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S. Africa: ‘A sweet victory but war not over’ says defendant in SLAPP case as company confirms it will appeal judgement

‘Australian mining firm intends to appeal judgment that favoured activists’ 15 February 2021

An Australian mining firm with interests in the West Coast says it will appeal a judgment by Western Cape High Court deputy judge president Patricia Goliath in relation to the Slapp suit (Strategic Litigation Against Public Participation) it brought against six South African environmental justice and community activists. In her judgment, Judge Goliath found that the slew of defamation lawsuits filed by Mineral Commodities Limited (MRC) and its local subsidiary against the defendants was an abuse of the legal process. Goliath said: “Corporations should not be allowed to weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them.” One of the defendants, Tracey Davies, acknowledged that a battle had been won but said the war was just beginning. “We won a fantastic victory, but this does not mean that the case is over.”

…Lawyer for MRC, Ross Kudo said: “Normally, the onus to prove truth is on the defendant who made the offending statement. The defendants want the onus to be reversed in respect of trading corporations.” Kudo said: “The deputy judge president ruled that a form of Slapp defence is now available in South Africa. This obviously has far-reaching ramifications. It would mean, if our understanding is correct, that plaintiffs in defamation cases will only be allowed to sue if they can persuade a court that their case is worthy and the interest they have in clearing their names outweighs the defendant’s right to criticise them.

“It needs to be emphasised that, contrary to several press reports, the question of whether our clients’ lawsuits meet that definition of a Slapp should not have been determined. That should happen at trial. Our clients’ intention is, however, to appeal against the court’s introduction of the Slapp defence into our law.” According to civil society campaign group Asina Loyiko: “Slapp suits undermine constitutional rights of freedom of speech, freedom of the media and academic freedom. Slapp suits, which often take the form of defamation suits, have become a trend around the world, including in South Africa, and particularly in relation to environmental defenders.”