Members of Extinction Rebellion Red Rebels along with other local Cape Town environmental action groups mobilsed outside Parliament calling for climate action and environmental justice. Cape Town. Photo by David Harrison
South Africa will allow wealthy corporations to silence those who can’t afford to litigate and defend themselves if it doesn’t bring an end to Strategic Litigation Against Public Participation (Slapp) suits, said environmental attorney Cormac Cullinan.
This is “unjust and contrary to the Constitution”, said Cullinan, who is one of six activists and public interest lawyers, who this week reached a settlement agreement with an Australian mining company and its local subsidiary, bringing a partial close to a protracted defamation battle.
In 2016 and 2017, Mineral Commodities Ltd (MRC), its local subsidiary Mineral Sands Resources, former MRC executive chairperson Mark Caruso and its empowerment partner Zamile Qunya sued environmental attorneys Christine Reddell, Tracey Davies and Cullinan, social worker John GI Clarke, and activists Mzamo Dlamini from the Wild Coast and Davine Cloete from Lutzville on the West Coast for R14.25 million.
This was 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.
The terms of the settlement agreement that was concluded this week are confidential.
“My main hope is that this result will discourage powerful wealthy corporations and individuals from launching Slapp suits,” said Cullinan.
“It’s a process, which has, in my case, gone for seven years already and personally I think it was ill-advised on the part of the company, but nevertheless in South Africa we’ve been seeing a huge increase in lawfare and what amounts to abuses of legal process.”
The purpose of much of this is to “either prevent justice being done as in the case with [former president Jacob] Zuma”, or to prevent people from exercising their constitutional rights to freedom of expression”.
The defendants’ case has been important because it resulted in the constitutional court’s judgment in November last year, “which says that if you prove something is a Slapp suit then it’s an abuse of process. And in this case, it was settled before the courts found that this was actually a Slapp suit.”
In February 2021, Western Cape high court Deputy Judge President Patricia Goliath handed down a groundbreaking judgment in favour of the defendants, describing how the series of defamation lawsuits matched the “DNA of a Slapp suit” and were an effort to “weaponise our legal system against the ordinary citizen and activists to intimidate and silence them”.
It was quite clear that Goliath thought it was a Slapp suit, “though she wasn’t required to find at that stage of the proceedings whether they were or not”, Cullinan said.
It’s too easy to silence people with Slapp suits because the costs of defending people defending themselves would bankrupt them. “That means that people back down … because litigation is so expensive and wealthy corporations and individuals instituting litigation can move a dispute onto a terrain in which they have a huge advantage,” Cullinan said, describing how this “tilts the balance in their favour through money”.
“And in my experience, as an environmental lawyer, for every case that comes to court, you know a Slapp suit or something, there’s probably 100 others threats etcetera, where people back down … so it really is kind of the tip of the iceberg.”
In South Africa’s environmental context, Cullinan said “so much harm” to the environment is perpetrated by corporations, who have vastly more financial resources than individuals and NGOs and who use their financial muscle to silence their opponents.
“This case has opened up more democratic space but it’s by no means over because even though the constitutional court judgements were very helpful, they didn’t specify the procedure that must be followed to deal with a Slapp case expeditiously because obviously you need to be able to deal with it quickly without spending too much money, otherwise it works anyway.”
South Africa, he urged, needs legislation to stop Slapp suits. “I would like to see the Legal Practice Council issuing directives to practitioners — attorneys and advocates — warning them not to get involved in Slapp suits because they are an abuse of the legal process. This is an abuse that can only happen with the active involvement of the legal fraternity.”
Clarke, Cullinan and Dlamini still face defamation claims from Caruso. For Clarke, there are 15 remaining claims, totalling R5 million.
He remarked this week that he was broke before the first seven defamation claims for a combined total of R2.25 million from Caruso and MRC in July 2016 and that he stayed broke as these escalated fourfold to 29 claims over the next seven years, amounting to R10 million.
Clarke said he continues to be broke after the settlement agreement, which halves the R10 million under claim. “As my wife, Sharon, says: ‘If my husband had R10 million I would have first dibs on it,’” he laughed. “My wife is just still hoping I will now actually get back to earn some money without having this big millstone around my neck.”
While he is pleased with the settlement with MRC, it won’t solve the underlying problem: a lack of legitimacy, integrity and competence in the criminal justice system. Clarke pointed out that the first defamation claims only arose after the murder of Wild Coast anti-mining activist Sikhosiphi “Bazooka” Rhadebe in 2016.
“It’s now seven and a half years later, and there’s still been no prosecution or arrest of Bazooka’s killers. That’s why I stuck my neck out above the parapet … Now I realise my own experience pales into significance when I sit and counsel whistleblowers every day who are going through the most harrowing ordeals.”