/ 10 February 2021

High court gives Australian mining company a big SLAP(P)

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)

Corporations should not be allowed to use South Africa’s legal system against citizens and activists to silence and intimidate them, a high court judge has ruled.

On Tuesday, the high court in Cape Town held that a series of defamation lawsuits totalling R14.25-million brought by Australian mining company Mineral Commodities Ltd (MRC) and its local subsidiary, Mineral Sands Resources, against three environmental lawyers, two activists and a social worker who criticised its operations is an abuse of legal process.

The defendants raised a special defence to the defamation claims by seeking to introduce Strategic Litigation against Public Participation, or SLAPP, as an abuse of the court process and a violation of the constitutional right to freedom of expression.

In her judgment on the exception application, Western Cape high court Deputy Judge President Patricia Goliath agreed and found the “DNA” of the case constitutes a SLAPP suit. 

The aim of such lawsuits, said Goliath, is to silence those challenging powerful corporates on issues of public concern. “In essence the main purpose of the suit is to punish or retaliate against citizens who have spoken out against the plaintiffs.” 

The litigation is not aimed at vindicating legitimate rights, “but is part of a broad and purposeful strategy to intimidate, distract and silence public criticism, which constitutes an improper use of the judicial process and its vexations”.

MRC, Goliath said, instituted the proceedings fully aware that there is no realistic prospect of recovering the damages they seek, and the plaintiffs, which include MRC chief executive Mark Caruso and Zamile Madiba Qunya, a director of MRC subsidiary Mineral Sands Resources, indicated they would be satisfied with a public apology. 

“This is a signature mark of many SLAPP suits … It is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and had assumed a specific position in respect of the plaintiffs’ mining operations.”

The litigation was brought rather to “silence critics of its present and proposed mining ventures in South Africa”. 

“It is trite that the legal process is abused when it is used for a purpose other than that for what it has been intended or designed for. It appears that the defamation suit is not genuine and bona fide, but merely a pretext with the only purpose  to silence its opponents and critics.”

The lawsuits arose from statements by two activists, Davine Cloete and Xolobeni Mzamo Dlamini; two attorneys at the Centre for Environmental Rights (CER), Christine Reddell and Tracey Davies; private attorney Cormac Cullinan; and social worker John Clarke, who criticised MRC’s proposed titanium mining project at Xolobeni on the Wild Coast and its Tormin operations on the West Coast. 

SLAPPs, said Goliath, are meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals as well as organisations acting in the public interest. “They are litigated into silence by corporations and oftentimes drained of their resources.”  

The signature element of SLAPP cases is the use of the legal system, usually disguised as an ordinary civil claim, “designed to discourage others from speaking on issues of public importance and exploiting the inequality of finances and human resources available to large corporations compared to the targets”. 

These lawsuits are drawn-out, and expensive legal battles, which consume vast amounts of time, energy, money and resources. “In essence, SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their constitutional rights, restrain public interest in advocacy and activism and convert matters of public interest into technical private law disputes.” 

Clarke, who has been sued for R10-million, said the judgment reads like “poetry” to him. “Judge Goliath has no idea how sweet her words are as a consolation to my wife, Sharon, and my son, Sam and daughter Aimee, who have had to make huge sacrifices in supporting me over the past 15 years.

“I was doing nothing but my job as defined by the code of practice of a social worker. I can quote chapter and verse of what it says social workers do.  We must challenge social injustice, we must engage people, try and build relationships and ensure that people develop insight and access to resources and participate effectively in decisions that affect them. So when a man like Caruso comes and tries to shut us up, he’s telling us not to do our jobs.”

That the ruling puts a stop to corporate bullying is a triumph, he said, for the collaboration of social workers, journalists and lawyers to ensure that human rights must supercede mining rights, especially for people like Amadiba, which have opposed the proposed titanium mining at Xolobeni for more a decade. 

In 2016, Xolobeni anti-mining activist Sikosiphi “Bazooka” Rhadebe was assassinated. There have been no arrests for his murder.

Public participation is a key component in environmental activism, and the chilling effect of SLAPP can be detrimental to the enforcement of environmental rights and land use decisions, said Goliath.  

“In instances where corporates could be the main cause of damaging and destructive behaviour of the environment and biodiversity, civil society should be allowed to confront and restrain such behaviour.” 

Litigation of this nature poses a serious threat to the defendants’ participation in matters of public importance, particularly environmental issues, she said. Individuals or nongovernmental organisations must have the freedom to respond to issues affecting society, such as those related to the environment and sustainable development.

Judge Goliath has no idea how sweet her words are as a consolation to my wife, Sharon, and my son, Sam and daughter Aimee, who have had to make huge sacrifices in supporting me over the past 15 years

John Clarke

For Davies, it is a huge relief to have the defendants strategy vindicated in an “extremely strong way” by the court. 

“This is an interlocutory hearing. It wasn’t the trial. There could still be a trial where we have to give evidence as to why we didn’t defame them,” she said. “But the problem that we faced up until now is that because South African law doesn’t recognise this as a strategy, you have to deal with these allegations as if it’s a normal defamation case, which involves incredibly long, frustrating and painful procedures of discovery, varies interlocutory hearings. 

“The point the judge makes so well in the judgment is that the tactic is recognised in a number of jurisdictions and the way they deal with it is to say if you’re sued, and you believe there are grounds to say that it is a SLAPP suit, you can go to the court immediately and say to the court, ‘you need to make an assessment of this now’, ‘kick it out now if you agree it’s a SLAPP suit’.”

The matter has dragged on for four years “and we’re not even close to a trial. So you save people those years and years not only of the actual proceedings but also of all the stress and anxiety that goes with it. This is what every single one of these defendants have been saying since day one — that these cases are not valid defamation claims. They are attempts to silence us because we criticise the company. Judge Goliath really appears to have seen that and articulated that in a very clear way.”

Leanne Govindsamy, the head of corporate accountability and transparency at the CER, said in a statement that the defamation trials may still proceed in due course, but when sued for defamation in a SLAPP suit, local activists can successfully defend such a lawsuit by relying on the SLAPP nature of such a lawsuit. “This judgment makes it clear that, in South Africa, corporations will not succeed in using SLAPP suits to silence criticism about their environmental impacts from environmental activists.”

The CER described the judgment as a “momentous legal victory for environmental activism and free speech”.

Its executive director, Melissa Fourie, said that although there is still a lot to be done to protect activists from threats and intimidation in South Africa, as the murder of anti-mining activist Fikile Ntshangase in October last year “so painfully reminds us, it is a relief that our courts recognise and are willing to protect the crucial importance of civil society activism for environmental justice”.

The Centre for Applied Legal Studies, which intervened as a friend of the court, described the judgment as groundbreaking for the right to freedom of expression.

“South Africa does not yet have legislation to adequately deal with SLAPP suits,” attorney Thandeka Kathi said in a statement. “This ruling acknowledges that these kinds of meritless cases can be used by corporations to threaten and intimidate those who bring to light issues of public concern. This is a step towards addressing the victimisation and silencing of human rights defenders using the law.”

On 13 February, Caruso will appear in the Perth Criminal Court facing charges of assault and home invasion.