When David met Judge Goliath – SLAPPs in SA law

A partner of mine at Webber Wentzel, Odette Geldenhuys (who works in the pro bono unit) and I recently wrote a piece in the Sunday Times on the unprecedented introduction of a SLAPP defence in a case decided by the Western Cape High Court on 9 February 2021.  We act for the six defendants in the case, who are alleging that the case is a classical SLAPP lawsuit.  You can read the case here.  It has made waves around the country.

Here’s our original piece:

In a groundbreaking judgment,  Deputy Judge President Patricia Goliath of the Western Cape High Court recognised that defendants may in principle raise a SLAPP defence in defamation cases. SLAPP stands for Strategic Litigation Against Public Participation; and it refers to meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics, individuals and organisations acting in the public interest.

This case has its origin in both the West Coast and the Wild Coast of South Africa. For almost a decade, there has been public concern about the mining activities of the Australian mining company, Mineral Commodities Limited (MRC), and its various South African companies.  These companies mine beaches on the unspoilt West Coast for heavy minerals. Yet, these large scale, extractive mining operations have gone unchallenged along the West Coast primarily because the area is sparsely inhabited and many communities are under-developed and exist in poor socio-economic circumstances. However, on the Wild Coast where MRC and local counterparts have for years attempted to mine a 22 km stretch of pristine beach land, the public spotlight of debates, community activism and legal challenges, have been a bulwark against what activists see as the permanent destruction of fauna and flora for the short term and private benefits of titanium mining.

Among the voices who participate in the public discourse about the impact of mining on the environment, and specifically these companies’ mining operations, are three environmental attorneys and three activists. They criticised the corporates in books, radio interviews and, in the case of two of the attorneys, presenting a lecture at the Summer School at University of Cape Town. The response of the corporates was to bring defamation actions against the six, claiming that its corporate reputation and the reputation of some of its directors have been damaged to the tune of over R14 million.  The attorneys and activists pleaded a SLAPP defence – unchartered territory in our law. They argued that the mining companies’ conduct in bringing these cases is an abuse of process; or the use of court process to achieve an improper end and cause them financial or other prejudice in order to silence them. This, they argued, violated the right to freedom of expression. They also alleged that the companies’ cases were brought for the ulterior purpose of discouraging, censoring, intimidating and silencing the defendants as well as members of civil society, the public and the media, from public criticism of the mining companies. In other words, the allegation was that the defamation cases had been brought to chill criticism by the defendants and others: they were SLAPPs.

The mining companies objected saying the law did not recognise a SLAPP defence.  So the case was about whether such a defence was valid in our law (not – yet – whether it applied on the merits of the case, which is for another day).

Judge Goliath observed that SLAPP cases are usually disguised as ordinary civil claims, often defamation claims, designed to discourage others from speaking on issues of public importance. SLAPPs exploit the inequality of finances and human resources available to large corporations as compared to the targets. “SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their constitutional rights, restrain public interest in advocacy and activism; and convert matters of public interest into technical private law disputes”, said the court.

Judge Goliath located SLAPPs as classical David v Goliath scenarios, where a well-resourced company embarks on litigation against individuals, local community groups, activists or non-profit organisations advancing a social interest of some significance usually without any personal profit or commercial advantage.

Exorbitant damages claims are part of the strategy, said Judge Goliath, “chilling public participation and sending a clear message to activists that there are unaffordable financial risks attached to public participation.”

And SLAPPs do not need to be successful in court to have their intended effect; all lawyers know how to play the long litigation game, and the sheer emotional and financial drain that this causes may cause defendants to capitulate.

Judge Goliath gave the example of the McLibel case: reportedly the longest case in British history where, in 1990, McDonald’s sued activists for allegedly libelling it in a leaflet, ‘What’s Wrong with McDonald’s?’.  The leaflet listed a number of sins the activists claimed McDonald’s had committed: bad working conditions, exploitation of children, deforestation and unhealthy food.  As McLibel made its way through the courts, over several years, it raised philosophical and policy questions about ways of eating, of treating the planet, of dealing with people, animals and the environment. It was seen as a SLAPP, says Judge Goliath, because the aim of McDonald’s was to silence its critics with a heavy-handed damages claim they could never expect to recover.

Judge Goliath then turned to the facts before her. The mining companies “are claiming inexplicably exorbitant amounts for damages, which the defendants can ill-afford. They instituted these proceedings fully aware of the fact that there is no realistic prospect of recovering the damages they seek. This action will without a doubt place an economic burden on the defendants”.  This was exacerbated by the fact that “public participation is a key component in environmental activism and the chilling effect of a SLAPP can be detrimental to the enforcement of environmental rights and land use decisions”.  She concluded that the case had the classic features of a SLAPP case – the DNA matched.  Thus the mining corporations’ technical objection to the defence being raised was dismissed – the defendants can now argue the SLAPP defence applies on the merits at the next stage of the case.  This was a case where the proverbial David, here the community activist, met the judge named Goliath – and discovered she was on his side.

The court’s recognition that there is a way our law can guard against SLAPPs is of profound importance in our democracy. And it does not only apply to corporates – powerful politicians and public figures often abuse the law of defamation to chill freedom of expression. A good example is the litigation spree embarked upon by our former president, Jacob Zuma, who in the space of four years launched 15 defamation cases claiming over R50 million, against newspapers (including the Sunday Times), cartoonists, columnists and op-ed writers – all who had dared to criticise his conduct.

The message of the case for those who would want to bring a SLAPP is clear – you SLAPP us and the law will slap you back.

A version of this article was first published in the Sunday Times newspaper