/ 22 February 2022

Concourt hears landmark ‘Slapp’ defamation and free speech case

September 24 2021 Members Of Extinction Rebellion Red Rebels Along With Other Local Cape Town Environmental Action Groups Mobilsed Outside Parliament On Friday Morning Calling For Climate Action & Environmental Justice. Cape Town. Photo By David Harriso
Intersectional protest: Members of Extinction Rebellion and Red Rebels, as well as other local Cape Town environmental action groups, mobilised outside parliament last Friday, calling for climate action and environmental justice. (David Harrison/M&G)

Kristin Kallesen watched with keen interest last week’s landmark appeal hearing in the constitutional court involving a series of defamation lawsuits brought by an Australian mining company and its local subsidiary against six environmental lawyers and activists.

For the Johannesburg environmentalist, the Strategic Litigation Against Public Participation (Slapp) defamation and free speech case, which was heard in the apex court, could well have a bearing on her own legal battle.

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 and Cormac Cullinan, social worker John GI Clarke, and activists Mzamo Dlamini from the Wild Coast and Davine Cloete from Lutzville on the West Coast 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. 

Meanwhile, Kallesen and her nonprofit the Greater Kyalami Conservancy (Gekco), are being sued for R197-million by Century Property Developments and Riversands Development for the income they allegedly lost after Kallesen and Gecko raised “obstructive, delaying and frustrating” objections to the developers’ projects in Riversands and Helderfontein, north of Johannesburg. 

“I definitely think the constitutional court case does have implications for our own case,” Kallesen said this week. “In our defence, we entered two special pleas, the first being that the lawsuit received amounts to abuse of process and a Slapp suit … I personally know three people who have received these types of lawsuits from property developers, so I feel it is an important issue for the court to consider.”

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, Goliath said, were an effort to “weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them” and were not bona fide. 

Before the constitutional court is 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. 

In their court papers, the mining companies contend that the Western Cape high court erred in dismissing the exception to the first special plea raised by the activists. “The core of the mining companies’ argument on exception is that motive is irrelevant to abuse of process. They submit that even if defamation actions were instituted for ulterior or impermissible motives, this cannot sustain a special plea of abuse of process,” according to a media statement issued by the constitutional court.

Slapp defence

Common law allows and requires courts to consider ulterior motives when assessing whether a litigant has abused court proceedings, the defendants legal teams argued. Additionally, the common law allows for ulterior motives to be determinative of abuse of process in certain circumstances. Insofar as this is currently not the law, the common law falls to be developed in terms of the Constitution.

Advocate Geoff Budlender, senior counsel for the defendants, told the court: “What’s the need for the development of the common law? Just look at the pleadings in this case. We don’t have to show that it happened 100 times or 1 000 times — all we have to show is that these defendants are being harassed, censored and intimidated into not criticising the conduct of the plaintiffs in their mining activities. If we show that is the case, then the common law ought to be developed.”

Advocate Peter Hodes, senior counsel for the plaintiffs, told the court the extensive law reform necessary to fairly introduce a “Slapp defence” is best left to the legislature. “I’ve been practising for 57 years and in that time until today, I have not noticed a proliferation of Slapp suits in this country. We contend that in this country there is no call for it. If there is … that very distinctly needs the attention of the legislature.” 

The defendants have argued that the high court erred in holding that a for-profit company may claim general damages in a defamation claim, where it does not allege or prove that the statements complained of are false; that the false statements were made willfully and that the for-profit companies suffered patrimonial losses as a result. To this, the mining companies said for-profit companies are not required to plead and prove patrimonial loss in defamation actions.

Advocate Steven Budlender, senior counsel for the defendants, told the court that for-profit companies are not the bearers of the right to human dignity and that unlike natural persons, the only interest a for-profit company has in its reputation is a financial one. “Do they have a reputation? Certainly. Might they want to sue to protect their reputation? Certainly. But is that reputation constitutionally protected … the answer is no because this court has told us so.”

‘It’s about truth’

Social worker Clarke told the Mail & Guardian this week: “The whole saga is actually an emblematic narrative story of not just what happened to the Amadiba and to South Africa, but also the planet. It’s about truth, and truth being spoken to those who basically have an extractive mindset and think that the planet is there for their own personal consumption.”

Clarke said he felt a “sense of gratefulness” that the Constitution “does provide us with the means and the framework for civil society to exercise that challenge by claiming our rights, including environmental rights.

“In that sense, it was [the constitutional court hearing] an emotional moment, because it was the culmination of a process that started 20 years ago when I first went [to Amadiba Wild Coast] on holiday.”

In the past 15 years, he said, his active involvement has been in ensuring the coastal community had access to the media, lawyers, and the Human Rights Commission “and that we were able to get the mining rights revoked in 2011. The tragedy of it is because the state had been captured, they allowed them to come back again and that is sadly when things became violent, and that’s when [anti-mining activist Sikhosiphi “Bazooka” Rhadebe] was killed [in 2016]. That necessitated me to basically use whatever privilege I have living in Joburg, being a white male, to actually ensure I could speak out.”

Clarke said his hope and expectation is that the constitutional court will recognise “that this isn’t just actually about a bunch of environmental activists being slapped by rapacious miners. There is a sense in which it’s all also about the rule of law versus basically an institutionalised criminality that has existed under state capture.”

This, Clarke said, was because Rhadebe’s murderers had still not been apprehended. “Let’s not lose sight of the fact that we still have a criminal justice system that is still very dysfunctional.”

Judgment was reserved.