Case Summary and Outcome

The Constitutional Court of South Africa ruled that a SLAPP suit defense exists in South African law as part of the broad category of abuse of process. After two Australian mining companies brought defamation suits against environmental lawyers, community activists and a social worker (“the defendants”), the defendants filed a special plea, arguing that the defamation cases constituted SLAPP suits. The High Court accepted that a SLAPP suit defence is suitable in South Africa and the companies appealed to the Constitutional Court. The Court held that filing a case against those who speak out on matters of public interest as a tool to silence or deter that opposition when the aim of the litigation is not to vindicate a right constitutes a SLAPP suit in South Africa. However, the Court found that the defendants in this case had not proven all the requirements for a successful SLAPP suit defence.

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Facts

In 2014 and 2015, John Clarke, a social worker in South Africa, published two e-books, one which paid tribute to two traditional kings of the Pondo people on the Wild Coast, South Africa and the other provided context to the community-level conflict over plans by Mineral Commodities Limited to mine the ancestral lands of the Amadiba tribe who are part of the Pondo people on the Wild Coast of South Africa, and in both he made critical comments about Mineral Commodities Limited (“Mineral Commodities”) and its then CEO. Until 2018 Clarke also made related comments in in radio and online interviews, videos on YouTube, online journalism pieces and in a letter to the Minister of Mineral Resources and in emails to various people. In April 2016, Mzamo Dlamini, a community activist, and Cormac Cullinan, an environmental attorney, participated in a radio interview, together with the then CEO of Mineral Commodities, in which Dlamini and Cullinan were critical about the company’s modus operandi to secure community support for its proposed mining activities on the Wild Coast and they made certain statements about the then recent assassination of a community leader who had opposed any proposed mining activities by Mineral Commodities.

On July 18, 2016, Mineral Commodities and its then CEO served summons on Clarke for defamation, and it continued adding claims until 2019, by when the damages totaled R10 million (approximately US$670,000 in February 2021). On August 18, 2016, Mineral Commodities and its then CEO served summons on Dlamini and Cullinan seeking damages of R3 million (approximately US$200,400 in February 2021).

On January 25, 2017, Christine Reddell, Tracey Davies (both environmental attorneys) and Davine Cloete (a community activist), presented a lecture at the University of Cape Town in which they discussed the operations at the Tormin Mine of Mineral Sands Resources (“Mineral Sands”) on the West Coast of South Africa. On May 2, 2017, Mineral Sands and one of its directors issued summons, seeking damages of R1 250 000 (approximately US$83,500 in February 2021) for defamation.

In total, the damages sought in the three suits amounted to R14,25 million (approximately US$950,000 in February 2021).

The defendants filed a special plea arguing that the mining companies’ filing of the suits was an abuse of process, designed to silence their opposition to the companies’ mining activities and modus operandi to secure community support for its proposed mining activities. They argued that the defamation cases were SLAPP suits – “Strategic Lawsuits or Litigation Against Public Participation” – and that a defence of abuse of process to these types of suits should be permitted in South African law.

The Centre for Applied Legal Studies and the University of Cape Town were admitted as amici curiae.

On February 9, 2021, the Deputy Judge President, Goliath delivered the judgment of the Western Cape High Court.

The dedendants raised a special plea in response to the defamation suits, that the mining companies’ action constituted an abuse of process and a use of the litigation to achieve the “improper end” of silencing activists, and so violated the right to freedom of expression. They argued that the motive in bringing litigation is relevant to the Court’s determination of whether there was an abuse of process and that the companies’ purpose – to intimidate and silence activists – was impermissible. They added that the companies should not be allowed to bring defamation proceedings when they know there is no reasonable prospect of obtaining the damages they seek. In referring to the case of Company Secretary of Arcelormittal South Africa Ltd v. Vaal Environmental Justice Alliance 2015 (1) SA 515 (SCA), the defendants highlighted that the courts have recognized the dangers of secrecy around environmental degradation, and that companies operating in South Africa have to respect the country’s constitutional values, which is a regime that advocates for freedom of expression They maintained that “debates arising within the context of mining rights, environmental damage, and economic power of large trading corporations required intense public scrutiny and public engagement” [para. 20].

The mining companies argued that by focusing on an alleged abuse of process the defendants were relying exclusively on the companies’ motives in bringing the defamation suits rather than on the merits of the defamation claims which, they submitted, was “legally unsound” [para. 10]. They added that, by requesting that the Court not consider the merits, the defendants were seeking to deny the companies’ access to justice [para. 10]. In addition, the companies submitted that any change to South African defamation law to introduce this form of SLAPP defence should be done through Parliament and not the courts.

The University of Cape Town focused on the protection of academic freedom, under section 16(1)(d) of the Constitution, and submitted that “academics should not be at risk of liability if a company’s reputation is tainted … and corporations should not be allowed to sue activists for defamation for what they had stated during a course and discussions at the university” [para. 26]. The university argued that there should be a “qualified privilege” for academic speech and that academics needed to be protected from liability to defamation suits brought by corporations [para. 26]. It added that SLAPP suits would have a “chilling effect” and would “deter academics from investigating and challenging harmful conduct” in environmental issues [para. 27].

The Court examined the constitutional framework applicable to this case and indicated that the protection given to freedom of expression under section 16 of the Constitution includes the protection of academic speech, and that section 24 protects the right to “an environment not harmful to one’s health and wellbeing, and also the right to have the environment protected from pollution and ecological degradation” [para. 36]. The Court referred to the South African cases of Khumalo v. Holomisa 2002 (5) SA 401 (CC), South African National Defence Union v. Minister of Defence 1999 (4) SA 469 (CC) and Midi Television (Pty) Ltd t/a E-TV v. Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) which had highlighted the importance of the right to freedom of expression in fostering debate on matters of public importance and that preventing the making of allegedly defamatory statements can only occur when that is needed to prevent “grave injustice” [para. 38].

The Court examined the features of SLAPP suits, described by the Court as “meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals as well as organizations acting in the public interest” [para. 39]. It recognized that the term was first used by Pring and Canan in a 1996 book and acknowledged Pring and Canan’s research which demonstrated that SLAPP suits most often take the form of civil defamation cases, specifically in response to environmental activism. The Court characterized SLAPP suits as ones which use the legal system, “disguised as an ordinary civil claim”, and are often lengthy, expensive and time, energy, money and resource heavy [para. 40]. It added that SLAPP suits have the effect of weaponizing the legal system and shifting matters of public interest into technical legal disputes, and, because the plaintiffs often have significant financial advantages over the defendants and the damages sought are often exorbitant, they chill public debate by sending “a clear message to activists that there are unaffordable financial risks attached to public participation” [para. 42]. The Court highlighted that the simple threat of having a SLAPP suit brought can “engender fear and intimidate the target” [para. 43].

The Court examined SLAPP suits and anti-SLAPP legislation in other jurisdictions, particularly the US, Canada and Australia, and noted that, although there has been no recognition of SLAPP suits in Europe, there has been some support for anti-SLAPP legislation within the European Union, and referred to the European Court of Human Rights cases of Handyside v. United Kingdom and Steel and Morris v. United Kingdom [para. 51]. It recognized that the central tenets of the defence against SLAPP suits in the US are that the suits violate the right of free speech and to petition and described anti-SLAPP suit legislation as being “aimed at providing a quick, effective and inexpensive mechanism to discourage such suits” as they protect public participation, the right to freedom of expression and mitigate against the negative effects of the suits.

The Court identified that there are generally three elements to be proven in a SLAPP defence: “the defendant engaged in public participation on a public issue”; the plaintiff “is pursuing an improper purpose”; and that the “lawsuit is meritless” [para. 45]. The courts apply a “reasonable person” test to determine the plaintiff’s purpose and ask whether a reasonable person would consider that the suit was initiated mainly to discourage public participation, shift activists’ attention away from public participation, or to punish activists for engaging in that public participation. In these cases, the onus first rests on a defendant to prove the improper purpose, and then shifts to the plaintiff to prove that the litigation does, in fact, have “substantial merit” [para. 46]. The Court agreed with the Canadian court in 1704604 Ontario Ltd v. Pointes Protection Association which had confirmed it would not hear SLAPP suits “unless the plaintiff can pass a rigorous test to show that it suffered real harm that outweighs the public interest in the expression of those views” and that there is a “right to participate in environmental activism” which served to protect the right to freedom of speech [para. 56].

The Court then discussed how to distinguish SLAPP suits from non-SLAPP civil suits and stressed that this involved a consideration of the “competing policy considerations in determining which activities should be protected from legal action” [para. 58]. It added that as environmental activism necessitates challenging conduct which threatens the environment “it is inevitable that damaging information or claims are likely to emerge” and that it requires the sharing of information “even though such information may not always be correct” [para. 58]. The Court commented that a common feature of SLAPP suits is the plaintiffs seeking an apology from the defendants as an alternative to  an exorbitant claim of damages, and that courts should therefore scrutinize defamation cases to see whether they are brought in a “genuine attempt to protect the reputation of a litigant” [para. 57].

In examining the mining companies’ conduct in the present case, the Court noted that all three cases were instituted at about the same time – notwithstanding that Clarke had engaged in activism before. It also identified that the companies had vast financial and human resources and so could write off the litigation costs, whereas the defendants simply did not have comparable resources, and described this “vertical and unequal power relationship” as “glaringly obvious” [para. 60]. The Court recognized that the “strategy to target a group of environmental activists more or less at the same time may have the effect of intimidating them to such an extent, that they may withdraw from further engagement after being sued for damages” [para. 61]. It stressed the chilling effect is felt by the targeted activists as well as the extended community. The Court also noted that the mining companies were targeting the most vocal activists – in this case, Clarke – by seeking the highest damages against him [para. 62].

The Court stated that because the mining companies had sought exorbitant damages which could not be paid by the defendants and that they would accept an apology in the alternative, the purpose was not to obtain money – “a signature mark of many SLAPP suits” [para. 62]. The Court concluded that “[t]he conclusion is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and assumed a specific position in respect of the plaintiffs’ mining operations” [para. 62].

With reference to Jameel (Mohamed) v. Wall Street Journal Sprl [2007] 1 AC 359 (HL), the Court stressed the importance of environmental activism and public debate on the extent to which mining companies comply with legal obligations – particularly when the companies have such large social and economic power [para. 63]. It noted that SLAPP suits severely threaten the ability to act against corporate misconduct, and that public debate and participation on issues like environmental protection needs to be both protected and encouraged. [para. 64].

The Court noted that there is no anti-SLAPP legislation in South Africa and that, consequently, there were limitations on how the courts can respond. It stressed that this lack of a law could lead to companies abusing the current position, and that “the interests of justice should not be compromised due to a lacuna or the lack of legislative framework” [para. 65].

The Court concluded that it was “trite” that there was an abuse of legal process when it was used for an ulterior purpose and warned corporations against misusing the legal system to target their opponents [para. 66]. It held that in the present case “the defamation suit is not genuine and bona fide, but merely a pretext with the only purpose to silence [the mining companies’] opponents and critics” and was therefore an abuse of process [para. 66].

The Court held that it was “satisfied that this action matches the DNA of a SLAPP suit” and that the defendants’ defence was valid [para. 67]. In so doing it stated that “SLAPP suits constitute an abuse of process, and is inconsistent with our constitutional values and scheme”, and reiterated the importance of freedom of expression to democratic society [paras. 66 & 67]. The Court therefore rejected the mining companies’ argument that they were permitted to sue activists for defamation even if their “only purpose is to silence the activists” as “unsustainable under our constitutional scheme, and which regime advocates for freedom of expression, active public engagement in environmental assessment issues and active public scrutiny of large multinational companies” [para. 20].

The mining companies applied for leave to appeal directly to the Constitutional Court.

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Decision Overview

On 14 November 2022 Judge Madjiedt delivered the Constitutional Court’s unanimous judgment. The central issue for the Constitutional Court’s determination was whether SLAPP suits fell under the category of abuse of process.

In their SLAPP special plea, the defendants pleaded that the mining companies had brought the defamation cases even though they did not allege patrimonial loss or that the defamatory statements were false, and that the companies did “not honestly believe” they would recover the damages they sought [para. 13]. They submitted that the suits were part of a “pattern of conduct” in which the mining companies brought defamation suits for the ulterior purpose of discouraging public criticism of their activities and intimidating and silencing opponents [para. 14]. This, they argued, was an abuse of the court process because it sought to achieve an “improper end” and used litigation purely to silence the defendants which infringed their right to freedom of expression. They submitted that the existing abuse of process principle does include a SLAPP suit defence and that the motive of the mining companies was the sole matter to be considered with the merits of their defamation case not factoring in the court’s determination.

The mining companies argued that the defendants had not satisfied the abuse of process requirements under South African law. They submitted that the merits of the defamation case must come into consideration and that the defendants were wrong in law to argue that the motive of a plaintiff bringing a defamation case is the only factor when evaluating whether the case is a SLAPP suit.

The Constitutional Court quoted the Canadian case of Pointes Protection Association in defining SLAPP suits as “[l]awsuits initiated against individuals or organisations that speak out or take 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” [para. 2]. The Constitutional Court accepted that SLAPP suits are used to intimidate, “silence or fluster” an opponent and “tie them up with paperwork or bankrupt them with legal costs” and that the plaintiff’s main aim to not to enforce a right [para. 43].

The Constitutional Court recognized that the media, whistleblowers and activists are most often targeted through SLAPP suits and emphasized the importance of civil society noting that “[o]ne of the more positive features of our nascent democratic order is vibrant, vigilant and vociferous civil society participation in public affairs” [para. 1].

The Constitutional Court then assessed the nature of abuse of process in South African law, and categorized the forms of abuse as gross abuse of legal procedure, the use of frivolous and vexatious litigation, and the use of criminal prosecution to pursue private objectives. The Constitutional Court explained that there was “certainly room for an argument” that a court could recognize a SLAPP special plea as a specific new or a variation of a category of abuse of process because that would simply be the court “regulating its own processes” [para. 83]. Accordingly, the Constitutional Court found that there was no need to develop the common law because it could already accommodate a SLAPP suit defence.

In examining what components of abuse of process a SLAPP suit defence would have, the Constitutional Court asked “What role, if any, does motive and merit play?” in a SLAPP suit category of abuse of process [para. 77]. The mining companies argued that motive should never play a role and the environmentalists argued that merits are not relevant. The Constitutional Court described the arguments of all parties on the role of merit and motive as “disregard[ing] the definition of a SLAPP suit” [para. 79]. It rejected the mining companies’ comparison with cases concerning criminal prosecutions and SLAPP suits, and said that while motive for a criminal prosecution does not impact the legality of an arrest, this is not the case in a defamation case. It also rejected the defendants’ conflation of ulterior purpose cases and stressed that a SLAPP suit should not be conflated with other cases involving ulterior purpose – which turns on motive – or with frivolous and vexatious proceedings – which turn only on the merits [para. 79].

The Constitutional Court commented that “true SLAPP suits, as they operate in other jurisdictions, have particular features which require a more nuanced approach than simply ulterior purpose” [para. 82]. It referred to legislation from California, Connecticut, and Missouri and described the Canadian province of Ontario’s Protection of Public Participation Act as “an excellent example” [para. 87]. The Constitutional Court noted that these laws are designed to prevent SLAPPs and facilitate a quick mechanism to combat them. The American legislation places the onus on a defendant to “establish that it is worthy of protection and that the plaintiff’s claim lacks genuine substance or prospects of success” [para. 85]. The Constitutional Court stressed that in these cases the merits of the case play a role. Once the defendant has discharged that onus the plaintiff is then required to demonstrate the “reasonable prospect” of the claim’s success. In the Ontario law, the defendant bears the onus of demonstrating that “the proceeding initiated against them arises from expression relating to a matter of public interest” and then, if that is satisfied, the plaintiff must demonstrate that “there are grounds to believe that their underlying proceeding has substantial merit and the defendant has no valid defence” and that “the harm likely to be or having been suffered and the corresponding public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression” [para. 87]. As the Constitutional Court highlighted, the Canadian example demonstrates that “both motive and merits play decisive roles” [para. 87].

The Constitutional Court introduced the concept of “abusive litigation” which is when a process is not being used to resolve a genuine dispute but rather is employed to achieve a result that undermines the rights in the Constitution.  The Constitutional Court provided the example of a plaintiff suing for defamation “where there are very little, if any, prospects of establishing a case for defamation” and where the purpose is to silence or burden the defendant [para. 94]. It noted that such a case would not violate the right to access courts in the Constitution as it would simply be “about the use of court process and associated legal costs as a means to an impermissible end, likely to cause appreciable damage to fundamental rights” [para. 94]. This type of case involved “motive and consequence” [para. 94]. The Constitutional Court stated that abusive litigation would “fall within the common law doctrine of abuse of process” [para. 95]. It added that the merits of the case would determine whether the plaintiff has “a right to vindicate” and the motive is relevant to determine the “true object of the litigation” [para. 95].

Accordingly, the Constitutional Court held that the current understanding of abuse of process can incorporate a SLAPP suit defence. The Constitutional Court explained that a “SLAPP suit defence ensures that courts can protect their own integrity by guarding over the use of their processes [and] ensures that the law serves its primary purpose, to see that justice is done, and not to be abused for odious, ulterior purposes” [para. 100].

However, in this case, for a successful SLAPP suit defence, the defendants would have to prove that the defamation suit “(a) is an abuse of process of court; (b) is not brought to vindicate a right; (c) 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 (d) violates, or is likely to violate, the right to freedom of expression entrenched in section 16 of the Constitution in a material way” [para. 96]. The Constitutional Court held that the defendants had not done so but granted them leave to amend the relevant special plea [para 103].

 

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