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SLAPP Suit #3: MSR and Zamile Qunya v Christine Reddell, Tracey Davies and Davine Cloete

In May 2017, Tracey Davies and Christine Reddell, former attorneys of CER, together with Davine Cloete, an environmental activist from the Western Cape, were served with papers in a defamation suit brought by MSR and its Director Zamile Qunya.

The three defendants are sued in relation to statements made which were critical of MSR’s Tormin operation on the West Coast. These statements were made at a lecture at the University of Cape Town’s Summer School Programme.

An example of the claims against Davies, Reddell and Cloete appears from the summons, in which it is alleged that MSR has been damaged in its reputation and has suffered damages in the sum of R750 000 (R250 000 for each defendant). Extracts of the statements which are alleged to be defamatory are as follows:

The first defendant:

“If we could just focus on one of the biggest environmental problems, which is the cliff collapse. And the cause of that is really through illegal action. So we are talking a mining operation that changed their, Glenn referred to it as their modus operandi, and their design. So they applied for one thing, they did assessments, for one thing and then what they did was something entirely different – and that is unlawful.”

The second defendant:

“They have armed guards on site and they have, on occasion, been extremely violent… We now have a situation where this company operates and continues to operate in circumstances where it is in breach of multiple environmental laws, mining laws, municipal by-laws, as well as planning laws. They don’t have planning authorisation to conduct the operation in the expanded footprint and a regulatory system that is supposed to stop from happening is just completely absent… we have a situation where a very predatory and ruthless company has taken advantage of our regulatory system… because of the combination of regulatory confusion, regulatory ineffectiveness, political corruption and the extraordinary tactics of this outrageous company it’s left to people like us… to actually apply, try and enforce the law.”

The third defendant:

“The people who were involved in this whole application from the community were people who received money from the MSR mine to mislead the community… What had happened here is that some of the police are employed as security at the MSR mine… I wanted this film to be shown in the community so that the people can see that because of the bribery at the mine therefore some people in the community were misleading other people in the community…”

In response to these allegations, the defendants state in their court papers that the company does not allege any patrimonial loss, nor that the alleged defamatory statements are false. They state further that the defamation suit has been brought with the ulterior purpose of discouraging, censoring, intimidating and silencing the defendants and members of civil society and the public in relation to public criticism of the company. Importantly, the defendants argue that the bringing of these SLAPP suits amount to an abuse of court process to achieve an improper end, and that it violates our constitutional right to freedom of expression.

The defendants’ legal counsel state in their written argument for the hearing scheduled for 9 – 10 June, that “it is quite impermissible for the mining companies to bring these proceedings in circumstances where they know that they will never have any realistic prospect of recovering the damages they seek and where their purpose is to intimidate and silence public criticism by the named defendants, civil society, the public and the media“.

A recording of Day 1 of the hearing on 9 June 2020 is available here: W Cape High Court MRC Exception Hearing. 9 June 2020

A recording of Day 2 of the hearing on 10 June 2020 is available here: W Cape High Court MRC Exception Hearing. 10 June 2020