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Tharisa Mine 'SLAPPs' environmental activists with interdicts

- Lee-Anne Bruce

CALS represents several environmental justice activists threatened with interdicts by a mine in Marikana

The Centre for Applied Legal Studies (CALS) represents environmental justice activists facing interdicts from Tharisa Mines in Marikana. We argue that these cases infringe on their rights to freedom of expression and constitute strategic litigation against public participation – otherwise known as  ‘SLAPP’ suits. The matters have been postponed to 30 January 2024 for hearing before the High Court in Mahikeng.

In March this year, Tharisa Mine approached the High Court in Mahikeng for an urgent interdict against two environmental justice activists, Oridile Kgatea and Rodney Kotsedi. The mine sought to interdict the activists from making ‘defamatory’ statements, gathering at the mine’s premises or threatening anyone connected with the mine. Despite opposition to the urgent application, on 20 March 2024, the Court partially granted an interim interdict against the activists.

In September, the activists returned to court for the application for a final interdict – this time represented by the Centre for Applied Legal Studies (CALS). CALS successfully argued that the Department of Mineral and Petroleum Resources and the Department of Forestry, Fisheries and the Environment should be joined to the matter. The case was then postponed to November to allow this joinder. In November, we notified the Court of a similar interdict brought against another activist by Tharisa and the Court agreed that the matters should be consolidated and heard together.

We argue that these two applications brought by the mine constitute strategic litigation against public participation – otherwise known as ‘SLAPP’ suits. The interdicts seek to intimidate and silence the activists from speaking out against violations by the mine. The Constitutional Court has recognised the existence of SLAPP suits in our law as a form of abuse of court process. SLAPP suits are used around the world as a tactic to threaten and distract environmental activists and take up their already limited resources. They often have no prospects of success and instead seek instead to discourage members of the public from exercising their rights.

These interdicts fall squarely into the definition of a SLAPP suit as adopted by the Constitutional Court and amounts to an abuse of court process. The mine has failed to provide any evidence that it has been defamed or that there have been any unlawful incidents by the activists. Far from defaming the mine, the activists have instead attempted to vindicate their community’s rights to protest and to an environment not harmful to their health or wellbeing. Instead, it is clear that the mine seeks to silence those trying to hold them accountable for harm related to mining activities, such as damage to houses from blasting. These issues are the subject of a pending inquiry in respect of the Mine Health and Safety Act.

The High Court acknowledged this in its November order, noting that the “blasting operations by the applicant endanger life and limb” of the activists and instructing the mine to give warnings prior to engaging in any blasting operations near the Mmaditlhokwa area. The matter will be back in the High Court in Mahikeng on 30 January 2025.

“These applications violate the rights to freedom of expression and the right to protest guaranteed in the Constitution,” says Sithuthukile Mkhize, head of Civil & Political Justice at CALS. “The activists are entitled to raise awareness of human rights violations and to hold the mine accountable for failing to comply with the Constitution and other legislation. The application has no merit and stands to be dismissed as a SLAPP suit.”

“The mine operates on communal land and its operations continue to have a negative impact on the community of Mmaditlhokwa village,” says Mazi Choshane, attorney at CALS. “The community has lodged a number of complaints that blasting is taking place within 500 metres of their homes, causing damage to houses and also releasing dust which is a health and safety violation. It is these complaints which have led the mine to institute urgent legal proceedings against the community.”

This case is part of CALS’ ongoing campaign against SLAPP suits and activist victimisation in our strategic mission of contributing to the expansion of the agency of activists and other marginalised actors. CALS is represented in the matter by Adv Modise Shakung.

Read our founding papers in the matter here.

The matter will be heard in the High Court in Mahikeng on 30 January 2025.

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