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S. Africa: Important judgement confirms SLAPP as an abuse of the law

‘SLAPPing back: Court checks corporate bullying’ 11 February 2021

On 9 February 2021, the Western Cape High Court delivered an important judgment for all activists and NGOs who find themselves on the receiving end of powerful corporations trying to throw their weight around. Despite a commitment to human rights by countries across the world, activists face backlash for standing up to corporate (and state) power. In the worst cases, activists risk their lives when claiming their rights. The assassination in October 2020 of Fikile Ntshangase, who opposed plans to extend the Somkhele coal mine in KwaZulu-Natal, has been a stark reminder of this. But corporate bullying can take many forms, including harassment on social media, surveillance, assault, unreasonable clampdown on protest, attempts to damage an activist’s reputation, and most recently, SLAPP suits.

… In 2017, mining company Mineral Sands Resources (MSR) launched a SLAPP suit against attorneys Christine Reddell and Tracey Davies (formerly from the Centre for Environmental Rights), and community activist Davine Cloete. MSR is a subsidiary of Mineral Resources Commodities (MRC), the Australian company which has persisted in its controversial attempts to mine titanium in Xolobeni in the Eastern Cape, despite strong resistance from the local community there. In a presentation made at a summer school on mining run by the University of Cape Town, Reddell, Davies and Cloete discussed another of MSR’s operations - the Tormin mine on the West Coast near Lutzville. The university had invited Reddell, Davies and Cloete to participate because the summer school sought to incorporate the practical experiences of civil society into the curriculum. For their trouble, Reddell and Davies were each sued for R250 000 in damages and Cloete for R750 000.

… Lastly, the judgment confirms that while SLAPP suits are an abuse of the law, the law itself provides ways to counter them. In the words of judge Goliath, “[c]orporations should not be allowed to weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them”. By accepting “the SLAPP suit defence”, the court has provided future targets of SLAPP suits with a legal remedy to counter them. Anyone on the receiving end of a bogus defamation claim designed to silence them, can now defend themselves by arguing that the case is a SLAPP suit.