This opinion piece appeared in the Business Day on 15 June , 2020. The original can be viewed here.

Anyone interested in freedom of speech should keep their eyes on the Western Cape High Court after a hearing that has potentially significant implications for freedom of expression and corporate accountability in SA.

Judge Patricia Goliath has reserved judgment in a case in which Australian mining company Mineral Sands Resources (MSR) is pursuing three R12.5m defamation cases against six individuals, seemingly for the sole purpose of intimidating them into silence. For the first time in an SA court the issue of strategic litigation against public participation (Slapp) will be aired.

Slapp suits are filed by well-resourced companies seeking significant financial damages for defamation from individuals or entities where there is no reasonable expectation that any damages awarded could possibly be met. Critics argue that this type of lawsuit is designed to intimidate individuals and activist organisations into silence because they simply do not have the financial resources or time to pursue long court processes.

Sharon Beder of the University of Wollongong in Australia describes the “chill effect” Slapp cases have, often resulting in “emotional stress, disillusionment and the diversion of time and energy” for defendants. She argues that Slapp suits are used to close down the political arena, thus subverting the political processes of free speech.

The defendants claim that MSR is using litigation to discourage, censor and intimidate with the purpose of ‘silencing [the] defendants in relation to public criticism’

To counter the grave threat of Slapps, 30 US states now have legislative provisions against them, as do four provinces in Canada and one state in Australia. Since 2018 pressure has been growing on the EU to enact anti-Slapp legislation.

The defamation allegations currently under review stem from statements made about MSR’s conduct by six individuals at different times and in different contexts, ranging from radio interviews to public lectures at the University of Cape Town. The main defamation cases are yet to be heard, as this week’s hearing only considers two special pleas made by the defendants. These special pleas deal with whether MSR’s defamation cases are indeed Slapp suits, and whether MSR can claim damages without proving that they have suffered financial losses due to the defendant’s statements, or without proving that the statements are untrue.

The defendants claim that MSR is using litigation to discourage, censor and intimidate with the purpose of “silencing [the] defendants in relation to public criticism”. They also claim that there is a wider purpose in the litigation, which is to intimidate and silence members of civil society, the media and the wider public regarding criticism of MSR.

The defendants state that the defamation cases are invalid because MSR has not stated that it has suffered financially due to what the defendants said, nor has MSR demonstrated that what was said was untrue. In addition, the defendants argue, MSR has no realistic expectation of recovering any damages even if it succeeds in court. It is therefore argued that MSR is abusing the court process and acting in violation of the right to freedom of expression under section 16 of the constitution.  

MSR has responded by stating that the defendants are looking to overturn section 34 of the constitution, which states that everyone has access to the courts to seek redress. It argues that the defendants are misleadingly focusing entirely on the alleged motives of MSR, at the cost of “exclusion of the merits of the plaintiffs’ claims” against the defendants.

Academic freedom

It states that it is not up to them to prove that a defamatory statement was made, but rather up to the defendant to prove that it was not made. Lastly, MSR argues that it is not up to the courts to decide on matters relating to Slapps as this should be decided by legislation in parliament.

UCT has been admitted as a friend of the court because it believes academic freedom issues are also at stake in the defamation cases. Another admitted friend of the court, the Centre for Applied Legal Studies, argues that the MSR defamation cases are examples of Slapp suits and wants the court to recognise them as such.

This high court hearing should be of particular interest to environmental groups and activists, as evidence illustrates that they have become the primary target of Slapps. However, anyone with an interest in healthy public debate should take note of Judge Goliath’s ruling, for there is growing international evidence that Slapps are being used against other activists, such as those defending labour rights or fighting against corruption, and against academics who enter into public debates.

One important aspect of our right to freedom of speech is on trial.