Australian mine critics score partial victory but defamation battle continues
Respondents alleged to have defamed the mining interests in books, interviews and/or presentations
To make out the defence requires more than the respondents have pleaded, but the defence commands a place in our law that the applicants have unsuccessfully resisted
The Constitutional Court has found that six South Africans being sued for R14.25m in a defamation case brought by Australian mining interests have achieved a “substantial” success.
They had argued for being able to bring a “Slapp” defence if and when the case goes to full trial.
This was despite two orders by the court on Monday in respect of appeals that technically went against the six.
Slapp is an acronym for Strategic Litigation Against Public Participation, a legal strategy often employed by big corporations who bring defamation actions against people who criticise them.
The applicants are Australian mining company Mineral Commodities Ltd (MRC), its South African subsidiary Mineral Sands Resources, MRC executive chair Mark Caruso, and MRC black empowerment partner Zamile Qunya.
The respondents are environmental lawyers Christine Reddell, Tracey Davies and Cormac Cullinan, social worker John GI Clarke, and community activists Mzamo Dlamini of the Wild Coast and Davine Cloete from Lutzville on the West Coast.
They are alleged to have defamed the mining interests in books, interviews and/or presentations relating to the miners’ controversial activities on the Pondoland coast at Xolobeni and at the Tormin mineral sands mine on the West Coast.
When the case reached the Cape High Court in February last year, Western Cape deputy Judge President Patricia Goliath ruled the Australian action “matches the DNA of a Slapp suit”, and that the defendants could raise this as a “special plea”.
The miners filed an “exception” to this plea, but it was rejected by the Cape High Court.
The miners then challenged this in one of two linked appeals to the Constitutional Court.
The second appeal to the Constitutional Court was brought by the six respondents against Judge Goliath’s dismissal of their second special plea.
They argued that corporations were juristic rather than natural persons, and were not entitled to damages for defamation without first proving falsehood, wilfulness and actual quantifiable loss.
The Constitutional Court handed down judgments the two appeals on Monday.
Both were written by Justice Steven Majiedt, who said “the issues are plainly of manifest importance”.
The first judgment was unanimous, while two judges dissented from the second judgment.
Judge Majiedt said the defendants’ Slapp special plea was that the actions were brought “for the ulterior purpose” of silencing them and members of the public from criticising the miners.
They argued that litigation brought for an ulterior purpose was “patently impermissible” and “constituted an abuse of process”.
The miners argued in turn that Slapp suits did not exist in South African law.
Justice Majiedt said true Slapp suits, as they operated elsewhere in the world, had particular features “which require a more nuanced approach than simply ulterior purpose”.
“It appears that both parties have used the term ‘abuse of process’ too broadly and interchangeably.”
The judge said the mine critics had supported their special plea on the basis that improper motive alone was sufficient to warrant dismissal of the defamation action.
“That is not so. The merits also bear consideration. It follows that the first special plea does lack averments necessary to satisfy the requirements of the Slapp suit defence. To this extent, the exception taken by the applicants holds good, and must be upheld.
“However, the substantive grounds upon which the exception was pleaded have not been sustained. I have found that the Slapp suit defence does form part of our law.
“To make out the defence requires more than the respondents have pleaded, but the defence commands a place in our law that the applicants have unsuccessfully resisted. This has consequences both for the order to be made and the question of costs.”
The miners were correct that their critics’ first special plea lacked averments necessary to sustain a defence, the judge said.
“The first special plea cannot be allowed to stand. The exception must be upheld, and for this reason, so too the appeal. The respondents [critics] must be afforded the opportunity to amend their first special plea.
“The respondents have secured the recognition of the Slapp suit defence, albeit not on the basis that they pleaded.”
Justice Majiedt’s order confirmed that the miners’ “exception” to the first special plea was upheld, but he granted their critics 30 days to amend this plea.
He awarded the mine critics 60% of their legal costs in the Constitutional Court application with both parties to pay their own costs in the high court.
The critics’ second special plea, styled the “corporate defamation special plea” was that the claims of the mining companies were bad in law because a for-profit company had no say for general damages in relation to defamation without proving falsity, wilfulness and patrimonial loss.
Though upholding the high court decision and dismissing the six respondents’ appeal regarding this second special plea, Justice Majiedt, for the majority, ruled that both parties had “attained some measure of success”.
No costs were awarded for this second application.