The protracted legal battle over a R14.25 million defamation suit continues.
- Six South African activists and public interest lawyers have filed revised papers in their protracted legal battle over “SLAPP” defamation suits totalling R14.25 million.
- This follows two rulings in which the Constitutional Court for the first time set out standards for the defence to SLAPP actions, allowing defendants to amend their plea within 30 days.
- Lawyers for the mine plaintiffs say the defamation lawsuit will likely continue.
Six South African activists and public interest lawyers have filed amended papers in their long-running legal battle against a “SLAPP” defamation suit totalling R14.25 million brought by an Australian mining company.
The amendments follow two Constitutional Court decisions which, for the first time in South African legal history, established standards for the defence to SLAPP actions and also laid down limitations on defamation actions brought by commercial trading companies.
SLAPP stands for “Strategic Litigation Against Public Participation,” and it's a legal tactic often used by large corporations to file expensive defamation lawsuits against individuals who criticize them, in order to block, censor, intimidate, or silence their critics.
“A landmark decision [by the Constitutional Court] “…for the first time, this judgment recognises SLAPP actions as an abuse of process and places limits on trading companies' ability to seek damages for defamation. This judgment has important implications for activist protections and corporate rights and responsibilities in South Africa and abroad,” the Centre for Environmental Rights (CER), a non-profit activist lawyers group, said in a statement after the ruling was handed down in November.
Two of the six defendants were employed by CER as environmental lawyers at the time of the alleged defamation.
While neither of the Constitutional Court's decisions technically went in favor of the six defendants, they were not ordered to pay legal costs and were given 30 days to amend the two special pleas in the case.
The notice of intention to amend has been duly filed in the Western Cape High Court.
The defendants' first special defense concerns the Court's holding that a SLAPP defense must also take into account the substance of the defamation allegations because improper motive for bringing a lawsuit is insufficient to justify dismissal of the lawsuit.
The answer was amended to add the following brief sentence: “Plaintiffs are unlikely to succeed on their defamation claims against Defendants and/or on the relief they seek against Defendants.”
The defendants' second special defence – that “commercial” trading companies (such as the plaintiffs' two Australian mining companies) cannot seek general damages in a defamation action – has also been amended.
The Constitutional Court ruled that such companies could claim general damages, but not where the allegedly defamatory statements formed part of a public debate on matters of legitimate public interest, because granting such damages would amount to an unjustified restriction on the right to freedom of speech.
Defendants' amended Second Special Answer alleges that the first plaintiff's claim for damages is invalid because: the allegedly defamatory statements are part of public discourse and are a matter of public interest; Plaintiff seeks general damages and has not alleged to have suffered any property damages; [actual monetary] Losses arising from the allegedly defamatory statements.
“In these circumstances, the first plaintiff's claim for damages should be dismissed with costs,” they argue.
There is no immediate indication as to whether or when the plaintiffs will oppose the defendants' amendments to their special pleas.
Lawyers for both parties have kept their cards secret in this highly complex and drawn-out litigation, with the first documents filed more than five years ago.
Plaintiff's lawyer Ross Kudow said the defamation suit was ongoing and his client's future actions would be made clear during the course of the proceedings.
He pointed out that until now, all parties had agreed that issues brought before the court would be dealt with together for convenience, but in reality there are three defamation lawsuits, and the agreement to deal with them together may not reach the trial stage.
“In other words, each trial could be treated separately,” he said.
Kudo added that it is not clear at this point when the trial will be held: “It takes a long time to decide on a trial date, and depending on how various issues progress, it is highly likely that the trial will not be held this year.”
The six South African defendants are environmental lawyers Christine Redel, Tracey Davis and Cormac Cullinan, social worker John G. I. Clarke and community activists Mzamo Dlamini from the Wild Coast and Davin Cloete from West Coast Ratville.
They are alleged to have defamed the plaintiffs, Australian mining company Mineral Commodities Corporation (MRC) and its South African subsidiary Mineral Sands Resources, MRC's then-chairman Mark Caruso (now retired from MRC), and MRC's black empowerment partner Zamile Kunya.
The allegations stem from comments made at different times and places in books, interviews and presentations about the miners' controversial activities at the Pondoland coast in Xolobeni and the Tolmin mineral sand mine on the west coast.