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High Court rules 'SLAPP' suit by mining companies constitutes abuse of process

- Lee-Anne Bruce

Deputy Judge President Goliath yesterday ruled that a defamation case brought against environmental activists is inconsistent with our constitutional values

On 9 February 2021, the Western Cape High Court handed down judgment in an application related to a defamation case brought by mining companies against environmental activists. Deputy Judge President Goliath's judgment concludes that the case matches the definition of Strategic Litigation Against Public Participation (or a ‘SLAPP’ suit) which is an abuse of court process that is inconsistent with South Africa’s constitutional values.

CALS welcomes yesterday’s judgment by the Western Cape High Court, which deals with an ‘exception’ raised as part of a larger defamation suit. The defamation suit was brought by mining company Mineral Commodities Limited and its subsidiary Mineral Sands Resources against three environmental activists for remarks made during a university lecture. The women found themselves facing years of litigation and up to R1,25 million in damages – all for promoting environmental rights. Concerned about the implications of such a case on the right to freedom of expression and the pattern of victimisation of activists in our country, CALS intervened in the matter as a friend of the court.

The ‘exception’ raised by the mining companies related to the defence raised by the defendants, in their special plea, that this case and other similar defamation suits brought by the mining companies against activists and journalists constitute an abuse of court process. CALS argued that, in fact, the case is an example of Strategic Litigation Against Public Participation (otherwise known as a ‘SLAPP’ suit) and that it is necessary to develop the law to properly respond to this kind of malicious litigation. CALS made submissions on abuse of court process, the nature of SLAPP suits and the chilling effect they have on democratic freedoms and activism.

Yesterday, Deputy Judge President Goliath handed down judgment in the defendants and CALS’ favour. In her conclusion, Judge Goliath crucially notes:

“Corporations should not be allowed to weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them. 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. Litigation that is not aimed at vindicating legitimate rights, but it part of a broad and purposeful strategy to intimidate, distract and silence public criticism constitutes an improper use of the judicial process and is vexatious… SLAPP suits constitute an abuse of process, and [are] inconsistent with our constitutional values and scheme.”

She continues: “The right to freedom of expression, robust public debate and the ability to participate in public debates without fear is essential in any democratic society. I am accordingly satisfied that this action matches the DNA of a SLAPP suit.”

“This is a ground-breaking judgment for the right to freedom of expression,” says Thandeka Kathi, attorney at CALS. “South Africa does not yet have legislation to adequately deal with SLAPP suits. This ruling acknowledges that these kinds of meritless cases can be used by corporations and other powerful actors to threaten and intimidate people 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.”

This case is part of CALS’ ongoing campaign against SLAPP suits and activist victimisation in our strategic mission of contributing to the expansion of the agency of activists and marginalised actors. CALS is currently conducting research in a follow up to our 2018 report ‘Victimisation Experiences of Activists in South Africa’ as well as engaging in litigation supporting human rights monitors in the Western Cape and human rights defenders in the Eastern Cape and Free State.

Read the full judgment here.

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