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Constitutional Court rules 'SLAPP' suit defence forms part of our law

- Lee-Anne Bruce

CALS welcomes the Court's finding that abuse of process can accommodate a SLAPP suit defence and calls for Parliament to enact greater protections for activists

On 14 November 2022, the Constitutional Court handed down a landmark judgment ruling that the law recognises a special defence to strategic litigation against public participation or ‘SLAPP’ suits. CALS intervened in the matter as a friend of the court to assist with submissions  on the definition and treatment of SLAPP suits in other jurisdictions and the legal tests used to identify this form of malicious litigation.

In February this year, the Constitutional Court heard the matter on appeal directly from the Western Cape High Court. The matter concerned three defamation suits brought by mining companies Mineral Sands Resources and Mineral Commodities Limited, claiming damages of R14,25 million against environmental lawyers and activists. The defendants raised a special plea that the defamation claims constituted an abuse of court process brought for no reason other than to threaten them and deter other members of the public from speaking out. The mining companies raised an exception to the special plea.

In the Western Cape High Court, Deputy Judge President Goliath upheld the defendants’ special plea and agreed that the defamation claims amounted to an abuse of court process to intimidate and silence activists. The mining companies subsequently approached the Constitutional Court on appeal and the matter was heard earlier this year. The Centre for Applied Legal Studies (CALS) intervened in the matter as a friend of the court, arguing that the lawsuits are examples of strategic litigation against public participation or ‘SLAPP’ suits – meritless claims brought to threaten those who bring to light matters of public concern. We also made submissions on the test for and treatment of SLAPP suits in other jurisdictions.

On 14 November 2022, the Constitutional Court handed down a landmark judgment which confirms that our law recognises a special defence against SLAPP suits. Justice Majiedt found that “abusive litigation would fall within the common law doctrine of abuse of court process” which would “consist of a consideration of both the merits and the motives for bringing the case”.

The Court recognised the serious consequences of strategic litigation against public participation for those seeking to exercise their rights to freedom of expression and access to courts. “SLAPP suits appear to be on the increase here, as is the case globally. The finding here that the common law doctrine of abuse of process can accommodate the SLAPP suit defence ensures that courts can protect their own integrity by guarding over the use of their processes. And, ultimately it ensures that the law serves its primary purpose, to see that justice is done, and not to be abused for odious, ulterior purposes.”

Justice Majiedt further thanked CALS for our written and oral submissions, which we hope were of assistance to the Court in determining this important matter. CALS sends its gratitude to the counsel team, Lerato Phasha and Keamogetswe Thobakgale.

“We welcome the Court’s finding that a SLAPP suit defence forms part of our law,” says Thandeka Kathi, attorney at CALS. “This takes us one step further in protecting activists, lawyers and journalists threatened for speaking out about matters of public concern. We continue to advocate for Parliament to consider enacting legislation which will provide comprehensive protection for human rights defenders.”

Find a copy of the judgment here.

This case is part of an ongoing campaign against SLAPP suits and activist victimisation in our strategic mission of contributing to the expansion of the agency of activists and marginalised actors. CALS is currently conducting research in a follow up to our 2018 report ‘Victimisation Experiences of Activists in South Africa’ as well as engaging in litigation supporting human rights monitors in the Western Cape and human rights defenders in the Eastern Cape and the Free State.

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