Helen Duigan outside the North Gauteng High Court in Pretoria in 2010 after testifying during the Blair Atholl development case.  
   Masi Losi
Helen Duigan outside the North Gauteng High Court in Pretoria in 2010 after testifying during the Blair Atholl development case. 
 Masi Losi

Environmentalists winning battle in lawsuits

By Sheree Bega Time of article published Jun 8, 2019

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Little left in Gauteng is pristine, says conservationist Helen Duigan, but the scenic stretch of land she calls home, comes close.

Straddling the Jukskei, Hennops and Crocodile rivers, the rocky Schurveberg Mountain marks its northern reaches, and the Renosterkop stands guard in the north-west.

“It’s absolutely beautiful,” enthuses Duigan, of the area that borders the Cradle of Humankind World Heritage Site. “It’s one of the few really open beautiful places left in Gauteng and because it’s privately-owned people are prepared to fight for it.”

That’s what a resolute Duigan, as the chairperson of the Rhenosterspruit Nature Conservancy, did in 2005, with three fellow activists, Mervyn Gaylard, Lise Essberger and Arthur Barnes.

They challenged property developer Wraypex over the development of the Blair Atholl luxury estate, a Gary Player-signature golf course and hotel development, near Lanseria, neighbouring the conservancy. Wraypex, in turn, slapped them with a R170million defamation and damages lawsuit.

In what was widely regarded as a test case for SLAPP suits (strategic litigation against public participation) in South Africa, the case would drag on for years, but in 2010 Judge Stanley Sapire threw out Wraypex’s claim.

“For five years, that case consumed our lives. It was like being caught in a spider’s web ... I remember how one of the Green Scorpions phoned me absolutely delighted (with the judgment) because of the number of cases they came across where developers said to people, ‘we’re going to do to you what Wrapyex did to those people’.”

Nine years later, Duigan salutes six fellow environmental activists who have been sued by Australian mining firm Mineral Commodities Ltd (MRC) and its local subsidiary, Mineral Sands Resources, and Zamile Qunya, its BEE partner, to the tune of R9.25m.

The defamation suits, which have been described as SLAPP suits, are based on comments allegedly critical of MRC and its local subsidiaries - including statements made during a lecture at the UCT Summer School in 2017. 

These centred on the firm’s Tormin mining operation at Lutzville on the West Coast, and its hugely controversial proposed titanium-mining operation at Xolobeni in Pondoland on the Wild Coast, which the Amadiba Crisis Committee (ACC) has fought for over a decade. In 2016, local anti-mining activist Sikhosiphi “Bazooka” Rhadebe was assassinated, but no arrests have been made.

The Xolobeni Mineral Sands, Kwanyana Block. The stones and cobbles lying exposed are in fact artefacts left by Stone Age hominids dating back to the Sangoan Era, some 300 000 to 500 000 years ago.

 "I have the most extraordinary respect for these people and their unbelievable courage - their lives depend on this often, and we didn't have that," says Duigan. "Some have been killed. They've been harangued, pushed aside and made to look stupid for stopping development. Development can be such a dirty word. It looks good on paper, but the results are often so devastating and destructive."  

The six being sued are Christine Redell and Tracey Davies, both former attorneys at the Centre for Environmental Rights (CER); Davine Cloete, a Lutzville community activist; environmental attorney Cormac Cullinan; ACC founder member Mzamo Dlamini; and social worker, filmmaker and writer John Clarke, who is being sued for R7.5m. 

"My advice to these courageous people is to please, if at all possible, not give up and for the general public to be far more supportive," says Duigan. "I think there's often a feeling of being isolated, that you're fighting this fight and the world goes on ... you're up against these mighty companies and crooked politicians."   

SLAPPs, which experts say often take the form of defamation suits, have become a global trend, particularly in relation to environmental defenders.

Dr Esther Gumboh, a researcher at the Centre for Applied Legal Studies (CALS), which together with the universities of Cape Town and Wits, have intervened in the MRC matter as amici curiae, says they are on the rise in SA too.

“There is more public awareness now of what SLAPP suits are and more organisations are speaking out against them.”

The failure of corporates to comply with their human rights obligations and the rise of activists against developers to hold them accountable has provided fertile ground.

“In this struggle for a proper balance between the rights of corporates and those of activists, often their right to freedom of expression, the former resort to using the courts to silence and intimidate the latter,” she says

“The effect is to suppress and intimidate activists and activism through the threat of litigation. They undermine constitutional rights such as the rights of freedom of speech and freedom of the media. These suits also come with or threaten burdensome financial consequences that add further disincentive against activism.”

Often, the courts rule in favour of activists using the ordinary rules of law. “The fact is that in most of these cases, the corporate does not have a strong case to present. For instance, in defamation cases, what you find is that the activists has a clear defence that undermines the corporate’s case.”

The MRC defamation case, she believes, is a “classic SLAPP case”, which is “directed at muzzling criticism” against it. “It presents another opportunity for our courts to expose this ugly tactic and once again defend activists in this country.”

While MRC did not respond to the Saturday Star, its executive chairman Mark Caruso, previously told the newspaper that the “CER and certain individuals have made defamatory and unsubstantiated remarks aimed directly at diminishing the company’s core values of ensuring responsible environmental impact and high social and economic value for the local communities.

“The company acknowledges the right to the freedom of speech and that it must subject itself to public scrutiny. The individuals and the organisations who have made these remarks have overstepped the boundaries of responsibility, truth and fairness. The company enjoys the same right to defend itself and owes a duty to its stakeholders and employees not to permit these remarks to simply go unanswered.”

Recently, a new joint advocacy campaign called Asina Loyiko (We do not fear): United Against Corporate Bullying, was launched by civil society organisations to resist these lawsuits.

The US, Canada, Australia and the Philippines have adopted legislation or procedural rules to protect against SLAPP suits and SA should enact similar legislation or rules to protect NGOs and activists from these “meritless” and “vexatious” lawsuits, say activists.

Melissa Fourie, the executive director of the CER, says it’s also seen the use of litigation, particularly interdicts used against mining-affected communities.

“So it is a mixed bag, but on balance I would say the cases have favoured protection of activists and freedom of speech. Needless to say, that is the result we wish to achieve in the SLAPP suits against our two former attorneys - and in all the MRC SLAPP suits. SLAPP suits really are a pernicious attack from corporates on civil society, and it is of vital importance to our whole democracy that we protect activists’ freedom of speech.”

Clarke, who has worked with the Amadiba community for over a decade, faces a raft of defamation claims from MRC totalling R7.5m.  

One is for how he describes himself on his YouTube channel. It reads: "I am a social worker, and a writer who seeks to 'write' the wrongs of the world. My weapon of choice is my pen but over the past 10 years circumstances have conspired to put another weapon in my hands, a camera. The first commitment of a professional social worker is to ensure human rights acquire meaning, especially when human rights are at odds with mining rights. Since 2006, my work has focused on supporting the efforts of the Amadiba people of the Pondoland Wild Coast of South Africa to claim their rights in the face of the efforts of an Australian mining company to subvert opposition and co-opt them into surrendering their ancestral lands for a coastal dune mining operation to extract titanium and other heavy mineral deposits. This is what these films are mostly about." 

Clarke says that although the claims against him amount to considerably more than all the others combined, they are "hardly a measure of the issue at all" - he has no money, and few assets. 

“The fundamental issues from my professional perspective is for human rights to acquire grounded meaning. I was greatly inspired by Eleanor Roosevelt and Mary Robinson to see what a social worker could contribute to promoting a human rights culture, as a basis for dealing with conflict.”

Davies, formerly of the CER, says: “Nobody likes to be sued, and the amount of time and energy these types of cases consume is frustrating and often stressful, which is of course precisely why they are brought. But if this is the price we have to pay to protect our magnificent country and its incredible people, then so be it.

"Civil society has played such a vital role in keeping South Africa from falling off a cliff edge: our right to speak out against abuses of power and failures of accountability is the cornerstone of our Constitutional democracy and nothing will stop us from doing that."

The Saturday Star

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