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CER attorneys raise Constitutional defence in SLAPP suit, and experts join as friends of the court

November 20, 2017 at 12:01 pm

Aerial image of Tormin mineral sands mine on the West Coast (Photo supplied to GroundUp)
Aerial image of Tormin mineral sands mine on the West Coast (Photo supplied to GroundUp)

The defendants in the defamation suit brought by a subsidiary of Australian mining company Mineral Commodities Limited (MRC), including two CER attorneys, have raised Constitutional arguments in response to the defamation claims.

The University of Cape Town (UCT) and the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand have intervened in the matter as amicus curiae. UCT and CALS will address the court on issues of academic freedom, and CALS will provide further expertise on the nature and effect of ”Strategic Litigation against Public Participation”, also known as “SLAPP suits“, in both the South African context and with reference to foreign jurisdictions.

As reported in May 2017, two Centre for Environmental Rights’ (CER) attorneys and a local community activist from Lutzville have been sued for defamation by MRC subsidiary Mineral Sands Resources (MSR) and its director, Zamile Qunya, claiming a total of R 1,250,000 in damages from the three defendants.

CER attorneys Tracey Davies and Christine Reddell, and community activist Davine Cloete, made the statements during presentations at the University of Cape Town’s Summer School in January this year. The presentations were about MSR’s Tormin mineral sands mine on the West Coast. Local communities and environmental activists have raised numerous concerns about the legality and environmental impacts of MSR’s mineral sands mining operation.

“South Africa is a Constitutional democracy, in which the right to freedom of expression, just administrative action (including public participation) and the right to have the environment protected for the benefit of present and future generations, are safeguarded by our Constitution,” says Melissa Fourie, CER Executive Director.

The CER maintains that litigation of this nature is intended to censor, intimidate and silence critics by burdening them with the management and costs of a legal defence until they abandon their criticism or opposition. Popularly known as SLAPP suits, this kind of litigation is also aimed at sending a message to all activists that resisting that company, and others like it, poses personal risk.

The intervention by UCT and CALS illustrates the significance of the threats to the Constitutional rights of environmental activists, threats which are becoming more and more common. This is starkly illustrated by the collaborative project between the Guardian and Global Witness, which is tracking and recording threats to and deaths of environmental defenders around the world. So far in 2017, 158 environmental defenders have been killed while protecting their communities’ land or resources. In March 2016, environmental activist Sikhosiphi “Bazooka” Rhadebe was gunned down at his home in Xolobeni on the Wild Coast. Rhadebe was a vocal opponent of MRC’s proposed titanium mine at Xolobeni.

The defamation matter is expected to be heard in court in 2018.

For media queries, please contact Annette Gibbs on agibbs@cer.org.za or 082 467 1295.

Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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National Environmental Crimes & Incidents Hotline (24 hours): 0800 205 005

In addition, there are a number of national and provincial hotlines that may be useful.

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