Constitutional Court to hear argument on SLAPP suits
- Lee-Anne Bruce
CALS will be in the Constitutional Court on Thursday to argue that the law needs to be developed to respond to strategic litigation against public participation
[UPDATE: A recording of the hearing is available here.]
On 17 February 2022, the Constitutional Court is set to hear an appeal which raises important questions around the rights to freedom of expression and access to courts. The appeal concerns a High Court judgment which ruled defamation cases brought by mining companies against environmental activists constitute an abuse of court process. CALS is intervening in the matter as a friend of the court.
One year ago, in February 2021, the Western Cape High Court handed down judgment in an ‘exception’ raised in relation to three connected defamation lawsuits. The lawsuits, brought by Mineral Sands Resources and Mineral Commodities Limited, claimed damages of R14,25 million against environmental lawyers and community activists who spoke out about environmental damage caused by the mines. The defendants in these matters entered two special pleas: that the lawsuits amount to an abuse of process aimed at intimidating the defendants and other members of the public, and that corporations can only bring defamation claims under certain circumstances.
The mining companies responded by raising an exception to the activists’ pleas, which was heard in June 2020 by Deputy Judge President Patricia Goliath. The Centre for Applied Legal Studies (CALS) intervened in the matter as a friend of the court, arguing that these kinds of defamation claims are examples of strategic litigation against public participation – or ‘SLAPP’ suits. SLAPP suits are meritless lawsuits used around the world by powerful entities to threaten, distract and waste the resources of defendants who bring to light matters of public concern.
In her findings, DJP Goliath agrees. Her judgment upholds the first special plea that the lawsuits amount to an abuse of court process by the mining companies in an effort to “weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them” and further that the action “matches the DNA of a SLAPP suit”. The mining companies have since approached the Constitutional Court directly to appeal the judgment and argument in the matter is set to be heard on 17 February 2022.
CALS has been admitted as a friend of the court in the matter by the Constitutional Court. We argue that a test needs to be developed to properly respond to SLAPP suits, which we reason should be distinct from the tests used for abuse of process or other ‘vexatious’ litigation. Our approach would be firstly to inquire whether the defendants made the expressions in relation to a matter of public interest, secondly to determine whether the plaintiffs’ claims have merit, and finally allow the courts to assess whether it would be in the interests of justice to continue with the claim or dismiss it.
“This case raises critical issues concerning how the rights of the public, environmental activists and lawyers may be infringed when legal proceedings are brought against them in an effort to silence or threaten them,” says Thandeka Kathi, attorney at CALS. “A SLAPP defence is necessary to protect some of the cornerstones of our democracy: public participation and freedom of expression.”
CALS is represented by in-house counsel Lerato Phasha and external counsel Keamogetswe Thobakgale. Adv Phasha appeared for us before the Court.
The matter is set to be heard virtually by the Constitutional Court on 17 February 2022 from 10:00.
The hearing will be live streamed on the Constitutional Court's YouTube channel.
Read our heads of argument in the matter here.
This case is part of an ongoing campaign against SLAPP suits and activist victimisation in our strategic mission of contributing to the expansion of the agency of activists and marginalised actors. CALS is currently conducting research in a follow up to our 2018 report ‘Victimisation Experiences of Activists in South Africa’ as well as engaging in litigation supporting human rights monitors in the Western Cape and human rights defenders in the Eastern Cape and Free State.
For inquiries, please contact:
- Thandeka Kathi at email@example.com
- Sithuthukile Mkhize at firstname.lastname@example.org