Court agrees with activists that defamation suit was ‘abuse of process’

Defamation lawsuits brought by Australian mining company Mineral Commodities Ltd (MRC) and its local subsidiary against six environmental activists was an abuse of the legal process.

That was the ruling handed down by the Western Cape High Court on Tuesday.

MRC and its subsidiary had sued the defendants for a total of R14.25m in two applications  heard together.

MRC’s subsidiary Mineral Sands Resources claimed in 2017 that two attorneys at the Centre for Environmental Rights (CER), Tracey Davies and Christine Reddell, and community activist Davine Cloete had defamed it in a lecture presentation about the company’s “environmentally destructive” mining operation on the West Coast.

MRC and its CEO Mark Caruso also sued Cape Town attorney Cormac Cullinan, Amadiba Crisis Committee activist Mzamo Dlamini and community activist John Clarke for defamation in relation to comments they made about the company’s involvement in the Xolobeni mining project in the Eastern Cape.

The Amadiba community has opposed the mine at Xolobeni for more than a decade.

In a judgment on Tuesday, deputy judge president Patricia Goliath found strategic litigation against public participation (Slapp) was a viable defence for the activists and public interest lawyers against the mining companies’ claims.

“Slapp suits are still a relatively new phenomenon in most jurisdictions.

“Essentially its aim is to silence those challenging powerful corporates on issues of public concern. In essence the main purpose of the suit is to punish or retaliate against citizens who have spoken out against the plaintiffs,” Goliath said.

When the court action was launched by the companies, the defendants raised a special defence against the defamation claims. They said the action amounted to the use of the court process to cause them financial prejudice to silence them.

The court agreed.

Goliath said the legal process was abused when it was used for a purpose other than that for which it had been intended or designed.

“Corporations should not be allowed to weaponise our legal system against the ordinary citizen and activists to intimidate and silence them.”

She said it appeared the defamation suits were not genuine, but merely a pretext with the only purpose to silence opponents and critics.

The CER said parties to the matter may still elect to appeal the judgment in whole or in part, and the defamation trials may still proceed in due course.

“However, as it stands, [the] judgment means, when sued for defamation in a Slapp suit, activists in SA can successfully defend such a lawsuit by relying on the Slapp nature of such a lawsuit,” it added.

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