Activists unite to fight corporate SLAPP suits

Legal suits designed to drain the resources of citizens and rights groups, known as strategic litigation against public participation, work to silence those most affected by big business.

A “SLAPP suit” is a term coined in the United States to describe the use of litigation to intimidate or strike fear into the hearts of social and environmental activists – thereby stifling public debate and scrutiny of mining and resource projects by powerful corporate interests. The acronym is derived from the term Strategic Litigation Against Public Participation (SLAPP).

Social activist Sheila Berry felt like she had been given a sharp slap across the face when she received a lawyer’s letter recently.

The letter warned that she could be hauled in front of the High Court of South Africa for making “defamatory” statements about a coal mining company in KwaZulu-Natal.

Johannesburg social worker John Clarke also knows what it is like to be “SLAPPed”. A different group of lawyers sent a series of legal letters to him, demanding over R7 million in damages for his allegedly defamatory claims about the activities of an Australian company, which hopes to mine the ancestral land of the Amadiba community near Xolobeni on the Eastern Cape Wild Coast.

Berry and Clarke are not alone.

Amadiba Crisis Committee member Mzamo Dlamini is also being sued by the Australians (for R2 million), along with three Cape Town environmental lawyers Cormac Cullinan (R1 million), Tracey Davies and Christine Reddell (R250 000 each) and West Coast activist Davine Cloete (R750 000).

This is before the mounting legal costs of senior counsel and attorneys in a case that has not reached court for trial yet, more than two years after the actions were instituted in 2017 by Perth-based company Mineral Commodities Ltd (MRC) or its subsidiaries.

All of the activists and attorneys are likely to be tied up in legal knots for months, if not years – though several have been buoyed by offers of pro bono assistance from colleagues in the legal fraternity.

Activists pay the ultimate price

But there are other activists who have already paid a much higher price while standing up against corporate plans to exploit the country’s mineral wealth and natural resources.

On 22 March 2016, Sikhosiphi “Bazooka” Radebe was gunned down at his home at Mzamba near the Wild Coast Sun casino resort by two men wearing police uniforms.

Radebe, a former member of uMkhonto we Sizwe and a powerful figure in his community, was one of the most vocal opponents of the proposed Australian mining venture at Xolobeni, and a plan to develop a new toll road through his community.

More than three years later, no one has been arrested.

Soon after the murder, the MRC mining company expressed condolences and denied any role in Radebe’s killing, also announcing its intention to divest its shareholding in the Xolobeni venture – though recent financial statements by the company indicate that MRC has yet to divest and retains a keen interest in mining the area.

Cullinan says he cannot point fingers, but “regardless of who shot him, the fact is that Bazooka would not have died were it not for the mining proposal”.

Advocacy against intimidation

Now, following an apparent rise in the use of SLAPP suits in South Africa and other nations to silence critics of mining and resource projects, the Centre for Environmental Rights (CER) has launched a solidarity and advocacy campaign known as Asina Loyiko (We Have No Fear) to defend freedom of speech and to hold mining and resource corporations accountable for any unscrupulous behaviour.

Launching the campaign at a briefing in Cape Town on 28 May, the centre’s director and senior attorney Melissa Fourie noted that SLAPP suits and other intimidatory tactics typically target organisations and community activists, journalists, whistleblowers and everyday people who exercise their constitutional rights to freedom of speech and a healthy environment.

“SLAPPs masquerade as ordinary civil cases, but their true purpose is to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition.”

Freedom of speech, she noted, “used to be something that was so close to the ruling party”.

“Civil society organisations and community activists are a vital part of our democracy and crucial in keeping corporates accountable. This is particularly so when it comes to defending our natural resources, and particularly where our regulatory agencies are under-resourced, or politically compromised. We will not be silenced, and we will defend the right to speak the truth, freely, and in the public interest.”

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Fourie said though most SLAPP suits were eventually dismissed, they did not have to succeed to meet their goal.

“The goal of a SLAPP is not justice, but retaliation. Even a meritless lawsuit can drag on for years, draining a defendant’s resources through costly and time-consuming litigation.”

Attorney Tracey Davies said while she was fortunate to have been provided with free legal assistance, the civil case for damages remained a “legal nightmare … a horrible, draining process”.

Davine Cloete, a Lutzville activist and single mother of three, said she had been painted by local community leaders as a “bad person” who wanted to shut down companies that created jobs.

“Sometimes I worry that what happened to Bazooka can happen to me. I don’t have protection … I feel that I need to move away. You have to be careful where you go and who you speak to.”

Her fears were echoed by Dlamini, who said pro-mining community members were “spreading lies that we are stopping development”.

“If this case goes against us, it will be very difficult. I am defending my home and the land where my forefathers are buried and now someone from Australia is asking me to pay money because I say ‘no’ to mining.”

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Centre for Environmental Rights attorney Matome Kapa said he was aware of cases where municipal officials tried to make it difficult for community members to express their concerns about nearby mining operations.

“People have real concerns, yet when they try to organise a protest you find local government officials make up requirements that you first have to obtain permission from the very people you are protesting against.”

Robbie Mokgalaka, a campaigner for the groundWork environmental justice group, said it was particularly difficult for rural residents to voice their concerns against mining companies.

“People are scared to appear in court. Sometimes companies get court interdicts against community members who do not even know that an interdict has been granted against them in absentia. So where is the audi alteram partem rule (the right for both parties to be heard)?

“So when you find cracks in your house from dynamite blasting by the mine next door, or if you are choking from clouds of mining dust, people no longer say anything because they are stigmatised as ‘anti-development’. They are scared of being targeted.”

Nicholas Scarr, a member of the Public Service Accountability Monitoring group at the university currently known as Rhodes University, believes that while poor communities are most vulnerable to intimidatory tactics from developers, even comparatively wealthy members of the middle class are being “squeezed out” of democratic participation.

Clearly reluctant to expose himself to litigation, Scarr said he did not wish to provide the names of the parties involved, but he was aware of cases where concerned citizens had been intimidated or sued for substantial sums by property developers for speaking out on Facebook.

“Not everyone has access to pro bono legal assistance and they are also ‘not poor enough’ to qualify for assistance from the Legal Aid Board … so unfortunately these people are stranded in the middle and don’t have the resources to fight a SLAPP suit.”

Exhausting resources

The use of SLAPP suits on a global basis has emerged as a major concern among defenders of freedom of speech in recent years.

Commenting in a report to the United Nations Human Rights Council in 2017, UN Special Rapporteur Annalisa Ciampi said the term SLAPP suit was coined by academics George Pring and Penelope Canan in their 1996 book SLAPPs: Getting Sued for Speaking Out.

“SLAPPs use a range of tactics to exhaust resources, campaign capacity and morale: They resort to motions, injunctions and other procedurally onerous processes (particularly the expensive and resource-intensive discovery/disclosure process) to impose heavy burdens on activists and civil society organisations … They generally include exorbitant claims for damages and allegations designed to smear, harass and overwhelm the campaigners.”  

Ciampi said there had been a significant increase in SLAPPS worldwide. Examples included legal action against the Ecuadorian group Earth Rights, as well as lawyers, journalists and activists who had campaigned against the operations of the Chevron oil corporation.

There had been a similar spate of civil defamation lawsuits against activists in India, the Philippines and the United States.

Ciampi recommended passing legislation to discourage future SLAPP suits, including new provisions to allow for the early dismissal of such cases in the courts as well as measures to penalise parties that abused this avenue of litigation.

MRC, the Australian company currently suing several local activists and attorneys, was invited to comment on its reasons for pursuing the litigation but had not responded at the time of publication. But, in a statement issued in 2017, MRC said: “The company acknowledges the right to freedom of speech and that it must subject itself to public scrutiny. The individuals and the organisations that have made these remarks have overstepped the boundaries of responsibility, truth and fairness.

“The company enjoys the same right to defend itself and owes a duty to its stakeholders and employees not to permit these remarks to simply go unanswered.”

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