February 09, 2021, the South African High Court sitting at Western Cape delivered
a milestone ruling on the protection of Environmental Rights Defenders (ERDs) against
Strategic Litigation and against Public Participation (SLAPP) claims. In the
Mineral Sands Resources (PTY)LTD and
Others vs Reddel and Others case,
the High Court upheld the SLAPP suit defence raised by Environmental Rights
Defenders that the claim was actuated by
the desire to silence the voice of the defenders, thwart their freedom of
expression and abuse the court process.
The purpose of this article is to examine the decision by the High court and
make it more accessible and understandable to Environmental Rights Defenders in
Africa The article explains the ruling’s context and content. Further, it
explains what the decision mean to Environmental Rights Defenders. The article
argues that the ruling shapes how SLAPP suits should be dealt with in Africa as
the ruling carries some lessons for ERDs and Judiciaries in Africa.
and Content of the Case
suits happens to be one of the major emerging threats to environmental rights
activism and participation in Africa and the world at large. This is becoming more
evident in Africa in the face of globalisation and multinational companies in
the Extractives Industries, Oil and Gas. Businesses prefer to operate in an
environment where they are not held accountable. When questioned the recent
trend has been to abuse the court process through bringing in SLAPP suits. SLAPP suits have been defined as ‘’meritless
or exaggerated lawsuits intended to intimidate civil society advocates, human
rights defenders, journalists, academics, and individuals as well as organisations
acting in the public interests.” They
are litigated into silence by corporations and often drained of their resources.
this case two mining companies that are involved in the exploration and
development of major mineral sands in South Africa (Tormin Mineral Sands project
and Xolobeni Mineral Sands Project) sued ERDS for defamation. The Environmental
Rights Defenders sued are Reddell, Davies and Cullanan who are environmental
lawyers. The company also sued Cloete, Dlamini and Clarke who are community
activists. The ERDS were sued for defamation in the sum of R 14,25 million,
alternatively the publication of apologies. The two companies alleged that the defendant’s
activists throughout their advocacy initiatives exhibited in the form of
lectures, discussion panels, books, and opinions in which they were criticizing
the mining operations and activities of the companies uttered defamatory statements.
In essence, the companies wanted monetary compensation or an apology for being
criticized by the activists. The ERDS in turn raised two defences to the
claims. In their first defence the ERDS indicated that the claims raised by the
mining companies was an abuse of court process motivated by the desire to
silence them from public participation. They further indicated that the claim
was meant to violate their freedom of speech. The second defence raised was that
the claim by the mining companies was bad in law. The court dismissed the
second defence and dealt comprehensively with the second defence. It is also
the second defence that is the centre of this discussion.
Ruling of the Court and the Protection of Environmental Rights Defenders
Court came to a finding that this litigation was a well calculated strategy by
the mining companies to silence the activists. The Court highlighted that damages
claimed by the mining companies were not realistic and exorbitant as the was
never an intention to get monetary compensation but to
put a financial burden on the defenders. The court further noted that public
participation is a key component of any democracy and that individuals and Non-governmental
organisations must have the freedom to debate and air their views on environmental
issues and sustainable development in their society. The High Court stressed
the point that corporates should not be allowed to use the law as a weapon to silence
citizens from public participation. In the end the court was satisfied that the
claim by the corporates fits the DNA of a SLAPP suit.
decision constitutes a watershed for the protection of environmental rights
defenders against the SLAPP suits. This decision shows progressive
jurisprudential development in recent times on how courts should deal with SLAPP
suits. There is no doubt that the ruling constitutes a leap forward in shaping
the narrative which protection courts should give to ERDS. If environmental rights defenders are to be
protected there is need to strike a balance between the need to ensure access
to justice and the promotion of rights such as freedom of expression and public
participation. Environmental rights defenders thrive in debates and public
participation. They thrive in an environment where criticism and scrutiny of
businesses on public interest issues is tolerated.
judgment also sets the tone for corporations who would in the future use SLAPPP
suits to silence activists. It deters corporations from the abuse of the court
process for the purposes of violating the exercise of freedom of expression. The
ruling serves as lesson to corporates to tolerate and accept criticism from the
pubic as it is part of a democratic society. Corporates should create safe places
that allow environmental rights defenders to thrive.
High court in this case indicated that South Africa does not have a piece of
legislation that specifically protects Environmental rights defenders against SLAPP
suits. In its ruling the court highlighted that this can be exploited. Most
African countries do not have SLAPP suit specific legal framework which exposes
environmental rights defenders to abuse by corporations. This is particularly
sad in Africa in this age of globalisation and multinational companies who have
all the financial resources to take on SLAPP suits. It is hoped that African
states will heed to the call by the court in this case and enact legislation to
protect defenders. Such kind of legislation will enhance freedom of expression
and participation. It will foster a culture of public debates and good
governance as citizens will not fear being SLAPPED.
and large, the article has briefly outlined the lessons that can be derived
from the South African High Court decision. This case is a step in the right direction,
and it is hoped that our courts in Africa will take a cue from this case.
Ncube is a public interest environmental justice and human rights lawyer from
Zimbabwe. He is currently studying for his LLM at the beautiful and prestigious
University of Sussex in UK courtesy of arguably the best scholarship in the world
(Chevening). His interested in environmental law, climate change and Business
and Human rights.
 Mineral Sands (n1) 21.