Tuesday’s judgment within the mining firm case gives key insights into tips on how to recognise a SLAPP swimsuit.
First revealed in GroundUp.
On 9 February 2021, the Western Cape excessive courtroom delivered an important judgment for all activists and NGOs who discover themselves on the receiving finish of highly effective firms making an attempt to throw their weight round.
Regardless of a dedication to human rights by nations internationally, activists face backlash for standing as much as company (and state) energy. Within the worst circumstances, activists danger their lives when claiming their rights. The assassination in October 2020 of Fikile Ntshangase, who opposed plans to increase the Somkhele coal mine in KwaZulu-Natal, has been a stark reminder of this. However company bullying can take many varieties, together with harassment on social media, surveillance, assault, unreasonable clampdown on protest, makes an attempt to break an activist’s repute, and most not too long ago, SLAPP fits.
The time period “SLAPP” stands for Strategic Litigation Towards Public Participation. Primarily, a SLAPP swimsuit is when a strong entity with a number of assets abuses authorized processes so as to silence inconvenient opposition. The commonest type of SLAPP fits are claims for defamation. For instance, a mining firm would possibly sue an activist for defamation when the corporate doesn’t actually consider that the defamation case will succeed as a result of it hopes to intimidate the activist into shutting up.
One other motivation behind SLAPP fits is that they pressure activists to redirect their assets away from their activism in direction of defending a defamation declare. It is for that reason that SLAPP fits are sometimes launched in opposition to human rights attorneys within the hopes of undermining no matter authorized work they had been doing which incurred the wrath of the corporate within the first place.
Tuesday’s judgment reminds firms that they can not use the regulation to silence activists.
In 2017, mining firm Mineral Sands Sources (MSR) launched a SLAPP swimsuit in opposition to attorneys Christine Reddell and Tracey Davies (previously from the Centre for Environmental Rights), and neighborhood activist Davine Cloete. MSR is a subsidiary of Mineral Sources Commodities (MRC), the Australian firm which has endured in its controversial makes an attempt to mine titanium in Xolobeni within the Jap Cape, regardless of sturdy resistance from the local people there.
In a presentation made at a summer season college on mining, run by the College of Cape City, Reddell, Davies and Cloete mentioned one other of MSR’s operations — the Tormin mine on the West Coast close to Lutzville. The college had invited Reddell, Davies and Cloete to take part as a result of the summer season college sought to include the sensible experiences of civil society into the curriculum. For his or her bother, Reddell and Davies had been every sued for R250,000 in damages and Cloete for R750,000.
This isn’t the one SLAPP swimsuit launched by MRC. MRC can also be claiming thousands and thousands of rands from Cape City lawyer Cormac Cullinan, Amadiba Disaster Committee activist Mzamo Dlamini, and social employee John Clarke.
Tuesday’s judgment by Western Cape Deputy Choose President Patricia Goliath is critical for a number of causes. Firstly, the judgment confirms the essential position performed by activists in holding firms to account, discovering that “[t]he social and financial energy of enormous buying and selling firms renders it critically essential that they be open to public scrutiny… In situations the place corporates may very well be the primary reason behind damaging and harmful behaviour of the surroundings and biodiversity, civil society must be allowed to confront and restrain such behaviour.”
Secondly, it explicitly makes use of the time period SLAPP swimsuit and denounces SLAPP fits as a type of company bullying. Naming SLAPP fits and characterising them as inconsistent with our constitutional framework, lends weight to the efforts of anybody pushing again in opposition to a SLAPP swimsuit in future.
Thirdly, the judgment gives key insights into tips on how to recognise a SLAPP swimsuit. It identifies the next traits: a SLAPP swimsuit is often disguised as an abnormal civil declare comparable to defamation; a SLAPP swimsuit is often instigated by an entity with appreciable assets which is looking for to guard its enterprise or financial pursuits; a SLAPP swimsuit usually targets an activist, neighborhood group or NGO advancing a social curiosity fairly than a private one; a SLAPP swimsuit goals to silence or punish these difficult highly effective corporates; a SLAPP swimsuit tries to take advantage of inequalities in energy and assets; and, exorbitant damages are usually claimed in a SLAPP swimsuit, though typically accompanied by an alternate request for an apology (demonstrating that the instigator doesn’t significantly consider that there’s a life like prospect of recovering the damages it seeks).
Lastly, the judgment confirms that whereas SLAPP fits are an abuse of the regulation, the regulation itself gives methods to counter them. Within the phrases of choose Goliath, “[c]orporations shouldn’t be allowed to weaponise our authorized system in opposition to the abnormal citizen and activists so as to intimidate and silence them”.
By accepting “the SLAPP swimsuit defence”, the courtroom has supplied future targets of SLAPP fits with a authorized treatment to counter them. Anybody on the receiving finish of a bogus defamation declare designed to silence them can now defend themselves by arguing that the case is a SLAPP swimsuit.
Activists working in South Africa are brave, organised and resilient. For so long as poverty, inequality and different types of human rights violations persist, they may proceed to talk fact to energy. And for so long as activists proceed to try this, they may face backlash as a consequence. Now, when that backlash comes within the type of a SLAPP swimsuit, activists have a authorized treatment. DM
Chamberlain is Senior Lecturer at Wits Legislation Faculty.
Views expressed should not essentially GroundUp’s.