Mineral Sands Resources lawsuits (re Tormin mine, So. Africa)

In May 2017 Mineral Sands Resources (MSR), a subsidiary of Australian mining company Mineral Commodities Limited (MRC), filed a lawsuit against two attorneys from the Centre for Environmental Rights (CER) and a community activist. MSR are suing the attorneys and activist for alleged defamation of the subsidiary occurring during a presentation at the University of Cape Town in January regarding MSR’s “environmentally destructive” Tormin mineral sands mine. MSR have requested R500 000 of damages from the attorneys and R750 000 from the activist.

According to MSR, the defendants have “overstepped the boundaries of responsibility, truth and fairness”. MSR claims they have a right to defend the company, their shareholders, and workers from defamatory statements.

In response, CER deny accusations and refer to their right to freedom of expression, their right to academic expression, and Section 24 of the South African Constitution that safeguards the protection of the environment. CER have raised several concerns over the actions of MSR in relation to their mining operation. They therefore claim that the proceeding is a Strategic Lawsuit Against Public Participation (SLAPP) aimed at intimidating, censoring and disabling CER from speaking out against their operations by burdening them with legal costs.

CER argue recent intervention from the University of Cape Town and the Centre for Applied Legal Studies demonstrates the level of threat to constitutional environmental rights caused by SLAPPs.

The case is scheduled to be heard in May 2019. 

So. Africa: MRC subsidiary sues two NGO attorneys and a community activist for alleged defamation: NGO says will resist attempts by the company to intimidate them, Business and Human Rights Resource Centre, 6 May 2017
Environmental rights group claims it's being censored, IOL, 8 May 2017
Australian company sues SA environmental lawyers for defamation, News 24, 8 may 2017  

Centre for Environmental Rights: 
CER to resist attempts by Australian mining company to intimidate attorneys and activists, 5 May 2017
CER attorneys raise Constitutional defence in SLAPP suit, and experts join as friends of the court, 20 Nov 2017  

Centre for Applied Legal Studies:
Mining company threatens environmental activists, 2 Nov 2017

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Article
14 June 2019

So. Africa: Environmental activists battle defamation lawsuits by companies

Author: Sheree Bega, IOL (South Africa)

"Environmentalists winning battle in lawsuits", 8 Jun 2019

Nine years later, Duigan salutes six fellow environmental activists who have been sued by Australian mining firm Mineral Commodities Ltd (MRC) and its local subsidiary, Mineral Sands Resources, and Zamile Qunya, its BEE partner, to the tune of R9.25m...

The defamation suits, which have been described as SLAPP suits, are based on comments allegedly critical of MRC and its local subsidiaries - including statements made during a lecture at the UCT Summer School in 2017...

These centred on the firm’s Tormin mining operation at Lutzville on the West Coast, and its hugely controversial proposed titanium-mining operation at Xolobeni in Pondoland on the Wild Coast, which the Amadiba Crisis Committee (ACC) has fought for over a decade. In 2016, local anti-mining activist Sikhosiphi “Bazooka” Rhadebe was assassinated, but no arrests have been made...

SLAPPs, which experts say often take the form of defamation suits, have become a global trend, particularly in relation to environmental defenders.

Dr Esther Gumboh, a researcher at the Centre for Applied Legal Studies (CALS), which together with the universities of Cape Town and Wits, have intervened in the MRC matter as amici curiae, says they are on the rise in SA too...

The MRC defamation case, she believes, is a “classic SLAPP case”, which is “directed at muzzling criticism” against it. “It presents another opportunity for our courts to expose this ugly tactic and once again defend activists in this country.”

While MRC did not respond to the Saturday Star, its executive chairman Mark Caruso, previously told the newspaper that the “CER and certain individuals have made defamatory and unsubstantiated remarks aimed directly at diminishing the company’s core values of ensuring responsible environmental impact and high social and economic value for the local communities.

“The company acknowledges the right to the freedom of speech and that it must subject itself to public scrutiny. The individuals and the organisations who have made these remarks have overstepped the boundaries of responsibility, truth and fairness. The company enjoys the same right to defend itself and owes a duty to its stakeholders and employees not to permit these remarks to simply go unanswered.”

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Article
5 June 2019

So. Africa: Court denies human rights activists access to documents in defamation lawsuit by Mineral Sands Resources

Author: Khulekani Magubane, Fin24 (South Africa)

"Xolobeni lawsuit: Activists denied access to documents for defamation defence", 1 Jun 2019

The Western Cape High Court denied two attorneys and an activist opposing Mineral Sands Resources’ parent company’s plans to mine in Xolobeni access to documents which they hoped to use to defend against a defamation suit from the company...

The company that is looking to start mining in the heritage site community of Xolobeni in the Eastern Cape is taking environmental activists and attorneys to the Western Cape High Court for defamation...The two plaintiffs are Mineral Sands Resources – a subsidiary of Australian mining company, Mineral Commodities – and Mineral Sands Resources director, Zamile Qunya.

The defendants maintain that the defamation application is a "slapp-suit" intended to intimidate and financially exhaust their campaign...They made a interlocutory application for access to documents they said would prove their remarks constituted fair comment and not defamation.

CER executive director Melissa Fourie said the organisation remained committed to resisting the threat that MRC’s "slapp suits" posed to civil society’s Constitutional rights to freedom of speech, freedom of the media and academic freedom.

"We are disappointed with the judge’s ruling. However, we are not deterred. This case is about defending the Constitutional right to freedom of speech and is of fundamental importance to activists defending the environment everywhere. We will continue to fight these claims until justice is served," said Fourie...

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Article
20 May 2019

Commentary: Mining companies using nuisance lawsuits to frustrate human rights defenders in So. Africa

Author: Marcos Orellana, Newsweek (USA)

“Green activists are fighting the great fight—but are being dragged down by petty lawsuits | opinion” 7 May 2019

Despite the global environmental crisis confronting our planet, environmental activism has become a dangerous activity. In many countries, environmental defenders are harassed, attacked or even killed for speaking out and mobilizing against projects that threaten the health and livelihood of communities…The South Africa report documents the targeting of community rights defenders in KwaZulu-Natal, Limpopo, Northwest, and Eastern Cape provinces between 2013-2018 for expressing opposition to mining projects. Activists reported intimidation, violence, damage to property, use of excessive force during peaceful protests, and arbitrary arrest, but also frivolous lawsuits and social media campaigns to curb their opposition to the mining projects. The companies have often sought court orders to halt or ban protests. The report was a collaborative effort between Human Rights Watch, Centre for Environmental Rights, groundWork, and Earthjustice.

In 2017, for example, the mining company Mineral Sand Resources brought a defamation suit against two attorneys from the Centre for Environmental Rights and a local activist for statements they made during a lecture at the University of Cape Town’s Summer School concerning the company’s Tormin mineral sands mine, on the west coast of South Africa. The ongoing lawsuit seeks R1,250,000 ($89,936) in damages… In South Africa, the Centre for Environmental Rights also opened an anti-SLAPP campaign in 2019 to coordinate resistance among activists against corporate bullying and to deter companies operating in the country from using litigation to silence activists and critics.

In March, the UN’s Human Rights Council affirmed “the positive, important and legitimate role” played by environmental defenders and condemned violence against them by both state and non-state actors.  The United Nations expert on freedom of assembly warned in 2017 that SLAPPs pose significant threats to the rights of activists to freedom of expression, assembly, and association. All countries, including South Africa, should adopt legislation to protect non-governmental organizations and activists from frivolous lawsuits. Environmental defenders should be able to speak out against environmentally harmful activities and participate in environmental decision-making without risking baseless legal action from companies and other powerful interests.

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Article
26 April 2019

So. Africa: Defamation lawsuit by mining company MRC against environmentalists heading to court next month

Author: Ciaran Ryan, MoneyWeb (South Africa)

"Protests grow over defamation suits against environmentalists", 24 Apr 2019

Environmental activists are headed to court next month in a bitter defamation suit brought last year by Australian mining company MRC, which is planning to mine titanium sands at Xolobeni on the Wild Coast.

The case involving three of the six environmentalists who are being sued for defamation by MRC and its CEO Mark Caruso is a curtain raiser to the main hearing and is intended to discover documents the environmentalists say they need to properly defend themselves...

“Around the world, Slapp suits are used by companies, particularly in the mining and energy sectors, to intimidate environmental defenders, in an effort to suppress debate about the negative impacts of their operations on local communities and in relation to environmental degradation,” says Leanne Govindsamy, head of corporate accountability and transparency at the Centre for Environmental Rights (CER). Two of CER’s attorneys have been sued by MRC and Caruso for defamation over criticisms made of MRC’s environmental practices...

Earlier this month CER and several other civil bodies – including groundWork, Earthjustice and Human Rights Watch – released a report highlighting threats against activists in the form of harassment, intimidation, violence and the use of Slapp suits.

“Judging from the response to the report, including the response to the report’s findings around the Slapp suits brought by MRC, the company is likely to find itself facing a wall of opposition from other civil society groups which resist the notion of censorship over issues that are in the public interest,” says Govindsamy...

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Article
20 November 2017

CER attorneys raise Constitutional defence in SLAPP suit, and experts join as friends of the court

Author: Centre for Environmental Rights

The defendants in the defamation suit brought by a subsidiary of Australian mining company Mineral Commodities Limited (MRC), including two CER attorneys, have raised Constitutional arguments in response to the defamation claims.

The University of Cape Town (UCT) and the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand have intervened in the matter as amicus curiae. UCT and CALS will address the court on issues of academic freedom, and CALS will provide further expertise on the nature and effect of ”Strategic Litigation against Public Participation”...

...[T]wo Centre for Environmental Rights’ (CER) attorneys and a local community activist from Lutzville have been sued for defamation by MRC subsidiary Mineral Sands Resources (MSR) 

...The CER maintains that litigation of this nature is intended to censor, intimidate and silence critics by burdening them with the management and costs of a legal defence until they abandon their criticism or opposition.

...The intervention by UCT and CALS illustrates the significance of the threats to the Constitutional rights of environmental activists, threats which are becoming more and more common. 

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Article
2 November 2017

Mining company threatens environmental activists

Author: Lee-Anne Bruce, Centre for Applied Legal Studies

On 24 October 2017, the Centre for Applied Legal Studies (CALS) applied to the Western Cape High Court to intervene as amicus curiae or ‘friend of the court’ in a matter brought by Mineral Sands Resources against two environmental lawyers and a community activist.

Mineral Sands Resources alleges that Christine Reddell and Tracey Davies from the Centre for Environmental Rights and activist Davine Cloete made ‘defamatory’ statements during a lecture at the Unversity of Cape Town’s Summer School Programme in January 2017. 

...CALS has applied to intervene in the matter to assist the Court with this important issue. We argue that this kind of litigation can have a devastating effect on activists who are simply defending their rights or the rights of their clients and communities. We further argue that this particular case is an issue of academic freedom and that being able to critique cases and bring real world examples into a classroom is essential to academia in general and teaching environmental law in particular.

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Article
8 May 2017

Australian company sues SA environmental lawyers for defamation

Author: Barbara Maregele, Ground Up (South Africa)

Australian-owned mining company Mineral Commodities Ltd (MRC) is suing a West Coast community activist and two Centre for Environmental Rights (CER) attorneys for defamation. The company is claiming over R1 million in damages.

Advocacy group Right2Know has vowed to protest at the Department of Mineral Resources and at the Australian embassy against what it calls “dodgy business dealings” by MRC.

MRC has been marred by controversy for its attempts to mine mineral sand at Xolobeni on the Wild Coast and its ongoing court battle over its Tormin mine on the West Coast near Lutzville.

...Davies, Reddell and Cloete were doing a presentation about MSR’s “destructive” sand mining at its Tormin sand mineral mine on the West Coast. The CER has said that the summons was a way to intimidate activists and discourage others from speaking out against the mining giant.

...“It is clear that Qunya and MRC are now employing scare tactics against the lawyers who are providing legal assistance to the anti-mining activists...."

...CER will be opposing the summons. MRC spokesperson Anne Dunn said the company will not be responding to questions on the matter.

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Article
8 May 2017

Environmental rights group claims it's being censored

Author: Siyavuya Mzantsi, IOL (South Africa)

The Centre for Environmental Rights says an Australian company involved in mining in environmentally-sensitive areas, which it opposes, is suing two of their attorneys for defamation.

...The centre says a subsidiary, Mineral Sands Resources (MSR), is now claiming R500 000 in damages.

Gibbs said the summons served on Tracey Davies and Christine Reddell, along with a local community activist from the West Coast, Davine Cloete, claimed they had made defamatory statements about MSR and its director Zamile Qunya during presentations at UCT’s Summer School in January.

...“Strategic lawsuits against public participation, popularly known as 'Slapp' suits, are intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition."

...But yesterday Caruso alleged the CER and certain individuals made defamatory and unsubstantiated remarks aimed directly at diminishing the company's core values of ensuring responsible environmental impact and high social and economic value for local communities.

...“The company enjoys the same right to defend itself and owes a duty to its stakeholders and employees not to permit these remarks to simply go unanswered.” 

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Item
6 May 2017

So. Africa: MRC subsidiary sues two NGO attorneys and a community activist for alleged defamation: NGO says will resist attempts by the company to intimidate them

Author: Centre for Environmental Rights (South Africa)

"CER to resist attempts by Australian mining company to intimidate attorneys and activists", 5 May 2017

A subsidiary of Australian mining company Mineral Commodities Limited (MRC), known for its controversial attempts to mine mineral sands at Xolobeni on the Wild Coast, has sued two Centre for Environmental Rights (CER) attorneys for defamation, claiming R500 000 in damages...The summons alleges that CER attorneys Tracey Davies and Christine Reddell, along with a local community activist from the West Coast, Davine Cloete, made defamatory statements about MRC’s subsidiary company, Mineral Sands Resources (MSR) and its director, Zamile Qunya...MSR has claimed R250 000 in damages from each of our attorneys, and a further R750 000 from Cloete...As a civil society organisation that works to help communities and civil society organisations in South Africa realise our Constitutional right to a healthy environment, by advocating and litigating for environmental justice, such threats cannot be tolerated...This is not the first time that MRC has sued activists who have criticised the company. Last year, MRC and its CEO Mark Caruso sued Cape Town attorney Cormac Cullinan, Amadiba Crisis Committee activist Mzamo Dlamini, and John Clarke, a social worker, all for defamation in relation to the company’s involvement at Xolobeni. These claims are also being defended...

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Article
5 May 2017

CER to resist attempts by Australian mining company to intimidate attorneys and activists

Author: Centre for Environmental Rights

A subsidiary of Australian mining company Mineral Commodities Limited (MRC)... has sued two Centre for Environmental Rights (CER) attorneys for defamation, claiming R500 000 in damages.

The summons alleges that CER attorneys Tracey Davies and Christine Reddell, along with a local community activist from the West Coast, Davine Cloete, made defamatory statements about MRC’s subsidiary company, Mineral Sands Resources (MSR)... during presentations at the University of Cape Town...

...The claims will be strenuously defended. ...This is not the first time that MRC has sued activists who have criticised the company.

...At Tormin, local communities and environmental activists have raised numerous concerns about the legality of MSR’s mineral sands mining operation. In September 2016, environmental authorities obtained and executed a search warrant at Tormin. In response, MSR sued the Magistrate who issued the warrant and the environmental authorities involved in the search and seizure operation.

...While the Western Cape High Court in its judgement in March 2017 set aside the search warrant on the basis that the environmental authorities had overstepped their jurisdiction, the court confirmed that MSR had expanded its operations without the required environmental authorisation. 

 

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