‘I’m going to sue!’ Why so many people threaten and nothing comes of it

Remember in school when somebody wanted to look awesome they’d pick a fight with the toughest person, knowing they’d lose, so there would just be the threat of a fight, but we all knew it would never really happen? The threat itself, however, would add to the aggravator’s credibility. Law can sometimes be used like that.

The problem with an open and democratic legal system is that it’s open and democratic. Sure, that sounds like it’s a good thing, and for the most part it is, but we haven’t solved the problem of its abuse. Sure, we can blame state actors and those with deep pockets for taking on every possible avenue to draw out a case and hope the other side runs out of funding and/or appetite to continue the fight … and that happens … but there is a side of wasting the law’s time that we rarely talk about.

Making cases where there are no cases to be made is nothing new, so why haven’t we found a solution for wasting the time of the courts?

More importantly, what would constitute the wasting of the court’s time? In an open and democratic society, who are we to say that a person shouldn’t firmly believe in their case regardless of how much of a waste of time we may believe it to be?

Thing is, legal strategists are aware of our social inability to write off a case before it is heard. The important consideration when playing to this layman inability is that one must make the assertion and make it compellingly. It wouldn’t work in the case of allegations of crime because the accused is already on the back foot.

In civil matters, though, it’s open game and we hardly question a person making a claim. After all, why would somebody go to all the effort of making a case against a person if they had no case to make? Because you’re more likely to believe them if they do, that’s why!

So go back in your mind and think of all the stories you’ve read, especially threats of defamation cases, civil suits for ridiculous amounts and other legal applications you’ve never heard of, since they were either “settled out of court” or the court itself was blamed for dragging its feet. Often it was planned to end like that from the start.

Internationally, defamation suits are commonplace with current ones targeting a range of people from Tinder execs to Elon Musk, and they often go all the way. Locally, however, once the social and media heat die down, so do the related defamation cases.

There could be a couple of reasons for this. Most obviously would be what’s known as the Streisand Effect: that fighting the case calls more attention to it. Not only that, but, once you’re in court, all documents relating to the matter become public record, so calling for a fight could lead to the outing of some skeletons in your own closet.

Another reason is that maybe you did really cheat on your spouse and the tabloid article was absolutely correct, but you can’t just tell your spouse that those were all lies. You’d have to show them that you’re going to fight those “lies” because they’re that ludicrous. You can make up a story about “settling for commercial reasons” or “the court lost the papers” later, but until then, and until the heat dies down, you’ll have to keep up appearances.

It’s unusual for South Africans to be engaged with the full legal process and it’s understandable why. There are so many different cases going on and, with so much detail it’s easy to simply want to know the beginning and the outcome without wanting to delve into the meat in the middle.

That’s fine. I wouldn’t expect any person to buy into an entire court case. What I would expect, however, is for people not to be fooled into thinking the allegation is true merely because a case was made. It’s easy to forget to wait for an outcome and go on what one has, but the point of a legal process is so that we can have as much as possible …especially if the outcome never comes.

If the legal process is cut short, what we have is not as much as possible but the lingering thought that a case was made, so obviously there’s a case to fight for … and if that thought is allowed to linger long enough, we tend to start believing it.

In the end, it may be a by-product of the open and democratic legal system that people are enabled to waste the time of the courts by making baseless claims to defend their own integrity, but we should be aware of this and ask what happened to these cases.

Currently, we’ve heard reports of Sports, Arts and Culture Minister Nathi Mthethwa wanting to sue for defamation after being implicated in the state capture inquiry. We’ve also seen reports of Ace Magashule taking on Buyisile Ngqulwana for R500K.

Let’s see, say this time next year, how far these cases have gone.

Richard Anthony Chemaly.

Chemaly is an entertainment attorney, radio broadcaster and lecturer of communication ethics

For more news your way, download The Citizen’s app for iOS and Android.