Maughan, who is employed by News24, the country’s biggest news outlet, is a defendant alongside Billy Downer – the prosecutor who allegedly authorised the release of documents to her.

Zuma has often cited Maughan and Downer in his criticisms of the corruption trial, which he believes to be a politically-motivated prosecution of him. The former president has repeatedly petitioned the court for Downer’s recusal, arguing that there are alternative, political motivations behind his prosecution. At the same time, the fact that Zuma pursued legal action against Downer, and not the junior prosecutor who sent Maughan the documents, has led some to suspect that Zuma is pursuing personal vendettas.

On 21 March 2023, Maughan and Downer applied to the High Court, arguing that the case against them should be dismissed. Their lawyers argued that the documents they published– which include a medical certificate – were submitted to the court by Zuma’s own lawyers, and there had been no request to keep them private.

South African organisations intervene in the case

In response to the case, the journalism community in South Africa has rallied behind Karyn Maughan. This includes various media organisations – such as the National Editors’ Forum (Sanef), the Campaign for Free Expression (CFE) and Media Monitoring Africa (MMA). These organisations appeared as amicus curiae, or friends of the court, arguing that the case against Maughan was a SLAPP. They highlighted how the case was intended not to pursue justice but to intimidate and harass the journalist. These organisations also argue in their submission that Maughan was merely conducting her routine job of court coverage – acting in a manner expected of an independent journalist. The proceedings received a lot of public attention and, as a result, Maughan has been the target of vicious misogynistic and personal abuse and threats on social media.

Maughan’s advocate Steven Budlender SC argued that the prosecutions were “a farce built upon non-existent or flawed evidence” and their sole purpose was “to delay Zuma’s fraud and corruption trial”. Zuma’s approach has been labeled a “Stalingrad strategy”: deliberately causing delays and disruptions in legal proceedings, and continually appealing decisions through the Constitutional Court.

The state has been pursuing Zuma’s prosecution since 2005, when they convicted his aide, Schabir Shaik, of two counts of corruption and one count of fraud in connection with bribes and financial advantages involving Zuma. Budlender said that Zuma had developed an “extraordinary animosity” for Maughan due to the critical nature of her reporting. The case was “an abuse of process” initiated for ulterior motives, he said.

Zuma has previously initiated at least 12 defamation cases against journalists, cartoonists, artists and art galleries.

On  7 June 2023, the Pietermaritzburg High Court threw out Zuma’s case and banned him from pursuing it further. It ruled that Maughan had been entitled to publish the material and the case against her was “done with the intent to intimidate and harass her and prevent her from doing her duty as a journalist”. Significantly, the High Court rejected the argument that a criminal prosecution could not be a SLAPP suit and found that this was indeed such a suit, opening up the use of anti-SLAPP action in criminal cases.

CFE, MMA and Sanef hailed the judgement as “a victory for all of journalism … a shining defence of media freedom and a warning to those wish to silence and intimidate journalists”.

If you are a journalist in need of support as a result of your reporting, please apply for free legal support.

Written by Anton Harber, Executive Director of the Campaign for Free Expression (CFE) and Caxton Professor of Journalism at Wits University.

CFE is one of our partners under our EWDRA project. Read more about our partnership with four media defence centres in sub-Saharan Africa here. To learn more about our EWDRA project, please see here.

Thank you Adspace Studio/Media24 for the image.