Centre for Environmental Rights – Advancing Environmental Rights in South Africa

The judgment of the the Constitutional Court is available here.

• Case Number: CCT 66/2021
• Coram: Kollapen J, Madlanga J, Madjiedt J, Mathopo J, Mhlanta J, Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ concurring
• Judgment: Majiedt J
• Date delivered: 14 November 2022
• Outcome: The judgment establishes a SLAPP suit defence in South African law, as a species of the common law doctrine of abuse of process, and sets out the components required for such a defence.
•  Order of the Court:
  • Leave to appeal directly to Constitutional Court granted and the appeal is upheld.
  • Order of High Court set aside and the following order made:
    • a) Plaintiffs’ (i.e the mining companies and their executives’) exception to the first special plea of the defendants is upheld on the basis that the first special plea lacks averments necessary to establish a defence.
    • b) The defendants (i.e the environmental justice activists) are afforded 30 days from the date of this order to seek leave to amend their first special plea, failing which, the first special plea is dismissed.
    • The Applicants (the mining companies and their executives) are ordered to pay 60% of the respondents’ costs in the Constitutional Court including the costs of two counsel.
    • Each party must pay its own costs in the High Court.

Summary

At the heart of this case lies the phenomenon of what has become known as SLAPP suits, short for ‘Strategic Litigation Against Public Participation’. They have been described as:

Lawsuits initiated against individuals or organisations that speak out or take a position on an issue of public interest . . . not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others . . . and deter that party, or other potential interested parties, from participating in public affairs.”

The matter originates from three defamation suits instituted by Australian mining companies against environmental justice activists (who included environmental attorneys,  a social worker, journalist and member of a community which would be impacted by the proposed Xolobeni mineral sands mining project). In response to each of the defamation actions, the activists raised two special pleas. A special plea is a legal objection to a claim which is used to eliminate a case before the merits are even considered.

The first special plea, and the heart of this particular matter, was that the defamation actions were brought by the mining companies for the ulterior purpose of discouraging, censoring, intimidating, and silencing the activists and members of the public in relation to public criticism of the companies and their mining operations in South Africa (i.e that they were SLAPP suits).

The mining companies raised exceptions to the special plea. An exception is a procedural objection and, in this case, the mining companies argued that South African law did not recognise the activists’ SLAPP defence.

The second special plea raised by the activists was that the claims of the mining companies were bad in law because for-profit corporations do not have a claim for general damages in relation to defamation without alleging and proving falsity, wilfulness and financial loss.  Note that the second special plea is the subject of a separate Constitutional Court judgment – see Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others CCT 67/21.

The activists argued in their special plea that the bringing of the defamation actions by the mine:

(a) was an abuse of process of court;

(b) amounted to the use of court process to achieve an improper end and to use litigation to cause the defendants financial and/or other prejudice in order to silence them; and

(c) violated the right to freedom of expression entrenched in section 16 of the Constitution.

The activists also argued that the common law should be developed to recogise a SLAPP defence in response to such a defamation suit. Such a defence would mean that South African courts would be able to dismiss defamation cases which could be classified as SLAPP suits on this new basis. This defence would fall under the broader category of abuse of court process.

The court considered the approach to be adopted in respect of the exceptions. It discussed the origin, nature and development of SLAPP suits in other jurisdictions. The court discussed the nature of abuse of process in South African law and the different categories of abuse that have been developed over time.

Justice Majiedt concluded an analysis of the cases on this issue relied on by the parties with the following observations:

These cases illustrate the fact that—

• sometimes, motive is constitutive of the cause of action for example, in a malicious prosecution;
• sometimes, the reason for the action is irrelevant, it is the legality of the action that counts for example, in an unlawful arrest;
• sometimes, it is the abuse of the court’s processes that warrants sanction for example, in the case of Cassimjee; and
• SLAPP cases use the processes of the court with no evident abuse but to achieve an end that may be harmful for other reasons.

The court went on to discuss the role of motive and merits in a SLAPP suit defence. Justice Majiedt considered whether an (ulterior) motive was required to be proved as the reason for a party bringing a SLAPP suit. This enquiry seeks to ask why a particular case was brought – was it to vindicate a right or perhaps silence critics speaking out in future. The court held that both motive and merits must be considered for a SLAPP suit defence.

The court held that the activists will have to prove at trial that the defamation suit brought by the mining companies:

1. is an abuse of process of court;
2. is not brought to vindicate a right;
3. amounts to the use of court process to achieve an improper end and to use litigation to cause the defendants financial and/or other prejudice in order to silence them; and
4. violates, or is likely to violate, the right to freedom of expression entrenched in section 16 of the Constitution in a material way.

Justice Majiedt, in the unanimous judgment for the court held:

I have found that the SLAPP suit defence does form part of our law.”

Having confirmed the SLAPP defence in South African law and described the components required to raise this defence, the court held that the activists had not fulfilled these requirements when they originally raised their special plea. The court allowed the activists an opportunity to amend their plea so as to comply with the newly determined requirements for the defence.

Justice Majiedt also emphasised Parliament’s role in regulating SLAPPs:

It is for Parliament to consider whether a more comprehensive, specific SLAPP suit defence of the kind developed in Canada and the United States of America, ought to be legislated here.  After all, Parliament is, generally speaking, the main engine for law reform.

In its order, the Constitutional Court granted leave to appeal directly to Constitutional Court and upheld the appeal.
It set aside the order of the High Court and made the following order:

• a) Plaintiffs’ (i.e the mining companies and their executives’) exception to the first special plea of the defendants is upheld on the basis that the first special plea lacks averments necessary to establish a defence.
• b) The defendants (i.e the environmental justice activists) are afforded 30 days from the date of this order to seek leave to amend their first special plea, failing which, the first special plea is dismissed.
• The Applicants (the mining companies and their executives) are ordered to pay 60% of the respondents’ costs in the Constitutional Court including the costs of two counsel.
• Each party must pay its own costs in the High Court.