On 9 February 2021, the Western Cape High Court recognised, for the first time in South African legal history, that a Strategic Litigation Against Public Participation (“SLAPP”) defence may be raised, in principle, in defamation cases.
The defence was raised in the form of a special plea by three environmental attorneys and three community activists (the “Defendants”) against Australian mining company, Mineral Sands Resources (Proprietary) Limited and, its local subsidiary, Mineral Commodities Limited, after the mining companies sued the Defendants for defamation.
The mining companies are involved in the exploration and development of major mineral sands projects in South Africa: the Tormin Mineral Sands Project, on the West Coast in the Western Cape and the proposed Xolobeni Mineral Sands Project, in the Wild Coast region of the Eastern Cape. The Defendants made statements, through various public platforms, criticising the legitimacy of the mining operations and the impacts on the environment. The mining companies alleged that the statements made by the Defendants were spurious and defamatory and accordingly sued the Defendants for defamation and sought damages in the amount of R14.25 million or, alternatively, the publication of apologies.
The Defendants claimed that the litigation was an abuse of court process, violates the right to freedom of expression entrenched in section 16 of the Constitution and was brought by the mining companies to discourage, censor, intimidate and silence the Defendants, the public and the media in relation to public criticism of the mining companies. The Defendants therefore argued that the matter had the signature elements of a SLAPP case.
The term “SLAPP” was coined by Professor George W Pring and Penelope Canan, of the University of Denver, to describe the litigation that became popular in the United States of America in the 1980s which typically involved meritless or exaggerated lawsuits brought by powerful corporates intended to intimidate and silence civil society advocates, human rights defenders, journalists, academics and individuals as well as organisations acting in the public interest. The litigation was long, drawn-out and expensive and designed to drain the resources of those challenging matters of public interest.
In the United States of America, the general approach is that public participation is encouraged in matters of public significance and an “improper purpose test” is applied to determine the context of the litigation. The defendant must be able to show that the defendant engaged in public participation on a public issue; the plaintiff is pursuing an improper purpose; and that the lawsuit is meritless. The improper purpose must be the main purpose and is established where a reasonable person would consider the main purpose for starting the proceedings or maintaining it is:
- to discourage the defendant or anyone else from engaging in public participation;
- to divert the defendant’s resources away from engagement in public participation; or
- to punish or disadvantage the defendant for engaging in public participation.
If a defendant makes out a case for an improper motive based on public participation, the onus shifts to the plaintiff to prove that the action has substantial merit. If the plaintiff fails to do so, the action will be deemed a SLAPP.
Certain provinces in Canada and territories in Australia also have some form of legislation to counter the prevalence of SLAPP suit litigation.
In South Africa, there are no specific legislative mechanisms to deal with SLAPP suits and a defendant’s protection against an abuse of process is currently limited to the Vexatious Proceedings Act 3 of 1956 and the common law.
Section 2 of the Vexatious Proceedings Act provides that a court may make an order, on an application, that no legal proceedings shall be instituted by a person whom the court is satisfied has persistently and without any reasonable ground instituted legal proceedings in any court against any person. A person in respect of whom the order is made would only be able to institute legal proceedings with the leave of the court and such leave shall not be granted unless the court is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings. In order to obtain such an order of court, a defendant would have to bring an application for protection against a vexatious litigant in terms of the Vexatious Proceedings Act. Such protection cannot be obtained by filing a plea in which abuse of process is alleged.
The Defendants in this matter did not bring an application in terms of section 2 of the Vexatious Proceedings Act and instead relied on the common law abuse of process doctrine. The Defendants filed a special plea in which it was contended that the litigation was brought for an ulterior purpose and accordingly constituted an abuse of process. The mining companies raised an exception to the special plea and argued that ulterior purpose or motive is irrelevant for the abuse of process debate.
The Western Cape High Court agreed with the Defendants and held that South African courts have repeatedly referred to the purpose or motive of the litigation as being relevant to the question of abuse of process. The Court found that the litigation brought by the mining companies has all the hallmarks of a typical SLAPP suit as the companies claimed inexplicably exorbitant amounts for damages and have no realistic prospect of recovering the damages that they seek. The Court noted that the mining companies’ ulterior purpose is emphasized by the fact that they claimed that they would be satisfied to dispose of the matter on the basis of a public apology.
The Court concluded that the litigation was not genuine and bona fide and had been initiated in order to silence those who criticized the mining companies’ mining operations. The Court, therefore, dismissed the mining companies’ exception to the special plea and accordingly recognized that a SLAPP defence may be used in defamation cases of this sort.
The Court emphasized in paragraph 66 of the judgment that:
“It appears that the defamation suit is not genuine and bona fide, but merely a pretext with the only purpose to silence its opponents and critics. Litigation that is not aimed at vindicating legitimate rights, but is part of a broad and purposeful strategy to intimidate, distract and silence public criticism, constitutes an improper use of the judicial process and is vexatious. The improper use and abuse of the judicial process interferes with due administration of justice and undermines fundamental notions of justice and the integrity of our judicial process. SLAPP suits constitute an abuse of process, and is inconsistent with our constitutional values and scheme.”
This judgment is important, particularly in the field of environmental law, as one of the main features of environmental activism is to challenge certain activities with regard to the manner in which those activities impact on the environment. The Court in this matter highlighted that “it is inevitable that damaging information or claims are likely to emerge” and that “environmental activism is centred on providing critical information, even though such information may not always be correct”.
This judgment illustrates the value placed by the Court on public dialogue and debates regarding matters of public interest and the need to ensure that the ability to engage in such public debates is protected and encouraged.
It is important to note, however, that if a defamation matter does not have the signature features of a SLAPP case described above, the SLAPP defence would not be available. In order for a plaintiff to be successful in a defamation matter, the plaintiff would need to establish all of the elements of defamation to which the defendant has no defence.