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Court disallows access to documents in preliminary SLAPP suit hearing

31 May 2019 at 10:55 am

Aerial photos of Tormin operation at 2013 (top) and 2018 (bottom). Images: GoogleEarth
Aerial photos of Tormin operation at 2013 (top) and 2018 (bottom). Images: GoogleEarth

On 30 May 2019, Judge Judith Cloete denied the application by two former CER attorneys and a community activist for subsidiary of Australian mining company MRC to disclose documents relating to the Tormin mineral sands operation near Lutzville on the West Coast. The applicants argue that they require these documents for their defence of the defamation claims brought by the company, Mineral Sands Resources (MSR).

MSR sued the three women in the Western Cape High Court after a presentation they made at the University of Cape Town’s Summer School in 2017.

The documents the defendants sought include records like the mine’s approved Social and Labour Plan, reports the mine needs to submit in terms of mining laws, reports by the mine’s environmental control officers, and email correspondence between the then mine manager Gary Thompson and MRC CEO Mark Caruso.

In her ruling, the judge found that the defendants should have pleaded their defence in greater detail, and held that requiring the mining company to provide so many documents to the defendants was “an impossibly burdensome task”.

The Centre for Environmental Rights maintains that the defamation lawsuit – like 3 others launched by MRC and its subsidiaries – 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 (strategic litigation against public participation), 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.

Earlier this week, CER participated in the launch of a new campaign known as Asina Loyiko: United against corporate bullying. This campaign is aimed at raising awareness about SLAPP suits, and discouraging the use of this tool to silence and intimidate activists. Meaning “we do not fear”, Asina Loyiko is committed to resisting the threat that SLAPP suits and other forms of corporate bullying pose to civil society’s Constitutional rights to freedom of speech, freedom of the media, academic freedom, and democracy more broadly.

“We are disappointed with the judge’s ruling. However, we are not deterred. This case is about defending the Constitutional right to freedom of speech, and is of fundamental importance to activists defending the environment everywhere. We will continue to fight these claims until justice is served,” said CER Executive Director Melissa Fourie.


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Section 24of 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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