Rare minerals discovered in Xolobeni in the Eastern Cape are attempting to be mined, at the expense of the community and environment. Photo: Daniel Steyn
Activists attempting to argue they are being silenced by an Australian mining company are one step closer to making legal history.
The group, made up of environmental lawyers, community activists and commentators, on Monday received clarity on what they are arguing is a Strategic Litigation against Public Participation (SLAPP) suit being instituted against them in the Constitutional Court (ConCourt).
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The suit concerns three separate cases, where Mineral Commodities Ltd (MRC), its South African subsidiary Mineral Sands Resources (MSR), and a company BEE partner and former Mbizana mayor Zamile Qunya, claim six defendants defamed them.
The defendants in question are Wild Coast community activist Mzamo Dlamini, environmental lawyer Cormac Cullinan, former Centre for Environmental Rights attorneys Christine Reddell and Tracey Davies, Lutzville activist and journalist Davine Cloete, and social worker and author John GI Clarke, who allegedly made defamatory statements in the media more than five years ago.
They are being sued collectively for R14.25 million.
When the claims were levelled against the activists, they responded with two special pleas, one of which is that the accusations constitute a SLAPP suit.
This means actions brought against them were done for “the ulterior purpose of discouraging, censoring, intimidating, and silencing the applicants and members of the public in relation to public criticism of the mining companies,” court papers read.
More common overseas, SLAPP suits have until now not been recognised as a specific category of abuse.
Cullinan explained the ConCourt went through processes to determine it on Monday as a “new category”, a move he said was “incredibly important”.
The court said both the motive and merits of the case were relevant to determine if the case was indeed a SLAPP suit. But the possibility of labelling the case a SLAPP suit was not dismissed, a move Cullinan said was “a good day for freedom of speech”.
The plantiffs, MRC, MSR and Qunya, said because a SLAPP suit defence did not exist in South African law, the special plea brought by the applicants did not disclose a defence. This exception was dismissed by the court.
After the ConCourt’s rulings on Monday, applicants now have 30 days to amend their arguments that the accusations of the plaintiffs constitute a SLAPP suit, and must include merit as well as motive in their amendment, two aspects of the case the court emphasised were interrelated.
“The court has said we are entitled to raise a special plea that it is a SLAPP suit, and we have 30 days to amend how we phrase our defence,” Cullinan explained.
He is confident the facts will prove the SLAPP suits stand.
“With the three different cases, we can see a pattern of behaviour. There are attempts to silence us in all cases; one can see the strategy clearly.”
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The judgement, he said, was not only significant for the applicants, but for civil society as a whole.
“If the case had gone the other way, it would have been disastrous for civil society. It is significant for us but this case also has a wider significance for civil society and democracy.
“The court had said it did not want to see freedom of speech on important issues of public interest stifled.”
The possibility of the recognition of actions against the accused being labelled a SLAPP suit is equally important for activists.
Cullinan said the judgement may not stop SLAPP suits from happening, but being recognised by the highest court in the land was a win.
ALSO READ: Information on mining applications should be public, Xolobeni activists tell court
Rare minerals were first discovered on the Xolobeni coast in 2002. MSR and MRC want to extract millions of tons of ilmenite, titanium-iron oxide, rutile, zircon, and leucoxene, GroundUp reported.
Mining rights granted in 2008 were suspended and later revoked in 2011. In 2015, MRC filed another application to mine through its subsidiary, Transworld Energy and Resources.
Some years later, the Pretoria High Court ruled mining could only take place if the Xolobeni community consented – a decision that has since torn the region apart.
Activist Sikhosiphi Bazooka Rhadebe was murdered outside his home in Lurholweni township in March 2016 by being shot eight times.
At the time of his death, he was the chairman of the Amadiba Crisis Committee, one of many groups fighting the pending mining activity.
Death threats continue to plague community members.
Cullinan said the majority of the community were still opposed to mining taking place in the area, but individuals that stand to benefit should mining go ahead are still trying to create a narrative that residents support mining activities.
“Corporate interests supported by government do their best to subvert community voices, to try and give the imporession a no is a yes, so those struggles will continue,” he said.
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