Constitutional Court full bench. Picture: Gallo Images/Sowetan/Alon Skuy)
A protracted legal battle spilt over into the Constitutional Court (ConCourt) yesterday when an Australian mining firm moved to overturn a landmark ruling giving the judicial thumbs up for a first-of-its-kind strategic litigation against public participation (Slapp) defence.
Western Cape Deputy Judge President Patricia Goliath last February found the R14.5 million defamation claims Australian-based Mineral Commodities Ltd (MRC) and its local subsidiary, Mineral Sands Resources brought against six local lawyers and activists smacked of a hidden agenda to gag its detractors.
The group had publicly gone up against the controversial Xolobeni mining project in the Eastern Cape and the Tormin operation in the Western Cape.
Goliath made a game-changing ruling that the Slapp defence these lawyers and activists wanted to put up was a valid one.
ALSO READ: Information on mining applications should be public, Xolobeni activists tell court
Professors Penelope Canan and George W Pring of the University of Denver in the US were the first to coin the term “Slapp” and in their research describe it as “intended to intimidate and silence” an organisation’s detractors by mulcting them in legal costs until they eventually abandon their cause.
It is still a relatively new legal concept and while anti-Slapp legislation has been introduced in countries such as the United States, Canada and Australia in recent years, this is thought to be the first time a Slapp defence has been attempted in South Africa.
MCR and Mineral Sands Resources, however, are fighting it tooth and nail and have now turned to the country’s apex court with an application for leave to appeal Goliath’s ruling.
The matter came before the Constitutional Court justices yesterday.
In their submissions, the group and its subsidiary – represented by advocates Peter Hodes and Johan De Waal – argued that “as it currently stands, our law does not regard the motive for bringing a claim [as distinct from the merits of that claim] as determinative of abuse of process”.
They opposed the development of the common law to accommodate a Slapp defence “on the basis that it is undesirable, unconstitutional and unnecessary.
“Moreover, the sort of extensive law reform necessary to fairly introduce a Slapp defence is best left to the legislature.” But the lawyers and activists – represented by advocate Geoff Budlender – yesterday argued the purpose of court processes was to establish the truth and to enable parties to vindicate their rights.
READ MORE: Xolobeni residents uneasy as tug of war over rare minerals drags on
“And we make the submission that it is an abuse of those processes to use them to achieve other ends and ulterior purposes,” Budlender told the justices.
He argued this was effectively what MCR and Mineral Sands Resources were doing – seeking to “stifle” and “censor” criticism – and submitted it “squarely falls within the doctrine of abuse of process”.
The Centre for Applied Legal Studies was admitted as an amicus curiae, or friend of the court, in the case and argued a test needed to be developed to properly respond to Slapp suits, reasoning this should be distinct from the tests used for abuses of process.
Southern Defenders, represented by Lawyers for Human Rights, was also admitted as amicus curiae and took the line that South Africa had a constitutional obligation to comply with international law standards.
Judgment was reserved.
Download our app and read this and other great stories on the move. Available for Android and iOS.
