Mining giants take to the Constitutional Court in last-ditch bid to gag critics
A defamation case before the Constitutional Court brings into focus not just the limits of activists’ rights to freedom of speech and expression, but also the point at which legal recourse turns to legal harassment.
A five-year court battle involving defamation charges laid against six people by Australian mining company Minerals Commodities Limited and its South African subsidiary Mineral Sands Resources will come before the Constitutional Court on 17 February.
The appeal being heard in the apex court challenges a judgment handed down in the Western Cape High Court in February 2021 that found in favour of the six defendants, among whom are environmental activists and public interest lawyers.
It ruled that the mining companies’ case constituted an abuse of court process. Judge Patricia Goliath said in her judgment that the defamation lawsuits were an effort to “weaponise our legal system against the ordinary citizen and activist in order to intimidate and silence them”.
She said the actions “match the DNA of a SLAPP suit”.
So-called SLAPP (Strategic Litigation Against Public Participation) suits are increasingly common and are being used by corporations against community activists and public dissenters.
A need for closer public scrutiny of the use of SLAPP-type tactics and suits in South Africa is being flagged by activists and public interest lawyers who are also watching the precedent-setting case in the Constitutional Court.
The Centre for Applied Legal Studies, which intervened as a friend of the court in the high court case as well as the Constitutional Court matter — along with the Southern African Human Rights Defenders Network — has said: “These kinds of defamation cases are SLAPP suits that 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.”
The centre said the court must also rule on whether the defendants’ expressions were a matter of public interest and whether the plaintiffs’ claims have merit.
Typically, SLAPP cases come with outsized financial claims for damages against individuals, and are being slammed by activists as a way in which corporate muscle and money tries to infringe on freedom of speech and freedom of expression, and as a way to shut down public participation, silence protesters and discourage public objection. It also delays and distracts from their core work as activists by tying up matters in court.
In the Mineral Sands Resources case, the claims top R14.5-million and are directed at the six individuals for their public criticism of the company.
This includes calling out Mineral Sands Resources’ alleged environmental destruction and non-compliance with mining and environmental law at its Tormin mine on the West Coast of South Africa after a cliff collapse at the mining site in 2015. Activists have also opposed and objected to Mineral Sands Resources’ proposed titanium mining operations in Xolobeni on the Wild Coast in the Eastern Cape.
The local Amadiba community, which would be directly affected by the mining venture, has been challenging the bid for more than a decade. Activists have done so at high personal risk and with little protection.
The chair of the Amadiba Crisis Committee, Sikhosiphi “Bazooka” Rhadebe, was gunned down outside his home in March 2016. The killing is believed to be linked to his anti-mining efforts. To date, no arrests have been made for the murder of the 51-year-old activist.
The Constitutional Court will also deliberate on whether a for-profit company is entitled to claim damages for defamation without offering evidence that meets certain minimum requirements, including proving actual losses suffered.
Leanne Govindsamy of the Centre for Environmental Rights — which is supporting the case with the help of lawyers working pro bono — said that while the Constitutional Court will rule on whether these defamation lawsuits are a violation of the constitutional right to freedom of speech, the matter has a deeper impact on other civil liberties and freedoms for all South Africans.
“We have to bring the attention of all South Africans to this case, because this is not just about one particular mining company suing a group of activists. This is about a culture of an abuse of power and allowing corporate interests to dominate.
“The space we find ourselves in in South Africa right now is a space of real contestation between the judiciary and the different arms of government. So this case is so central to protecting our civic freedoms,” she said.
Govindsamy, who led a Bench Marks Foundation information session on SLAPP suits before the Constitutional Court hearing, warned that there needed to be vigilance of SLAPP suit trends and the various forms it took in jurisdictions around the world.
“We need to be able to understand SLAPP beyond just definition and beyond the use of litigation. It can take different forms of legal harassment — for example, interdicts against public protest. It can also come not just from a corporation, but also the state and other actors who wish to infringe on the rights of whistle-blowers, for instance.
“They all bear the hallmarks of SLAPP, which is the abuse of power in oppressing or suppressing views, information, participation and protests,” she said.
Bench Marks Foundations researcher and activist Hassen Lorgat said the information workshop was a way to strengthen solidarity — to pull together more activists even as they fight threats in their own communities, and to organise and strategise more effectively in light of a challenging legal landscape.
“This case in the ConCourt is our chance to defeat an unjust law and I am optimistic of a positive outcome. All eyes are on this case and for me, this comes down to something very basic — it’s about freedom of speech, freedom of association and the right to criticise those who are powerful.
“We have to remember that this case is not about abuse of power in a specific terrain — it is about wherever you threaten unjust power… we have no fear,” he said.
The Constitutional Court’s ruling will affect several similar cases that are currently working their way through the lower courts, where companies, including a mining giant in Zambia and a property developer in Kyalami, have used SLAPP-type cases against environmental activists and objectors. MC
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