Defamation case aims to censor activists, says Budlender

Case has begun in Cape High Court involving three environmental lawyers and three activists who were critical of mines in Xolobeni and Lutzville

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Photo of a group of people

Archive photo of the orignal defendants in defamation suits brought by an Australian mining company (from left to right): environmental lawyer Cormac Cullinan; Lutzville community activist Davine Cloete; social worker, author and commentator John GI Clarke; former Centre for Environmental Rights’ (CER) attorney Tracey Davies; Riaan Oberholzer; Wild Coast community activist Mzamo Dlamini; Tossie Beukes and former CER attorney Christine Reddell. The claims against Beukes, a journalist, and Oberholzer, her publisher,were dropped.

Three defamation cases involving total damages claims of R14.25 million, brought by Australian mining interests against six South African critics, is “the clearest case of a SLAPP suit imaginable”. So argued Steven Budlender, part of the defence team appearing for the six – three attorneys and three activists – in the Western Cape High Court on Monday.

SLAPP is an acronym for Strategic Litigation Against Public Participation.

The hearing is taking place on Zoom. There were more than 60 participants in Monday’s hearing.

The cases revealed a ”pattern of conduct” on the part of the miners that was aimed at “censoring, silencing and intimidating”, not only the six defendants but also the general public, said Budlender.

He challenged the miners’ legal team to state outright whether they regarded it as legally permissible for a plaintiff to institute defamation action with the deliberate aim of silencing critics.

The miners’ legal team will have an opportunity to respond on Wednesday. But earlier, the leader of that team, Peter Hodes SC, told the court that SLAPP suits were defined as harassment by meritless action. However, the six defendants wanted the defamation action against them dismissed solely on the grounds that this had been brought with an ulterior motive or improper purpose, and without any of the merits of the alleged defamation being dealt with.

“How it can be suggested that this is a meritless case, we don’t know. Facts must be pleaded and proved to be sufficient to satisfy a defence. You won’t find too many of these facts in this special plea,” Hodes said.

He argued that the plaintiffs did not dispute the right to freedom of expression that was protected under the Constitution. However, there were Constitutional Court decisions confirming that this right did not enjoy superior status and was not unqualified. Other constitutional rights included the right to dignity that confirmed a person’s right to a reputation which could be protected by legal action for defamation.

“That’s what we are doing … we need to strike the right balance,” he argued. “A consideration of the merits must play some role.”

The issue of legal protection against SLAPP suits has not previously been directly argued before South African courts.

The case is not about the merits of the defamation claims but is an application brought by the plaintiffs to dismiss two special pleas by each of the defendants: “Abuse of process and strategic litigation against public participation” and “Failure to plead patrimonial loss and failure to plead falsity”.

The court was told at the start of proceedings that by agreement between all the parties, except Wits University’s Centre for Applied Legal Studies, which is one of two amicus curiae admitted as “Friends of the Court”, the plaintiffs’ objection to the second special plea would be upheld. Argument would only be on the first special plea.

Johan de Waal SC, also for the plaintiffs, said the defendants wanted a SLAPP law to be developed in South Africa that would only require a defendant to show malice on the part of a plaintiff bringing the defamation actions, as a successful defence.

“We say that doesn’t strike the right balance … Motive alone cannot constitute a defence in SLAPP suits… That is not done anywhere in the world as we understand it,” he said.

De Waal also argued against the submission by the University of Cape Town, admitted as one of two amicus curiae and advocating a “qualified privilege” for academic freedom.

UCT joined the case because part of the alleged defamation relates to statements made by three of the defendants (Reddell, Davies and Cloete) during a UCT Summer School course titled “Mining the Wild and the West coasts: ‘Development’ at what costs?” in January 2017.

But it was “far too tenuous” to describe the Summer School as constituting academic activity, De Waal argued. “Our lawsuit has got absolutely nothing to do with academic freedom. This is not what’s at stake in the present case.”

Western Cape Deputy Judge President Patricia Goliath asked De Waal whether people such as HIV activists speaking at universities would enjoy academic freedom. He replied: “We have no difficulty with the protection of activists but they are engaging in political speech and not academic speech – we submit that activism by its nature is not an academic activity.”

Budlender told the court that “fundamentally” the three defamation cases were about two Australian mining companies and their directors seeking R14.25 million in damages from three environmental attorneys and three community activists. But neither the companies nor the directors had pleaded that they had been financially harmed by what had occurred.

“There is a more profound and contextual point: this is really about what protection the law offers to activists and lawyers and the public who want to criticise monied individuals or corporations. You must do so knowing they have enough money to bankrupt you.”

If the defendants’ special pleas were not upheld, the matter would go to trial and his clients would be “sucked into extraordinarily long litigation”, Budlender said.

This was “the very point” of a SLAPP suit. “The trial itself is ruinous. You [the plaintiff] don’t have to win at the end of the day,” he argued.

Judge Goliath said she had been concerned when reading the trial papers to see words like “bribed”, “killing” and “exploitation”.

“Where must one draw the line in the language used in your presentation?” she asked.

Budlender replied that this was not a question that required an answer in this particular hearing. “That will be done in due course in a trial on the merits. We’re saying something else­ – the law should recognise a situation where you come to court not to vindicate your reputation but to terrorise everyone into not saying anything [about you] again. That is impermissible.”

Case background

The plaintiffs in the case are Perth-based Australian mining company Mineral Commodities Ltd (commonly referred to as MRC); its chairman, mining entrepreneur Mark Caruso; MRC’s South African subsidiary company Mineral Sands Resources (MSR); and one of the companies’ BEE partners, Zamile Qunya.

MRC has been attempting to develop a titanium mine at Xolobeni in Pondoland for more than a decade, and has also been operating a mineral sands mine, Tormin, on West Coast beaches near Lutzville since 2014 through the subsidiary MSR.

Between them, the plaintiffs are bringing three defamation cases involving total damages claims of R14.25 million (or if those claims fail, for public apologies) against six local defendants: Wild Coast community activist Mzamo Dlamini, environmental lawyer Cormac Cullinan, former Centre for Environmental Rights’ attorneys Christine Reddell and Tracey Davies, Lutzville (West Coast) community activist Davine Cloete, and social worker, author and commentator John GI Clarke.

The cases are all based on critical, and allegedly defamatory, comments and statements made variously by these six defendants in media articles, radio interviews, public lectures, social media posts, books, a letter to the mining minister and/or emails to mining analysts and investors between 2014 and 2018, all relating to the operations of the two mining companies and the associated behaviour of Caruso and Qunya.

TOPICS:  Freedom of Expression Mining MRC vs activists

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