- The pair of landmark judgments handed down by the South African Constitutional Court for the first time recognise SLAPP (strategic litigation against public participation) as an abuse of process, and carve out a limitation to trading corporations’ ability to claim damages for reputational harm.
The judgments have important consequences for the protection of activism and the rights and responsibilities of corporations in South Africa and beyond.
The SLAPP suit
The judgments are the latest development in a five-year court battle arising from a series of defamation claims lodged by ASX-listed Australian mining company Minerals Commodities Limited (MRC) and its South African subsidiary, Mineral Sands Resources (MSR), against six activists and public interest lawyers in South Africa.
The claims, which amounted to over R14.5 million, were filed against the defendants for their public criticism of MRC and MSR’s conduct relating to a proposed mine at Xolobeni on South Africa’s Wild Coast, and at its existing Tormin mine on the West Coast of South Africa.
Two of the lawyers sued by MSR were employed by the Centre for Environmental Rights, who had been challenging the environmental compliance of and approvals for the Tormin mine when the SLAPP suits were launched.
“These lawsuits are typical SLAPP suits, or Strategic Lawsuits Against Public Participation,” says Tarisai Mugunyani, attorney in CER’s Mining programme. “SLAPP suits target activists, journalists, whistleblowers and everyday people who exercise their Constitutional rights. SLAPPs masquerade as ordinary lawsuits, but their true purpose is to silence criticism.”
“Lawsuits of this kind are usually brought for the purpose of preventing or discouraging political expression and comment on public issues. Their objective is to limit protest and dissuade individuals, citizens and activists from political participation. … A common feature of SLAPP suits is that the primary aim of the litigation is not to enforce a legitimate right. The objective is to silence or fluster the opponent, tie them up with paperwork or bankrupt them with legal costs.” – Justice Majiedt at para 42 and 43.
The first judgment: Recognising SLAPP as abuse of process
According to the head of CER’s Corporate Accountability programme, Leanne Govindsamy, both judgments of the Constitutional Court are important steps towards greater protection of activists from corporations who use litigation to silence criticism against their operations.
“By holding that the doctrine of abuse of process can accommodate the SLAPP suit defence, the Constitutional Court has provided new and significant protection to activists, civil society and public interest organisations whose work in the public interest has been so central to advancing Constitutional rights and freedoms in South Africa,” says Govindsamy.
The Constitutional Court set aside the 2021 High Court judgment in favour of the defendants, but reiterated the High Court’s position that SLAPP is an abuse of process. The Constitutional Court gave the defendants 30 days to seek leave to amend its court papers to meet the Court’s newly set parameters for the SLAPP defence, and also awarded the defendants most of their legal costs.
The second judgment: Limiting damages that companies can claim
In the second judgment, the Constitutional Court held that companies that suffer harm to their reputation as a result of defamation may not claim compensation for non-financial losses if the defamatory speech forms part of “public discourse on issues of legitimate public interest”. This is because awarding such damages would constitute an unjustifiable limitation on the right to freedom of speech.
A trading corporation has no hurt “human” feelings to assuage, to provide solace by way of an amount for general damages. In this regard, it does not have a right to dignity and cannot lay claim to the rights in section 10 of the Constitution. Instead, it has a common law right to its good name and reputation, protected by the Constitution’s equality provisions, and can enforce that right by a claim for general damages under the qualification outlined, namely, excluding, in a court’s discretion, in cases of public discourse in public interest debates.” – Justice Majiedt at par 150.
“Corporations have disproportionate power and influence on people and the planet. It is therefore of the utmost importance that civil society and the media are empowered to scrutinise their operations,” says CER Executive Director Melissa Fourie. “With the climate crisis nearing tipping points across the globe, it is so often community and indigenous activists, civil society organisations and journalists who hold corporate polluters accountable. The Constitutional Court’s limitation on corporations’ ability to claim damages for defamation is a critical shift, and clearly signals that our courts will not allow corporations to use their more significant resources to silence those who speak up against corporate malfeasance.”
The road to the Constitutional Court
The Constitutional Court heard two appeals, one by the mining company, and one by the defendants, against the 2021 judgment handed down by the Western Cape High Court in favour of the defendants. In her judgment, Judge Patricia Goliath described SLAPP suits as constituting the weaponisation of the legal system and cautioned against the abuse of power and resources which characterise SLAPP suits.
Author: Bryan Groenendaal