In 2017, an Australian Multinational Mining Company, Mineral Resources Commodities Ltd (MRC) brought two defamation suits against Environmental lawyers and activists opposing the MRC’s mining activities in South Africa. This case, regarded as an example of Strategic Litigation Against Public Participation, or SLAPP, is an illustration of how powerful corporates use the law to try to shut down opposition to extractive and profit-orient actions. Like the victims of the MRC’s SLAPP, our campaign has also been subjected to threats of being sued for defamation and a SLAPP against the High Commissioner for the Goringhaicona Khoi Khoin Indigenous Traditional Council. It is therefore useful to unpack what the recent decision by South Africa’s Constitutional Court means for our campaign. We thank the Centre for Environmental Rights for providing very useful summaries on their website.

The SLAPP suits considered by the Constitutional Court were two sets of defamation cases lodged by MRC against activists and their attorneys. One suit attacked statements made by the parties during a University of Cape Town Summer School discussion which argued that MRC had committed environmental rights violations at the Tormin mineral sands mine on the West Coast of South Africa. In the other, MRC sued 3 other defendants for statements they made about the company’s conduct on South Africa’s Wild Coast after the assassination of Amadiba activist Bazooka Rhadebe in 2016. His assassination took place in the midst of fierce community resistance to the mining company’s attempts to mine in their ancestral land. This resistance was and continues to be led by the Amadiba Crisis Committee, who are also part of the coalition of resistance to Shell’s seismic testing for offshore natural gas exploration that was recently stopped by the High Court in South Africa. One of the defendants is Cormac Cullinan, our former attorney.

The six defendants in the two cases filed a common special plea, alleging that all the defamation claims were SLAPP suits and were therefore an abuse of court processes. The pleas also argued that a for-profit corporation could not claim general damages for alleged defamation without offering evidence that meets certain minimum requirements, including proving actual loss suffered. MRC opposed that special plea in court in June 2020. The High Court rejected the MRC case, in a strong precedent-setting judgment that recognised SLAPP as a legal defence.

MRC then appealed the judgment, and the defendants filed their own appeal on the rights of corporations to claim general damages for defamation. These two appeals were heard in February 2022 by the South African Constitutional Court. In November 2022, the Constitutional Court handed down judgment in both appeals.

In the “SLAPP appeal”, the mining company succeeded in getting the High Court judgment on SLAPP set aside, but the Constitutional Court recognised the principle that SLAPP is an abuse of court process, and ordered the mining company to pay the defendants most of their costs in the Constitutional Court.   The Court also agreed to allow the defendants to amend their pleadings to conform to the conditions that would qualify for challenging a SLAPP.  

In the “corporate general damages appeal”, again, while the defendants’ appeal was technically refused, 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.

The case is still technically ongoing and the civil society defendants been given the opportunity to amend their special plea to meet the Constitutional Court’s stipulated requirements. The defendants are confident they will win the case and create precedent for other communities facing similar SLAPP suits.

The case involving MRC’s legal harassment of activists has involved a “6 year ordeal.” What the activists hope to achieve is a legal precedent that enables future defendants who are being harassed by corporates through SLAPP suits, to access a truncated procedure to dismiss the SLAPP suit in a way that permits an early dismissal of the claim.

There are many other SLAPP suits looming or ongoing in South Africa. We are under no illusions that SLAPPs may be used against us as we have been threatened with defamation allegations on numerous occasions. In September 2021, we received lawyer’s letter threatening us with legal action following publication of an article in the Mail and Guardian critical of the lifting of the suspension of the Water Use License for the development by then Minister Sisulu after intervention by her special advisor. Although the matter was not pursued then, it is part of the harassment that activists opposing this development have had to endure and continue to endure.  Hopefully, when High Commissioner Jenkin’s appeal is heard, the evidence for his case being a SLAPP without basis will become clearer.

In the meanwhile, we are facing the ongoing costs of litigation.  Given our opponents have endless amounts of cash to generate legal obstacles, we need your financial support to pursue the case. If everyone who has signed this petition contributed R20 or US$1, we would be in a much stronger position to fight this case fully. Please support us by contributing at our fundraising site. Any donation of any size will make a huge difference

Visit our website and follow the Liesbeek Action Campaign on twitter: @LiesbeekAction. 

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