Author: Clive Vinti
On 9 February 2021, in a ground-breaking judgment in South Africa, the High Court decided on its first Strategic Lawsuits or Litigation Against Public Participation (SLAPP) suit in the case of Mineral Sands Resources (Pty) Ltd and Another v Reddell and Others; Mineral Commodities Limited and Another v Dlamini and Another; Mineral Commodities Limited and Another v Clarke. The High Court explained that SLAPP Suits are ‘meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals as well as organisations acting in the public interest. They are litigated into silence by corporations and often times drained of their resources…. In essence, SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their constitutional rights, restrain public interest in advocacy and activism; and convert matters of public interest into technical private law disputes’ (See Mineral Sands Resources (Pty) Ltd and Another v Reddell and Others; Mineral Commodities Limited and Another v Dlamini and Another; Mineral Commodities Limited and Another v Clarke paras 39-40; Murombo and Valentine ‘SLAPP Suits: An Emerging Obstacle to Public Interest Environmental Litigation in South Africa’ (2011) 27 South African Journal on Human Rights 82-106; Pring ‘SLAPPs: Strategic Lawsuits Against Public Participation’ (1989) 7 Pace Environmental Law Review 3-21; Canan and Pring ‘Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches’ (1988) 22 Law & Society Review 385-395).
In this regard, the plaintiffs (two related mining companies – Mineral Sands Resources (Pty) Ltd and Mineral Commodities Limited and their directors) sued the defendants (three environmental attorneys and three community activists) for defamation and damages in the sum of R14, 25 million. In the alternative, the plaintiffs sought publication of apologies by the defendants. This defamation claim was based on the allegation that the defendants had published books and participated in various public discussions on forums such as radio interviews and lectures, wherein they implied that the mining operations were conducted in an unlawful and deceitful manner that had a catastrophic impact on the environment. The mining ventures in question are referred to as Tormin Mineral Sands Project and the Xolobeni Mineral Sands Project. The Xolobeni mining venture has been the source of much public consternation with allegations of violence and murder, and a moratorium imposed in 2017 on mining in order to find common ground between the mining corporations and the affected communities (Prohibition or Restriction of Prospecting or Mining in Terms of Section 49 of the Mineral and Petroleum Resources Development Act 28 of 2002).
The key defence of the defendants was that the alleged defamatory statements upon which they were being sued constitute an abuse of court process, which is a violation of section 173 of the Constitution of the Republic of South Africa, 1996. Section 173 of the Constitution empowers courts to prevent the abuse of court processes by giving them the power to ‘protect’ and ‘regulate’ their own processes taking into account the interests of justice. The court then explained that the right to freedom of expression in section 16 of the Constitution complements section 24, which provides the environmental right. Within this context, free engagement and debate are of ‘public importance’.
The High Court further explained that South African law does not have a specific statute to regulate SLAPP suits. Consequently, the court then explored the origins of SLAPP suits by assessing international and foreign law. This approach is required by section 39 of the Constitution, which requires that courts must consider international law and may consider foreign law when interpreting any right in the Bill of Rights. Consequently, this court then explored jurisprudence from the United States of America (USA) where SLAPP suits originated from. According to the High Court, in the USA, the ‘improper purpose test’ is used to assess SLAPP suits – there are three factors here:
- proof that the defendant engaged in public participation on a public issue,
- plaintiff is pursuing an ‘improper purpose’, i.e. to dissuade one from public participation or punish one for engaging in public participation or divert the resources of the defendants away from public participation,
- and that the lawsuit lacks merit.
This test is objective, and the threshold is quite high for the defendant to prove their case.
The High Court also resorted to European Union and Canadian law in this matter. More specifically, it was found that the European Union supports ‘SLAPP-like measures’ despite there being no statutory instrument against SLAPP suits. The High Court then endorsed the approach adopted by the Canadian Supreme Court in 1704604 Ontario Ltd v Pointes Protection Association 2020 SCC 22, which found that expressions made in connection with any issue of public interest or concern, must be accorded strong protection. Thus, courts must only entertain ‘SLAPP style lawsuits’ if the plaintiff complies with the ‘rigorous test’ in which they have proved that they ‘suffered real harm that outweighs the public interest in the expression of those views’. Thus, the High Court accepted the notion of the right to participate in environmental activism, and the significance of protecting freedom of expression on matters of public interest.
Against this backdrop, this court reasoned that SLAPP suits are normally couched as defamation claims with the sole intention to silence the antagonist as was done in this case. According to the court, a recurring element of SLAPP suits is the demand for an apology in lieu of a huge damages claim. Thus, the court saw it as important to evaluate defamation suits to establish whether or not it is a sincere effort to protect the reputation of a litigant. These SLAPP suits require a court to balance two competing rights to establish which one must be accorded primacy in line with the ‘rigorous test’ of the Canadian Supreme Court in1704604 Ontario Ltd v Pointes Protection Association. In this case, the claim against the plaintiffs was prompted by their activism in the protection of the environment. The plaintiffs conduct mining activities and have significant litigation and financial resources. SLAPP filers, with huge financial resources, employ them against their targets. In this case, the defendants were activists and attorneys who lack the financial resources that the mining corporations have. The court then reasoned that the impact of the SLAPP suits is catastrophic for targets and curtails their constitutional right to freedom of expression and intimidates the public in future. It was clear to the High Court that the tactic employed by the plaintiffs, in this case, was that the more outspoken activists were slapped with the higher damages amounts claimed. The plaintiffs were aware that there it was unlikely they would recover the damages claimed. SLAAP suits are also deliberately time-consuming and meant to divert attention from the allegedly harmful activity on the environment and usually target community activists. These are the features of a SLAPP suit. Thus, there was no doubt that this lawsuit was prompted by the fact that the defendants had spoken out against the activities of the mining corporations.
The High Court then explained that public participation is crucial to environmental activism, and SLAPP suits can be harmful to the protection of the environment. The matter in question required public engagement and debate, especially in light of the social and economic power of the corporations in question. SLAPP suits are a threat to the right to public participation in matters of public interest, such as the environment. The right to freedom of expression on matters of public interest such as the environment must be protected and ‘encouraged’ and any legal action to curtail this right must be ‘discouraged’. The court explained that despite the lack of a statutory instrument to address SLAPP suits, the interests of justice must not be hampered by this gap in South African law. A contrary approach would be exploited by corporations and endanger the efficacy of civil society.
Consequently, the court held that when the legal system is employed as a ‘weapon’ intended to ‘intimidate and silence’, then this constitutes an abuse of court process. This is because it is common cause that the legal process is abused when it is employed for a purpose which is different from what it sought to do. Thus, the court was of the view that this defamation suit was not ‘genuine and bona fide’, but merely a guise to silence its opponents and critics. Therefore, this court found that this defamation action resembled the ‘DNA of a SLAPP suit’.
A key take away from this decision is the court’s acceptance of environmental activism as a form of the right to freedom of expression, which complements the environmental right that must be protected to ensure public access to ‘critical information, even though such information may not always be correct’ [own emphasis]; (see Mineral Sands Resources (Pty) Ltd and Another v Reddell and Others; Mineral Commodities Limited and Another v Dlamini and Another; Mineral Commodities Limited and Another v Clarke para 58). This endorses the indivisibility and interdependence of human rights since the protection of the environment cannot be fulfilled in a climate of secrecy, where crucial information about the environment is hidden from the public.