Mineral Sands Resources v. Christine Reddell, et al., Case No. 7595/2017, High Court of South Africa (Western Cape Division, Cape Town) (9 February 2021)

Defamation claims were filed against environmental lawyers at the Centre for Environmental Rights (CER) and several activists. The defendants raised a SLAPP defense, which the Court recognized as a legitimate defense in this interlocutory decision.

Mining companies had filed defamation claims against activists who had been critical of the companies’ mining activities. The defendants had published e-books, spoken in radio interviews, written emails, published on social media, posted an article on-line etc. The lawyers were charged with defamation for statements made during a lecture at the university.  

The High Court judgment dismissed exceptions filed by the company against the special pleas that had been filed by the defendants. The defendants plead that the mining companies’ claims amounted to an abuse of process and/or related claims and that the claims were brought to silence the defendants as well as others in civil society. The plaintiff mining companies filed exceptions to this defense. 

The High Court reviewed decisions from South African courts as well as how SLAPPs are addressed in other countries. The whole judgment is worth reading, there are many powerful statements about the “importance of free engagement and debate on matters of public importance” and the damage to this discourse that SLAPP suits cause. 

The Court explained in part:

Individuals or NGO’s must have the freedom to respond to issues affecting society, such as those related to the environment and sustainable development. In instances where corporates could be the main cause of damaging and destructive behaviour of the environment and biodiversity, civil society should be allowed to confront and restrain such behaviour. Litigation of this nature pose a serious threat to the defendants’ participation in matters of public importance, particularly environmental issues. Public dialogue and debate with broad participation on matters of public interests, such as the environment must be protected and encouraged. Any legal action aimed at stifling public discourse and impairing public debates should be discouraged.

Para. 64 (footnote omitted).

The Court asserted: 

Corporations should not be allowed to weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them. It appears that the defamation suit is not genuine and bona fide, but merely a pretext with the only purpose to silence its opponents and critics.  Litigation that is not aimed at vindicating legitimate rights, but is part of a broad and purposeful strategy to intimidate, distract and silence public criticism, constitutes an improper use of the judicial process and is vexatious. The improper use and abuse of the judicial process interferes with due administration of justice and undermines fundamental notions of justice and the integrity of our judicial process. SLAPP suits constitute an abuse of process, and is inconsistent with our constitutional values and scheme.

The right to freedom of expression, robust public debate and the ability to participate in public debates without fear is essential in any democratic society. I am accordingly satisfied that this action matches the DNA of a SLAPP suit.

 Paras. 66 – 67.

The Court then found the defendants “special pleas (the SLAPP suit defence) constitute a valid defence to the action” and dismissed the plaintiffs’ exceptions to the pleas.