Landmark victory for activists after Aussie miner tries SLAPP suit route

A recent Western Cape High Court ruling against an Australian mining company has placed yet another feather in South Africa’s environmental society’s cap. 

The company, Mineral Commodities (MRC), tried and failed to issue a Strategic Litigation Against Public Participation (SLAPP) suit against six South African environmental justice and community activists. 

MRC sought R14.25 million, or apologies. 

The years’ long court battle ensued after comments were made by activists, who are also academics and lecturers, which the MRC found defamatory. 

Battle lines drawn

One of the accused is NPO Just Share’s executive director Tracey Davies, after comments were made by her during a lecture at the University of Cape Town’s summer school in 2017. 

The case involved two mining companies currently involved in major mineral sands projects in South Africa, namely Tormin Mineral Sands Project and the Xolobeni Mineral Sands Project. 

ALSO READ: Information on mining applications should be public, Xolobeni activists tell court

But the mining and excavating activities were widely criticised, particularly regarding the ecological and economic impact on the development potential of the Wild Coast. 

These activists criticised MRC on a number of platforms in an effort to explain the impact of mining operations on the environment. 

Tormin Mineral Sands Operations along the west coast. Picture: Henlo du Toit/MRC website

MRC alleged that the accused made defamatory statements related to these mining activities, but the accused said that court action was being used to silence them, which violated their freedom of expression, and attempted to intimidate activists into silence. 

Western Cape deputy judge president Patricia Goliath, however, found the defamation lawsuits were an abuse of the legal process, and agreed with the defendants that corporations should not be allowed to weaponise the legal system against citizens and activists. 

“Corporates like MRC use SLAPP suits – which are notoriously drawn out and expensive legal battles – with the intention to intimidate people who exercise their constitutional rights. 

“This judgment is an extremely important victory for advocacy and activism in the public interest. It sends a clear message that freedom of speech on matters of public interest will be proudly defended by our courts,” said Just Share board chair Dugan Fraser.

The importance of the judgment

Davies told The Citizen that the judgment was integral for activism in the public interest.

“The defendants in these defamation suits will still have to go to trial, but for the first time in South Africa we will be able to use the SLAPP suit argument as a defence against the claims made against us. Any future defendants in SLAPP suits will be able to raise this defence immediately,” Davies explained.

Xolobeni, a remote area in rural Eastern Cape. Picture: Thembela Ntongana

She added that the judgment gave activists comfort in knowing that courts in South Africa would protect their right to speak out.

ALSO READ: Judge gives mining communities more power

However, some work must still be done regarding the granting of mining concessions in the country.

Davies explained that there was a trend where development was prioritised, rather than the impact of mining activities on residents and natural heritage.

And despite “hundreds of examples” of reports submitted expressing concerns, hardly any projects are halted, she continued.

“The problem with activism against mining in this country is that the level of expertise of the activists is never relevant to those in authority.”

Things may not change overnight, but the landmark victory shows, in Davies’ mind, that there is “finally a dawning genuine awareness in the mining sector that it can no longer ignore these issues, or simply pay lip service to them”.

The impact of MRC mining – so far

Davies revealed that the Xolobeni mining controversy had dragged on for over a decade, but that mining activity had not yet started, “and hopefully never will”.

Despite this, the Eastern Cape community has had its fair share of devastation, notably the murder of Bazooka Radebe in 2016.

There has also been an active mine on the West Coast at Tormin for many years, Davies added, which involves the extraction and processing of heavy mineral sands from the beach.

BEFORE: A Google Earth image of sea cliffs below the Tormin mine processing plant. Picture from GroundUp

AFTER: The collapse of the sea cliffs below the mine processing plant. Picture from GroundUp

She said the environmental impact of the Tormin Mineral Sands Project had been well documented, but that civil society and local community concerns were ignored, and that licenses for expanding operations were still being granted by authorities.

“The urgency of the climate and biodiversity crises means that it is now more important than ever for activists to hold corporations – and government – to account for behaviour that threatens the health and wellbeing of future generations,” Davies said.

Climate change and mining

Davies said that coal mining operations, which as per the Paris Agreement must cease in the “very near future”, is just one of many welcomed changing facets of the industry.

ALSO READ: SA needs to act on reducing its carbon emissions, says Ramaphosa on climate change

Mining would, however, remain important, even in a low-carbon economy, because a “huge variety of minerals” will be needed, she explained.

“But the days of barging in and doing whatever you want to, and then leaving a mess behind, are over. Profit-seeking ventures will no longer be able to achieve those profits at the expense of nature without paying for her goods and services in some way.”

She said the cost of mining would finally be calculated more accurately, taking into account all factors instead of just profitability.

Sustainability would become the new normal, she added, saying that corporates were already feeling the pressure through the media, stakeholders and shareholders.

“Civil society may currently leading, but indicators around that regulation will follow.”

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