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15 Nov 2022

Emsie Ferreira, Mail & Guardian (S. Africa)

S. Africa: Constitutional Court recognizes strategic litigation against public participation as an abuse of process & limits corporations’ ability to claim damages for reputational harm

‘Concourt holds that SLAPP suit defence exists in South African law’ 15 November 2022

The constitutional court on Monday upheld a mining house’s appeal against a high court order that marked the first time environmentalists have successfully invoked the SLAPP suit defence, an acronym for strategic lawsuits on public participation, on local soil. But the ruling can only technically be read as a courtroom loss for opponents of titanium mining in Xolobeni on the Wild Coast in the Eastern Cape, who face defamation claims totalling R14-million from Australian mining company Mineral Commodities Ltd, its local subsidiary Mineral Sands Resources, former executive Mark Caruso and local black empowerment partner Zamile Qunya.

It sees the justices of the apex court confirm that the South African common law can accommodate a SLAPP defence, but faults the six defendants — environmental lawyers Christine Reddell, Tracey Davies and Cormac Cullinan, social worker John GI Clarke, and activists Mzamo Dlamini and Davine Cloete, representing the Wild Coast and the West Coast — for not properly constituting their plea. “The respondents have secured the recognition of the SLAPP suit defence, albeit not on the basis that they pleaded the defence or supported the defence in their submissions.”

…But the court dismissed the main submission in the exception raised by Mineral Sands Resources and its fellow applicants that the SLAPP defence did not exist in South African law. “I have found that the SLAPP suit defence does form part of our law,” wrote Majiedt, locating it in the common law doctrine of abuse of process. “To make out the defence requires more than the respondents pleaded, but the defence commands a place in our law that the applicants have unsuccessfully resisted.”… The court gave the environmentalists 30 days to amend their special plea, failing which it would be dismissed, and ordered that the mining companies pay 60% of their costs. In a majority judgment on Monday, Majiedt recognised the right of companies to claim general damages for defamation but held that where the alleged defamation formed part of public discourse on issues of public interest, the court could use its discretion to deny the claim.