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Court to hear arguments on SLAPP suits

- Lee-Anne Bruce

We are intervening in a 'defamation' case against environmental activists we believe is a perfect example of strategic litigation against public participation

[UPDATE]: Judgment in the matter has been reserved. View the recordings of the hearing from day one and day two with thanks to John G. I. Clarke. 

From 9 – 10 June, the Western Cape High Court is set to hear arguments in a matter related to a defamation case brought by mining companies against environmental activists. CALS is intervening in the case as a friend of the court and will be arguing that the proceedings amount to an example of strategic litigation against public participation, otherwise known as a ‘SLAPP’ suit.

In early 2017, Australian mining giant Mineral Commodities Limited and its subsidiary Mineral Sands Resources accused two environmental lawyers and a community activist of making ‘defamatory’ statements during a university lecture. The three women found themselves facing years of litigation and as much as R1.25 million in damages – all for defending environmental rights. Concerned about the implications of such a case on the right to freedom of expression and the pattern of victimisation of activists in our country, CALS was granted leave to intervene in the matter as a friend of the court.

Starting on 9 June, the Western Cape High Court is set to hear an exception raised by the mining companies which deals with whether the matter constitutes an abuse of court process. CALS will be arguing that, in fact, this case is an example of strategic litigation against public participation (otherwise known as a ‘SLAPP suit’) and that we need to develop the law to properly respond to this kind of malicious litigation. This case has been joined with three other similar matters where the companies make allegations against activists and journalists without making a case for defamation.

“SLAPP suits are used around the world by powerful entities to threaten and intimidate those who bring to light matters of public concern,” says Thandeka Kathi. “Their intention is not necessarily to win the case, but simply to waste the time and resources of the defendants. These two elements, being meritless and having an ulterior motive, are what define strategic litigation against public participation. It’s also exactly what we see happening in this case: the matter is both without merit and intended to discourage the defendants from vindicating their rights.”

“Unfortunately, South Africa does not have specific legislation or sufficient case law to deal with SLAPP suits,” says Sithuthukile Mkhize. “In fact, we’ve only found one case in our law reports which specifically mentions SLAPP. Yet, we know from other jurisdictions the dangers of allowing those who have economic, political or social capital to litigate solely for the purposes of silencing their critics. We need to address this gap in our law. A SLAPP suit like this invoking the protection to the fundamental right to freedom of expression has not been litigated before, and this will help to develop the common law in line with the Constitution.”

Read more in our heads of argument here.

The matter is set to be heard virtually by the Western Cape High Court on 9 – 10 June 2020.