Slapp-down – activists cheer ConCourt ruling on ‘abusive’ defamation cases brought by corporations

22 Nov 2022

The Constitutional Court has ruled that ‘special plea’ can be used in defamation cases brought by big companies wanting to ward off negative publicity and criticism of their actions.

A court case that has gone on for more than five years reached a significant point last week when the Constitutional Court ruled that Slapp suits were an abuse of court processes; a first for a South African court that lifted a veil of fear of litigation for activists, journalists and everyone with a voice and a cause.

“It’s a good day for freedom of expression,” environmental lawyer Cormac Cullinan told DM168 after the Constitutional Court recognised strategic litigation against public participation (Slapp) suits as an abuse of court processes on Monday, 14 November, thereby limiting corporations from claiming damages for reputational harm.

The recognition came during the handing down of two judgments on applications brought by Australian mining company Mineral Commodities (MRC), its South Africa subsidiary Mineral Sands Resources, and office bearers Mark Caruso (former MRC executive chairman) and Zamile Qunya (MRC’s black empowerment partner), who filed the Slapp suit against six environmental defenders.

The six activists are Cullinan, Tracey Davies and Christine Reddell from the Centre for Environmental Rights at the time, social worker John Clarke, Wild Coast community activist Mzamo Dlamini and journalist Davine Cloete.

Mining in Xolobeni

MRC had filed a defamation suit following opposition to the Xolobeni Mineral Sands Project that divided a community and resulted in deaths after rare minerals were discovered in 2002 and MRC showed interest in mining those minerals.

The activists had expressed their opposition to the mining in Xolobeni through various mediums and platforms.

For this, the mining companies sought damages amounting to more than R14.5-million in the form of a defamation case, or Slapp suit.

By definition – according to Cornell’s Legal Information Institute – a Slapp suit refers to legal action by individuals, groups or entities to silence their critics in an effort to ward off negative publicity. Slapp suits often take years and large sums of money, and are usually a David-and-Goliath scenario, with a multinational corporation taking on protesting activists.

According to the Business and Human Rights Resource Centre, 73% of Slapp suits were brought in countries in the Global South, with four sectors dominating cases: agriculture and livestock; logging and lumber; and palm oil.

Read in Daily Maverick: “ConCourt hands Australian mine critics partial victory – but defamation battle continues”

“The Slapp suit judgment is extremely important because the Constitutional Court has, for the first time, recognised that Slapp suits form a distinct category of abuse of process,” said Cullinan.

“And it was quite interesting because the court went through all cases stated by the parties but they didn’t fall into any of the existing categories referred to. I think it’s an important thing to establish, that there is such a thing as a Slapp suit defence in South Africa for the first time.”

While South Africa is known to generally enjoy freedom of speech and expression without fear of repercussion, the Xolobeni community on the Eastern Cape’s Wild Coast became something of a “wild west”, with activists from the outspoken Amadiba Crisis Committee – such as Sikhosipho “Bazooka” Radebe – being killed after speaking out about the threat that mining would pose to their land, livelihood and environment.

Read in Daily Maverick: “Goodbye Bazooka: Wild Coast anti-mining activist killed”

Social worker Clarke told DM168 that the judgment allowed his clients to “speak truth to power” without fear of retaliation.

“Even if [Slapp suits] are not unlawful, they are immoral and are for people to use, abuse and manipulate people. The law is a very blunt instrument in dealing with ethics and morality,” said Clarke.

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He added: “The Slapp suit was not about the law, but that there were life-and-death matters. ‘Bazooka’ Radebe was shot and killed six years ago; that’s what precipitated the Slapp suit, that’s why I started speaking out… because my clients were being killed.

“So I stuck myself above my white male privilege head – which is sad because it seems to say that white lives seem to matter more than black lives and all they can do is Slapp me, not kill me!”

The case summarised

It’s been about five years since the case was brought before the Western Cape High Court. In 2021, the court ruled that the MRC’s case mimicked a Slapp suit and that a special plea could be raised. The miners legally challenged this plea, which was rejected by the high court through the Constitutional Court, which then handed down judgment on the matter.

“We will be allowed to raise the special plea, while [MRC] was arguing that we are not allowed to because it is not recognised in South African law.

Read in Daily Maverick: “Slapp suit judgment paves way to shutting the door on Stalingrad tactics”

“So now it has been established that it does exist in South African law, but the court has defined for the first time what you have to allege for that plea to succeed,” said Cullinan.

The activists have been given 30 days to seek leave to appeal to amend their court papers to reflect the Constitutional Court’s new recognition of Slapp suits.

Human rights defenders

According to the Business and Human Rights Resource Centre, 40% of the more than 3,100 attacks on activists raising the alarm on allegedly irresponsible business practices have been in the form of Slapp suits.

Divina Naidoo, senior associate at Cullinan and Associates, told DM168 that the recent judgment allowed for a level of activism and freedom of speech unlike South Africa had seen before.

“As part of a generation where being alive to campaigning is so prevalent, this is a welcome judgment. In the past, Slapp suits weren’t really recognised as an abuse of the court process… and there are activists that have Slapp suits they were facing, and now have that sigh of relief,” said Naidoo.

The second judgment

A second judgment handed down by the Constitutional Court ruled that companies cannot claim any compensation on the grounds that their corporation’s reputation has been tarnished if there are no financial losses involved.

“That is a strong, strong statement on someone who intends to limit freedom of speech through Slapp suit litigation,” said Naidoo.

“And I do think that it is a harsh punishment, but it is about time that our courts weren’t too shy about raising a punishment this harsh. And I do love the fact that it came from the highest court in the land, the Constitutional Court, for the good of South Africans with a voice and a cause.” DM168

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R25.

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Our Burning Planet

Mining in Xolobeni

The case summarised

Human rights defenders

The second judgment