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ConCourt Slapp ruling is set to give whistle-blowers more protection

ConCourt Slapp ruling is set to give whistle-blowers more protection

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A case of defamation brought against mining activists and environmental lawyers by Australian mining company Mineral Commodities (MRC) and its SA subsidiary, Mineral Sands for defamation following running battles over proposed titanium mining operations in Xolobeni, on the Wild Coast in the Eastern Cape, might yet offer more protection for whistle-blowers.

The Constitutional Court ruled that strategic litigation against public participation (Slapp) was abuse of the court process, and that the defendants amend their pleas.

The Constitutional Court ruled yesterday that Slapp, a litigation process that made its first appearance in South African courts in this matter, though prevalent in Canada and the US, is an abuse of process and matters proved to be under the process will be automatically thrown out of the local courts.

Yesterday’s judgment is a prelude to the defamation case, but only if it is proved that the matters brought to court are not an abuse of the court process.

Another determination is that the companies prove the case for defamation as an entity, as well as that the collective R14 million in damages demanded from the defendants were actual losses it suffered from utterances made by the defendants in the matter.

This is in a matter dating back to 2017 where the MRC, former MRC executive chairperson Mark Caruso, and MRC’s black empowerment partner Zamile Qunya is suing environmental lawyer Cormac Cullinan, as well as Tracey Davies and Christine Reddell, who were at the Centre for Environmental Rights at the time, social worker John Clarke, Wild Coast community activist Mzamo Dlamini, and journalist Davine Cloete.

The Xolobeni mine is a proposed titanium mine located in the Wild Coast region of the Eastern Cape. The proposed mine has reserves amounting to 348.7 million tonnes of ore, with a 5% titanium grading.

Community and environmental activists have opposed the titanium mining, citing environmental degradation and the fact that locals were hardly empowered by commercial activities taking place on their turf.

The matter has seen clashes with the government and community as Mineral Resources Minister Gwede Mantashe has tried to enforce the MRC's mining rights and activities.

Tensions have flared to the point of the 2016 murder of a community activist Sikhosiphi Bazooka Rhadebe, and Sifiso Ntshangase in 2020.

The miners claim the six made various defamatory statements about them more than five years ago over the mining proposal that has been under attack from locals and environmentalists for a decade.

The Cullinan environmental lawyer and one of the accused said, “The court’s decision applies to whistle-blowers, activists or any situation where people who speak out against companies or corporations are told to shut up or they would be sued for defamation. It gives more protection to people participating in issues of public interest. If proved that it is a Slapp suit then the matter will not be heard.

“In this case I doubt the mining company will want to be put on the stand to justify itself and the money it is demanding in compensation… This matter could be withdrawn in the near future,” they said.

In February last year, Western Cape High Court Judge Patricia Goliath ruled that the environmentalists were entitled to raise a special plea that the defamation cases were brought for an improper purpose, and that if proved the cases would be thrown out of court as an abuse of legal process.

The Constitutional Court yesterday granted leave to appeal the matters to its jurisdiction upheld that the Slapp suit was an abuse of process, and ordered that the defendants be afforded 30 days to amend their plea .


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