An Australian mining firm it will appeal a judgment in relation to the Slapp suit (Strategic Litigation Against Public Participation) it brought against six South African environmental justice and community activists. File picture
An Australian mining firm it will appeal a judgment in relation to the Slapp suit (Strategic Litigation Against Public Participation) it brought against six South African environmental justice and community activists. File picture

Australian mining firm intends to appeal judgment that favoured activists

By Mwangi Githahu Time of article published Feb 15, 2021

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Cape Town - An Australian mining firm with interests in the West Coast says it will appeal a judgment by Western Cape High Court deputy judge president Patricia Goliath in relation to the Slapp suit (Strategic Litigation Against Public Participation) it brought against six South African environmental justice and community activists.

In her judgment, Judge Goliath found that the slew of defamation lawsuits filed by Mineral Commodities Limited (MRC) and its local subsidiary against the defendants was an abuse of the legal process.

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

One of the defendants, Tracey Davies, acknowledged that a battle had been won but said the war was just beginning.

“We won a fantastic victory, but this does not mean that the case is over.”

Davies was working as an attorney at the Centre for Environmental Rights when she was sued along with her five co-defendants, for defamation by MRC, for criticising the environmental impacts and legal compliance of its Tormin mineral sands mine on the West Coast.

Her comments were made during a lecture at the UCT’s Summer School in early 2017.

Davies said: “What we had in court was an interlocutory hearing to clear up a point of law. We have not yet had the case for defamation, but because of the judge’s ruling, if the matter does go to trial we will have a defence against it as a Slapp suit.

“I believe there is all likelihood that MRC will appeal the judgment and if they do, we’re looking at a process that will probably drag on for a year or two, and then only after that will the defamation case happen. This is exactly the sort of thing we are trying to avoid.”

Asked whether she thought MRC would appeal the judge’s decision, attorney for the six, Leanne Govindsamy said: “The short answer is that it is difficult to tell what MRC’s next steps will be. Given their conduct so far and the fact that they pursued the Slapp suits, it may well be that they decide to take the matter further.”

Lawyer for MRC, Ross Kudo said: “Normally, the onus to prove truth is on the defendant who made the offending statement. The defendants want the onus to be reversed in respect of trading corporations.”

Kudo said: “The deputy judge president ruled that a form of Slapp defence is now available in South Africa. This obviously has far-reaching ramifications. It would mean, if our understanding is correct, that plaintiffs in defamation cases will only be allowed to sue if they can persuade a court that their case is worthy and the interest they have in clearing their names outweighs the defendant’s right to criticise them.

“It needs to be emphasised that, contrary to several press reports, the question of whether our clients’ lawsuits meet that definition of a Slapp should not have been determined. That should happen at trial. Our clients’ intention is, however, to appeal against the court’s introduction of the Slapp defence into our law.”

According to civil society campaign group Asina Loyiko: “Slapp suits undermine constitutional rights of freedom of speech, freedom of the media and academic freedom. Slapp suits, which often take the form of defamation suits, have become a trend around the world, including in South Africa, and particularly in relation to environmental defenders.”

Cape Argus

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