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[2021] ZAWCHC 22
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Mineral Sands Resources (Pty) Ltd and Another v Reddell and Others; Mineral Commodities Limited and Another v Dlamini and Another; Mineral Commodities Limited and Another v Clarke (7595/2017; 14658/2016; 12543/2016) [2021] ZAWCHC 22; [2021] 2 All SA 183 (WCC); 2021 (4) SA 268 (WCC) (9 February 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:
7595/2017
In
the matter between:
MINERAL
SANDS RESOURCES (PTY) LTD
First
Plaintiff
ZAMILE
QUNYA
Second
Plaintiff
and
CHRISTINE
REDDELL
First
Defendant
TRACEY
DAVIES
Second
Defendant
DAVINE
CLOETE
Third
Defendant
Case
No:
14658/2016
In
the matter between:
MINERAL
COMMODITIES LIMITED
First
Plaintiff
MARK
VICTOR
CARUSO
Second
Plaintiff
and
MZAMO
DLAMINI
First
Defendant
CORMAC
CULLINAN
Second
Defendant
Case
No:
12543/2016
In the matter between:
MINERAL
COMMODITIES LIMITED
First
Plaintiff
MARK
VICTOR
CARUSO
Second
Plaintiff
and
JOHN
GERARD INGRAM
CLARKE
Defendant
Coram:
Goliath DJP
Judgment
delivered
Delivered
electronically: 09 February 2021
JUDGMENT
GOLIATH DJP
“
Like
a pebble thrown in water a single SLAPP
[1]
can have effects far beyond its initial impact”
Penelope
Canan, The SLAPP from a Sociological Perspective, 1989.
Introduction
[1]
This matter involves exceptions to two special pleas which introduce
a novel Strategic
Litigation Against Public Participation (SLAPP)
defence. Redell, Davies and Cullinan are environmental attorneys.
Cloete,
Dlamini and Clarke are community activists. In the first set
of special pleas the defendants allege that they had been SLAPPed in

the context of environmental activism.  Two related mining
companies and their directors, are suing three environmental
attorneys
as well as three community activists for defamation, and
damages in the in the sum of R14,25 million, alternatively the
publication
of apologies. The two mining companies are involved in
the exploration and development of major mineral sands projects in
South
Africa, and are referred to as the Tormin Mineral Sands Project
and the Xolobeni Mineral Sands Project. Second plaintiffs are in
the
employ of the mining companies
inter
alia
as director and executive chairman. The main issue to be determined
in this matter are two substantially identical special pleas
raised
by the defendants in each of the three separate actions. The
respective mining companies in each of these three actions
are the
excipients to the two special pleas.
The
Three Actions
[2]
In the Clarke matter it is alleged that Clarke published two
defamatory e-books, one
during 2014 entitled “
The
Promise of Justice
”
and another in 2015 entitled “
Survivor:
Wild Coast - Before and Beyond the Shore Break
”
which is available worldwide. The record reflects that he was
actively engaged in criticising the plaintiffs’ mining
and
excavating activities, and its environmental, ecological and economic
impact on the development potential of the Wild Coast.
In and during
2016 he participated in radio interviews, posted video clips on
YouTube, written numerous emails, and had a number
of interviews
published on various social media platforms online. He also
participated in a panel discussion on a television programme
50/50
relating to mining and mineral regulation issues, engaged the
Minister of Mineral Resources, posted an article in an online

journalism platform called “
Medium”
,
entitled “
Behind
the irony curtain: Blood Diamond, Xolobeni and the real story of
MRC
”,
and created general awareness around his environmental activism.
Summons was issued against him on 18 July 2016. However,
he continued
with his advocacy work which resulted in further claims and
amendments to the summons. The plaintiff provided elaborate
details
of Clarke’s alleged defamatory conduct, which resulted in 27
separate claims, seeking damages in the sum of R10 million.
[3]
Prior to issuing Clarke’s summons, Dlamini and Cullinan
participated in a radio
interview on 7 April 2016, which was posted
on the station’s website. Second plaintiff was also a
participant in the said
interview. During the interview both Dlamini
and Cullinan expressed criticism against the plaintiffs’ mining
activities,
related certain facts, and expressed certain opinions
which second plaintiff alleges are wholly defamatory. Summons was
issued
on 18 August 2016, one month after the issuing of Clarke’s
summons. The summons was amended on 26 March 2020. The mining company

seeks damages in the amount of R1.5 million and the CEO seeks further
damages of R1.5 million.
[4]
In the Redell matter, first, second and third defendants presented a
lecture series
entitled “
Mining
the Wild and West Coast: ‘Development’ at what cost?
”
on 25 January 2017, at the Summer School Programme of the University
of Cape Town. The Tormin mine was the primary focus
of these
lectures. During the course of the lecture the defendants made
various statements, expressed opinions and criticised the
plaintiffs’
mining operations. According to the plaintiffs the defendants made
numerous spurious and defamatory statements
implying that the mining
operations are conducted in an unlawful and deceitful manner that has
a devastating effect on the environment.
Summons was issued on 2 May
2017, and amended on 17 August 2017. The mining company seeks damages
in the amount of R750 000,00
and the director seeks further
damages of R500 000,00. The summons was effectively issued
approximately three months subsequent
to the lecture series.
[5]
In summary, in each of the actions, the plaintiffs sue the defendants
for defamation.
Plaintiffs allege that each of the defendants made
defamatory statements relating to plaintiffs’ mining operations
and activities.
The plaintiffs seek damages, alternatively, the
publication of apologies. In each of the actions the defendants
raised a SLAPP
defence.
The Defendants
Special Pleas:
First
Special Plea
[6]
The defendants plead that the plaintiffs’ conduct in bringing
each of the actions:
6.1
is an abuse of process; and/or
6.2
amounts 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/or
6.3
violates the right to freedom of expression entrenched in section
16
[2]
of the Constitution of
the Republic of South Africa
[3]
(“the Constitution”).
[7]
The defendants allege that the mining companies’ actions are
brought for the
ulterior purpose of:
7.1
discouraging, censoring, intimidating and silencing the defendants in
relation to public
criticism of the mining companies; and
7.2
intimidating and silencing members of civil society, the public and
the   media in
relation to public criticism of the mining
companies.
Second Special
Plea:
[8]
The defendants contend that the claims of the mining companies are
bad in law because
trading corporations, operating for profit, cannot
sue for defamation without alleging that:
8.1
the defamatory statements are false;
8.2
the false defamatory statements were wilfully made; and
8.3
the plaintiffs to suffer patrimonial loss arising from the defamatory
statements concerned.
[9]
It is common cause between the parties that in view of the approach
adopted by the
Supreme Court of appeal in
Media
24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd
[4]
the
second special plea cannot be sustained and must be upheld. The
defendants have conceded that the current law relating to the

requirements of a juristic person to sue for defamation, does not
support their contentions. This court therefore only need to

determine the exception to the first set of special pleas.
Submissions
made on behalf of Plaintiffs and Defendants
[10]
Plaintiffs argue that the defendants contend for an abuse of the
process, thereby relying entirely
and impermissibly on the
plaintiff’s motives for bringing these actions.  According
to the plaintiffs, such reliance
on motive, to the exclusion of the
merits of the plaintiffs’ claims, is legally unsound. Not only
is it incompetent for the
defendants to seek to divorce the merits of
the plaintiffs’ claims from their motives for bringing the
actions, but the plaintiffs
motives are irrelevant to the abuse of
process debate.  Furthermore, the defendants actions amount to a
request that the court
takes an unprecedented and extraordinary step
of shutting its doors on the plaintiffs, thereby denying them their
right to access
justice in terms of section 34
[5]
of the Constitution, without having regard to the merits of
plaintiffs’ claims.
[11]
Plaintiffs contend that South African law limits a defendants’
protection against an abuse
of process, to the Vexatious Proceedings
Act 3 of 1956 (“VPA”) and the common law.  Defendants
do not purport
to rely on the VPA. However, section 2(1)(b)
[6]
of the VPA, being the only applicable section of the VPA, requires an
application for protection against a vexatious litigant to
be brought
by a defendant.  Such protection cannot be obtained by filing a
plea in which abuse is alleged.  In the absence
of such an
application, the defendants are constrained to make out a case for
common law abuse of process.
[12]
With reference to
Bisset
and Others v Boland Bank Ltd and Others
[7]
,
and
Member
of the Executive Council for the Department of Co-operative
Governance and Traditional Affairs v Maphanga
[8]
,
the plaintiffs reminded the court of its inherent and common law
power to strike out claims that constitute an abuse of process,

emphasising that such powers must be exercised with very great
caution based on the merits of the impugned litigation. Plaintiffs

contended that in order for such legal proceedings to constitute an
abuse of process, those proceedings must have been instituted
without
reasonable grounds and be obviously unsustainable on their merits as
a certainty and not merely on a preponderance of probability.
[13]
The merits cannot be ignored in favour of the exclusive reliance on
the plaintiffs’ motives.
Furthermore, with reference to
National
Director of Public Prosecutions v Zuma
[9]
,
and
Zuma
v Democratic Alliance and Others;
[10]
,
the plaintiffs submit that ulterior purpose or motive is irrelevant
to the abuse of process debate. The plaintiffs contend that
the
assessment as to whether actions are considered as defamatory, or
otherwise, cannot take place without considering the merits
of a
case. Consequently, by relying on plaintiffs’ motives to the
exclusion of the merits of the plaintiffs’ claims,
the
defendants’ first special plea lacks averments necessary to
sustain the defence on which they seek to rely.
[14]
The plaintiffs further aver, in the alternative, that there is no
basis for the development of
the common law for which the defendants
contend. The Defendants must establish that the common law principles
applicable to abuse
of process are formulated in terms that are
inconsistent with a particular constitutional right or otherwise
inconsistent with
the constitutional value system, thereby triggering
the duty to develop the common law. The court is not at liberty to
develop
the common law so as to reformulate the test for an abuse of
process by shifting the focus on motive, let alone to regard ulterior

purposes on its own as constituting an abuse of process.
[15]
The defendants concede that an application in terms of the Vexatious
Proceedings Act 3 of 1956
has not been pursued in this matter. The
defendants contend that for the purposes of exception proceedings,
each of the allegations
made by them in the special plea must be
accepted, acknowledged and recognised as correct
[11]
.
Thus it must be accepted that the mining companies do not
honestly believe that they have any prospect of recovering the

quantum of damages claimed by the defendants, as well as the motives
as enumerated by the defendants.  It is common cause
between the
parties that, in determining the exceptions, the allegations pleaded
in the defendants’ special pleas regarding
the mining
companies’ purpose must be accepted as true.
[16]
The defendants referred to various decisions
[12]
of our courts that make it expressly clear that motive/purpose is
relevant to the abuse of process doctrine. They argued that the

mining companies failed to produce any authority which supports the
proposition and contention that the motive behind the initiation
of a
legally valid claim is generally irrelevant in South African law.
Defendants therefore contend that the motive or purpose
of the
litigation is in fact relevant to abuse of process under our existing
common law. The plaintiffs argued that the cases referred
to concerns
an abuse of the court’s procedure for a purpose extraneous to
their objectives, which is not analogous to this
matter. In the
present instance, the issues does not concern abuse of procedures,
but with the question of when an abuse of process
constitutes a
defence to a substantive claim.
[17]
Defendants contend that the questions of improper motive do not
appear to have been at issue
in
Maphanga
.
The court did not purport to hold that motive or purpose of
litigation was irrelevant to debates about abuse of process. Such
a
conclusion would in any event have been inconsistent with a number of
court decisions in the higher courts such as the SCA and

Constitutional Court.
[18]
The defendants submit that on the existing common law, firstly the
purpose of the litigation
is relevant to abuse of process, and
secondly, the purpose of intimidating and silencing public criticism
is an impermissible one.
Consequently, on the existing common law,
the exception to the first special plea must be dismissed. The mining
companies have
not sought interdicts against the impugned expression,
but instead seek to achieve the same result via the back door, by
instituting
a series of damages claims, with the purpose of
intimidating and silencing public criticism by the relevant
defendants, civil society,
the public and the media.  According
to defendants the conduct pleaded forms part of a pattern of conduct
by the mining companies
in which they seek to bring defamation
actions for these purposes.
[19]
The defendants referred to
Company Secretary of Arcelormittal
South Africa Ltd and Another v Vaal Environmental Justice Alliance
where the following was stated:
“…
First,
the world, for obvious reasons, is becoming increasingly ecologically
sensitive. Second, citizens
in
democracies around the world are growing alert to the
dangers of a culture of secrecy and unresponsiveness, both
in respect
governments and in relation to corporations. In South
Africa, because of our   past, the latter aspect
has increased
significance. . .
”
[13]
The SCA went on to
emphasise the critical role played by the public in environmental
debates:
“
It
is clear, therefore, in accordance with international trends, and
constitutional values and norms, that our legislature has

recognised, in the field of   environmental protection, inter
alia the importance of consultations and   interaction
with the
public. After all, environmental degradation affects us all.
One might rightly speak of collaborative corporate
governance in
relation to the environment . . .”
[14]
It
concluded that;
“
Corporations
operating within our borders, whether local or international, must be
left in no doubt that in relation to the environment
in circumstances
such as those under discussion, there is no room for secrecy and that
constitutional values will be enforced.”
[15]
[20]
The defendants emphasised that debates arising within the context of
mining rights, environmental
damage, and economic power of large
trading corporations require intense public scrutiny and public
engagement.  The mining
companies’ contention that it
would be permissible to sue activists for defamation even if “
the
only purpose is to silence the activists”
is
unsustainable under our constitutional scheme, and which regime
advocates for freedom of expression, active public engagement
in
environmental assessment issues and active public scrutiny of large
multinational companies.
[21]
Both parties made submissions regarding the origins and development
of SLAPP suits in different
jurisdictions. The plaintiff submitted
that the manner in which SLAPP suits are regulated in the United
States is indicative of
the complexity involved in drafting
legislation and the policy-laden nature of its underpinnings. The
Legislature should be left
with the choice as to whether this defence
should be introduced into South African law.
[22]
Defendants submitted that mining companies should not be allowed to
bring these proceedings in
circumstances where they know they will
never have any realistic prospect of recovering the damages they seek
and where their purpose
is to intimidate and silence civil society,
the public and the media. They further assert that courts should not
allow the mining
companies to use its processes for such ulterior
purposes.  They aver that under the existing common law doctrine
of abuse
of process, the first set of pleas are sustainable in law.
[23]
In the alternative the defendants argue that the fact that many other
jurisdictions have dealt
with this comprehensively by passing
legislation, this court is not barred from doing so incrementally via
the development of the
common law. The defendant cited the example of
the development of class action procedures, where our courts have
developed procedural
rules and the common law to allow for it
[16]
.
[24]
The defendants therefore contend for the development of the common
law through the lens of either
section 39(2)
[17]
or section 173
[18]
of the
Constitution, since such development would give proper protection to
the right to freedom of expression in the context of
environmental
debates.  It would also be in line with the thinking of
jurisdictions which placed protections against what
is known as
“
SLAPP
suits”.
The defendants also took issue with plaintiffs’ late
introduction of a procedural contention that, even if one can
raise
an abuse of process/SLAPP defence, one can only do so by way of an
application, not a special plea.
[25]
The Centre for Applied Legal Studies (CALS) and the University of
Cape Town (UCT) applied and
were admitted as amici curiae. CALS made
submission on the nature of SLAPP suits and its application in other
jurisdictions. They
elaborated upon issues relating to abuse of
process considerations as well as the development of the common law
with reference
to Section 39(1)
[19]
and 8(3)
[20]
of the
Constitution
.
CALS
contends and emphasized that the development of SLAPP suit defences
is relatively new in South Africa. They opine that it should
be
developed and stated that this class of defences is different from an
abuse of process.
[26]
UCT addressed the issue of the protection of academic freedom as
provided for in Section 16(1)d
[21]
of the Constitution. They contend that the university invited the
defendants in their capacity as activists and members of the
legal
profession as part of an academic project, challenging mining
activities on the Wild Coast. They emphasized that academics
should
not be at risk of liability if a company’s reputation is
tainted along the way, and corporations should not be allowed
to sue
activists for defamation for what they had stated during a course and
discussions at the university. They stated that pursuit
of academic
freedom and opinion is vital in our constitutional dispensation and
for our democracy. The law should recognize qualified
privilege for
academic speech and pursuit. Furthermore, they contend that it is
indispensable and foreseeable for the common law
to be developed and
to afford academic freedom a greater importance, and to protect
academics from exposure to liability in defamation
lawsuits
instituted by large corporations.
[27]
The university contends that SLAPP suits will have a chilling effect
on academic activities.
It was submitted that SLAPP suits will deter
academics from investigating and challenging harmful conduct, more
particularly relating
to deep questions on environmental issues.
Legal
Framework:
[28]
The common law affords the courts the inherent power to stop
frivolous and vexatious proceedings
when they amount to an abuse of
its processes
[22]
. In
Lawyers
for Human Rights v Minister in the Presidency
[23]
the Constitutional Court reiterated that the courts have the power
and indeed a duty to prevent the abuse of their process.
The power to
strike out must be exercised with very great caution, and only in a
clear case.
[24]
[29]
Section 173
[25]
of the
Constitution vests in the judiciary the authority and power to
prevent any possible abuse of process.
[26]
In
Phillips
and Others v National Director of Public Prosecutions
[27]
,
the
Constitutional Court held that ordinarily the power in section 173 to
protect and regulate relates to the process of court and
arises when
there is a legislative lacuna in the process.
[30]
In
Beinash
v Wixley
[28]
Mohamed, CJ stated that there could not be an all-encompassing
definition of the concept of “
abuse
of process”,
but it could be said in general terms that an abuse of process takes
place “
where
procedures permitted by the Rules of Court to facilitate the pursuit
of the truth are used for a purpose extraneous to the
objective”.
What
constitutes an abuse of process of the court is a matter which needs
to be determined by the specific circumstances of each
case.
The abuse of process is therefore fact specific.
[31]
In
Cohen
v Cohen and Another
[29]
the court, with reference to
Beinash
v Wixley
stated that at common law the courts enjoyed an inherent power to
strike out claims that were vexatious, opining that meant claims
that
were “
frivolous,
improper, instituted without sufficient ground, to serve solely, as
an annoyance to the defendant.”
Vexatious litigation must be clear, appear as a certainty and not
merely on a preponderance of probability.
[32]
Our courts have repeatedly referred to the purpose or motive of the
litigation as being relevant
to the question of abuse of process.
In
Phillips
v Botha
[30]
,
the court endorsed the following definition of abuse of process from
an Australian decision. The court cited with approval the
matter of
Varawa
v Howard Smith Co Ltd
[1911] HCA 46
;
(1911) 13 CLR 35
at 91:
“…
(T)he
term ‘abuse of process’ connotes that the process is
employed
for
some purpose other than the attainment of the claim in 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...”
The
SCA proceeded to add that “
where
the court finds an attempt made to use for ulterior purposes
machinery devised for the better administration of justice it
is the
Court’s duty to prevent such abuse.”
[33]
In
Gold
Fields Ltd and Others v Motley Rice
[31]
,
Mojapelo DJP held that a matter might amount to an abuse of process
where “
the
litigation is frivolous, or vexatious or where litigation is being
pursued for an ulterior motive”.
In
Roering
NO and Another v Mahlangu and Others
[32]
,
the SCA endorsed another Australian decision that:
“
Whether
there will be, in a particular case, a use of the process or an abuse
of it will depend upon purpose rather than result….”
[34]
In
Price
Waterhouse Coopers Inc. and Others
v
National Potato Co-Operative Ltd
[33]
the Supreme Court of Appeal summarised the relevant authorities on
the point as follows:
“
50.
It has long been recognised in South Africa that a court is entitled
to protect itself and others
against abuse of its process (see
Western Assurance Co v Caldwell’s Trustee
1918
AD 262
at
271; Corderoy v Union Government (Minister of Finance)
1918
AD 512
at
517; Hudson v Hudson and another
1927
AD 259
at
268; Beinash v Wixley
[1997]
ZASCA 32
;
1997 (3) SA 721
(A) at 734D; Brummer v Gorfil Brothers Investments (Pty) Ltd en
andere
1999
(3) SA 389
(SCA) at 412C-D, but no all embracing definition of ‘abuse of
process’ has been formulated. Frivolous or vexatious
litigation
has been held to be an abuse of process (per Innes CJ in Western
Assurance v Caldwell’s Trustee supra at 271 and
in Corderoy v
Union Governement (Minister of Finance) supra at 517) and it has been
said that ‘an attempt made to use for
ulterior purposes
machinery devised for the better administration of justice’
would constitute an abuse of the process (Hudson
v Hudson and another
supra at 268). In general, legal process is used properly when it is
invoked for the vindication of rights
or the enforcement of just
claims and it is abused when it is diverted from its true course so
as to serve extortion or oppression;
or to exert pressure so as to
achieve an improper end. The mere application of a particular court
procedure for a purpose other
than that for which it was primarily
intended is typical, but not complete proof, of mala fides. In order
to prove mala fides a
further inference that an improper result was
intended is required. Such an application for a court procedure (for
a purpose other
than that for which it was primarily intended) is
therefore a characteristic, rather than a definition, of mala fides.
Purpose
or motive, even a mischievous or malicious motive, is not in
general a criteria for unlawfulness or invalidity. An improper motive

may however be a factor where the abuse of court process is in issue.
(Brummer v Gorfil Brothers Investments (Pty) Ltden andere
supra at
412I-J and 416B). Accordingly, a plaintiff who has no bona fide claim
but intends to use litigation to cause the defendant
financial (or
other) prejudice will be abusing the process (see Beinash and another
v Ernst & Young and others
1999
(2) SA 116
(CC) para 13). Nevertheless it is important to bear in mind that
courts of law are open to all and it is only in exceptional cases

that a court will close its doors to anyone who wishes to prosecute
an action (per Solomon JA in Western Assurance Co v Caldwell’s

Trustee
1918
AD 262
at 273-274). The importance of the right of access to courts
enshrined by section 34 of the Constitution has already been referred

to. However, where a litigant abuses the process this right will be
restricted to protect and secure the right of access for those
with
bona fide disputes (Beinash and Another v Ernst & Young and
others supra para 17).”
[35]
Furthermore, in
Ascendis
Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and
Others
[34]
the Constitutional Court reiterated that “
Abuse
of process concerns are motivated by the need to protect ‘the
integrity of the adjudicative functions of courts,’
doing
so ensures that procedures permitted by the rules of court are not
used for a purpose extraneous to the truth-seeking objective
inherent
to the judicial process.”
[36]
Section 16
[35]
of the
Constitution protects the broader concept of freedom of expression,
which includes academic freedom. Section 24 of the Constitution

guarantees the right of everyone to an environment not harmful to
one’s health and wellbeing, and also the right to have
the
environment protected from pollution and ecological degradation,
which promotes conservation and secures ecologically sustainable

development. The importance of free engagement and debate on matters
of public importance is confirmed in
Khumalo
and Others v Holomisa
[36]
,
in which the Constitutional Court held that the right to freedom of
expression is “
integral
to a democratic society for many reasons
”,
including the reason that the right is constitutive of the dignity
and autonomy of human beings and because, without it,
the ability of
citizens to make responsible political decisions and to participate
effectively in public life would be stifled.
[37]
In
SANDU
v Minister of Defence
[37]
the importance of the right was stated as follows:
“
freedom
of expression lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as
a guarantor of
democracy, its implicit recognition and protection of the moral
agency of individuals in our society and its facilitation
of the
search for truth by individuals and society generally. The
Constitution recognises that individuals in our society need
to be
able to hear, form and express opinions and views freely on a wide
range of matters.”
[38]
For these reasons elaborated above our highest courts have recognised
that an order preventing
a person from making allegedly defamatory
statements is a “
drastic
interference with freedom of speech and should only be ordered where
there is a substantial risk of grave injustice
”
[38]
.
Such an order affects not just the constitutional rights of the
speaker to express himself, but also the constitutional rights
of the
public to hear the statements concerned. Such an order is therefore
granted only in extremely circumscribed and narrow circumstances,
and
only after considering the prejudice to the public.
The
Features of SLAPP
[39]
SLAPPs are Strategic Lawsuits or Litigation Against Public
Participation, meritless or exaggerated
lawsuits intended to
intimidate civil society advocates, human rights defenders,
journalists, academics and individuals as well
as organisations
acting in the public interest. They are litigated into silence by
corporations and often times drained of their
resources.  The
term SLAPP was first coined by Professor George W Pring and Penelope
Canan
[39]
.
Pring
and Canan initially described the classic SLAPP lawsuit as a civil
claim targeting a “non-government party” on
an issue of
considerable social importance involving local citizens who take a
position on a particular public issue and express
their views in the
public arena
[40]
. SLAPP suits
are still a relatively new phenomenon in most jurisdictions.
Essentially its aim is to silence those challenging powerful

corporates on issues of public concern. In essence the main purpose
of the suit is to punish or retaliate against citizens who
have
spoken out against the plaintiffs
[41]
.
[40]
The signature elements of SLAPP cases is the use of the legal system,
usually disguised as an
ordinary civil claim, designed to discourage
others from speaking on issues of public importance and exploiting
the inequality
of finances and human resources available to large
corporations compared to the targets. These lawsuits are notoriously,
long drawn
out, and extremely expensive legal battles, which consume
vast amounts of time, energy, money and resources.  In essence,
SLAPPs are designed to turn the justice system into a weapon to
intimidate people who are exercising their constitutional rights,

restrain public interest in advocacy and activism; and convert
matters of public interest into technical private law disputes.
[41]
The person instituting the SLAPP generally have more resources to
sustain litigation against
their targets. The plaintiff is generally
aware of its advantage, and may seek to protect business or economic
interest.  Targets
are typically individuals, local community
groups, activists or non-profit organisations who are advancing a
social interest of
some significance.  Many targets often act
without any personal profit or commercial advantage. In some
instances, the plaintiffs
propose settlements which include a damages
payment, an agreement to stop the activism that prompted the
litigation, and an undertaking
not to discuss the terms of the
settlement.
[42]
Generally, exorbitant damages claims are part of the strategy
chilling public participation and
sending a clear message to
activists that there are unaffordable financial risks attached to
public participation
[42]
. The
emotional and financial harm caused by the SLAPP may result in the
withdrawal from actions involving public participation.
For this
reason, some jurisdictions prefer not to focus on the elements of the
legal action in the SLAPP, but rather on the effect
of public
participation.
[43]
A SLAPP does not need to be successful in court to have its intended
effect. Proceedings can
be continued until the desired effect and
impact is achieved. Prolonging and dragging out proceedings and
shifting the debate out
of the public domain to the courts can fulfil
the intended objective. The mere threat of being sued is sometimes
sufficient to
engender fear and intimidate the target.
[44]
The phenomena of SLAPP suits originated in the
United States during the 1980s and has been adopted in a
number of
comparative jurisdictions. Significantly, anti-SLAPP laws had
initially developed primarily from the environmental law
context. As
at 30 January 2021 there are currently 30 States in the United
States
[43]
that adopted some
form of legislation to identify and counter the prevalence of SLAPP
suit litigation.  Certain provinces
in Canada
[44]
and territories in Australia
[45]
also have some form of legislation to counter the prevalence of SLAPP
suit litigation.
[45]
SLAPPs violate American constitutional protection of the right of
free speech and the right to
petition, which are the usual grounds
for defence against SLAPPs. Anti-SLAPP statutes are aimed at
providing a quick, effective
and inexpensive mechanism to discourage
such suits.  It authorises expedited procedures to address such
suits, prevent the
incursion of public participation, protect
fundamental rights to freedom of expression and provide protection
against the side-effects
of SLAPP suits. In the United States there
is a variation between the States that have adopted SLAPP suit
legislation. The general
approach is that public participation in
matters of public significance is encouraged, and an “improper
purpose test”
is applied to determine the context of the
litigation. Essentially proof of three elements are required namely
that the defendant
engaged in public participation on a public issue,
plaintiff is pursuing an improper purpose, and that the lawsuit is
meritless.
The improper purpose must be the main purpose and is
established where a reasonable person would consider the main purpose

for starting the proceedings or maintaining it is:
(i)
to
discourage the defendant or anyone else from engaging in public
participation;
(ii)
to
divert the defendant’s resources away from engagement in public
participation; or
(iii)
to punish or disadvantage the defendant for engaging in public
participation.
[46]
The test is objective and the threshold is relatively high for a
defendant to prove the purpose
and motivations of the filer.
Once a defendant has made out a case for an improper motive based on
public participation,
the onus thereafter shifts to the Plaintiff to
prove that the action has substantial merit. If the plaintiff cannot
meet this requirement,
the action will be deemed a SLAPP, or the
SLAPP will fail if it is established that there is no probability
that the plaintiff
will “
prevail
on the claim.”
[46]
[47]
By way of example, in the State of Georgia the purpose of the code is
stated as:
“
The
General Assembly of Georgia finds and declares that is in the public
interest to encourage participation by the citizens of
Georgia in
matters of public significance and public interest through the
exercise of their constitutional rights of petition and
freedom of
speech. The General Assembly of Georgia further finds and declares
that the valid exercise of the constitutional rights
of petition and
freedom should not be chilled through abuse of the judicial process.
To accomplish the declarations provided for
under this subsection,
this Code section shall be construed broadly.”
[47]
[48]
The broadest scope of US first amendment protections is provided by
the California anti-SLAPP
Statute, which provides for a mechanism to
screen any cause of action arising from protected speech or
petition
[48]
. The California
Code of Civil Procedure
[49]
asserts that:
“
The
legislature finds and declares that there has been a disturbing
increase in lawsuits brought primarily to chill the valid exercise
of
the constitutional rights of freedom of speech and petition for
redress of grievances. The legislature finds and declares that
it is
in the public interest to encourage continued participation in
matters of public significance, and that this participation
should
not be chilled through abuse of judicial process. To this end, this
section shall be construed broadly.”
[49]
The Washington anti-SLAPP law provides for an onerous burden of proof
for the SLAPP plaintiff
in a defamation suit. The defamed party must
show by clear and convincing evidence that the defendant did not act
in good faith
when alleging a SLAPP
[50]
.
[50]
On 20 November 2020 New York State strengthened its existing
anti-SLAPP laws to expand protections
afforded to defendants in
lawsuits brought based on the exercise of free speech rights. The
amendments broadened the anti-SLAPP
law to cover cases involving “
any
communication in a place open to the public or a public forum in
connection with an issue of public interest”
or
“
any
other lawful conduct in furtherance of the exercise of the
constitutional right of free speech in connection with an issue of

public interest …
”
[51]
[51]
In Europe, despite strong lobbying from interest groups, SLAPP
remains unrecognised.  However,
the European Union support and
actively apply SLAPP-like measures, and anti-SLAPP legislation is
actively debated.  Notwithstanding
the absence of legislative
SLAPP interventions, the European Court of Justice considers public
interest as a decisive consideration
in favour of freedom of
expression.  In
Handyside
v United Kingdom
[52]
,
Case No. 5493/72, the court stated that a democratic society should
tolerate ideas that “
offend,
shock, or disturb the State or any sector of the population.”
Furthermore, in
Steel
and Morris v United Kingdom
[53]
,
also known as the McLibel case, the court held that in a democratic
society even small and informal campaign groups should be
enabled to
contribute to public debate on matters of general public interest,
such as health and the environment. Academics and
journalists who
participate in democratic public discourse are regularly attacked by
SLAPP suits in member States. Criminal defamation
is still maintained
in 23 EU member States. This creates fertile ground for criminal
SLAPP suits. EU member States have not yet
reached agreement on a
legislative proposal to deal with the SLAPP phenomenon
[54]
.
[52]
In
1704604
Ontario Ltd v Pointes Protection Association
[55]
,
an appeal heard on 12 November 2019 in a matter dealing with the
environmental impact of a private development, the Supreme Court
of
Canada dismissed the developer’s suit as a SLAPP suit.
The developers sued and claimed damages for CAD$6 million
for
defamation and breach of contract.  The court emphasised the
public interest in SLAPP legislation, noting that the case
was “
about
what happens when individuals and organisations use litigation as a
tool to quell such expression, which, in turn quells participation

and engagement in matters of public interest.”
[56]
[53]
The court approved the principles established and enunciated in
Grant
v Torstar Corp.
in determining what constitutes “
a
matter of public interest.”
Public interest is to be given a broad interpretation.  It is
irrelevant at the threshold stage whether “
the
expression is desirable and deleterious, valuable or vexatious, or
whether it helps or hampers the public interest …
the question
is only whether the expression pertains to a matter of public
interest, defined broadly. ”
[57]
[54]
The defendant must demonstrate that the proceedings arise from an
expression relating to a matter
of public interest. This threshold
must be established on a balance of probabilities. Once the defendant
meets this threshold burden,
the onus shifts on the plaintiff to show
why proceedings should not be dismissed. The plaintiff is the
required to clear what is
referred to as the “
merits
based hurdle
”
and the “
public
interest hurdle
”.
[58]
[55]
The
merits
based
hurdle requires the plaintiff to satisfy the court that there are
grounds to believe that the proceedings have substantial merit,
and
that the defendant has no valid defence in the proceedings. The
public interest hurdle requires the plaintiff to satisfy the
court
that “
the
harm likely to be or have been suffered by the [plaintiff] as a
result of the [defendant’s] expression is sufficiently
serious
that the public interest in permitting the proceedings to continue
outweighs the public interest in protecting the expression
”.
[59]
Simply put, the court held that a plaintiff claiming defamation must
address the merits of the claim and demonstrate that the public

interest in vindicating that claim outweighs the public interest in
protecting the defendant’s freedom of expression.
Significantly,
to overcome the public interest hurdle, one
consideration must outweigh the other.
[56]
The approach adopted by the Canadian Supreme Court demonstrates that
speech made in connection
with any issue of public interest, or
concern has a high level of protection. The Supreme Court confirmed
in its ruling that the
court will not hear SLAPP style lawsuits
unless the plaintiff can pass a rigorous test to show that it
suffered real harm that
outweighs the public interest in the
expression of those views. Consequently, the court affirmed the right
to participate in environmental
activism, and confirmed the
importance of protecting freedom of expression on matters of public
interest. I am in agreement with
the approach adopted in
1704604
Ontario
Ltd v Pointes Protection Association
.
This approach will align with plaintiffs’ arguments that the
merits cannot be ignored in the determination of this matter.
[57]
Research conducted by Pring and Canan found that defamation is the
single most frequent cause
of action alleged in SLAPP lawsuits
[60]
.
SLAPP assumes many forms, but the most common is a civil case for
defamation in relation to environmental campaigning or protest

action. Consequently, a defamation claim is a convenient ground to
pursue, with the sole purpose to silence the antagonist.
[61]
Defamation suits have the characteristics of a SLAPP suit if it is
primarily initiated in an attempt to silence criticism and shutting

down activism. A common feature of SLAPP suits is therefore a demand
for an apology as an alternative to the exorbitant monetary
claim.
SLAPP filers are generally not interested in monetary compensation to
vindicate their claims. SLAPP suits often masquerade
as ordinary
civil claims such as defamation. It is therefore important to
scrutinise defamation suits in order to determine whether
or not it
is a genuine attempt to protect the reputation of a litigant.  A
number of US states specifically addressed defamation
claims made in
the context of SLAPP suits by providing for qualified privilege where
the statement has been made by a person engaging
in public
participation.
[58]
Distinguishing a SLAPP suit from a conventional civil lawsuit
involves competing policy considerations
in determining which
activities should be protected from legal action. A central feature
of environmental activism, is challenging
certain activities with
regard to the manner in which those activities impact on the
environment. Considering the nature of activism,
it is inevitable
that damaging information or claims are likely to emerge.
Environmental activism is centred on providing critical
information,
even though such information may not always be correct
[59]
The claim against the defendants in this matter arises out of their
activism in protecting such
environmental rights. Clarke published an
e-book with a worldwide reach in 2014 and 2015, but no action was
instituted against
him at the time. It is highly unlikely that the
plaintiffs were not aware of Clarke’s activism and the
existence of the e-books
at the time. The two e-books had the
potential to cause great harm to the plaintiff’s reputation.
However, the plaintiff
did not deem it necessary to institute action
at the time. It is clear that summons was only issued after Clarke
continued his
environmental campaign in 2016. Clarke, Dlamini and
Cullinan were targeted more or less at the same time in 2016,
followed thereafter
by Redell, Davies and Cloete in 2017.
[60]
The plaintiffs are engaged in mining activities and have significant
litigation and human resources.
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. The plaintiffs must be fully aware that resources are
important in relation
to protest-based litigation. The vertical and
unequal power relationship between the parties, is glaringly obvious,
where the applicant
is in a position of power, and the other
individuals are activists and lecturers.
[61]
The strategy to target a group of environmental activists more or
less at the same time may have
the effect of intimidating them to
such an extent, that they may withdraw 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,
entire communities and groups can often
be silenced out of fear of being dragged into a perpetual lawsuit.
[62]
It is evident that the strategy adopted by the plaintiffs is that the
more vocal and critical
the activist is, as is the case with Clarke,
the higher the damages amount claimed. The mining companies are
claiming inexplicably
exorbitant amounts for damages, which the
defendants can ill-afford. They instituted these proceedings fully
aware of the fact
that there is no realistic prospect of recovering
the damages they seek. This action will without a doubt place an
economic burden
on the defendants. However, it appears that the
action is not aimed at obtaining monetary, or financial damages, but
rather vindicating
a right, or for some other purpose. The plaintiffs
have indicated that in the alternative, 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.
[63]
Public participation is a key component in environmental activism,
and the chilling effect of
SLAPP can be detrimental to the
enforcement of environmental rights and land use decisions.  The
present matter arises in
the context of debates about whether the
mining companies have complied with their legal obligations and
whether they have caused
environmental damage. Matters such as this,
self-evidently require public engagement and public debate. The
social and economic
power of large trading corporations renders it
critically important that they be open to public scrutiny without the
inhibiting
risk of crippling liability for defamation. As recognised
by Baroness Hale in
Jameel (Mohamed) v Wall Street Journal Sprl
:
“
The
power wielded by the major multi-national corporations is enormous
and growing. The freedom to criticise them may be at least
as
important in a democratic society as the freedom to criticise the
government.”
[62]
[64]
Individuals or NGO’s must have the freedom to respond to issues
affecting society, such
as those related to the environment and
sustainable development. In instances where corporates could be the
main cause of damaging
and destructive behaviour of the environment
and biodiversity, civil society should be allowed to confront and
restrain such behaviour.
Litigation of this nature pose a serious
threat to the defendants’ participation in matters of public
importance, particularly
environmental issues
[63]
.
Public dialogue and debate with broad participation on matters of
public interests, such as the environment must be protected
and
encouraged. Any legal action aimed at stifling public discourse and
impairing public debates should be discouraged.
[65]
South African law does not have specific legislative mechanisms to
deal with SLAPP suits. In
the absence of anti-SLAPP legislation,
courts have limitations to cure the symptoms of SLAPP. This lack of a
legal framework could
be exploited by corporates, and in the process
render civil society vulnerable when they embark on pursuing legal
challenges and
raising legal defences. This contributes to the
success of the SLAPP, since such legal challenges and defences has a
draining effect
on public purse and participation. However, the
interests of justice should not be compromised due to a lacuna or the
lack of legislative
framework.
Conclusion
[66]
It is trite that legal process is abused when it is used for a
purpose other than that for what
it has been intended or designed
for. 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 the 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 is inconsistent with our
constitutional values and scheme.
[67]
The right to freedom of expression, robust public debate and the
ability to participate in public
debates without fear is essential in
any democratic society. I am accordingly satisfied that this action
matches the DNA of a SLAPP
suit. Consequently, the first set of
special pleas (the SLAPP suit defence) constitute a valid defence to
the action, and the first
set of exceptions falls to be dismissed.
[68]
In view of the court’s findings, I do not deem it necessary to
deal with the issues relating
to the development of the common law.
With regard to costs, I am of the view that the issues raised by the
defendants are novel,
involved a matter of public interest and is of
genuine constitutional import. The Biowatch
[64]
principle must prevail.
[69]
In
the result the following Order is made:
1.
The
first set of exceptions are dismissed with costs, including the costs
of three counsel.
2.
The
second set of exceptions are upheld.
3.
There
shall be no order as to costs in respect of the dismissal of the
second set of exceptions.
DEPUTY
JUDGE PRESIDENT GOLIATH
[1]
SLAPP is an
acronym for “
Strategic
Lawsuits Against Public Participation
”
and was created by Professors Penelope Canan and George W. Pring of
the University of Denver, who have written widely
on this topic.
See, e.g., George W. Pring, SLAPPs:
Strategic
Lawsuits Against Public Participation
,
7 PACE ENVTL. L. REV. 3 (1989); Penelope Canan,
The
SLAPP from a Sociological Perspective
,
7 PACE ENVTL. L. REV. 23 (1989); Penelope Canan and George W. Pring,
Studying
Strategic Lawsuits Against Public Participation: Mixing Quantitative
and Qualitative Approaches
,
22 LAW & SOC’Y REV. 385 (1988); Penelope Canan and George
W. Pring ,
Strategic
Lawsuits Against Public Participation
,
35 SOC. PROBS. 506 (1988).
[2]
16.
Freedom
of expression
(1)
Everyone has the right to
freedom of expression, which includes –
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
[3]
The Constitution
of the Republic of South Africa, 1996.
[4]
2011(5) SA 329
(SCA).
[5]
Access to courts
34.
Everyone has the right to have any dispute that can be resolved by
the application of law decided in a fair public hearing
before a
court or, where appropriate, another independent and impartial
tribunal or forum.
[6]
Section 2(1) b of
the Vexatious Proceedings Act 3 of 1956 as amended by Act 3 of 1995
provides as follows:
“
If,
on application made by any person against whom legal proceedings
have been instituted by any other person or who has reason
to
believe that the institution of legal proceedings against him is
contemplated by any other person, the court is satisfied
that the
said person has persistently and without any reasonable ground
instituted legal proceedings in any court or in any inferior
court,
whether against the same person or against different persons, the
court may, after hearing that other person or giving
him an
opportunity of being heard, order that no legal proceedings shall be
instituted by him against any person in any court
or any inferior
court without the leave of that court, or any judge thereof, or that
inferior court, as the case may be, and
such leave shall not be
granted unless the court or judge or the inferior court , as the
case may be, is satisfied that the proceedings
are not an abuse of
the process of the court and that there is prima facie ground for
the proceedings”.
[7]
1991 (4) SA 603
(D) at 608 E-H.
[8]
[2020]1 All SA 52
(SCA) at para 25.
[9]
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) at para 37.
[10]
2018 (1) SA 200
(SCA) at para 88.
[11]
Stewart and
Another v Botha and Another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) at para 4.
[12]
Beinash v Wigley
& Others
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA); Phillips v Botha
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA); Roering NO and Another v Mahlangu and Others
2016 (5) SA 455
(SCA); Lawyers for Human Rights v Minister in the Presidency
2017
(1) SA 645
(CC); Ascendis Animal Health (Pty) Limited v Merck Sharpe
Dohme Corporation and Others 2020 (1) SA 327 (CC).
[13]
2015 (1) SA 515
(SCA) at paragraph 1.
[14]
Id at para 71.
[15]
Id at para 82.
[16]
Children’s
Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others
2013 (2) SA 213
(SCA); Mukaddam v Pioneer Foods (Pty) Ltd and Others
2013 (5) SA 89
(CC).
[17]
Interpretation of Bill of Rights
…
39(2)
When interpreting any legislation, and when developing the common
law or customary law, every court, tribunal or forum
must promote
the spirit, purport and objects of the Bill of Rights.
[18]
Inherent power
173
The Constitutional Court, Supreme Court of Appeal and High Courts
have the inherent power to protect and regulate their
own process,
and to develop the common law, taking into account the interests of
justice.
[19]
Interpretation
of Bill of Rights
39(1)
When
interpreting the
Bill of Rights, a court, tribunal or forum –
(a)
must promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom;
(b) must consider
international law; and
(c) may consider foreign
law.
[20]
8.
Application
…
(3)
When applying a provision of
the Bill of Rights to a natural juristic person in terms of
subsection (2), a court – (a) in
order to give effect to a
right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation
does not give effect to that
right; and (b) may develop rules of the common law to limit the
right, provided that the limitation
is in accordance with section
36(1).
[21]
Id at para 6.
[22]
African Farms and
Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 565
D-E; Cohen v Cohen       and Another
2003 (1) SA 103
(C) para 14.
[23]
2017(4)
BCLR 445 (CC) at para 20.
[24]
Bisset
and Others v Boland Bank Ltd and Others
supra;
at
para 12; Phillips v Botha
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA) at 565 F-H.
[25]
Id at para 24.
[26]
South
African Broadcasting Corporation Ltd v National Director of Public
Prosecutions and Others
[2006] ZACC 15
;
2007 (1) SA 523
(CC) at para 90.
[27]
[2005] ZACC 15
;
2006 (2) BCLR 274
(CC) at para 47.
[28]
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA) at 734 D-H.
[29]
Cohen v Cohen
2003
(1) SA 103
(C) at para 14.
[30]
[1998] ZASCA 105
;
1999 (2) SA 555
(SCA) at 565 E-H.
[31]
2015
(4) SA 299 (GJ).
[32]
2016
(5) SA 455
(SCA) at para 37.
[33]
[2004] 3 All SA
20
(SCA) at para 50.
[34]
2020 (1) SA 327
(CC) at para 40 the court referred with approval to Beinash v Wigley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA) in this regard. Plaintiff contends that this
case is not relevant to the use of the abuse doctrine as a defence
to a substantive
claim, and the statement was
obiter
.
[35]
Id at para 6.
[36]
2002
(5) 401 (CC) at para 21; Also see Laugh It Off Promotions CC v SAB
International (Finance) BV t/a Sabmark International and
Another
[2005] ZACC 7
;
2005 (8) BCLR 743
(CC) at para 45.
[37]
South
African National Defence Union v Minister of Defence & Another
1999(4) 469 (CC) at para 7.
[38]
Midi Television
(Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) at para 15; Print Media South Africa and
Another v Minister of Home Affairs and Another
2012 (6) SA 443
(CC)
at para 44.
[39]
G Pring & P
Canan SLAPPs: Getting Sued for Speaking Out (1996) 8-9.
[40]
P Canan and GW
Pring (1988), “Strategic Lawsuits Against Public
Participation”, Social Problems, Vol. 35 No. 5, pp.
506-519; P
Canan (1989), “The SLAPP from, a Sociological Perspective”,
Pace Environmental Law Review, Vol. 7 No.
1, pp. 23-32; GW Pring
(1989), “SLAPPs: Strategic Lawsuits against Public
Participation”, Pace Environmental
Law Review, Vol. 7, No. 1,
pp. 3-22.
[41]
Murombo
& Valentine, SLAPP Suits: An Emerging Obstacle to Public
Interest Environmental Litigation in South Africa
2011 27 SAJHR 82
at 86.
[42]
Id
at para 84.
[43]
See
the California Anti-SLAPP Public Participation Project website for
an up-to-date list of States with anti-SLAPP measures in
place or
pending, found at anti-slap.org.
[44]
For example, the
following 3 provinces: Quebec Article 54 of the Code of Civil
Procedure; Ontario, Protection of Public Participation
Act 2015;
British Columbia, Protection of Public Participation Act, 2019.
[45]
Australian
Uniform National Defamation Laws, 2006 read with Australian Capital
Territory’s state legislation, the Protection
of Public
Participation Act, 2008.
[46]
Section
425. 16 (b) (1) of the California Code of Civil Procedure.
[47]
Section
9 – 11 – 11 – 1 (a) of the Civil Procedure Act.
[48]
Subsection 3 (e)
of the Code of Civil Procedure covers communication before a
legislature, executive, judiciary; any statement
made in a public
place or public forum in connection with an issue of public
interest; or any other conduct in the furtherance
of the exercise of
the Constitutional right to petition or to free speech in connection
with a public issue or issue of public
interest.
[49]
Section
425.16.
[50]
See Gilman v.
McDonald, 74 Wn. App. 733,
875 P. 2d 697
, review denied, 125 Wn. 2d
1010,
889 P. 2d 498
(1994); Right-Price Recreation, LLC v. Connells
Prairie Cmty. Council, 146 Wn. 2d 370, 46 P. 3d 789 (2002)
[51]
Sections 70-a and
76a of the New York Civil Rights Law.
[52]
Handyside
v UK, Case No. 5493/72 at para 49.
[53]
See:
McDonald’s
Corp. v Steel and Morris 1997 [EWHC] QB 366;
Steel
and Morris v United Kingdom ECHR  2005. Also known as the
McLibel case. Two activists distributed leaflets on “What’s

wrong with McDonalds?” accusing the company of McCancer,
McDisease and McGreed. The allegations related to the negative

health consequences of food, bad working conditions, exploitation of
children and deforestation. The original case lasted nearly
years,
which made it the longest running libel case in English history. The
McLibel case is widely regarded as a SLAPP because
McDonald’s
aim was seen as one of silencing its critics with a heavy-handed
claim for damages that they could never have
expected to recover
from the defendants.
[54]
See:
EU Citizen,
SLAPP
in EU context, 29 May 2020, Petra Bārd, Judit Bayer, Ngo Chun
Luk and Lina Vosyliute for an overview of SLAPP and its
challenges
in the EU.
[55]
2020
SCC 22
;
Bent
v Platnick
,
2020
SCC 23
[
Bent
]. In
Pointes
and
Bent
,
the Court was tasked with interpreting s. 137.1 of the
Ontario
Courts
of Justice Act
,
RSO
1990, c C.43
[
CJA
],
a key provision of the province’s “anti-SLAPP”
(Strategic Lawsuits Against Public Participation) laws. Section

137.1 allows a defendant to bring a motion to dismiss the action on
the grounds that it intends to silence or gag the defendant
from
speaking about or participating in matters of public interest. As a
recent addition to the
CJA
through
the enactment of the
Protection
of Public
Participation
Act, 2015
,
SO
2015 c 23
,
and with counterparts only in BC and Quebec, the Court’s
analysis in
Pointes
will
serve as the guiding precedent for all future s. 137.1 proceedings
as it was the Court’s first time engaging with any
Canadian
anti-SLAPP laws.
[56]
Pointes at para
1.
[57]
[
2009]
3 S.C.R. 640
,
2009 SCC 61
at para 28.
[58]
Section
137.1 (3) and (4) of the Protection of Public Participation Act,
2015 establishes a two pronged test in the determination
of a SLAPP
suit.
[59]
Pointes
at para 17.
[60]
Pring
& Canan, 89; Pring & Canan’s study found that 53
percent of all SLAPP cases filed in the United States were
based on
defamation. Also see: Murombo & Valentine, SLAPP Suits: An
Emerging Obstacle to Public Interest Environmental Litigation
in
South Africa
2011 27 SAJHR 82
at 84.
[61]
B
Sheldrick,
Blocking
Public Participation: The Use of Strategic Litigation to Silence
Political Expression Wilfrid Laurier University Press
(2014) at p15.
[62]
Jameel (Mohamed)
v Wall Street Journal Europe Sprl
[2006] UKHL 44
;
[2007] 1 AC 359
(HL) at para 158.
[63]
Murombo
& Valentine, SLAPP Suits: An Emerging Obstacle to Public
Interest Environmental Litigation in South Africa
2011 27 SAJHR 82
at 84.
[64]
Biowatch Trust v
Registrar, Genetic Resources
[2009] ZACC; 2009
(10) BCLR 1014
(CC).