‘Lawfare’ increasingly used to silence journalists and stall probes

Individuals and companies who want to avoid public scrutiny or dodge investigations are increasingly turning to “lawfare” to buy breathing space and distance from exposure.

Individuals and companies under scrutiny often abuse court processes and complaint mechanisms to silence journalists and stop investigations.

Investigators warn of rising legal pressure on journalists

Chad Thomas of IRS Forensic Investigations said these actions are a direct assault on both freedom of the press and justice.

Thomas warned that though it was fair to hold journalists accountable, “we are seeing an increase in vexatious and frivolous complaints laid by subjects of investigative journalists or private investigators in an attempt to stifle the investigation and the public interest that may lay therein”.

Beyond complaints, legal pressure is also being exerted through the courts.

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Slapp suits increasingly used to intimidate critics

Thomas said suspects and corporations facing serious allegations are increasingly resorting to what are known as Slapp suit actions in higher courts.

A Slapp action, short for strategic lawsuit against public participation, is a legal case brought primarily to intimidate or silence critics, rather than to resolve a genuine dispute.

These cases are often filed by individuals or companies against journalists, activists, investigators or whistle-blowers who have exposed or questioned alleged wrongdoing.

The aim is typically to burden the target with costly and time-consuming litigation, discouraging further reporting or investigation.

Even when such cases have little chance of success, the legal pressure itself can create a negative effect on public scrutiny and free expression.

Courts in several jurisdictions have begun recognising Slapp actions as an abuse of legal or regulatory process where litigation and complaints are used primarily to silence critics, rather than resolve genuine disputes.

Protection orders increasingly sought during investigations

Thomas said investigators are also seeing a marked rise in attempts to obtain interim protection orders under harassment legislation while investigations are ongoing.

An attorney, Mark Tomlinson, said interim protection orders are an important legal mechanism intended to protect individuals from genuine harassment or threats.

At the same time, he acknowledges that the nature of interim relief means the orders can sometimes be granted quickly, before a full evidentiary hearing has taken place.

“The reality is that interim orders are often easily granted and the obtaining of them can be and has been abused by parties to try to manipulate situations,” Tomlinson said.

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High-profile cases highlight misuse of legal processes

Thomas cited the high-profile example of businessman Peet Viljoen, who obtained an interim protection order against a producer from the investigative television programme, Carte Blanche, to halt reporting on his and wife Mel Vijoen’s conduct.

Reports have also highlighted a broader pattern of protection orders being sought against journalists in recent years.

Thomas said similar tactics are increasingly being used by suspects facing serious allegations.

“In my experience, there have been multiple attempts to stifle investigations by bringing applications for protection orders,” he said.

Ongoing court cases linked to fraud and mining investigations

He noted that several such matters are currently before the courts, including a protection order application in the Pinetown Magistrate’s Court linked to a suspect being investigated by the Hawks in an alleged multimillion-rand Ponzi scheme.

There are also two further applications in the Randburg Magistrate’s Court involving suspects in mining sector investigations.

A separate matter against him before the Western Cape High Court in Cape Town, said Thomas, is tantamount to a Slapp suit.

“The lower courts generally see through this vexatious and frivolous process of obtaining interim protection orders in terms of the Protection from Harassment Act.”

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