Judge Susannah Cowen said South Africa was waiting for land justice and the constitutional court should lead the way.
(Renata Larroyd)
A pair of landmark judgments handed down by the constitutional court on Monday for the first time recognise strategic litigation against public participation (so-called Slapp suits) as an abuse of process, according to the non-profit Centre for Environmental Rights (CER).
They carve out a limitation to trading corporations’ ability to claim damages for reputational harm, the law clinic said. “The judgments have important consequences for the protection of activism and the rights and responsibilities of corporations in South Africa and beyond.”
Mineral Commodities Ltd (MRC), its local subsidiary Mineral Sands Resources, former MRC executive chairperson Mark Caruso and its empowerment partner Zamile Qunya are suing environmental attorneys Christine Reddell, Tracey Davies — both formerly with the CER — and Cormac Cullinan, social worker John GI Clarke, and activists Mzamo Dlamini and Davine Cloete for R14.5-million for their public criticism of the MRC’s proposed titanium mining project at Xolobeni on the Wild Coast and its Tormin operations on the West Coast.
Protracted legal batle
In February last year, Western Cape high court Deputy Judge President Patricia Goliath handed down a groundbreaking judgment in favour of the defendants, describing how the defamation case brought by the mining companies “matches the DNA of a Slapp suit”.
The series of defamation lawsuits were an effort to “weaponise our legal system against the ordinary citizen and activists to intimidate and silence them” and were not bona fide.
In February this year, the constitutional court heard an application for leave to appeal against the Western Cape high court’s judgment and order, which was brought by the mining companies. This concerns its dismissal of an exception raised against the Slapp special plea, where it was held that a Slapp special plea indeed discloses a proper defence.
The other application for leave to appeal was filed by the defendants against the Western Cape high court upholding an exception raised against a corporate defamation special plea where it was held that this defence was not adequate.
Unanimous judgment
In the first case, in a unanimous judgment, the constitutional court recognised for the first time that Slapp suits constitute a special category of the common law doctrine of “abuse of process”, Cullinan, one of the defendants, explained.
“For a court to decide whether or not a case is a Slapp suit, it must consider the motives for bringing the case, the legal strength of the case (i.e. the merits) and its likely effects, particularly the extent to which it may harm free expression,” Cullinan said. The constitutional court granted the defendants 30 days within which to amend their special pleas to address these three aspects.
Leanne Govindsamy, the head of CER’s corporate accountability programme, said: “By holding that the doctrine of abuse of process can accommodate the Slapp suit defence, the constitutional court has provided new and significant protection to activists, civil society and public interest organisations whose work in the public interest has been so central to advancing constitutional rights and freedoms in South Africa.”
Second judgment
Cullinan explained that in the second judgment, both the majority and the minority judgments dismissed the appellants’ argument that for a trading corporation to succeed in a defamation claim for general damages it must prove that it had suffered financial loss as a consequence of those defamatory statements.
“The minority would have simply dismissed the appeal but the majority judgment made a very important exception to avoid limiting the right to freedom of expression. It ruled that where the defamatory statements form part of public discourse on issues of public interest, a court has a discretion not to award general damages to a trading corporation to avoid damaging freedom of speech.
“These judgments will make it much more difficult for the miners to win the three defamation cases, and for the companies to obtain significant damages awards if they do win. If the defendants can convince the Western Cape High Court that these three cases are Slapp suits, and consequently amount to abuses of legal process, they will win.”
More importantly, Cullinan said, the judgments increase the protection for free speech and make it more difficult, “though by no means impossible”, to use litigation as a means of intimidating, silencing or censoring journalists, activists, whistleblowers and others who speak out on issues of public concern.
“The two judgments are obviously interrelated in the sense that it’s incredibly important that Slapp suits have been recognised as a form of abuse and therefore that you can have a special plea and if it’s proven to be a Slapp suit, then you don’t have to go on with the trial,” he said.
“I think that’s an incredibly significant moment in South African law and obviously, it’s not going to [prevent] Slapp suits [being ussed] as a way of intimidation, but at least now there’s recognition that this happens and that it amounts to abuse of the legal system and that if you can prove that then that will end it. That is probably the most important thing.”
Critical shift
Corporations have disproportionate power and influence on people and the planet, said CER executive director Melissa Fourie. “It is therefore of the utmost importance that civil society and the media are empowered to scrutinise their operations. With the climate crisis nearing tipping points across the globe, it is so often community and indigenous activists, civil society organisations and journalists who hold corporate polluters accountable.
“The constitutional court’s limitation on corporations’ ability to claim damages for defamation is a critical shift, and clearly signals that our courts will not allow corporations to use their more significant resources to silence those who speak up against corporate malfeasance,” she said.
‘Life and death’
Social worker Clarke said the judgments represented far more than legal jots and titles. “It’s actually been about life-and-death matters. The first one is that the Slapp suit against me was precipated by comments I made following the murder of [Xolobeni anti-mining activist] Sikhosiphi ‘Bazooka’ Rhadebe, which Mark Caruso took exception to …
“The second life-and-death matter is the life and death of the planet … So, please let us not lose sight that this is fundamentally why this Slapp suit and this recognition is so important, because we now have to redouble our efforts to make sure that a consciousness rises in society that the extractives industry has to start gearing itself to reality.”
Clarke said he felt strongly that the court’s judgments represent a move forward. “The arc of the moral universe does bend slowly and I think it’s just bent a few degrees further towards justice.”
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