Why threatening to sue people can be such a bad idea

The phrase “I will sue you” has become synonymous with the dialogue between public accusers and the publicly accused. But threatening to sue someone for saying mean or unwelcome things about you in a public spat is more likely to backfire, say experts.

This year has seen public officer bearers, politicians and journalists at the centre of court matters relating to defamation, hate speech and crimen injuria. But there has been a higher rate of public threats to sue people for making public statements about them, many of which seemed to be nothing but threats.

Among those matters that made it to the courts was ANC secretary-general Ace Magashule last month filing a R500,000 lawsuit against former church leader Buyisile Ngqulawana, who accused Magashule of masterminding the formation of the African Transformation Movement (ATM) in a bid to derail the ANC’s last election campaign. Notably, he had previously accused journalist Pieter du Toit of spreading propaganda about him in his book Gangster State and also threatened he would be pursuing legal action.

That is yet to happen.

Political analyst Ralph Mathekga warns that if your goal is to clear your name or dismiss a politically charged diatribe, heading to the courts is generally a bad idea.

“Once you threaten to sue, you are setting the bar you have to live by very high. What if you lose? If you say someone is lying about you – instead of leaving it at that, you threaten to sue and fail to follow through. You have almost confirmed those allegations yourself,” said Mathekga. “For instance, if you look at the Pravin Gordhan matter on his row with Julius Malema saying he is the dog of monopoly capital. After he lost, it cued even more stories and remarks by Malema and his supporters referring to him as the dog of monopoly capital.”

Because South Africa’s constitution leaves plenty of leeway for freedom of speech, one would have to make a strong argument that one has suffered reputational damage in a defamation case, according to constitutional expert Phephelaphi Dube.

“I’d say that, in general, the constitution recognises freedom of speech in its widest possible sense, with limitations being placed when that speech amounts to, [for example], hate speech and incitement to violence. However, it is still possible to sue successfully for defamation where the speech causes damage to a person’s reputation, even if a statement is not necessarily hate speech.”

According to Dube, defences to a defamation lawsuit are that the statement is true, in the public interest, fair comment and/or that the statement is made in the context of a confidential relationship (eg, doctor and patient).

“The concern is that threats to sue for defamation may stifle freedom of expression and may have chilling effect on South Africa’s generally robust discourse.”

In South Africa, defamation and crimen injuria are closely related, but fundamentally different. Both are considered common law offences. Crimen injuria refers to the act of unlawfully and intentionally impairing the dignity or privacy of another person, while defamation refers to the unlawful and intentional publication of a matter that impairs another person’s reputation.

Hate speech in South Africa refers to the communication or propagation to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or incite harm, promote hatred based on factors such as race, age and gender.

According to section 9 of the constitution, these words must be reasonably construed to demonstrate a clear intention to be hurtful, harmful or to incite harm and to promote or propagate hatred eg, calling people by derogatory (insulting or offensive) names or words.

Currently the Prevention and Combating of Hate Crimes and Hate Speech Bill is in the process of being passed into law. If this happens, hate speech will be considered a criminal offence.

In December last year, media mogul Iqbal Survé threatened to sue various journalists and other individuals in what he labelled a “sustained and unprovoked attack on Dr Survé and a number of the Sekunjalo Group investee companies”.

This year, Survé launched a libel suit against labour journalist Terry Bell. More recently he threatened to sue the Public Investment Corporation (PIC) over statements its head of legal services, Lindiwe Dlamini, had said about payment issues the corporation has had with Surve’s Sekunjalo.

Legal analyst Richard Chemaly says that while someone publicly threatening to sue you could be seen as damaging, such cases are rarely heard in the courts.

“Generally threatening to sue is not cause of action for the threatened person … The risk of threatening to sue and following through is less defamatory, and more, what documents will be revealed in the discovery process and form part of the public record,” said Chemaly.

“In an exceptional case where it can be shown that the threat was malicious and had (at least negligently) the consequences of damaging the threatened person’s reputation, there will certainly be a case to be made but that is highly unusual, and I’ve never been aware of such a case.”

Lee-Anne Germanos, legal researcher at the Helen Suzman Foundation, warned that defamation is not simply about proving that someone was mean to you in public.

She advised those affected by public utterances to ensure they had a watertight case before deciding to litigate.

“Defamation is defined by very particular elements. An utterance isn’t only deemed to be defamation if it is unwelcome, and often that is the focus. Defamation is difficult to prove because you not only have to prove that what was said was harmful but that it was untrue, and especially that it was untrue,” she advised.

“The onus shifts as the case proceeds. The onus will be on him to first prove that there is a prima facie case of defamation, and then the ball the ball would be in the defendant’s court to again disprove that. But if you can’t prove that, on the surface of it, the statement was untrue to begin with, there is hardly a case.”

– simnikiweh@citizen.co.za

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