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Tharisa Mine 'SLAPPs' environmental justice activists

- Lee-Anne Bruce

CALS is set to appear in the High Court in Mahikeng on 5 September representing two environmental justice activists threatened with a SLAPP suit

[UPDATE: 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 hearing was then postponed to November.]

The Centre for Applied Legal Studies (CALS) represents two environmental justice activists facing an interdict from Tharisa Mines in Marikana. We argue that this infringes on their rights to freedom of expression and constitutes strategic litigation against public participation – otherwise known as a ‘SLAPP’ suit. The matter was postponed to 13 June 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.

On Thursday, 13 June 2024, the High Court is set to hear the application for a final interdict. The activists are represented by the Centre for Applied Legal Studies (CALS). We argue that the activists are representing their community and attempting to exercise their environmental and civil rights. The application by the mine constitutes strategic litigation against public participation – otherwise known as a ‘SLAPP’ suit. The application seeks to intimidate and silence the activist from speaking out against various violations by the mine, which escalate on a daily basis.

In November 2022, the Constitutional Court 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, silence and distract environmental activists and take up their already limited resources. They often take the form of defamation cases which usually have no prospects of success and instead seek to discourage members of the public from exercising their rights.

This application falls 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 prove it has been defamed or suffered any loss or harm from statements made to the media and the interviews it relies on do not portray any false or misleading information. Furthermore it has failed to provide evidence of the unlawful incidents it seeks to interdict against 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. It is clear the mine seeks to silence those trying to hold them accountable for harm related to mining activities, such as damage to houses from blasting and contamination of drinking water, among others. These issues are the subject of a pending inquiry in respect of the Mine Health and Safety Act.

“The application violates 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 virtually on 5 September 2024.

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