The Constitutional Court SLAPPs back in mining companies mineral sands case, now it's parliament's turn

12 Dec 2022

On 16 October 2017, Daphne Galizia, Malta’s top investigative journalist, was assassinated when a car bomb planted under her seat exploded. Her work focused on corruption and organised crime, and she was facing more than 40 civil defamation lawsuits and five criminal defamation cases at the time of her death. Most of these were brought by Maltese government officials and businessmen.

This murder of a truth-teller – all too common in many countries around the world – finally galvanised the European Union to act against SLAPPs: strategic lawsuits against public participation. They are abusive lawsuits which are intended to chill public participation, criticism and discussion on matters of public interest.

The targets of SLAPPs are often journalists, activists, human rights defenders, whistleblowers and NGOs.

While the term is now well known – coined by two American academics in the late 1980s – only the United States (in some 33 states), the three largest provinces in Canada (British Columbia, Ontario and Quebec), and the Australian Central Territory are lauded for having anti-SLAPP legislation.

But that is about to change.

In April this year, the European Commission passed a draft directive to regulate cross-border SLAPPs – dubbed “Daphne’s law” – as well as a recommendation to encourage EU member states to address SLAPPs at a national level.

For the United Kingdom, the invasion of Ukraine by Russia brought into sharp focus the ugly truth that many Russian oligarchs weaponise English defamation law to threaten, bully and intimidate their critics – London is, after all, the libel capital of the world.

So the UK government announced in July this year that comprehensive anti-SLAPP legislation will be introduced.

And just a few weeks ago, the UK’s Solicitors Regulation Authority issued a warning notice that it expects solicitors “to advise clients against pursuing [SLAPPs]”, and not to “threaten or advance meritless claims”.

Even regional courts are weighing in against SLAPPs – for the first time, the Inter American Court of Human Rights in 2021 and the European Court of Human Rights earlier this year used SLAPP terminology to describe the lawsuits in those cases: a criminal defamation case brought by the former president of Ecuador against a journalist, and a civil defamation claim by a Russian organ of state against an online media company.

Of course, South Africa is no stranger to powerful politicians and corporations using laws such as defamation to demand exaggerated amounts of money from their critics.

For instance, between 2006 and 2010, former president Jacob Zuma sued the media and other critics for defamation in 15 cases: against eight newspapers, a radio station, two cartoonists, a columnist, op-ed writers, journalists, and an artist and art gallery. At one stage, the total amount claimed in most of these cases was around R65-million.

And in Zuma's private criminal prosecution against specialist legal journalist Karyn Maughan, three prominent media and free speech NGOs argued in their application last week – to be admitted as friends of the court – that the case should be seen in light of the growing trend of the powerful using SLAPP suits against journalists.

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Against this background, the decision of the Constitutional Court in the Mineral Sands case, handed down a few weeks ago, is critically important. The plaintiffs in these defamation cases are an Australian mining company, Mineral Commodities Limited, its South African subsidiaries and some of its officers.

The defendants are three environmental attorneys and three activists who criticised the mining activities in books, radio interviews and, in the case of two of the attorneys, in a lecture at the Summer School at University of Cape Town.

The claims totalled some R14-million.

The lion’s share of this was against one of the activists, sued for 27 publications for R10-million.

As South Africa has no SLAPP legislation, the activists turned to the common law – saying they were entitled in principle to argue that the companies’ conduct in bringing these cases is an abuse of process.

Their intention, they argued, was not to vindicate their reputation but to abuse the court process for the ulterior purpose of discouraging, censoring, intimidating and silencing them and others from public criticism of the mining companies.

In other words, they argued, this was a SLAPP.

After the activists succeeded in the Western Cape High Court, the corporations appealed to the Constitutional Court.

Judge Steven Majiedt for a unanimous court held that “the common law doctrine of abuse of process can accommodate the SLAPP suit defence”. Such a defence is necessary to ensure the law serves its primary purpose and that justice “is not to be abused by odious, ulterior purposes”.

In determining whether a lawsuit is a SLAPP, the court held that it is not enough to show a bad motive – the case must also lack merit.

So, if the activists prove bad motive and bad merits at trial, they win.

This recognition of a SLAPP defence was made even sweeter by a finding by the Constitutional Court on the same day in a related case involving the same parties: that trading corporations can be precluded in the court’s discretion from suing for reputational damages, where the speech was in the public interest.

As Justice Majiedt said in the second case: “Public participation created by activists regarding environmental compliance, or a lack thereof by large mining corporations which has a negative effect on the communities surrounding the mines… would… be at the core of [freedom of expression].”

Together, these two cases are significant victories for freedom of expression and for all those who speak truth to power.

Yet this common law victory on SLAPPs is no substitute for a comprehensive anti-SLAPP statute, as Judge Majiedt himself hinted at.

The need for our Parliament to pass such a law is clear: SLAPPs are on the increase in South Africa and abroad.

There are some important features of such laws that are shared in many of the countries who have them or are about to get them, to ensure their efficacy.

First, it is essential to allow an early dismissal procedure, empowering a court to dismiss a case as a SLAPP without the need for the case to go to a full trial or oral evidence – where the emotional and financial costs are particularly draining.

Second, the onus should be on the plaintiff to show they are likely to succeed at trial – not on the defendant to show the opposite.

And third, full costs should be awarded to the defendant if they succeed in dismissing the case as a SLAPP.

While we wait (hopefully not in vain) for such legislation, the common law anti-SLAPP defence confirmed by the Constitutional Court should be used in appropriate cases.

The court does not tell us much about how the defence will apply in practice, but its rough contours will no doubt be sharpened by the judiciary as the case law develops.

It takes a global village to fight a SLAPP and the Constitutional Court has now given some ammunition to SLAPP back. DM

Dario Milo is a partner at Webber Wentzel and an adjunct professor at Wits University. He is also a member of High Level Panel of Legal Experts on Media Freedom and on the expert group on SLAPPs advising the European Commission. With Webber Wentzel’s pro bono department, he acted for the defendants in the Mineral Sands case and he also acts for the amici applicants in the Karyn Maughan case.

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