By John Yeld on GroundUp
The Constitutional Court has discovered that six South Africans being collectively sued for R14.25-million in a defamation case introduced by Australian mining pursuits have achieved “substantial” success of their argument for having the ability to convey a “SLAPP” defence if and when the case goes to full trial.
This was regardless of two orders by the courtroom on Monday in respect of appeals that technically went in opposition to the six.
SLAPP is an acronym for Strategic Litigation Against Public Participation. It describes a authorized technique usually employed by large companies who convey defamation actions for enormous damages in opposition to individuals who criticise them as a way of discouraging, censoring, intimidating and silencing them.
Read judgment one and judgment two
The candidates on this case are Australian mining firm Mineral Commodities Ltd (MRC), its South African subsidiary Mineral Sands Resources, earlier MRC government chairman Mark Caruso, and MRC black empowerment companion Zamile Qunya.
The six respondents are environmental attorneys Christine Reddell, Tracey Davies and Cormac Cullinan, social employee John GI Clarke, and neighborhood activists Mzamo Dlamini of the Wild Coast and Davine Cloete from Lutzville on the West Coast. They are alleged to have defamed the mining pursuits in books, interviews and/or displays regarding the miners’ controversial actions on the Pondoland coast at Xolobeni and on the Tormin mineral sands mine on the West Coast.
When the case reached the Cape High Court in February final yr, Western Cape Deputy Judge President Patricia Goliath dominated that the motion of the Australian mining pursuits “matches the DNA of a SLAPP suit”, and that the defendants might elevate this as a “special plea” of their defence. If this particular plea was accepted by a trial courtroom, it might successfully finish the listening to earlier than any proof was led concerning the alleged defamation.
The candidates’ (the miners) filed an “exception” — a authorized problem — to this particular plea, but it surely was rejected by the Cape High Court.
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This rejection was challenged by the candidates (the miners) in a single of two linked appeals to the Constitutional Court.
The second enchantment to the Constitutional Court was introduced by the six respondents (the critics of the miners) – on this occasion now candidates – through which they appealed Judge President Goliath’s dismissal of their second particular plea. Their argument was that for-profit buying and selling companies are juristic individuals (versus pure individuals) and are usually not entitled to common damages for defamation with out first proving falsehood, wilfulness and precise quantifiable loss.
The Constitutional Court heard the 2 appeals in February this yr, when it reserved judgment.
Judgments, delivered on Monday, had been each penned by Justice Steven Majiedt who wrote that “the issues are plainly of manifest importance”. The first judgment was unanimous, whereas two judges dissented from the second judgment.
Citing the background, Justice Majiedt stated the defendants first particular plea – the SLAPP particular plea – was that the actions had been introduced “for the ulterior purpose of discouraging, censoring, intimidating and silencing the applicants and members of the public in relation to public criticism of the mining companies”. According to the mine critics, litigation introduced for an ulterior function was “patently impermissible” and constituted an abuse of course of”.
The “SLAPP” defence
The candidates (the miners) had “excepted” – argued in opposition to – this particular plea by contending that SLAPP fits didn’t exist in South African legislation and was due to this fact not a correct defence.
Justice Majiedt stated true SLAPP fits, as they function in different authorized jurisdictions elsewhere on the planet, had specific options “which require a more nuanced approach than simply ulterior purpose”.
“It seems that each events have used the time period ‘abuse of process’ too broadly and interchangeably with ulterior function and frivolous and vexatious proceedings …
“Abuse of process … can appear in different forms … These various forms, though often referred to as abuse of process, do not have one common feature. Not all of them ought really to be called abuse of process.”
The mine critics had supported their particular plea on the premise that improper motive alone was enough to warrant dismissal of the defamation motion, the decide stated. “That just isn’t so. The deserves additionally bear consideration. It follows that the primary particular plea does lack averments essential to fulfill the necessities of the SLAPP go well with defence. To this extent, the exception taken by the candidates holds good, and should 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 had been right that their critics’ first particular plea lacked averments [statements] essential to maintain a defence, the decide stated. “The first particular plea can’t be allowed to face. The exception should be upheld, and because of this, so too the enchantment. The respondents [the critics] should be afforded the chance to amend their first particular plea, ought to they need to take action.
“The respondents [the critics] have secured the recognition of the SLAPP suit defence, albeit not on the basis that they pleaded the defence, or supported the defence in their submissions. The respondents’ success is nevertheless, substantial and they deserve part of their costs.”
It was as much as Parliament to contemplate whether or not a extra complete, particular SLAPP go well with defence of the sort developed in Canada and the United States should be legislated in South Africa, the decide stated.
Justice Majiedt’s order confirmed that the miners’ “exception” to the primary particular plea was upheld, however he granted their critics 30 days to amend this plea.
He awarded the mine critics 60% of their authorized prices within the Constitutional Court software with each events to pay their very own prices within the High Court.
The critics’ second particular plea, styled the “corporate defamation special plea” was that the claims of the mining firms had been dangerous in legislation as a result of a for-profit firm had no declare for common damages in relation to defamation with out alleging and proving falsity, wilfulness and patrimonial loss.
Although upholding the High Court resolution and dismissing the six respondents’ enchantment relating to this second particular plea, Justice Majiedt, for almost all, dominated that each events had “attained some measure of success”.
His order states:
“It is declared that, save for where the [allegedly defamatory] speech forms part of public discourse on issues of public interest, and at the discretion of the court, trading corporations can claim general damages for defamation.”
No prices had been awarded for this second software.
A dissenting minority judgment regarding the second enchantment (by the mine critics) was penned by Justice David Unterhalter, with Justice Jody Kollapen concurring.
Justice Unterhalter stated there have been “many aspects” of the bulk judgment that he agreed with. However, elements that he disagreed with included “some doubt” that the constitutional proper to dignity conferred by the Constitution can’t be loved by a buying and selling company.
“There are aspects of reputation that are of great importance to a trading corporation but are not reflected as goodwill, not as a quantifiable asset of the firm. It is the firm’s social capital. It does not appear in the firm’s accounts. But it is nevertheless of value, seen most clearly when it is harmed and, sometimes, when that harm leads to ruination … In the result, I would dismiss the appeal with costs, including costs of two counsel,” wrote Justice Unterhalter.
This article was first printed on GroundUp
