A Johannesburg coal mining company has threatened to drag an environmental watchdog group to the High Court and sue it for defamation and financial damages, sparking concern around an apparent increase in the use of corporate “Slapp” suits to intimidate critics of mining ventures.

The term “Strategic Litigation Against Public Participation” (Slapp) suit was coined in the United States in the 1980s to describe legal bullying tactics by corporations and governments to silence civic activists by threatening them with hefty damages claims and protracted “lawfare”.

Three South African environmental attorneys and several activists are currently facing damages claims of at least R3.75 million following allegations that they “defamed” an Australian mining company at the centre of controversy for its planned dune mining operations at Xolobeni on the Wild Coast, and at its existing Tormin mine on the West Coast.

Now the Tendele Coal Mining Company – a subsidiary of the Bryanston-based Petmin group – has sent a legal ultimatum to the Durban-based Global Environmental Trust (GET), giving it barely 24 hours to withdraw allegedly defamatory comments about the company’s mining operations on community-owned land on the boundary of the Hluhluwe-Imfolozi Game Reserve.

Goats forage next to a homestead which was abandoned to make way for Tendele’s mining operations at Somkhele, KwaZulu-Natal. (Photo: Rob Symons)

The comments were posted on Facebook and GET’s “Save our Imfolozi Wilderness” website earlier this month after the trust launched a High Court application against Tendele, alleging that the company’s Somkhele anthracite coal mine near Imfolozi was operating illegally.

Judge Rishi Seegobin dismissed the application, ruling that the Somkhele mine was operating legally in terms of transitional agreements that allowed companies to continue operating without having to apply for new licences following amendments to environmental and mining laws.

But the Centre for Environmental Rights (CER) legal watchdog group has applied to join the trust in contesting Seegobin’s decision, arguing that the judge erred in his ruling and also set a “chilling” legal precedent by awarding punitive legal costs against the environmental trust.

In a separate case, Cape Town attorneys Cormac Cullinan, Christine Reddell and Tracey Davies and Johannesburg social worker John Clarke and other parties are also being sued for at least R3.75 million for allegedly making defamatory statements in 2017 about the Australian-based MRC mining company’s current or planned mining operations in South Africa.

During a case involving a property developer and a nature conservancy in 1992, US Supreme Court judge Nicholas Colabella likened Slapp suits to a deliberate tactic to stretch out litigation and to foist crippling legal costs on activist groups, often on frivolous grounds.

“Those who lack the financial resources and emotional stamina to play out the ‘game’ face the difficult choice of defaulting, despite meritorious defences, or being brought to their knees to settle… Persons who have been outspoken on issues of public importance targeted in such suits or who have witnessed such suits will often choose in the future to stay silent. Short of a gun to the head, a greater threat to the First Amendment (freedom of expression) can scarcely be imagined,” said Judge Colabella.

Last week, acting on behalf of the Tendele Mining Company, attorneys from Malan Scholes Incorporated sent a letter to Durban environmental attorney Kirsten Youens, demanding that the Global Environmental Trust immediately apologise and take down comments posted on social media about Tendele’s operations – or face a High Court interdict application “together with any other relief that Tendele may seek against GET.”

Malan Scholes Incorporated charged that the social media posts were causing serious harm to Tendele’s reputation and business.

On Wednesday night, Tendele legal representative Hulme Scholes denied that the company was attempting to intimidate the environmental trust.

Tendele’s coal mining operations at Somkhele, KwaZulu-Natal. (Photo: Rob Symons)

“No, it’s not a Slapp suit or intimidation at all. However, the company is taking legal advice from a defamation expert on this matter, and will take action accordingly, based on this advice.”

Now attorney Johan Lorenzon of Richard Spoor Incorporated has entered the fray on behalf of GET:

“The Trust, and others, have been making statements similar to those annexed to your correspondence for many years. If there is any basis for urgent relief, which is denied, such relief should have been sought long ago. Should your client seek urgent relief at this late hour, it is plain that any urgency would be self-generated,” Lorenzon stated in a letter to Malan Scholes.

He also asserted that the latest comments about Tendele were “true, in the public interest, and fair comment”.

“We are further instructed to seek punitive costs against Tendele, its directors, or de bonis propriis (punitive costs), should such a baseless application be brought against the Trust. We trust this will not be necessary.”

Citing a previous defamation claim involving Anglo Platinum Limited and fellow attorney Richard Spoor, Lorenzon said the court ruled that granting an interim interdict would violate Spoor’s constitutional right to free speech.

Spoor had made various comments against a number of mining houses including the comment that, “This is corporate thuggery and is profoundly racist. They would not go onto white people’s land. The attitude of these companies is that ‘you stand in our way and we will smash you’.”

In that case, Judge Eberhard Bertelsmann ruled that the vigorous exchange of ideas was the lifeblood of democracy. While mining was a foundation stone of the economy, it remained controversial.

“Mining companies find themselves continuously at the crossroads of competing interests. The impact of their activities upon the environment causes worldwide concern. The fact that mining bosses grow rich on the labours of the poorer classes has, through the centuries, been a constant theme of the debate of mining issues and is nothing new.”

Melissa Fourie, former head of the government’s Green Scorpions Environmental Inspectorate, said there had been an upswing in threats, violence and intimidation against environmental defenders worldwide.

Fourie, who is now the director of the Centre for Environmental Law in Cape Town, said: “It appears that companies are increasingly looking at using the law, and threats of and actual defamation suits or Slapp suits, to intimidate activists and silence criticism – again, this is a global trend.

“However, these cases are not only rarely successful, but often serve to amplify the public criticism in a way that defeats the company’s purpose. In South Africa activists and lawyers are increasingly coordinating and collaborating to resist this trend – beyond the environmental sector. We will do this because using spurious lawsuits and threats to silence public criticism is a clear violation of the right to free speech, and civil society will do whatever is necessary to defend this right.” DM