While recognising these suits as a valid defence, the ConCourt ruling earlier this month cannot be read as a resounding victory for environmentalists. From Moneyweb.
It’s difficult to know who the winners are in two recent Constitutional Court (ConCourt) rulings in the so-called Slapp suit – ‘strategic lawsuit against public participation’ – brought by two Australian mining companies against six South African defendants who are accused of defaming it.
Slapp suits are widely recognised elsewhere in the world as lawsuits intended to silence, censor or intimidate critics, and force them to run up substantial legal bills, rather than argue the merits of the complaints. As such, they are considered an abuse of the legal process.
On the one hand, a recent ConCourt ruling appears to be a victory for free speech.
For the first time in South Africa, the Slapp suit defence has been accepted, meaning whistleblowers, journalists and environmental activists can raise this defence where a deep-pocketed company is suspected of trying to silence criticism through lawfare.
In one of the rulings handed down by the ConCourt earlier this month, a Slapp suit is deemed to be a special type of common law ‘abuse of process’. For that to pass muster, courts must decide the motive for bringing the case, the merits of the case, and its likely effects – particularly the extent to which it harms free speech.
This case was first heard in the Western Cape High Court in February 2021, when Deputy Judge President Patricia Goliath agreed with the activists that the companies were engaged in a Slapp suit and were abusing the courts in doing so.
Read:Defamation suits fly over mining controversies [Jun 2017]
Protests grow over defamation suits against environmentalists [Apr 2019]
Court ruling says mining group MRC is abusing court process [Feb 2021]
Six defendants
The six defendants in this case are environmental lawyers Cormac Cullinan, Christine Reddell and Tracey Davies, social worker John GI Clarke, and activists Mzamo Dlamini and Davine Cloete.
The six face a combined damages claim of R14.5 million brought by Mineral Sands Resources (MSR), Mineral Commodities Limited (MRC) and its former CEO Mark Caruso, and BEE partner Zamile Qunya.
Of the R14.5 million, the applicants are seeking R10 million from John GI Clarke.
The Australian companies own the Tormin Mineral Sands project 360km north of Cape Town, and are also involved in Xolobeni Mineral Sands on the Wild Coast, a project mired in controversy with pro- and anti-mining activists pitted against each other. Anti-Xolobeni mining activist Sikhosiphi ‘Bazooka’ Rhadebe was gunned down by unknown assailants in 2016.
Two former attorneys for the Centre for Environmental Rights (CER), Tracey Davies and Christine Reddell, and activist Davine Cloete, were accused of making defamatory statements about the company’s environmental practices during presentations at the University of Cape Town in 2017.
Environmental lawyer Cormac Cullinan was accused of defamation over comments he made in a Cape Talk radio show suggesting the company had bought off traditional leaders as a way of pushing through the Xolobeni mineral sands project on the Wild Coast, against the wishes of most community members.
Social worker and journalist John GI Clarke had the most to lose, with a defamation claim of R10 million over a series of articles, ebooks and video interviews.
In one of those articles for which he was sued, Clarke says he was misquoted as suggesting the company had been involved in the 2016 murder of Pondoland community activist Sikhosiphi ‘Bazooka’ Rhadebe.
Special pleas
The activists filed two special pleas in the Western Cape High Court: the first claimed that the case brought by Caruso and MRC was a Slapp suit and therefore an abuse of the court process; and the second claimed the company should have to demonstrate financial harm for its case to succeed.
MRC and Caruso filed exceptions (objections) to these pleas.
The Western Cape High Court dismissed the first set of exceptions in February 2021, effectively agreeing with the activists that the defamation suits were an abuse of process. The second set of exceptions was upheld, which means the company did not have to show financial harm for its defamation cases to succeed. The activists appealed this part of the high court ruling.
The Western Cape High Court order was set aside last week by the ConCourt, which argued that the defendants had not made sufficient argument that the defamation claims constituted a Slapp suit. They were given 30 days to amend their court papers and substantiate their argument.
A second ruling by the ConCourt on the same matter is potentially troubling for activists, journalists and whistleblowers.
It deals with the second set of exceptions and reads: “The appeal is upheld to the extent that it is declared that, save for where the speech forms part of public discourse on issues of public interest, and at the discretion of the court, trading corporations can claim general damages for defamation.”
The majority court opinion argued that a juristic person, such as a company, has no right to human dignity, and hence no right to the protections afforded by Section 10 of the Constitution, which says everyone has inherent dignity and the right to have their dignity respected and protected. A company has a right to protect its reputation, and has a right to claim general damages when that reputation is harmed.
A dissenting opinion by Judge David Unterhalter, supported by Judge Jody Kollapen, disagreed with this, arguing that the right to dignity includes the right to reputation.
That is not an unqualified right, as it must be balanced against the right to criticise corporate behaviour on issues of legitimate public interest.
The activists argued that companies should be able to claim for injurious falsehoods rather than defamation, but must be able to prove the falsity, wilfulness and the loss to the business.
Class action legal specialist Richard Spoor says the ruling could be troubling for activists in the future.
“I think parts of the judgment are wrong, and I think Unterhalter’s dissenting opinion was correct. What the court said is where you have a public interest defence, you won’t be liable for general damages, but you could be liable for patrimonial loss [a specific monetary amount for the loss suffered] which could be potentially huge.
“I think the court has made a mistake. This ruling won’t curtail litigation, it will exacerbate it,” says Spoor.
General damages apply to pain and suffering or loss of dignity, which are difficult to quantify in monetary terms. Patrimonial or specific damages are more easily quantified, and this is where the ConCourt ruling potentially opens the door for much larger defamation claims than anything hitherto seen in SA.
Defendants react
“Although the Constitutional Court did not grant all that we asked for, I am delighted that we have managed to transform an attempt to bully the six of us into silence into a very important win for freedom of expression, and for civil society in South Africa,” says Cullinan.
“Corporate bullying to silence the voices of those who defend nature and call out abuses is on the rise everywhere, but today is good day for freedom of speech, justice and democracy in South Africa.”
Also celebrating is Clarke: “The Slapp suit for me was all about bringing some accountability for the murder of Bazooka. It allows me to speak out about the fact that nearly eight years later, there is still no justice for Bazooka. I will continue to speak with greater freedom about this matter. What the ConCourt ruling means for [us] is that people can speak freely, but must speak responsibly.”
The ruling means activists working in the public interest can still be sued, and for substantial sums of money.
Activists are concerned that the ConCourt’s finding that the merits of a potential Slapp suit must be considered rather than dispensed with upfront may defeat the purpose of the Slapp suit defence – which is to get rid of a vexatious case without going through a lengthy and expensive trial.
