In February of 2021, the Western Cape High Court heard an application brought by Australian mining company Minerals Commodities Limited (“MCR”) and its South African subsidiary, Mineral Sands Resources (“MSR”). The two mining companies have been engaged in a 5-year defamation court battle against 6 activist and public interest lawyers. MCR and MSR accused the 6 individuals of defamation following their public criticism of MCR’s conduct relating to a proposed mine at Xolobeni on South Africa’s Wild Coast, and MSR’s conduct at its Tormin mine on the West Coast of South Africa.
In response to the defamation claims, the Activists argued that the case brought against them by the mining companies amounted to Strategic Litigation Against Public Participation, or a “SLAPP” suit, which represented an abuse of court processes. Upon hearing the application, the High Court found in favour of the Activists, stating that the defamation lawsuits brought by the mining giants sought to “weaponise our legal system against the ordinary citizen and activist in order to intimidate and silence them”.
In February 2022, the Constitutional Court heard a direct appeal against the High Court Judgment. In the hearing before the Constitutional Court, counsel for MCR and MSR argued that our law does not formally recognise the SLAPP suit defence and, even if such a defence were to be recognised, it should be formally constructed by the legislature and not the courts. Furthermore, argument was put forward that the mining companies have a constitutionally enshrined right of access to the courts. That the opposing side argued an ulterior motive does not invalidate the claim of the mining companies, and such an argument is therefore insufficient for dismissal on the grounds of abuse of process.
Counsel for the respondents, on the other hand, argued that “the purposes of the court processes are to establish the truth and enable parties to vindicate their rights. It is an abuse of those processes to use them to achieve an ulterior purpose”. The basis of this argument is that the SLAPP suite defence already exists in our common law in the abuse of process doctrine, and that if it were not specifically recognised, it is well within the ambit of the court to develop the common law to do so. As the abuse of court process is a court-created doctrine, the legislature is not required to introduce legislation to give effect to it. Counsel further argued that the mining companies had failed to prove any damages suffered as a result of the alleged defamation, highlighting their ulterior motive to censor and intimidate the respondents.
The Constitutional Court reserved judgement in February 2022, which was handed down on 14 November 2022. In its judgment the Constitutional Court unanimously held that the main issue for determination was whether the common law doctrine of abuse of process currently provides for a SLAPP suit defence and, if not, whether the law ought to be developed.
The Court began its discussion by accepting the definition of abuse of process set out in Phillips v Botha (1998) which held that –
“[t]he term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse for this purpose.”
Following the rationale of this definition, the Court noted several categories of abuse of process currently recognised in our law, namely –
- a situation where there is gross abuse of the procedure employed by a litigant, to the extent that the court, as a rare instance, will dismiss the claim without any regard to the merits;
- frivolous and vexatious litigation, wherein the merits must be considered in order to determine whether the court is being assailed by a further frivolous claim or something with arguable merits; and
- those abuses that seek to utilise criminal, public and/or private procedural rules for an ulterior motive.
The present case, however, represented a previously undocumented abuse of process, namely whether the prosecution is being brought in the public interest and not to pursue some private objective. The question before the Court was therefore concerned the legality of the proceedings and the permissible statutory purpose for which a prosecution may be instituted. The Court ultimately found that abusive litigation, brought not to vindicate the plaintiff’s right to a good name and reputation, but to silence the defendant or to burden the defendant in a manner that causes grave harm to the defendant’s right of expression and the public interest would fall within the common law doctrine of abuse of process.
The determination of such an abuse would, accordingly, involve a consideration of both the merits and the motive for bringing the matter. In this regard, the Court laid out the test the Activists would have to meet in order to establish their SLAPP defence, namely that the defamation claim brought by the mining companies –
- was an abuse of process of court;
- was not brought to vindicate a right;
- amounted to the use of court process to achieve an improper end and to use litigation to cause the defendants financial and/or other prejudice in order to silence them; and
- violated, or was likely to violate, the right to freedom of expression entrenched in section 16 of the Constitution in a material way.
Upon determining the test for the SLAPP suit defence, the Court was required to consider whether the Activists had met the criteria necessary to refute the defamation claim brought by the mining companies. In this regard, however, the Court held that the Activists’ SLAPP defence, as pleaded, was based on averments that the mining company instituted its claim for an ulterior purpose only, and failed to plead the merits required to support their allegations. In the light of that finding, the Court held that the Activist’s pleas lacked the averments necessary to satisfy the requirements of the SLAPP suit defence, with the result that the that the appeal instituted by MCR and MSR had to be upheld.
While the Activists failed to establish a successful SLAPP suit defence in the present case, the decision by the Constitutional Court represents a landmark judgment, which has secured the recognition of the SLAPP suit defence in South African Law. The Court further concluded by stating that, since the SLAPP suit defence fell within the ambit of the established principles relating to abuse of process, there was no need to engage in a determination of the development of the law in this regard. The Court noted, however, that it was for Parliament to consider whether a more comprehensive, specific SLAPP suit defence, ought to be legislated.
