/ 15 November 2022

Concourt holds that SLAPP suit defence exists in South African law

Second chance: The constitutional court (above). Take the country forward in the same way the Constitution was forged. Photo: Madelene Cronjé

The constitutional court on Monday upheld a mining house’s appeal against a high court order that marked the first time environmentalists have successfully invoked the SLAPP suit defence, an acronym for strategic lawsuits on public participation, on local soil.

But the ruling can only technically be read as a courtroom loss for opponents of titanium mining in Xolobeni on the Wild Coast in the Eastern Cape, who face defamation claims totalling R14-million from Australian mining company Mineral Commodities Ltd, its local subsidiary Mineral Sands Resources, former executive Mark Caruso and local black empowerment partner Zamile Qunya.

It sees the justices of the apex court confirm that the South African common law can accommodate a SLAPP defence, but faults the six defendants — environmental lawyers Christine Reddell, Tracey Davies and Cormac Cullinan, social worker John GI Clarke, and activists Mzamo Dlamini and Davine Cloete, representing the Wild Coast and the West Coast — for not properly constituting their plea. 

“The respondents have secured the recognition of the SLAPP suit defence, albeit not on the basis that they pleaded the defence or supported the defence in their submissions.”

They erred by submitting that where such a defence is raised against a defamation action, on the basis that the true purpose is not to enforce a legitimate right but to silence, intimidate or burden critics in a manner inhibiting free speech, consideration of the merits of the defamation claim should fall away. 

This proposition was accepted by the Western Cape high court last year, when it dismissed the legal challenge, or exception, raised by the applicants but the constitutional court disagreed. 

“The respondents supported their special plea on the basis that improper motive alone suffices to warrant dismissal of the actions. That is not so,” read the unanimous judgment, written by Justice Steven Majiedt.

He noted that the defendants’ understanding of what constitutes a SLAPP suit differed from the legal position in the United States and Canada, where it has become a common defence in recent decades, and said although South African courts were not compelled to mimic foreign jurisdiction, because ulterior motive could not be the only consideration.

“This is because it was conceded during oral argument by both parties that a consideration of both merits and motive is required, as well as a consideration that the lack of merits will inform the ulterior motive.

“It follows that the first special plea lacks averments necessary to satisfy the requirements of the SLAPP suit defence. To this extent, the exception taken by the applicant holds good and must be upheld.”

But the court dismissed the main submission in the exception raised by Mineral Sands Resources and its fellow applicants that the SLAPP defence did not exist in South African law.

“I have found that the SLAPP suit defence does form part of our law,” wrote Majiedt, locating it in the common law doctrine of abuse of process.

“To make out the defence requires more than the respondents pleaded, but the defence commands a place in our law that the applicants have unsuccessfully resisted.”

The novelty of the defence is underscored by the court’s observation that most of the case law raised by both sides as authority for their submissions failed to find application.

“The parties’ reference of case law has not been particularly helpful.”

It said the high court had misinterpreted the appellate court’s 2004 judgment in PwC v National Potato Co-operative as laying down the principle that ulterior motive on its own gives rise to a self-standing defence to a substantive claim.

A SLAPP suit cannot be conflated with ulterior purpose nor does it fall into the definition of vexatious litigation. These are different forms of abuse of process that do not all share a common feature and should perhaps not all be termed such, the court said.

“There is another species of abuse, though, that does in my view deserve the nomenclature of abuse of process. It is in the form of what we have before us in this matter.”

It involves litigation that is not is not waged to resolve a genuine dispute but to abuse court process — and the accompanying costs — to achieve a result that undermines constitutional rights, the court said. 

It therefore involves a consideration of both the merits — by way of establishing whether the plaintiff has a right to vindicate — and the motives, along with the likely consequences if the case were to succeed.

“The likely effects of the suit bring into the reckoning what harm to free expression may result,” the court said. “If the case ultimately succeeds, the court would not be ensuring that justice is done as the overriding principle, but would be the means to an end that is likely to gravely harm fundamental rights. This the court cannot allow.

“Courts have the power — at common law and under section 173 of the Constitution — to prevent this type of abuse.”

The court gave the environmentalists 30 days to amend their special plea, failing which it would be dismissed, and ordered that the mining companies pay 60% of their costs. 

In a second special plea the environmentalists had argued that the defamation claim was bad in law because for-profit entities, unlike natural persons, had to prove falsity, willfulness and patrimonial loss to claim general damages. Here the high court upheld an exception raised by the miners. 

This became the subject of a separate appeal to the apex court where they persisted only with an alternative claim that awarding general damages for defamation to companies was unconstitutional as it violated the right to freedom of expression.

In a majority judgment on Monday, Majiedt recognised the right of companies to claim general damages for defamation but held that where the alleged defamation formed part of public discourse on issues of public interest, the court could use its discretion to deny the claim.

A minority judgment by Justice David Unterhalter disagreed and further expressed doubt as to the majority’s view that a juristic person, or trading entity, does not have a constitutional right to dignity.