STRATEGIC LITIGATION
AGAINST PUBLIC
PARTICIPATION (SLAPP)
The South African Constitutional Court
adjudicated on a free speech case in which
environmental activists were sued for defamation
by a mining company.(17)
The activists were sued for R14 million. SLAPPs
of this nature, by being exorbitant and time
intensive, are being used to undermine efforts
to exert accountability and frustrate public
dissent and participation. Essentially, SLAPPs
have a chilling effect on freedom of expression,
including press freedom.

SURVEILLANCE OF
JOURNALISTS AND MEDIA
PRACTITIONERS

In terms of court decisions, so far the most
notable case on surveillance on journalists in
Southern Africa is that of the South African
Amabhungane
Centre
for
Investigative
Journalism v. Minister of Justice and Correctional
Services.
It is indicative of the importance of upholding
the right to privacy when it comes to the practice
of journalism.
The High Court and Constitutional Court
concurred that some provisions of the interception
of communication law were unconstitutional.(19)
The invalidity and unconstitutionality created
opportunities for unlawful targeted surveillance
on journalists.
Surveillance is a necessary element of
governance. However, States should desist from
practising mass surveillance in favour of targeted
surveillance, which should be conducted within
the confines of international human rights law
and standards.
The standards entail the presence of
independent oversight mechanisms, and a legal
framework that allows for surveillance to be
authorised through an independent mechanism
and employ the relevant safeguards.

With the proliferation of the use of technology,
targeted surveillance of journalists increases.
However, the nature and extent of surveillance
targeted at journalists in Southern Africa is not
well documented and the UN Special Rapporteur
on Freedom of Expression and Opinion raised it
as a concern across the world.(18)

WHISTLEBLOWER
PROTECTION

The Mozambique 2022 law on the prevention,
suppression and countering terrorism provides
for the adoption and installation of electronic
surveillance in public and private places as a
means of preventing acts of terror.

Another threat to press freedom is the
fragility of whistleblower protection. Most
Southern African countries have some form of
whistleblower protection frameworks in place.

The legislation places an obligation on
telecommunications
service
providers
to
contribute to the prevention, repression and
combating of terrorism through adoption of
measures targeted at their users.
However, while there is clarity on these
measures, from a free press perspective these
could include mass and targeted surveillance.
This potentially presents a chilling effect on
journalists, who are required to guarantee the
confidentiality of their sources, particularly
when reporting on sensitive stories and in cases
where sources prefer to remain anonymous.
Being on the radar of surveillance has
implications on the right to privacy, which is an
important aspect of free press.

However, there seems to be implementation
gaps that endanger the lives of those who,
in good faith, expose wrongdoing such as
corruption.
In South Africa, for example, while the
contribution of whistleblowers in fighting
corruption is widely acknowledged and that
whistleblowers are an integral part of press
freedom, their protection is not guaranteed.
A legal framework exists, but it has loopholes
and the Department of Justice committed to
addressing the gaps.
According to Justice and Correctional Services
minister, Ronald Lamola, the government
is working hard to tighten laws to protect
whistleblowers.

21

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