South African Court Rules Defamation Lawsuit an “Abuse of Process”

The Wild Coast’s abundance in titanium attracted the Minerals Commodities Ltd five years ago, but the local community continues to oppose mining in the region (SouthAfricaInfo).

South Africa’s Western Cape High Court ruled on February 9 that a series of defamation lawsuits filed by an Australian mining company against six environmental activists constituted an abuse of the legal process. Mineral Commodities Ltd (MRC) and its subsidiary Mineral Sands Resources (MSR) sued environmental attorneys Cormac Cullinan, Christine Reddell, and Tracey Davies; community activists Mzamo Dlamini and Davine Cloete; and social worker John Clarke for criticizing the environmental and socio-economic effects of the company's two mining operations. Deputy Judge President Patricia Goliath struck down the lawsuits on the basis that the MRC filed Strategic Litigation Against Public Participation (SLAPP) suits. 

The six activists criticized the MSR’s pursuit of titanium mining on the Wild Coast of the Eastern Cape, as well as the company’s active involvement in tormin mineral sand mining on the west coast of the Western Cape. Reddell, Davies, and Cloete called the corporation’s mining operation on the west coast “environmentally destructive” while lecturing at the University of Cape Town’s summer session. Clarke denounced the potential environmental and economic impact on the Wild Coast if the MRC’s mining efforts were successful. 

Cullinan and Dlamini accused the MSR of fueling neo-colonial divides between local communities in Xolobeni (potential location of MSR’s titanium mine) to advance their own economic interests. Dlamini further accused MRC’s CEO Mark Caruso of being involved in the murder of an anti-mining community leader. Local opposition to mining at Xolobeni started over a decade ago and continues to persist.

SLAPP suits refer to lawsuits filed by powerful organizations as a way to intimidate or threaten journalists, academics, human rights advocates, lawyers, and other organizations acting in the interests of the public. The most common forms of SLAPP suits include defamation, intentional infliction of emotional distress, interference with economic advantage or contract, and conspiracy. Goliath further elaborated that these lawsuits are intentionally long and expensive to financially exhaust the defendants. MRC and MSR collectively sued the six activists for R14.25 million (roughly $980,000), an unnecessarily high amount that the defendants could not afford. 

Although SLAPP suits are uncharted territory in South Africa, Goliath declared that the MRC’s defamation action matched the structure of SLAPP. Goliath further articulated that corporations should not utilize the legal system against citizens and activists to intimidate and silence them, as to do so would undermine the integrity of the judicial process. 

The MSR first sought legal action in 2017 against Redell, Davies, and Cloete, followed by the MRC and Caruso, who sued Cullinan, Dlamini, and Clarke. In response, the six activists launched a special defence against the allegations based on two claims; first, the lawsuits directly violated the constitutional right to freedom of speech. Second, a corporation is not a person whose dignity can be damaged. A corporation can only experience financial damage, so the MRC would have to prove that it experienced financial damage as a result of the six activists’ comments. Special defenses allow the technicality of a lawsuit to be evaluated without evaluating the details of the case. 

The hearing for the defendants’ special defense occured in the summer of 2020. The plaintiff argued that corporations can sue activists to defend their dignity and equated a corporation’s right to dignity with freedom of speech. Defence advocate Steve Budlender argued the MRC’s intent was to intimidate and financially devastate the defendants. Bundlender also warned that future environmental activists will be silenced if the special defense is not upheld. 

Goliath’s ruling reaffirmed the necessary role activists play in holding corporations accountable for its social, economic, and ecological consequences, and also set a precedent for future lawsuits. SLAPP is an abuse of power and a form of corporate intimidation. While the six activists rejoiced in the fact that freedom of speech prevailed, the fight is not yet over. The MRC intends to appeal Goliath’s ruling and given the ruling only pertained to the special defence hearing, the actual defamation lawsuits can still go to trial. However, because of Goliath’s ruling, the activists will be able to use the SLAPP suit defense in trial.