African citizens and local community groups which campaign on environmental issues are increasingly being sued by corporations in what activists regard as attempts to silence them. In South Africa, environmental attorneys and community activists are defending a defamation action in which an Australian mining company is claiming damages totalling more than U.S. $830,000.
Mineral Resources Commodities (MRC), its local subsidiary, MSR, CEO Mark Caruso and a local director, Zamile Qunya, are suing the defendants over allegedly defamatory statements about their mining activity in the West Coast region of the Western Cape Province, as well as proposed operations in the Wild Coast region of the Eastern Cape. The defendants categorise it as a "SLAPP" suit a reference to legal proceedings described by American legal academics as Strategic Litigation (or Lawsuits) against Public Participation.
Activists say that corporations use such suits to harass, obstruct and silence their opponents, most frequently when they face opposition over land use when launching development projects. Experts add that although such suits rarely prevail in court, their true goals of retaliation and intimidation of critics are frequently accomplished.
One of the environmental attorneys being sued in the Cape Town High Court is Cormac Cullinan. He discussed his role in an interview with allAfrica.
The case I'm involved in rose because one of the community leaders [campaigning against mining in Xolobeni in the Eastern Cape] was assassinated. He, as the chairperson of the crisis committee, had been told that he was on a hit list... Shortly after he told people about this, people came to his house posing as policemen and wanted to go with him. When he wouldn't they shot him dead in front of his son.
A few days after that, Redi Tlhabi [a talk show host] asked me as a lawyer who had been working with the community for 10 years, and also Mzamo Dlamini, who was another person on the hit list, to go on the show. She also asked [CEO Mark] Caruso to come on to her show.
Essentially I said on the show that the company was using neo-colonial divide and rule strategies, and... the [local] chief had been bought. Mzamo accused the CEO of the mining company directly of being involved in the murder. After that show, Mark Caruso and the MRC sued both of us for defamation. They sued me for a million rand and I think they sued Mzamo for R2 million.
Cormac Cullinan told allAfrica that other cases arose from a discussion at a University of Cape Town summer school about environmental movements:
The law firm that was representing the mining company... sent one of their attorneys to the summer school to sit in the audience and record what was being said. After that, they... sued a number of speakers, two of them lawyers from the Centre for Environmental Rights and one of them a community activist from the West Coast. They also sued a newspaper reporter but subsequently withdrew that case.
We [have] all pleaded two special defences – a special defence is basically something that is typically on a technical issue... which can dispose of the whole case without going through the details. There are two special defences. One is that what a company is doing is an abuse of process.
The expression a SLAPP suit is not actually part of South African law but we're arguing that the reason why they have instituted the litigation is to silence people, which is an infringement on our right to freedom of speech and expression. The law of defamation is to enable somebody to be compensated if their reputation has been damaged.
What we're saying is that if you look at the cases together, you can see that there's a pattern of behaviour. They don't seriously expect to get all this money from people, clearly [defendants] don't have that kind of money. So what it's really designed to do is silence anyone who speaks out against them. So they maintain they do everything by the book and lawfully, they're a responsible company, and anybody who says anything to the contrary gets sued.
South African law isn't really clear on SLAPP suits, so our argument is that the courts must develop South African common law in line with the Constitution. [These suits are] something being used to restrict freedom of speech, which is protected by the Constitution. If a defamation case is found to be brought for an improper purpose then that must be regarded as an abuse of process and the case must be thrown out.
The second special plea is a much more technical one. It basically says a company is not like a person – its dignity can't be damaged as a person's dignity can be damaged. It can only be financially damaged. So the argument is that if the company wants to sue for defamation, it first must show that it suffered financial loss as a consequence of what was said. South African law is against us on that point at the moment, but we think that's what the law should be, so if necessary we'll go to the Constitutional Court in an attempt to prove that.
After we made these special pleas, the other side then applied for the court to strike them out. If they succeed in that, then that's the end of the special pleas and the matter will have to go to trial.
Cullinan also discussed the potential impact of the courts accepting the defence arguments:
The hearings that have happened so far are preliminary in nature but they are very important in that we're hoping that they'll set important precedents which will protect all kinds of people. It'll protect freedom of speech, whether it's by journalists or activists and it'll stop companies bullying people into silence or at least discourage companies from bullying people into silence.
Although there aren't that many court cases about SLAPP suits, it's something that happens very often. Let us say there's a big development and there's an environmental impact assessment procedure going ahead and local communities organise against it and make statements in the press. It is very common for them to be threatened with lawyers' letters saying if you don't shut up we're going to sue you for defamation.
It very often works when people are intimidated into silence because people realise that if you get sued, even if you win, it will take a lot of your time and a lot of your money. If you lose they can take your house and everything. So it's a big threat to people and most will just backdown.
We're trying to establish a precedent that if we have freedom of speech and provided one is pressing a reasonable opinion, they shouldn't be allowed to use the legal system to silence you. That's the essence of it.
We're very lucky that [a] law firm agreed to work for us pro bono. Otherwise, we wouldn't have the money to defend ourselves properly. If they were suing one person it'd be harder to prove what they are trying to do, but it's clear now that there are three different cases [so] you can see the tactics of a company.
The courts might come up with some kind of procedure for dealing with these SLAPP suits themselves, but I think it would be helpful if we had some legislation. We hope that people will support this because it's an issue of protecting democratic rights.