Cormac Cullinan paid little attention when a nondescript man in a suit walked into his offices about four years ago, asking him to sign for a package of legal documents.
As an attorney, he was used to receiving a daily blizzard of legal packages and thought little of it. But when he opened and read the contents sometime later, his heart rate shot up and his eyebrows arched in alarm.
Cullinan had just been “Slapped” by a global mining corporation based in Australia.
Slapp is an acronym for strategic litigation against public participation, a term coined by University of Denver law and sociology professors George Pring and Penelope Canan in the late 1980s to describe civil law suits designed to sue citizens into silence.
The Australian company – Mineral Commodities (MRC) Ltd – was demanding R1 million from him in damages for allegedly defaming the Perth-based company and its chief executive Mark Victor Caruso.
A million rand is not pocket change in most languages but Cullinan had no intention of settling meekly or apologising. What really worried him was the prospect of a long, drawn-out legal battle and crippling bills to fend off what he saw as a clear attempt to bully him into silence.
His wife, Mary-Ann, was also none too pleased. She was so angry about being threatened, recalls Cullinan, that she vowed to burn down their home rather than allowing Caruso to take it away to recoup legal costs and settle the damages claim.
Cullinan, an attorney with a long history of environmental activism, was not the only mining critic to be targeted by the Australian Slappers.
In short order, Caruso’s attorneys would issue similar damages claims against two other attorneys and three local activists who had made statements involving Caruso, MRC and local empowerment partner Zamile Madiba Qunya on the West Coast and Xolobeni on the Eastern Cape Wild Coast.
The mining company also wanted R2 million from Amadiba Crisis Committee member Mzamo Dlamini; R250 000 each from the Centre for Environmental Rights attorneys Tracey Davies and Christine Reddell; R750 000 from West Coast activist Davine Cloete; and a whopping R10 million from Johannesburg-based social worker and author John GI Clarke – a grand total of R14.25 million.
But not so fast. Caruso’s pathway has just been struck by a legal and public relations grenade.
Weaponising the legal system
On 9 February, Western Cape high court deputy judge president Patricia Goliath delivered a hard-hitting judgment that has been hailed as a major victory for free speech and environmental activism.
Though the four-year-long legal battle is not over yet, Goliath came out strongly against MRC and Caruso, ruling that South African courts should not allow the law to be abused to cow activists and non-governmental organisations and their lawyers.
“Corporations should not be allowed to weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them. It appears that [MRC’s] defamation suit is not genuine and bona fide, but merely a pretext with the only purpose to silence its opponents and critics.
“Litigation that is not aimed at vindicating legitimate rights, but is part of a broad and purposeful strategy to intimidate, distract and silence public criticism, constitutes an improper use of the judicial process and is vexatious. The improper use and abuse of the judicial process interferes with due administration of justice and undermines fundamental notions of justice and the integrity of our judicial process. Slapp suits constitute an abuse of process, and [are] inconsistent with our constitutional values and scheme.”
Goliath said the right to freedom of expression, robust public debate and the ability to participate in public debates without fear was essential in any democratic society.
“I am accordingly satisfied that this action matches the DNA of a Slapp suit,” she said, setting a legal precedent activists hope to use to develop the law further to derail similar abuse of legal process.
At least 29 states in the United States and some Canadian provinces have already adopted new codes and mechanisms to counter Slapp suits. Australia’s Capital Territory passed the Protection of Public Participation Act in 2008 and Indian courts have also embraced the concerns at issue in its common law.
Noting that MRC had significant litigation and human resources, Goliath said corporations can easily write off legal costs as a business expense.
“Slapp filers, with substantial resources at their disposal, abuse the gross disparity of resources between them and the target. The defendants are activists and attorneys who do not possess the financial resources that the mining companies have.”
Corporate strategies to target a group of environmental activists at more or less the same time could intimidate them from further engagement after being sued for damages.
“The impact of Slapps can be devastating for targets. This strategy may operate to produce a chilling effect not only on the defendants’ constitutional right to freedom of expression, but also on others who considered speaking out on the issue in the future.”
In fact, she said, entire communities and groups could often be silenced out of fear of being dragged into a perpetual lawsuit. It also seemed clear that the more vocal and critical the activist, the higher the damages claimed.
It was odd, she remarked, that Caruso and his company had brought a suit claiming R14.25 million in damages while simultaneously indicating that they would be satisfied to dispose of the matter on the basis of a public apology.
“This is a signature mark of many Slapp suits. The conclusion is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and had assumed a specific position in respect of the plaintiffs’ mining operations.”
Ruling protects activists
But this is not the end of the road for the six defendants. They have won a decisive victory in the first preliminary legal skirmish in the high court, but the main defamation suit is still alive and Caruso’s legal team have given no indication so far that they have been deterred by the bloody nose dealt to them by Goliath.
Attempts to seek comment and reaction from Caruso via email went unanswered. 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.”
Caruso, meanwhile, is embroiled in a separate controversy, with the West Australian and Kalgoorlie Miner newspapers reporting in December 2020 that he was due to face burglary and assault charges in a district court.
In a statement issued in May last year the company confirmed that Caruso had been charged with aggravated burglary, common assault and unlawful trespass “as a result of an alleged incident which occurred while Mr Caruso was assisting a friend in enforcing an abandonment order and a subsequent property seizure and delivery order at that friend’s premises”.
Caruso had elected to step down as a director of the company while he defended the charges “vigorously”, but the company would not make any further comment while the matter was before the courts.
Back home in South Africa, Cullinan says he believes Caruso’s legal team was likely to be considering settling the defamation claim against local activists – though the Australians might opt to appeal against Goliath’s ruling.
Cullinan said that while the stakes remain high, he was hopeful that the case would proceed to a final conclusion – possibly as far as the Constitutional Court – in order to “establish good law to protect activists”.
“I am a middle-class person, and a lawyer, and I would not have been able to afford the legal costs had it not been for the Webber Wentzel team acting pro bono for us. But most activists are not in this position. The case has been going on for more than four years already and it takes a lot of time and effort and some members of the Centre for Environmental Rights (CER) have also taken huge strain.
“We have started to level the playing field and it is a very important function of the law to reduce the disparities in cases such as this, where the intention is to … intimidate you and get people off their backs.”
Tracey Davies, who was Slapped while working as an attorney at the CER, said: “We have all been extremely lucky to have been represented, pro bono or at reduced rates, by some of the best lawyers in the country, and philanthropic funders have been hugely supportive of us during this case.”
Davies, now executive director of the non-profit shareholder activism organisation Just Share, said she could not imagine how devastating the suit would have been if the activists had been compelled to fund their own defence.
“The Slapp suit has caused enormous anxiety and frustration for all of us – most significantly, in fact, because of the ridiculous amount of time that it has taken to get even to this point. None of us could have imagined we would still be here four years later, and this is not even the end.
“There is also the anger at the fact that the plaintiffs just hand this over to their expensive lawyers and get on with their lives, whereas for each of us this is a personal attack that we cannot escape for as long as the matter is open. But most frustratingly of all, has been that over this whole period, MRC has simply continued with business as usual, expanding its operations along more and more of our magnificent coastline, seemingly with the blessing of government.
“That made me wonder what it was all for, but now I have the answer to that. Regardless of what happens in our particular case, I am so hopeful that this is the start of a process which means that no one else in this country has to go through what we’ve been through over this time, just to get to the point where we are allowed to say what everyone has always known: that this case is about punishing critics, not about obtaining redress for an injustice.”