/ 13 June 2020

Lawyers push for Slapp suit regulation in SA as Australian miner sues environmental activists

Steadfast: The Xolobeni residents have
Steadfast: The Xolobeni residents have, for more than a decade and with deadly consequences for them, fought off an Australian company wanting to mine their land. (Delwyn Verasamy/M&G)

The Western Cape High Court this week heard a case where Australian mining company’s Mineral Resources Commodities (MRC) and its local subsidiary, Mineral Sands Resources (MSR), are suing a group of activists and environment attorneys for a total of R14.25-million in three cases of alleged defamation. 

The mining companies claim that the defendants made statements that caused reputational damage in relation to its Tormin mining activities on the West Coast. This mine started in 2014 and, despite opposition, has recently been granted permission to expand its beach mining operations

The company wants to mine titanium in the sand dunes of Xolobeni, in the Pondoland region of the Eastern Cape, but for more than a decade the residents have opposed it. But the fight over its application has seen an anti-mining activist murdered and the mineral resources department embroiled in the controversy. 

The defendants — social worker John Clarke, environment lawyers Corman Cullinan, Christine Redell and Tracey Davies, Xolobeni activist Mzamo Dlamini and Lutzville activist Davine Cloete — deny defaming the company.  

Thandeka Kathi, an attorney at the Centre for Applied Legal Studies, told the Mail & Guardian that in defence of the defamation suit they are arguing that the group is the victim of a strategic lawsuit against public participation (Slapp), which she said is meritless and instituted for ulterior purposes. 

The European Centre for Press and Media Freedom warns that Slapp is not just an attack on freedom of speech but it aims to shut down important speech by intimidating critics and they will drain their resources in the process. It adds that one core characteristic of this kind of action is the disparity of power and resources between the plaintiff and the defendant.

Kathi said South Africa does not have anti-Slapp legislation and this is something the attorneys are trying to get the courts to develop so that small voices can defend themselves when big corporations want to stifle them. 

The Australian mining company’s presence in the country has been marred with controversy.  The company’s attempts to mine in the Eastern Cape have been linked to its Western Cape mine.The residents opposing dune mining at Xolobeni, which they say will damage a delicate ecosystem on which some of their economy relies, have used alleged transgressions at the Tormin mine to push back against the new mining application.

The M&G in 2018 published details of a report by global poverty alleviation nonprofit Oxfam, saying: “It appears MSR’s modus operandi is to do what it wants to do, regardless of the regulatory environment within which it exists or the priorities of other role-players.” 

Oxfam found that MSR had not delivered on its upliftment programme, despite revenues of R750‑million and a profit of R150‑million after tax in 2017.

Leanne Govindsamy, head of the Centre of Environmental Rights’s corporate accountability and transparency programme, said in a statement that such tactics undermine South Africa’s “constitutional democracy, the right to freedom of expression, including academic freedom and pose a threat to the robust and healthy civil society movement in South Africa”. 

One example of defamation the mining companies are suing for was allegedly made in a 2017 lecture at the University of Cape Town’s Summer School. Reddell, Davies and Cloete presented lectures as part of a series called the “Mining The Wild and the West Coast: ‘Development’ at what costs?”

When discussing the operations at the Tormin mine Davies said: “We have a situation where this company operates and continues to operate in circumstances where it is in breach of multiple environmental laws, mining laws, municipal by-laws as well as planning laws.” 

She also said: “They have armed guards on site and they have, on occasions, been extremely violent.” 

The mine’s lawyers complained that such comments which were made are “wrongful and defamatory”. 

But, the University of Cape Town, which is a second amicus curiae in the matter, argued for protection of “academic freedom” explaining that statements made in an academic setting should be protected. 

It said that for the “academic project to succeed, academics and students must be able to freely exchange ideas. If they fear being sued for defamation for what they say in the classroom, or what they write in journals or textbooks, the academic project will grind to a halt — the production of knowledge.”

In addition to the Slapp suit, the defendants’ lawyers say the mining company is suing without making any allegation that they have suffered any financial loss because of the alleged defamatory statements. Yet the company wants damages to the tune of R14.25-million or for a public apology from the defendants. 

The mining company’s lawyers took an exception to the defendants’ pleas [the Slapp suit and claimed loss of income], stating that the “exception to both of the special pleas in each of the actions because they lack averments necessary to sustain the defences they purport to raise. These are the exceptions that require determination.”

A decision either way will set a precedent in the law about free speech, which Deputy Judge Patricia Goliath will have to weigh up.

Tshegofatso Mathe is an Adamela Trust business reporter at the Mail & Guardian