Constitutional Court of South Africa | A bench comprising of Kollapen, Madlanga, Majiedt*, Mathopo, Mhlantla, Theron, Tshiqi, JJ., Mlambo and Unterhalter AJ., unanimously held that Strategic Litigation Against Public Participation (SLAAP) are on a rise and that the common law doctrine of abuse of process can accommodate such defence and in doing so, it makes sure that the Courts can “protect their own integrity by guarding over the use of their processes” and in doing so it safeguards the primary purpose of the court which is to make sure that the justice is done and is not abused for oblique purposes.

Factual Matrix

The applicants are in the business of mining, developing and exploring a sand project in the country where they were encountering fierce opposition with the respondents at the forefront. The case initiated after three defamation suits were filed by the applicants because of various defamatory statements by the respondents in the case as environmentalists claiming over 14 million in total. This brought about Strategic Litigation Against Public Participation Suit (SLAPP) as first special plea in which it was stated that the defamation suit was filed for the purpose of “discouraging, censoring, intimidating, and silencing” the environmentalists. They also relied upon a second special plea in the High Court where it was claimed that the for-profit company cannot claim damages in relation to defamation without proving falsity, wilfulness and patrimonial losses. The High Court dismissed the exception to SLAPP special plea for which the Applicants filed an appeal.

Applicant’s Contention

The applicants contended that only finding the ulterior motive on the part of the applicant in the case would result in dismissing the defamation suit filed by the applicant without any regard to the merits. The SLAPP Special Pleas filed by the respondents, as per the applicants, are contrary to the principals in MEC, Department of Co-operative Governance and Traditional Affairs v. Maphanga, [2019] ZASCA 147 that places a clear emphasis on the merits of the case and would ultimately be an abuse of the process.

It was also contended that the SLAAP Special Plea raised lacked the basic defence. and the respondents in this case have failed to satisfy the test in MEC for Health and Social Development, Gauteng v. DZ obo WZ, [2017] ZACC 37.

The applicants went on to submit that, “the international approach to the regulation of SLAPP suits, invoked by the respondents, is merits-centric and establishes that law reform on the topic is a complicated exercise best left to the Legislature.”

Respondent’s Contention

The respondents submitted that the applicants do not believe that they can recover the damages claimed by them for it being unreasonably high and the defamation suits so filed are to intimidate and discourage the public and media from criticising them. They went on to claim that the existing system of common law allows the court to consider the ulterior motive while assessing whether the litigant has abused the process of law.

The respondents contended that the reliance on MEC, Department of Co-operative Governance and Traditional Affairs v. Maphanga, [2019] ZASCA 147 is misplaced as the question of motive is not at the heart of that judgment. They also stated that the court need not decide whether the ulterior motive can be the reason enough to dismiss a suit but whether the defamation suits filed by the applicants can be considered as abuse of the process.

The respondents went on to state that their special pleas are lawful as per the common law and allowing the plea of the applicant would result in preclude the development of common law in this issue and would be against the judgment in H v. Fetal Assessment Centre, [2014] ZACC 34; (2015) 2 SA 193 (CC); (2015) 2 BCLR 127 (CC).

Court’s Opinion

The Court opined that the environmental matters are of public importance and the matter engages constitutional right of freedom of speech and granted the leave in the matter. The SLAPP Suits finds its origin in USA with an objective of discouraging political expression and commenting on public issues and limiting the protests. They are often initiated with the intention of wasting the resources of the other party and intimidate and scare them away. The most common people at the receiving ends of the defamation SLAPP suits are media houses, activists and environmentalists.

The Court held that the MEC, Department of Co-operative Governance and Traditional Affairs v Maphanga, [2019] ZASCA 147 does not support the case of the plaintiff and the reliance is misplaced because dictum in the case does not apply to all types of the abuse of process. The only matter of debate as noticed by the court while going through the judgments cited by both the parties was regarding the role of motive and merits in the case.

The Court observed the anti-SLAPP legislation of USA and Canada and noted that in most of those legislations, it was held that both motive and merits of the case plays an important role.

While observing the present condition in the country, the Court concluded that the common law system has enough space for SLAPP- Suit defence in the doctrine of abuse of process of law and stated that it “ensures that courts can protect their own integrity by guarding over the use of their processes”. The Court left it for the consideration of the legislature if there needs to be a specific law for the same.

The Court held that the first special plea of the respondents cannot stand as it lacks the basic averments necessary to establish a defence and left it to the respondents if they wish to amend their plea. The court ordered the applicants to bear 60% of the cost of respondents in the Court.

[Mineral Sands Resources (Pty) Ltd. v. Reddell, [2022] ZACC 37, decided on 14-11-2022]

Advocates who appeared in this case:

P Hodes, J de Waaland C Quinn (Kudo Law), Counsel for the Applicants;

G Budlender, S Budlender, S Kazee and E Cohen (Webber Wentzel), Counsel for the Respondents;

L Phasha and K Thobakgale (Centre for Applied Legal Studies), Counsel for first Amicus Curiae;

J Bhima and M Marongo (Lawyers for Human Rights), Counsel for second Amicus Curiae.

*Ritu Singh, Editorial Assistant has put this report together.

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