CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 66/21
In the matter between:
MINERAL SANDS RESOURCES (PTY) LIMITED First Applicant
MINERAL COMMODITIES LIMITED Second Applicant
ZAMILE QUNYA Third Applicant
MARK VICTOR CARUSO Fourth Applicant
and
CHRISTINE REDDELL First Respondent
TRACEY DAVIES Second Respondent
DAVINE CLOETE Third Respondent
MZAMO DLAMINI Fourth Respondent
CORMAC CULLINAN Fifth Respondent
JOHN GERARD INGRAM CLARKE Sixth Respondent
and
CENTRE FOR APPLIED LEGAL STUDIES First Amicus Curiae
SOUTHERN AFRICA HUMAN RIGHTS
DEFENDERS NETWORK Second Amicus Curiae
Neutral citation: Mineral Sands Resources (Pty) L td and Others v Reddell and
Others [2022] ZACC 37
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgment: Majiedt J (unanimous)
Heard on: 17 February 2022
Decided on: 14 November 2022
Summary: Defamation — abuse of process — SLAPP suit defence — ulterior
purpose — consideration of the merits
ORDER
On direct appeal from the High Court of South Africa, Western Cape Division ,
Cape Town:
1. Leave to appeal directly to this Court is granted.
2. The appeal is upheld.
3. The order of the High Court is set aside, and the following order is made:
(a) The plaintiffs’ exception to the first special plea of the defendants
is upheld on the basis that the first special plea lacks averments
necessary to establish a defence.
(b) The defendants are afforded 30 days from the date of this order to
seek leave to amend their first special plea, failing which, the first
special plea is dismissed.
4. The applicants are ordered to pay 60% of the respondents’ costs in this
Court, including the costs of two counsel.
5. Each party must pay its own costs in the High Court.
MAJIEDT J
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JUDGMENT
MAJIEDT J (Kollapen J, Madlanga J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J,
Tshiqi J and Unterhalter AJ concurring):
Introduction
[1] One of the more positive features of our nascent democratic order is vibrant,
vigilant and vociferous civil society parti cipation in public affairs. In a truly broad
based participatory democracy characterised by that kind of active participation,
our Constitution’s aspirations and values find meaning in the lives of the populace for
whose benefit the Constitution was ultimately enacted. 1 One of the notably active
voices is that of the environmental interests lobby.
[2] At the heart of this case lies the phenomenon of what has become known as
SLAPP, short for Strategic Litigation Against Public Participation. It has been
described as:
“[L]awsuits initiated against individuals or organi sations that speak out or take a
position on an issue of public interest . . . not as a direct tool to vindicate a bona fide
claim, but as an indirect tool to limit the expression of others . . . and deter that party,
or other potential interested parties, from participating in public affairs.”2
It is relatively new in this country,3 but far more settled in jurisdictions such as Canada
and the United States of America. This is the first time that it has reached this Court.
We must determine whether our law prohibits a SLAPP suit under the abuse of process
1 See Phooko “What Should Be the Form of Public Participation in the Law -Making Process? An Analysis of
South African Cases” (2014) Obiter 39 at 58. Phooko writes that “facilitating public participation is more than
just hearing people’s views, rather the views should have an influence in the end products”.
2 1704604 Ontario Ltd v Pointes Protection Association 2020 SCC 22 449 DLR (4th) 1 (Pointes) at para 2. For
ease of reference, I shall use the acronym SLAPP throughout.
3 There are some though who will say that while the nomenclature is new, the phenomenon is not.
MAJIEDT J
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doctrine and, if not, whether it should be developed in that regard. Thus, the central
issue is whether our law currently permits that ulterior motive alone, to the exclusion of
the merits of a cla im, may be determinative of abuse of process, so that the claim can
be dismissed solely on that basis. If not, ought this Court to develop the common law
to recognise abuse of this kind?
[3] The case originates from three defamation suits instituted by the p resent
applicants, Australian mining companies and some of their executives, as plaintiffs in
the High Court of South Africa, Western Cape Division, Cape Town (High Court).
The defendants in the suits are the present respondents before us; they are
environmental lawyers and activists. For ease of reference, the parties will be referred
to as they are in this Court, although the context may sometimes require reference to
them as they were cited in the High Court.4 From time to time they may also be referred
to as “the mining companies” or “the mining executives” (plaintiffs/ applicants) and
“the environmentalists” (defendants/respondents).
[4] The Centre for Applied Legal Studies (CALS) was admitted as the first
amicus curiae. CALS is a public interest organisation and is also registered as a law
clinic based at the University of the Witwatersrand ’s School of Law. Two of their
programmes, the Environmental Justice Programme and the Civil and Political Justice
Programme, are of relevance to this applicat ion. The former aims to hold corporate
actors accountable for environmental damage and to make section 24 environmental
rights a reality for all who live in South Africa. The latter seeks to further the rule of
law and respect for the Constitution as the supreme law of the land. Because of what it
does under these two programmes, CALS has an interest in the present litigation. CALS
made useful written and oral submissions in this case, setting out the nature and
treatment of SLAPP suits in foreign jurisdictions, focusing primarily on the tests used
in foreign jurisdictions to identify and address cases presenting as or alleged to be
4 Although there are three separate cases with different case numbers in the High Court, only one judgment was
delivered in respect of them and there is only one application in this Court. The applicants and respondents are
therefore numbered differently in this Court and the High Court.
MAJIEDT J
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SLAPP suits. CALS adopted the stance that, considering the nature of SLAPP suits
(with reference to our jurisprudence and comparative foreign jurisprudence) against the
scope of abuse of process, this type of lawsuit differs from abuse of process and ought
not to be conflated with our common law of abuse of process. It is CALS’s considered
view that neither the current process of dealing with abuse of process, nor the elevation
of ulterior motive within the common law abuse of process test is sufficient to deal with
SLAPP suits. This Court is indebted to CALS for its helpful submissions.
[5] The Southern Africa Human Rights Defenders Network (SAHRDN) was
admitted as second amicus curiae. The SAHRDN is a non-profit sub-regional network
of human rights organisations from Southern Africa. It was established as a strategic
response to the shrinking civic sp ace and increased systematic attacks on civil society
and human rights defenders across Southern Africa. It contributes to the respect and
recognition of human rights defenders as legitimate actors and agents of social change
with universally recognised a nd guaranteed constitutional rights. Since 2013,
the SAHRDN has operated with close support from a steering committee with members
consisting of the International Commission of Jurists, the South ern Africa Litigation
Centre and Zimbabwe Lawyers for Human Rights. The SAHRDN’s written and oral
submissions centered on international law with the aim of ensuring that the broader
context of international law is taken into account by this Court . In particular, they
sought to ensure that the Court considered international law principles that promote the
ability of human rights defenders to participate in public interest issues that may involve
litigation. Their submissions were helpful to the Court for which we are indebted.
[6] The t hree defamation actions emanate from various allegedly defamatory
statements made by the environmentalists. The claims in t he actions total in excess of
R14 000 000. In response to each of the defamation actions, the defendants raised two
special pleas, both of which elicited exceptions from the plaintiffs.
[7] The first special plea – the SLAPP special plea – was that the actions were
brought for the ulterior purpose of discouraging, censoring, intimidating, and silencing
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the respondents and members of the public in relation to public criticism of the mining
companies. The plaintiffs excepted to this special plea, contending that the SLAPP suit
defence did not exist in our law and that therefore, the special plea did not discl ose a
defence. This is the first set of exceptions – the second set of exceptions dealt with the
second special plea of the defendants. That second special plea, styled “ the corporate
defamation special plea ” in the High Court proceedings, was that the c laims of the
mining companies were bad in law because a for -profit company has no claim for
general damages in relation to defamation without alleging and proving falsity,
wilfulness and patrimonial loss. That special plea is the subject of a separate mat ter
before this Court: Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others
CCT 67/21.
[8] The High Court heard the two exceptions together.5 The exception to the SLAPP
special plea was dismissed by the High Court. The applicants now seek leave to appeal
to this Court for the reversal of the High Court’s decision to dismiss the exception. The
applicants assert that this case is closely related to CCT 67/21 . In that case, both the
High Court and Supreme Court of Appeal are bound by the latter Court’s decision in
SA Taxi.6 A direct appeal to this Court is thus necessary and leave to appeal should be
granted.
Background
[9] The plaintiffs are engaged in extensive mining operations in the exploration and
development of major mineral sands projects in South Africa, namely the
Tormin Mineral Sands Project and the Xolobeni Mineral Sands Project. There appears
to be fierce community opposition to these mining activit ies and the defendants are
apparently at the forefront of that opposition. In the course of this opposition,
the defendants are alleged to have made statements which are defamatory of the
plaintiffs.
5 Mineral Sands Resources (Pty) Ltd v Redell and Two Related Cases 2021 (4) SA 268 (WCC).
6 Media 24 Ltd v SA Taxi Securitisation (Pty) Ltd [2011] ZASCA 117; 2011 (5) SA 329 (SCA).
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[10] The first to third respondents made the alleged defama tory statements as
presenters of a lecture series at the University of Cape Town, concerning the applicants’
Tormin mining project, entitled “Mining the Wild and West Coast: ‘Development’ at
what cost?”. The alleged defamatory statements concern what was said to be the
duplicitous and unlawful nature of the mining operations which were said to be ravaging
the environment. The claims against them totalled R1 250 000.
[11] The fourth and fifth respondents participated in a radio interview in which the
present fourth applicant (the second plaintiff in the High Court) was also a participant.
The interview was posted on the radio station’s website. The fourth and
fifth respondents discussed the mining activities, expressed certain contentious opinions
and trenchantly criticised the plaintiffs’ mining operations. They are sued for a total of
R3 000 000.
[12] Lastly, in respect of the sixth respondent, the alleged defamatory statements
appeared in two e-books7 published by him, several of his radio interviews, video clips
posted by him on YouTube, numerous emails that he had written, and a number of his
interviews published on various social media platforms online. He also participated in
a panel discussion on a SABC television programme known as 50/50 relating to mining
and mineral regulation issues ; he posted an article on an online journalism platform
called Medium, entitled “Behind the Irony Curtain: Blood Diamond, Xolobeni and the
Real Story of MRC”;8 and engaged in general advocacy around environmental issues.
In the end, the plaintiffs instituted 27 defamation claims against him totalling
R10 000 000.
7 An e-book is a book publication made available in digital form. The first e -book, is Clarke The Promise of
Justice (2013), and the second is Clarke Survivor: Wild Coast – Before and Beyond ‘The Shore Break’ (2015).
8 Clarke “Behind the Irony C urtain: B lood Diamond, Xolobeni and the Real Story of MRC” Medium
(25 March 2018), available at https://johngiclarke.medium.com/behind-the-irony-curtain-blood-diamond-
xolobeni-and-the-real-story-of-mrc-6a626c9c2913.
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[13] The plaintiffs sought damages for the alleged defamation, alternatively, public
apologies. In their SLAPP special plea, the defendants pleaded that these claims are
brought against the individual defendants even though—
(a) the mining companies do not allege any patrimonial loss;
(b) the mining companies do not allege that the alleged defamatory
statements concerned are false; and
(c) the mining companies do not honestly believe that they have any prospect
of recovering the amount of damages claimed f rom the individual
defendants.
[14] The defendants pleaded that the plaintiffs’ conduct in this regard “forms part of
a pattern of conduct”. This “pattern of conduct” involves these mining companies and
their directors bringing “defamation actions for the ulterior purpose” of—
(a) discouraging, censoring, intimidating , and silencing the defendants in
relation to public criticism of the plaintiffs; and
(b) intimidating and silencing members of civil society, the public , and the
media in relation to public criticism of the plaintiffs.
[15] The defendants concluded in their special plea that the bringing of the
defamation actions—
(a) is an abuse of process of court;
(b) 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
(c) violates the right to freedom of expression entrenched in section 16 of the
Constitution.
[16] Finally, the defendants pleaded that , insofar as it may be held that the existing
common law does not allow for the dismissal of an action on this basis, the common law
should be developed in terms of sections 8(3) and 39(2) of the Constitution.
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[17] The plaintiffs excepted to the SLAPP special plea . They did so: first, on the
basis that the defendants had not brought an application in terms of the
Vexatious Proceedings Act9 (the Act); and, second, on the basis that the defendants had
not satisfied the requirements for abuse of process at common law which , they say,
“require that the Court finds that the proceedings are obviously unsustainable as a
certainty and not merely on the preponderance of possibility”. The reliance on the Act
has effectively fallen away and we are only concerned here with abuse of process under
the common law. This is because, as the applicants rightly say, the respondents do not
purport to rely on the Act, nor could they. Section 2(1)(b) of that Act would not apply
here – the section requires a separate application for protection against a vexatious
litigant to be brought by a defendant. Protection cannot be obtained simply by filing a
plea in which abuse is alleged.
The applicants’ main submissions
[18] First, as to appealability, the applicants submit that the order of the High Court
meets the requirements for appealability, laid down in Zweni,10 that is: it is final in effect
and not susceptible to alteration by that Court; it is definitive in certain respects of the
rights of the parties; and has the effect of disposing of a substantial portion of the relief
claimed.11 The order also complies with the adaptation of the Zweni test by this Court
in, amongst others, SCAW,12 as it is in the interests of justice tha t it be heard by
this Court.
[19] In essence, the applicants’ case is that recognising the SLAPP suit defence on
the terms that it is pleaded permits the respondents (as defendants) to put the applicants
(as plaintiffs) on trial in the actions where the only issue will be the applicants’ motives.
9 3 of 1956.
10 Zweni v Minister of Law and Order [1992] ZASCA 197; 1993 (1) SA 523 (A).
11 Id at 532J-533A.
12 International Trade Administration Commission v SCAW South Africa (Pty) Ltd [2010] ZACC 6; 2012 (4) SA
618 (CC); 2010 (5) BCLR 457 (CC) at para 53.
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Findings of ulterior motive would result in the actions being dismissed without any
regard to the merits of the applicants’ claims for defamation.13
[20] On leave to appeal, the applicants’ contention is that the application engages both
this Court’s constitutional and general jurisdiction. They submit that their right to
access to courts in terms of section 34 of the Constitution is of cardinal importance. The
applicants argue that a resolution of the disputes between the parties, without reference
to the merits of those disputes, implicates their right to a fair public hearing. What may
constitute an abuse of process and the protections afforded to a litigant confronted with
an abuse of process raise arguable points of law of general public importance that
transcend the interests of the parties.
[21] The applicants say that there is no dispute between them and the respondents that
the interests of justice favour an appeal directly to this Court. The issues are important
and of broader application than the parties. Pragmatism strongly favours this matter
being heard together with that under CCT 67/21,14 and the Supreme Court of Appeal is
unlikely to entertain one or both matters. According to the applicants, it appears that
the respondents confine their opposition to the merits of the appl ication. Their
preference also seems to be for this Court to engage with the merits of the application
at this stage.
[22] The respondents’ SLAPP special pleas , according to the applicants, postulate
that under the common law a litigant may raise an abuse of process as a stand -alone
defence to a substantive claim and that ulterior motive alone, to the exclusion of the
merits of a claim, may give rise to an abuse of process. The applicants argue that t his
runs contrary to cases like Maphanga15 that place clear (if not exclusive) emphasis on
the merits of a claim in the abuse of process analysis.
13 In this regard, the applicants cite Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401 (CC); 2002 (8) BCLR
771 (CC) at para 11.
14 The so-called corporate defamation defence alluded to at [7].
15 MEC, Department of Co-operative Governance and Traditional Affairs v Maphanga [2019] ZASCA 147; 2021
(4) SA 131 (SCA).
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[23] The applicants further assert that the respondents’ SLAPP special ple as lack
averments necessary to sustain the defence they wish to raise , as the respondents seek
to have the merits of a claim excluded from the abuse of process analysis, contrary to
that doctrine . Therefore, the applicants submit that their first set of e xceptions,
otherwise compliant with the exception procedure, accordingly, stand to be upheld.
[24] The applicants oppose the development of the common law , for which the
respondents contend in the alternative , on the basis that the respondents have failed to
satisfy the applicable test, as summarised by this Court in DZ.16 The applicants further
submit that t he common law principles of abuse of process are not inconsistent with
section 16 or section 34 of the Constitution, relied on by th e respondents , nor
the constitutional value system. Moreover, the applicants submit that the international
approach to the regulation of SLAPP suits, invoked by the respondents, is merits-centric
and establishes that law reform on the topic is a complicated exercise best left t o the
Legislature.
The respondents’ main submissions
[25] The respondents assert that , on the well -established approach to exceptions, it
must be accepted as true that—
(a) the plaintiffs do not honestly believe that they have any prospect of
recovering the amount of damages claimed from the defendants;
(b) the plaintiffs’ defamation actions are brought for the purpose of—
(i) discouraging, censoring, intimidating , and silencing the
defendants in relation to public criticism of them; and
(ii) intimidating and silencing members of civil society, the public, and
the media in relation to public criticism of them; and
16 MEC for Health and Social Development, Gauteng v DZ obo WZ [2017] ZACC 37; 2018 (1) SA 335 (CC) ;
2017 12 BCLR 1528 (CC) at para 31.
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(c) this forms part of a “pattern of conduct” by the mining companies and
their directors in which they seek to bring defamation actions for these
purposes.
[26] The respondents assert that i t must also be accepted as true that the mining
companies have not brought a defamation claim for a reasonable amount, likely to be
recovered, to compensate them for injury to dignity. Instead, they have brought a series
of claims for amounts which they know they will not recover, in order to silence their
critics.
[27] The main thrust of the respondents’ argument is that the existing doctrine of
abuse of process encompasses a SLAPP suit defence and that the existing common law
allows and requires courts to consider ulterior motive when assessing whether a litigant
has abused court proceedings. Ultimately, the respondents submit that the common law
also allows for ulterior motive solely to be determinative of abuse of process in certain
circumstances. They rely heavily on Lawyers for Human Rights 17 as authority that an
ulterior motive can be considered solely determinative of abuse of process. According
to the respondents, that case holds that, generally , abuses of process occur when court
processes are used for ulterior or extraneous purposes. This finding makes clear that
(a) ulterior motives will be considered; and (b) ulterior motives can be determinative of
abuse of process.
[28] The respondents also rely on a number of other cases for their submission that
“our courts have repeatedly referred to the purpose of the litigation as being relevant to
and possibly determinative of the question of abuse of process”.18 They take issue with
the applicants’ contention that these cases are distinguishable.
17 Lawyers for Human Rights v Minister in the Presidency [2017] ZACC 22; 2017 (5) SA 480 (CC); 2017 (10)
BCLR 1242 (CC).
18 They cite Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation [2019] ZACC 41; 2020 (1)
SA 327 (CC); 2020 (1) BCLR 1 (CC) (Ascendis); Roering N.O. v Mahlangu [2016] ZASCA 79; 2016 (5) SA 455
(SCA); Phillips v Botha [1998] ZASCA 105; 1999 (2) SA 555 (SCA); Gold Fields Ltd v Motley Rice LLC 2015
(4) SA 299 (GJ).
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[29] The respondents make extensive submissions as to why the applicants’ strong
reliance on Maphanga19 is misplaced. First, they say that in that case the question of
improper motive does not appear to have been at issue. Second, if Maphanga did indeed
purport to hold that the motive or purpose of the litigation was irrelevant to debates
about abuse of process, this would have been wrong. It would have been inconsistent
with a series of decisions of our courts, including the S upreme Court of Appeal and
this Court. Furthermore, the respondents assert that the applicants’ invocation of cases
dealing with the legality of arrests and criminal prosecutions a re inapposite. Those
cases are distinguishable, as there is plainly good reason for the law to refuse to provide
a route for a person who commits a crime to avoid arrest or prosecution by asserting
bad motives against an arresting officer or prosecutor.
[30] The respondents further submit that this Court need not decide the question when
an ulterior purpose can be enough to conclude that there is abuse of process in order to
dismiss the appeal. It only needs to decide whether, given the facts pleaded by the
respondents (which must be accepted as true), the ulterior motive of the
mining companies behind their defamation claims could conceivably constitute an
abuse of process. According to the respondents, l itigation brought for an ulterior
purpose is patently impermissible. It constitutes an abuse of process. This is for two
reasons: first, the importance of free engagement and debate on matters of public
importance; and, second, the environmental context in which these actions have been
brought is especially concerning.
[31] The respondents conclude that under the existing common law, the special pleas
are good in law. Whether they are established on the facts is a matter for the trial court
to determine in due course. The notion that the special pleas can be r ejected at this
stage, before evidence on them is even led, is, according to the respondents, not correct.
The respondents therefore submit that the plaintiff’s’ appeal and exception must fail.
19 Maphanga above n 15.
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[32] If they are wrong for any reason on the position of the existing common law, say
the respondents, then the existing common law falls to be developed. They contend that
this case falls squarely within the principles laid down in DZ.20 The respondents are at
pains to emphasi se that they do not suggest that this Court should create an entire
SLAPP suit regime via the development of the common law. What they propose ,
instead, is that the real and pressing concerns alluded to on this score must be considered
in determining whether and how the existing common law principles of abuse of process
are to be developed. They draw an analogy to the development of the common law
regulating class actions.21
[33] The respondents maintain that i t would be untenable to uphold the applicants’
contention that would preclude the develo pment of the common law at this stage on
exception. It cannot seriously be contended that it is “legally impossible” for the
common law to be developed in a manner that would sustain the special plea. Doing so
would foreclose the development of the common law on this critical issue and be
directly at odds with this Court’s approach in Fetal Assessment Centre.22
Jurisdiction and leave to appeal
[34] For leave to appeal to be granted in this Court, an applica nt must meet two
requirements. First, the matter must fall within the jurisdiction of this Court in that it
raises a constitutional issue or an arguable point of law of general public importance
and second, the interests of justice must warrant that leave to appeal be granted.
[35] The issues are plainly of manifest importance. The parties are agreed that the
interests of justice favour granting the application for leave to appeal. They are in
20 DZ above n 16.
21 In this regard, the respondents cite the Supreme Court of Appeal’s judgments in Children’s Resource Centre
Trust v Pioneer Food (Pty) Ltd [2012] ZASCA 182; 2013 (2) SA 213 (SCA) and Mukaddam v Pioneer Foods
(Pty) Ltd [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135 (CC).
22 H v Fetal Assessment Centre [2014] ZACC 34; 2015 (2) SA 193 (CC); 2015 (2) BCLR 127 (CC).
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agreement that the issues are of pressing constitutional import. This Court has both
constitutional and general jurisdiction in this case. We are concerned here with whether
the common law doctrine of abuse of process currently provides for a SLAPP suit
defence. In addition, this matter concerns the development of t he common law and
right of access to courts in line with Boesak.23 This matter is directly linked to
CCT 67/21 (the corporate defamation defence), and as in that case, this matter
transcends the parties’ narrow interests. SLAPP suits, by definition, limit public
participation by abusing the legal process to silence and deter public participation. The
restrictions upon public participation, particularly in environmental matters where
“meaningful public participation” is required, is a matter of general public importance.24
Furthermore, and again much like the case in CCT 67/21, this matter engages the
constitutional rights of freedom of speech25 as well as access to courts.26
23 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC).
24 Compare the comments of the Supreme Court of Appeal in Company Secretary, Arcelormittal South Africa Ltd
v Vaal Environmental Justice Alliance [2014] ZASCA 184; 2015 (1) SA 515 (SCA) at para 1, where the Court
noted:
“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 of governments and in relation to corporations. In
South Africa, because of our past, the latter aspect has increased significance.”
And, at para 71, it said:
“It is clear, therefore, in accordance with interna tional trends, and constitutional values and
norms, that our legislature has recognised, in the field of environmental protection, inter alia the
importance of consultation 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.”
25 Section 16 of the Constitution, which reads:
“(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.
(2) The right in subsection (1) does not extend to—
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
26 Section 34 of the Constitution, which reads:
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[36] Direct appeals to this Court are permitted only where the interests of justice so
permit.27 In Khumalo, this Court granted leave to appeal directly to it on the basis that:
“The extent to which the Constitution requires a development of the law of
defamation is a question which has been frequently asked. The issue was raised
but not answered in an early decision of this Court, Du Plessis and Others v De
Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658), and has been
considered in a considerable number of High Court judgments since. It is also
a matter which has received the at tention of the Supreme Court of Appeal in
National Media Ltd v Bogoshi and has also troubled Courts in many other
jurisdictions. In all these circumstances, therefore, it seems that it would be in
the interests of justice for this Court to consider the appeal. The application for
leave to appeal is therefore granted (though to avoid confusion I shall continue
to refer to the appellants as applicants).”28 (Footnotes omitted.)
[37] Leave to appeal ought to be granted directly to this Court. Unlike the case in
CCT 67/21, this matter does not face the challenge of binding precedent in the
Supreme Court of Appeal ( SA Taxi, as alluded to in paragraph [8] above). However,
the two cases are closely linked, relate to the same parties, are based on the same causes
of action and engage public policy considerations, so that it is undoubtedly in th e
interests of justice for the cases to be heard and dealt with simultaneously. I am
cognisant of the fact that this Court is reluctant to bypass the Supreme Court of Appeal
in matters relating to the development of the common law, however, the fact that that
Court has already heard the case on corporate defamation in SA Taxi and that it is not
desirable to split the two cases, weighs in favour of this Court granting leave. It is thus
“Everyone has the right to have any dispute that can be resolv ed by the application of law
decided in a fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.”
27 Khumalo above n 13 at para 7. See also Baloyi v Public Protector [2020] ZACC 27; 2022 (3) SA 321 (CC);
2021 (2) BCLR 101 (CC) at para 13; Public Protector v Commissioner for the South African Revenue Service
[2020] ZACC 28; 2022 (1) SA 340 (CC); 2021 (5) BCLR 522 (CC) at para 16 and United Democratic Movement
v Speaker, National Assembly [2017] ZACC 21; 2017 (5) SA 300 (CC); 2017 (8) BCLR 1061 (CC) at para 23.
28 Khumalo id at para 16.
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in the interests of justice that the two cases be heard on direct appeal by this Court. As
will appear, there are also reasonable prospects of success.
[38] What bears consideration next, is the appealability of the dismissal of an
exception. In Informal Traders, this Court held that whether an interlocutory decision
is appealable is an interests of justice enquiry.29 A similar “interests of justice” enquiry
ought to apply here. In Zweni, the Supreme Court of Appeal held that decisions that
can be appealed must have the following three attributes: they must be final in effect
and not susceptible to alteration by the court of first instance; they must be definitive in
some respect of the rights of the parties; and they must have the effect of disposing of
a substantial portion of the relief claimed.30 However, where an exception is not upheld,
an appeal will not lie because it does not meet the criteria enumerated in Zweni.
Previously, the Supreme Court of Appeal has pertinently declined to reconsider the
question of the appealability of decisions dismissing exceptions. 31 However, the
interests of justice criterion is more expansive. As this Court held in OUTA:
“[t]his Court has granted leave to appeal in relation to interim orders before. It has
made it clear that the operative standard is the ‘interests of justice’”. 32 As stated, there
are reasonable prospects of success here. This set of exceptions plainly raise questions
concerning the constitutional validity of the common law of defamation, as was the case
in Khumalo.
[39] The question whether an appeal may lie to this Court against the dismissal of an
exception by a High Court depends on whether such dismissal constitutes a “decision
on a constitutional matter” as contemplated by r ule 1933 and, if it does, whether it is
29 South African Informal Traders Forum v City of Johannesburg [2014] ZACC 8; 2014 (4) SA 371 (CC) ; 2014
(6) BCLR 726 (CC) at para 20.
30 Zweni above n 10 at 532J-533A.
31 Minister of Safety and Security v Hamilton [2001] ZASCA 27; 2001 (3) SA 50 (SCA) at 53D-E.
32 National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11)
BCLR 1148 (CC) at para 25.
33 Rule 19(2) reads:
“A litigant who is aggrieved by the decision of a court and who wishes to appeal against it
directly to the Court on a constitutional matter shall, within 15 days of the order against which
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“in the interests of justice” – the standard set by section 167(6) of the Constitution 34 –
for this Court to hear the appeal. This first set of exceptions raise questions concerning
the constitutional right to freedom of expression, the right to access to courts, as well as
meaningful public participation in matte rs of public importance, such as compliance
with environmental regulations by mining companies. In considering and then
dismissing these exceptions, the High Court was clearly concerned with a constitutional
matter and that order constitutes a decision on a constitutional matter as contemplated
in rule 19.
[40] As stated, there is a close link between this matter and CCT 67/21, and this
further supports the appealability of this case. The High Court found that our
common law recognises a SLAPP suit defence to an action for defamation which
requires no consideration at all of the merits of the claim. This effectively permits a
defendant to seek the dismissal of an action solely on the basis that it is brought for an
ulterior purpose and without any regard to the merits of the plaintiff’s claim. This may
potentially be definitive of the rights of the parties in the actions and may later on
dispose of the actions. U sually, a dismissal of an exception is not appealable on the
basis that the question of law can be argued again at the end of the trial. But sometimes,
as here, this position must yield to a circumstance where an important and novel
question of law requires determination so that the trial may proceed with certainty as to
whether the defence as pleaded is in fact good in law. In this respect, the present matter
is different to Baliso,35 where this Court refused leave against the dismissal of an
exception. It is thus in the interests of justice for leave to appeal to be granted in this
the appeal is sought to be brought and after giving notice to the other party or parties concerned,
lodge with the Registrar an application for leave to appeal: Provided that where the President
has refused leave to appeal the period prescribed in this rule shall run from the date of the order
refusing leave.”
34 Section 167(6) reads:
“National legislation or the rules of the Constitutional Court must allow a person, when it is in
the interests of justice and with leave of the Constitutional Court—
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.”
35 Baliso v Firstrand Bank Ltd t/a Wesbank [2016] ZACC 23; 2017 (1) SA 292 (CC); 2016 (10) BCLR 1253 (CC).
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matter. In respect of the merits, regard must first briefly be had to the well-established
general approach to exceptions as they would apply to this case.
Merits
The approach to be adopted in respect of the exceptions
[41] The excipient must satisfy the court that the c onclusion of law pleaded by a
defendant cannot be supported by any reasonable interpretation of the particulars of
claim.36 In adjudicating an exception, the facts pleaded by the defendants must all be
accepted as true.37 Applied to this case, it means tha t it must be accepted as true that
the plaintiffs have not brought a defamation claim for a reasonable amount, likely to be
recovered in order to compensate them for injury to dignity. Instead, they have brought
a series of claims for amounts which they k now they will not recover, in order to
intimidate their critics, the environmentalists, into silence. What bears consideration
next in brief is the SLAPP suit’s origin, nature, and development.
The SLAPP suit – origin, nature, and development
[42] As stated, the SLAPP suit has its origin in the United States of America and
Canada. The term “SLAPP” originated in the 1980’s in the United States of America.38
Lawsuits of this kind are usually brought for the purpose of preventing or discouraging
political expression and comment on public issues. Their objective is to limit protest
and dissuade individuals, citizens and activists from political participation. There
appears to be an increase in such cases, particularly in foreign jurisdictions like Canada
and the United States of America, and they take a wide range of forms. They are often
described as cases without merit brought to discourage a party from pursuing or
vindicating their rights, often with the intention not necessarily to win the case, but
36 Stewart v Botha [2008] ZASCA 84; 2008 (6) SA 310 (SCA) at para 4.
37 Charlton v Parliament of the Republic of South Africa [2011] ZASCA 132; 2012 (1) SA 472 (SCA) at para 1.
38 Canan and Pring “Studying Strategic Lawsuits Against Public Particip ation: Mixing Quantitative and
Qualitative Approaches ” (1988) 22 Law & Society Review 2; Canan “The SLAPP from, a Sociological
Perspective” (1989) 7 Pace Environmental Law Review 23; Pring “SLAPPs: Strategic Lawsuits against Public
Participation” (1989) 7 Pace Environmental Law Review 3.
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simply t o waste the resources and time of the other party, until they abandon their
defence. SLAPP suits are frequently brought as defamation claims, abuse of process,
malicious prosecution or delictual liability cases.39 Their aim is to intimidate and scare
a litigant who may previously have brought to light matters of public concern.40
[43] A common feature of SLAPP suits is that the primary aim of the litigation is not
to enforce a legitimate right. The objective is to silence or fluster the opponent, tie them
up with paperwork or bankrupt them with legal costs. Therefore, the hallmark of a
SLAPP suit is that it often (but not necessarily always) lacks merit, and that it is brought
with the goals of obtaining an economic or other advantage over a party by increasin g
the cost of litigation to the point that the party’s case will be weakened or abandoned.
They are primarily legal proceedings that are intended to silence critics by burdening
them with the cost of litigation in the hope that their criticism or oppositi on will be
abandoned or weakened. In a typical SLAPP suit, the plaintiff does not necessarily
expect to win its case, but will have accomplished its objective if the defendant yields
to the intimidation, mounting legal costs or exhaustion and abandons its defence and
also, importantly, its criticism of and opposition to the project or development. 41 It
appears from this initial analysis that both merit and motive play a role in the test for a
SLAPP suit and the one may inform the other.
[44] SLAPP suits are not brought only in the context of environmental litigation, they
are encountered in various other types of litigation. It bears repetition that
environmentalists appear to be quite active worldwide, and also in our country. A
further factor is that “meani ngful public participation” is a key requirement in
39 Murombo and Valentine “SLAPP suits: An emerging obstacle to public interest environmental litigation in
South Africa” (2011) 27 South African Journal on Human Rights 82.
40 See: Hartzler “Protecting Informed Public Participation: Anti -SLAPP Law and the Media Defendant” (2007)
41 Valparaiso University Law Review 1235.
41 In Price v Stossel 620 F 3d 992 (9th Cir 2010), this was described as follows:
“The hallmark of a SLAPP suit is that it lac ks merit, and that it is brought with the goals of
obtaining an economic advantage over a citizen party by increasing the cost of litigation to the
point that the citizen party's case will be weakened or abandoned. The anti -SLAPP statute
attempts to counteract the chilling effect of strategic suits by providing that such suits should
be dismissed under a special motion to strike.”
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environmental legislation.42 Those most commonly at the receiving end of defamation
SLAPP suits are media institutions, whistleblowers, and activists. SLAPP suits in all
spheres, but particularly in the context of public interest environmental litigation, evince
a deeper contestation in society. It is the manifestation of the increasing contest between
the competing interests of developers pursing their property rights, and
environmentalists pursuing con servation objectives. These lawsuits demonstrate the
need for a balance between competing rights such as freedom of expression, right to
privacy, and the right to property.
[45] SLAPP suit defences have been introduced by legislation in some foreign
jurisdictions, primarily on the basis that SLAPP suits impede freedom of expression. 43
Thus, for example, in California, the Code of Civil Procedure pertinently declares that
it is intended to protect th e American constitutional right to free speech in the context
of participation in matters of public significance. 44 And in Canada, the anti-SLAPP
legislation is aimed at mitigating the harmful effects of strategic lawsuits against public
participation, utilised not as a direct tool to vindicate a bona fide claim, but as an indirect
tool to limit the expression and deter that party, or other potential interested parties,
42 Section 24 of the Constitution provides:
“Everyone has the right to:
(a) an environment which is not harmful to their health or wellbeing;
(b) have the environment protected for the benefit of present and future
generations through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural
resources, while promoting justifiable economic and social
development.”
Section 2(4)(f) of the National Environmental Management Act 107 of 1998 (NEMA) reads:
“The participation of all interested and affected parties in environmental governance must be
promoted, and all people must have the opportunity to develop the understanding, skills and
capacity necessary for achieving equitable and effective participation, and participation by
vulnerable and disadvantaged persons must be ensured.”
43 Most notably, i n California, SLAPP suits are regulated by section 425.16 of the Code of Civil Procedu re; in
British Columbia, Canada, SLAPP suits are regulated by the Protection of Public Participation Act, 2019; i n
Ontario, Canada, of application is the Protection of Public Participation Act, 2015 ; and in the Australian Capital
Territory, SLAPP suits are regulated by the Public Participation Act, 2008 .
44 Section 425.16(a) of the Code of Civil Procedure.
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from participating in public affairs. 45 There are elaborate procedures in most of these
foreign jurisdictions, an aspect to be discussed in some detail presently. But can SLAPP
suits be accommodated under our common law abuse of process?
Abuse of process in our law
[46] The defendants plead the legal conclusion to their special defences that the
plaintiff’s conduct in bringing the defamation—
“(a) is an abuse of process;
(b) 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
(c) violates the right to freedom of expression entrenched in section 16 of
the Constitution.”
[47] Distilled to its essence, the defence is really one of abuse of process. The
additional allegations pleaded regarding the improper use of litigation and a violation
of the right of freedom of expression appear to be merely in support of this legal
conclusion, as opposed to being further self -standing grounds. The defendants’
contention is that abuse of process is a stand-alone defence and they rely entirely on the
plaintiffs’ ulterior motive for bringing the defamation actions as constituting the abuse.
The merits of the plaintiffs’ claims are to be left completely out of the reckoning – their
ulterior motive in and of itself amounts to abuse of the process of the court. That is the
crux of the defendants’ SLAPP suit defence.
[48] The defendants submit that “[t]he existing common law allows and requires
courts to consider ulterior motive when assessing whether a litigant has abused court
proceedings. The common law also allows for ulterior motive to be determinative of
abuse of process in certain circumstances”. They rely on a number of cases to support
this submission. Those cases will be examined presently. During oral argument in
45 Pointes above n 2 at para 2.
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this Court, though, the respondents made some important concessions. They ultimately
contended that the defence of abuse required that the object of the litigation was “a gross
violation of constitutional rights”. They also accepted that regard to the merits was
permissible, but submitted that it was for the plaintiffs to raise.
[49] Our courts have over many years used their inherent powers to protect the
institution from litigious abuse. The leading case is Lawyers for Human Rights,46 where
this Court cited Beinash47 with approval, in which it was held that abuse of process can
in general terms be said to occur “where the procedures permitted by the rules of the
Court to facilitate the pursuit of the truth are used for a purpose extraneous to that
objective”.48 It was held in Beinash that “[t]here can be no doubt that every Court is
entitled to protect itself and others against an abuse of its processes”.49 An enquiry into
abuse of process depends on the facts and circumstances of each case. 50 The
respondents rely heavily on Lawyers for Human Rights. They contend that “this Court
has definitively held [in that case] that ulterior motive can be considered and be
determinative of abuse of process. Yet the exception raised by the mining companies
contends precisely the opposite”. This submission will be analysed presently.
[50] In Phillips, the Supreme Court of Appeal defined abuse of process thus:
“The term ‘abuse of proc ess’ 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 t he Court is asked to adjudicate they
are regarded as an abuse for this purpose.”51
46 Lawyers for Human Rights above n 17.
47 Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA), cited at para 20 of Lawyers for Human Rights
id.
48 Id at 734F-G.
49 Id at 734D.
50 Lawyers for Human Rights above n 17 at para 21.
51 Phillips above n 18 at 565E.
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[51] Recently in Ascendis, this Court held:
“Abuse of process concerns are motivated by the need to protect ‘the integrity
of the adjudicative functions of courts’, doing so ens ures that procedures
permitted by the rules of the Court are not used for a purpose extraneous to the
truth-seeking objective inherent to the judicial process.”52
[52] In our common law a number of different categories of abuse have been
developed by which our courts ensure the integrity of their own process. There are
cases where there is gross abuse by 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.
An example is Cassimjee.53 There, the appellant had appealed against the High Court’s
dismissal of his action for want of prosecution. The case emanated from a seizure by
customs and excise officials of two tankers owned by the appellant’s transport business
some 32 years before (in 1977). After the initial exchange of pleadings, about 20 years
elapsed during which no steps were taken by either party to advance the action. T here
was a brief stir from the slumber in 2001 when a firm of attorneys placed themselves
on record for the appellant and gave notice purporting to place the matter on the
awaiting trial roll. But another four years went by and eventually, in 2006, the dismissal
application was brought by the Minister of Finance, which was granted in 2010. The
Supreme Court of Appeal confirmed the High Court’s dismissal, on the ground that the
delay in prosecuting the claim was inordinate and the prejudice to the defendan t
(the Minister) was manifest. That Court held that the High Court correctly exercised its
discretion to dismiss the action, through its inherent power to prevent abuse of its
process. Self -evidently, abuse of process that impinges upon the court’s integ rity is
quite distinct from abuse that is designed to cause harm to a party. Cassimjee is a typical
example of the former, where the abuse of court was held to have resulted in prejudice
to the defendant, the Minister.
52 Judgment of Khampepe J in Ascendis above n 18 at para 40.
53 Cassimjee v Minister of Finance [2012] ZASCA 101; 2014 (3) SA 198 (SCA).
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[53] Then there are the cases concerning frivolous and vexatious litigation. There,
self-evidently, the merits of the cases, both past and present, are germane in order to
determine whether the court is being assailed by a further frivolous claim or something
with arguable merits. In this cate gory falls a case like Maphanga,54 on which much
reliance was placed by the applicants. More about it later. Suffice to state for now that
the passage relied upon reads:
“It was firmly established in the South African common law, long before the
advent of the Constitution, that the Supreme Court had the inherent power to
regulate its own process and stop frivolous and vexatious proceedings before it.
This power related solely to proceedings in the Supreme Court and not to
proceedings in the inferior cour ts or other courts or tribunals. The following
principles crystallised over the ages. It had to be shown that the respondent had
‘habitually and persistently instituted vexatious legal proceedings without
reasonable grounds’. Legal proceedings were vexa tious and an abuse of the
process of court if they were obviously unsustainable as a certainty and not
merely on a preponderance of probability. I must point out at this juncture that
this definition applied to all litigation that amounted to an abuse of court
process.”55
[54] The third class of case concerns criminal proceedings, public and private. The
issue that arises in those cases is different. The enquiry is whether the prosecution is
being brought in the public interest and not to pursue some private objective. That is a
question of the legality of the proceedings and the permissible statutory purpose for
which a prosecution may be instituted. A leading example is Zuma.56 In that case,
the Supreme Court of Appeal had to consider an appeal against a d ecision of the
High Court, in terms of which the decision on 27 December 2007 by the then
Acting National Director of Public Prosecutions to indict former President Zuma on
54 Maphanga above n 15 and the cases cited there.
55 Id at para 25.
56 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA).
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serious criminal charges, including charges of racketeering, corruption, money
laundering and fraud, was held to be invalid and was reviewed and set aside. In
dismissing the appeal, the Supreme Court of Appeal held that motive to prosecute is
entirely irrelevant. Again, this will be discussed presently, as this is a case upon which
the applicants place much reliance.
[55] The question before us is whether there may be a further species of abuse case
of the kind set out in the special plea that falls within the inherent jurisdiction of the
court to ensure that the court’s processes are not abused. Before answering that
question, a brief discussion of the cases relied upon by the parties for their respective
contentions is required. I commence with Maphanga, the main arrow in the applicants’
quiver.
Does Maphanga find application?
[56] The case concerned an appeal against the di smissal of the appellant’s (MEC)
application by the KwaZulu -Natal Division of the High Court, Pietermaritzburg. The
main relief was sought under section 2(1)(b) of the Act, alternatively the common law.
It entailed repeated attempts by the respondent, Mr Maphanga, to resolve a dispute with
the Department of Co -operative Governance and Traditional Affairs, KwaZulu -Natal
which culminated in lengthy litigation. During the hearing of the appeal, reliance on
section 2(1)(b) of the Act was abandoned and the ca se was based solely on the court’s
inherent jurisdiction to determine its own process under common law.
[57] In respect of the common law abuse of process argument, the Supreme Court of
Appeal gave the introductory overview cited above. It then noted that—
“in granting this type of relief, [courts must] proceed very cautiously and only
in a clear case make a general order prohibiting proceedings between the same
parties on the same cause of action and in respect of the same subject matter
where there has been repeated and persistent litigation, and craft such order to
meet only the immediate requirements of the particular case. The stringent onus
MAJIEDT J
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on the applicant who seeks the relief and the need for the court’s caution in
exercising this power obviously aris e from the fact that the relief curtails a
litigant’s access to court.”57 (Emphasis added.)
[58] The Supreme Court of Appeal ultimately confirmed the High Court’s findings:
“Mr Maphanga clearly did not habitually and persistently institute legal
proceedings against the MEC and the Department. Neither was it shown as a
certainty that any of his claims were ‘obviously unsustainable’.”58
[59] Maphanga is distinguishable and does not assist the applicants’ case. It plainly
concerned frivolous and vexatious proceeding s. Before us, the reliance on the
provisions of the Act has been abandoned. Furthermore, improper motive was not in
issue at all in Maphanga, since the case concerned frivolous and vexatious proceedings.
The dictum relied on by the applicants therefore does not find application here. The
applicants’ strong reliance on Maphanga is misconceived. It is convenient to deal next
with the other cases relied upon by the applicants. Those cases mostly concern the
legality of arrests and criminal prosecutions.
Other cases relied upon by the applicants
[60] It is immediately apparent that on the face of it, there is no discernible analogy
between cases concerning arrest and criminal prosecutions and a SLAPP suit defence
to a defamation claim. Self-evidently, the law has a real and direct interest in refusing
to provide the means for a person who commits a crime to avoid arrest or prosecution
by saying that some arresting officer or prosecutor had bad motives. As was said by
the Supreme Court of Appeal in Zuma:
“The motive behind the prosecution is irrelevant because, as Schreiner JA said
in connection with arrests, the best motive does not cure an otherwise illegal
57 Maphanga above n 15 at para 26.
58 Id at para 28.
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arrest and the worst motive does not render an otherwise legal arrest illegal. The
same applies to prosecutions.”59
[61] Notwithstanding the clearly distinguishable context of the Zuma judgments, the
applicants say that it ought to apply in defamation cases as well. They contend that:
“In terms of that dictum, the assessment of whether such actions are unlawful cannot
take place without considering the merits of the claim. A party who claims that it has
been defamed (on a basis that is not clearly unsustainable) should not be precluded
from pursuing an action merely because it has a secondary purpose.”
For the reasons that follow, these submissions are only partially sustainable, in my view.
While I agree that merits cannot be disregarded in the enquiry of a SLAPP suit defence,
the question of motive must also play some role. There is an obvious difference between
the legality of an arrest and the law of defamation. T he legality of an arrest is an
objective question of compliance with the requirements of effecting a lawful arrest.
Because the law of defamation weighs up the rights to reputation and t he right to
freedom of expression, courts are always concerned with defining where that balance is
best struck.
[62] The applicants also seek some support in the two cases cited in Zuma, namely
Tsose60 and Beckenstrater.61 The former concerned an unlawful arres t. Mr Tsose had
been arrested on several occasions for contravening section 23 of Proclamation 150 of
1934, in respect of the much hated pass laws which concerned entrance to or presence
on certain premises without a permit. Mr Tsose argued that he was a rrested so as to
prevent him from squatting on the farm. The Appellate Division held that no
59 Zuma above n 56 at para 37. See also Zuma v Democratic Alliance [2017] ZASCA 146; 2018 (1) SA 200 (SCA)
at para 88:
“Once it is accepted that the motive for a prosecution is irrelevant where the merits of th e case
against an accused are good, the motive for the timing of an indictment to begin the prosecution
must equally be so.”
60 Tsose v Minister of Justice 1951 (3) SA 10 (A).
61 Beckenstrater v Rotther and Theunissen 1955 (1) SA 129 (A).
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contravention of the Proclomation had taken place, as Mr Tsose was in lawful residence
on the farm and, therefore, his arrest was unlawful. Schreiner JA said that “just as the
best motive will not cure an otherwise illegal arrest so the worst motive will not render
an otherwise lawful arrest illegal”.62
[63] Beckenstrater is a case about an alleged malicious prosecution. The Court had
to determine whether the plaintif f had made out a case for the relief sought in respect
of the alleged malicious prosecution. It held that in order to succeed, the plaintiff had
to prove that the prosecution was actuated by an indirect or improper motive and that
there was no reasonable or probable cause for instituting the prosecution. Schreiner JA
said that—
“persons who have reasonable and probable cause for prosecution should not be
deterred from setting the criminal law in motion against those whom they believe to
have committed offences, even if in doing so they are actuated by indirect and improper
motives.”63
[64] Reliance is also placed on Estate Logie .64 There, a sequestration order was
allegedly wrongfully obtained. The allegation was premised on the underlying
proceedings allegedly having been brought for an ulterior purpose. In rejecting that
contention, the Appellate Division relied on the English case, Ex parte Wilbran,65 where
it was held that the motive for asserting a legal right is irrelevant. Thus, held the
Appellate Division, there was nothing improper in using sequestration proceedings to
secure the payment of a debt.
[65] Bissett66 concerned an application by the partners in a firm of attorneys for an
order striking out an action instituted against them by a bank. The bank claimed
62 Tsose above n 60 at 17G-H.
63 Beckenstrater above n 61 at 135D-E.
64 Estate Logie v Priest 1926 AD 312 at 320-32.
65 Ex parte Wilbran (5 Madd. 1).
66 Bissett v Boland Bank Ltd 1991 (4) SA 603 (D).
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damages for breach of an implied contractual term that the registration of a bond in
respect of the purchase of property by a share block company would be carried out with
reasonable professional knowledge, care and skill; alternatively, for breach of duty of
care by the applicants for having registered the bond in contravention of the provisions
of section 14(1) of the Share Blocks Control Act.67 The ground on which the applicants
sought to have the action of the bank set aside was that the bank had already obtained
judgment by default on the invalid bond and therefore the action by the bank against
the applicants was an abuse of the process of court and it was vexatious for the bank to
persist with that action.
[66] In its reasoning, the Court held that it had an inherent power to strike out claims
which were vexatious which, in this context, meant frivolous, improper, instituted
without proper groun d, to serve solely as an annoyance to the defendant. The Court
went on to find that while an action that was unsustainable was vexatious, that had to
appear as a certainty and not merely on a preponderance of probabilities. The Court
dismissed the application on the basis that in relying on the default judgment obtained
by the bank rather than seeking to prove facts showing that the bond was valid, the
applicants had failed to show that the action against them was clearly unsustainable on
the basis that the bond validly secured the loan.
[67] The applicants rely on this judgment only to argue that the inherent common law
power to strike out claims which constitute an abuse of process must be exercised with
great caution and only in a clear case. There can har dly be any quarrel with that
observation.68 But it bears noting that the Court in Bissett appears to favour a merits
assessment within an abuse of process enquiry by stating that an action which is
unsustainable is vexatious. However, the judgment also makes reference to proceedings
instituted “solely as an annoyance to the defendant”. 69 This appears to include a
consideration of the motive or purpose behind the institution of the claim.
67 59 of 1980.
68 The same was said in Maphanga above n 15 at para 26.
69 Bissett above n 66 at 604E.
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[68] Like Zuma, the other cases relied upon by the applicants must be dis tinguished
from the present one. As stated, the unlawful arrest and malicious prosecution cases
rest on a different substratum – bad motive in and of itself can never be an adequate
ground for escaping arrest and prosecution. The criminal law can simply not
countenance it. And Estate Logie and Bissett do not bear direct relevance to the issue
before this Court. The former must be understood in the context of the finding that the
enforcement of a debt by utilising sequestration proceedings is unobjection able and
does not constitute an abuse of process. Bissett also rests on distinguishable facts, but
in any event appears to include both merits and motive in its assessment.
The respondents’ reliance on case law in support of their primary contention that merits
do not feature at all in an abuse of process enquiry, also do not bear scrutiny, which is
the next topic of discussion.
Cases relied on by the respondents
[69] Lawyers for Human Rights 70 concerned whether a non -governmental
organisation should be mulcted with costs for bringing an application late and on an
urgent basis. The application was to vindicate constitutional rights, so Biowatch71
applied. But this Court held that if the application constituted an abuse of process, then
the applicant could be saddled with costs. In reaching its decision, this Court said:
“Ultimately the inquiry on the appropriateness of the proceedings requires a
close and careful examination of all the circumstances. This is what we have to
do here. The considerations include the period of the delay between the raids
and the application, the reasons for bringing the application and the prejudice,
if any, the urgent proceedings caused the respondents.”72 (Emphasis added.)
70 Lawyers for Human Rights above n 17.
71 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
72 Lawyers for Human Rights above n 17 at para 21.
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[70] There the Court found, in reliance on Beinash, that “[t]here can be no doubt that
every Court is entitled to protect itself and others against an abuse of its processes”. 73
But that dictum cannot be invoked as support of the respondents’ stance. That case is
plainly distinguishable as it related to an exception to the Biowatch74 rule and this does
not give rise to a defence to a substantive claim. This Court merely found that improper
motive is a factor to be considered when costs orders are made in constitutional ca ses.
Furthermore, Lawyers for Human Rights differs, because there, court procedures were
abused, while in a typical SLAPP suit, litigation is used as a means to some end that
might infringe rights. That case can therefore hardly be applied, without more, to the
present instance as support for the submission that merits play no role in an abuse of
process enquiry.
[71] In Phillips,75 the facts were as follows. A private prosecution was initiated in
relation to fraudulently drawn cheques. It was argued that the private prosecution was
instituted as collateral, in order to extort money from the applicant in an amount greater
than the fraudulent cheques rather than having criminal justice done to the offender.
The Supreme Court of Appeal therefore had to determine whether the private
prosecution instituted by the respondent against the applicant constituted an abuse of
process. That C ourt held that “[w]here 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”.76 That power, however, was to be exercised with
great caution and only in a clear case. The gravamen of the judgment is that although
motive is irrelevant in the case of public prosecutions, it is not permissible to use the
power to prosecute for personal financial gain. To do so undermines the objectivity of
the pros ecuting process. It is not the motive, but the independence of the private
prosecutor which was the problem. Again, this case is clearly distinguishable.
73 Id at para 20.
74 Biowatch above n 71.
75 Phillips above n 18.
76 Id at 565G-H.
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[72] Roering77 was an appeal against an order of the High Court setting aside as an
abuse of process the summons calling for the MEC for Health in Gauteng,
Ms Mahlangu’s, appearance before a liquidation enquiry. The Supreme Court of
Appeal concluded that there was no evidence that the issuing of the summons
constituted an abuse. In upholding the appeal, the Court held that the fundamental issue
in determining whether there was an abuse was whether the enquiry was being used for
a purpose not contemplated by the Act. 78 This case, too, does not support the
respondents’ case. It does not entail a substantive claim based on motive alone.
[73] Another decision relied on is Gold Fields.79 That was a joinder application in a
certification application in a contemplated class action for damages for the contracting
of silicosis in certain mines. At issue was whether Motl ey was sufficiently in control
of the certification application and whether it stood to benefit from it to a sufficient
degree to justify its joinder. The joinder application was dismissed. The High Court
held that there may still be exceptional circumstances in which champertous agreements
may in fact constitute an abuse of process, in which case the court would not
countenance them. This will be the case, for instance, where the litigation is frivolous
or vexatious, or where litigation is being pursued for an ulterior motive. 80 It seems to
me that the reasoning in the case which dealt with the validity of champertous
agreements cannot simply be applied to defamation claims. Champerty is a question of
public policy. The question in Gold Fields ultimately turned upon whether there was a
sufficient interest to warrant joinder. That is about complying with the requirements
for joinder, not using a process to achieve an impermissible end.
[74] Another case dealing with champertous agreements mentioned in the H igh
Court’s judgment is Price Waterhouse Coopers. 81 The High Court’s reliance on
77 Roering above n 18.
78 Id at para 35.
79 Gold Fields above n 18.
80 Id at para 28.
81 Price Waterhouse Coopers Inc v National Potato Co-operative Ltd [2004] ZASCA 64; 2004 (6) SA 66.
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paragraph 50 of that judgment is misconceived. The Supreme Court of Appeal held
that no all-embracing definition of “abuse of process” has been formulated in our law.
It sai d that 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 a s to
achieve an improper end. The passage that “ [p]urpose or motive, even a mischievous
or malicious motive, is not in general a criterion for unlawfulness or invalidity”, is no
authority at all for the proposition that ulterior motive on its own is recog nised as an
abuse of process giving rise to a self-standing defence to a substantive claim. Improper
motive was merely regarded as a factor.
[75] Lastly, Ascendis82 concerned an application for the revocation of a patent. The
question was raised whether findi ngs in a revocation application have a binding effect
in a later action based on infringement. This case further raised questions of
res judicata,83 issue estoppel and piecemeal litigation in patent disputes. The dictum of
Khampepe J relied upon relates t o the fact that abuse of process had not been pleaded
and therefore no finding needed to be made in this regard. The passage cited is merely
a repeat of a well-established principle.
[76] I conclude by briefly saying something in general about the cases cited by the
parties. These cases illustrate the fact that—
(a) sometimes, motive is constitutive of the cause of action for example, in a
malicious prosecution;
(b) sometimes, the reason for the action is irrelevant, it is the legality of the
action that counts for example, in an unlawful arrest;
(c) sometimes, it is the abuse of the court’s processes that warrants sanction
for example, in the case of Cassimjee;84 and
82 Ascendis above n 18.
83 That is, whether the substance of the matter has already been judged.
84 Cassimjee above n 53.
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(d) SLAPP cases use the processes of the court with no evident abuse but to
achieve an end that may be harmful for other reasons.
These categories can easily be confused as the parties do in this case.
[77] What then, is the position in our law – is there room for a SLAPP suit defence to
be accommodated in the abuse of process doctrine? What role, if any, does motive and
merit play?
Abuse of process and the SLAPP suit defence
[78] There are two divergent positions postulated before us – as the applicants would
have it, motive should play no role whatsoever in the enquiry whether the SLAPP suit
defence can be accommodated in the abuse of process doctrine, and merits should be
the only factor. Conversely, the respondents submit that the only criterion should be
motive, and merits should play no role at all. As I see it, however, both motive and
merits must play a role in that enquiry.
[79] The debate between the parties regarding the role of motive and merits in the
abuse of proceedings doctrine appears to disregard the definition of a SLAPP suit
outlined above. It also appears, from the case law relied on by each party, that their
arguments went past each other. The respondents relied on case law broadly dealing
with ulterior purpose in court proceedings. In that type of case, merits are not a
consideration and motive alone is determinative. However, ult erior purpose and
SLAPP ought not to be conflated in this way. On the other hand, the applicants rely
heavily on Maphanga, which dealt with frivolous and vexatious proceedings. That type
of abuse of process requires an assessment of the merits and a lack of merits alone
cannot be determinative of an abuse in this instance. The parties’ referencing of case
law has not been particularly helpful. They each sought to show that there are cases of
abuse that either place emphasis on ulterior purpose or on the merits. As I have sought
to demonstrate, these cases fall into quite distinct categories which have little bearing
on the problem before us, and they are of slight analogical relevance.
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[80] As has already been established, there are various types of abuse o f process and
the dictum in Maphanga does not apply to all of them. The characteristics of a SLAPP
suit are plainly distinguishable from frivolous and vexatious proceedings and
Maphanga therefore does not find application in this case. For example, SLAPP does
not require the presence of a range of vexatious suits for the test to be met – just one
suit would be sufficient. Maphanga may, however, find relevance in terms of the
potential development of the common law in finding that determining a SLAPP suit
requires an assessment of the merits.
[81] The applicants concede that had the respondents as defendants pleaded that these
proceedings constituted an abuse of process, taking into account all relevant factors,
including motive and merits, they would not have been in a position to have raised an
exception. It is the special plea, narrowly defined in terms of motive alone, which the
applicants argue is problematic. In my view, this is correct.
[82] As set out above, true SLAPP suits, as they operate in other jur isdictions, have
particular features which require a more nuanced approach than simply ulterior purpose.
It appears that both parties have used the term “abuse of process” too broadly and
interchangeably with ulterior purpose and frivolous and vexatious p roceedings,
respectively. This is problematic in light of the fact that each of them relied on case
law relating to a particular form of an abuse of process which have features and
characteristics which are distinguishable from one another. A pure SLAPP suit defence
is somewhat more nuanced than that of ulterior purpose and it seems to me that the
respondents have conflated the two. It also does not fall within the category of frivolous
and vexatious proceedings and the applicants’ reliance on Maphanga is misconceived.
[83] What bears consideration is whether the defence as set out in the defendants’
special plea constitutes a good defence in our law. There is certainly room for an
argument that where a court recognises a species of abuse of that kind, as ei ther
completely new or as a variation or expansion of an existing type of abuse, it does so
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merely as part of regulating its own processes. In that instance, there is no need to
develop the common law as the doctrine of abuse of process can accommodate this kind
of defence, of the SLAPP nature. Before making that determination, it is useful to
consider how other jurisdictions have accommodated the SLAPP suit defence.
The position in the United States of America and Canada
[84] In the United States of America, 28 states, the District of Columbia, and one US
territory have enacted anti-SLAPP statutes. Furthermore, rule 11 of the Federal Rules
of Civil Procedure is fashioned to prevent litigants from filing lawsuits and claims "for
any improper purpose, such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation" in federal courts. The approach adopted there is aimed
at providing a quick, effective, and inexpensive mechanism to combat SLAPP suits.
Anti-SLAPP laws enable those subject to a SLAPP suit to seek early dismissal and often
obtain financial relief for possible future costs.
[85] Generally speaking, anti -SLAPP legislation entails a quick and inexpensive
application at an early stage of a SLAPP suit for the claim to be struck out. The onus
is on the defendant to establish that it is worthy of protection and that the plaintiff’s
claim lacks genuine substance or prospects of success. The role of the merits of the
claim bears noting. If established, the burden shifts to the pla intiff to establish a
reasonable prospect of success of its claim. In certain states, such as California and
Connecticut, anti-SLAPP legislation protects speech published in any forum regarding
any issue, while others, such as Missouri, protect only speec h relating to an issue of
public importance published in certain forums.
[86] California’s law exemplifies the factors that are to be taken into account in
anti-SLAPP proceedings. As stated, the procedure is regulated by section 425.16 of the
Californian Code of Civil Procedure. A defendant confronted with a lawsuit that
threatens its participation in a matter of public significance in furtherance of its free
speech rights, may bring a special motion to strike the lawsuit. The motion must be
brought at an early stage – within 60 days of service of the impugned lawsuit or at any
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later time that the court may deem proper – and shall be set down for hearing no more
than 30 days thereafter. Launching a special motion to strike stays the impugned lawsuit
prior to the discovery stage. The motion places an onus on the plaintiff in the impugned
lawsuit to establish the merits of its claim – it must establish a “probability that [it] will
prevail on the claim”.85 This determination is made with reference to the pleadi ngs in
the impugned lawsuit and the affidavits filed in the special motion. Clearly, both the
merits (probability of success) and motive play a role.
[87] Ontario’s Protection of Public Participation Act, 2015, is an excellent example
from Canada. That Act a mended the Courts of Justice Act of 1990, by introducing, in
relevant part, sections 137.1 to 137.5. Section 137.1(3) places an initial burden on the
applicant (there referred to as “the moving party”) – the defendant in a lawsuit – to
satisfy the motion Judge that the proceeding initiated against them arises from
expression relating to a matter of public interest. This burden is a threshold one,
meaning it is necessary for the moving party to meet in order to proceed to
section 137.1(4) for the ultimate determination of whether the underlying proceeding
should be dismissed. Then, if the threshold burden under section 137.1(3) is met by the
moving party (the defendant), the burden shifts to the responding party (the plaintiff) to
avoid having their procee ding dismissed. Under section 137.1(4), the plaintiff must
satisfy the motion Judge that: (a) there are grounds to believe that their underlying
proceeding has substantial merit and the defendant has no valid defence, and (b) the
harm likely to be or havi ng been suffered and the corresponding public interest in
permitting the proceeding to continue outweighs the public interest in protecting the
expression. If either (a) or (b) is not met, then this will be fatal to the plaintiff
discharging its burden an d, as a consequence, the underlying proceeding will be
dismissed. However, if the plaintiff can show that both are met, then the proceeding
will be allowed to continue. Thus, both motive and merits play decisive roles.
85 Section 425.16(2) of the Code of Civil Procedure.
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[88] Having considered these jurisdicti ons, the next aspect for consideration is
whether our common law does accommodate a SLAPP suit defence.
A SLAPP suit defence under our present common law
[89] As stated, reduced to its core, the respondents’ defence in respect of the SLAPP
special plea is to r ely upon an abuse of process. And I have pointed out that in
Lawyers for Human Rights, this Court endorsed Beinash.86 In Beinash, the
Supreme Court of Appeal confirmed a court’s powers to protect its own processes by
thwarting abuse of process:
“There can be no doubt that every court is entitled to protect itself and others
against an abuse of its processes. Where it is satisfied that the issue of a
subpoena in a particular case indeed constitutes an abuse it is quite entitled to
set it aside.”87
[90] A determination of what constitutes abuse of process will always be fact-specific
and there can be no all -encompassing definition of it.88 A close examination of all the
relevant circumstances must be made.89
[91] Abuse of process can, as stated, appear in different f orms. That is evident from
the cases discussed. The first, and arguably most common, type of abuse of process is
the use of the rules of court, for example to delay a case or to deliberately misemploy a
claim for urgency. This is the most obvious sense of abuse, as procedural rules are
employed in a fashion they were not intended to be used so that offence is caused to the
courts’ integrity and efficacy. This kind of abuse is also prejudicial to the other parties.
86 Beinash above n 47.
87 Id at para 28. The Court referred to Hudson v Hudson 1927 AD 259 at 268 where the following was held:
“When . . . the Court finds an attempt made to use for ulterior purposes machinery devised for
the better administration of justice, it is the duty of the Court to prevent such abuse. ”
88 Id.
89 Lawyers for Human Rights above n 17 at para 21.
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[92] The second type of abuse is that of th e vexatious litigant who repeatedly brings
unmeritorious cases. The focus then is upon the nature of the case, rather than the
procedure employed. The vexatious litigant unreasonably, persistently and habitually
brings unsustainable cases. Then there ar e those cases of illegal conduct where the
underlying reasons that motivated it being brought is irrelevant. The sole issue is its
illegality. Illegal arrest is an example of these cases. They do not abuse court process,
but are illegal in respect of ot her processes and thus also constitutes a form of abuse.
That is the third type of abuse. The fourth type of abuse is where conduct plays a central,
indispensable role. Cases like malicious prosecution or the integrity of a private
prosecution fall into this category.
[93] These various forms, though often referred to as abuse of process, do not have
one common feature. Not all of them ought really to be called abuse of process. There
is another species of abuse, though, that does in my view deserve the no menclature
abuse of process. It is in the form of what we have before us in this matter.
[94] Hypothetically, a plaintiff may sue for defamation in circumstances where there
are very little, if any, prospects of establishing a case for defamation. The defendant is
in a position to show that the defamation action is being 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 that is being served by that expression, with the likelihood that
pursuing the action will have that negative effect. In that instance, court process is not
being used to resolve a genuine dispute, but rather is em ployed to achieve a result that
undermines the rights in the Constitution. One may call this, for present purposes,
“abusive litigation”. It would self -evidently not be easy to establish a case of abusive
litigation, but if one is able to do so, abusive litigation would have nothing to do with
the right to access to courts in section 34 of the Constitution. Instead, it would simply
be about the use of court process and associated legal costs as a means to an
impermissible end, likely to cause appreciable damage to fundamental rights. It is thus
about motive and consequence.
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[95] Framed in that manner, abusive litigation would fall within the common law
doctrine of abuse of process. It would consist of a consideration of both the merits of
and the motives fo r bringing the case, with its likely consequences. The merits are
relevant to the question whether the plaintiff has a right to vindicate. The motive for
bringing the case is relevant to the true object of the litigation. The likely effects of the
suit bring into the reckoning what harm to free expression may result. If the case
ultimately succeeds, the court would not be ensuring that justice is done as the
overriding principle, but would instead be the means to an end that is likely to gravely
harm fundamental rights. This the court cannot allow. Courts have the power – at
common law and under section 173 of the Constitution – to prevent this type of abuse.
[96] This approach is consonant with the doctrine of abuse of process as it now
operates. It upholds the integrity of court process and resists the use of that process to
achieve ulterior, nefarious ends not countenanced by the law, particularly the
Constitution. It can conceivably accommodate the SLAPP type of defence pleaded by
the defendants. Plainly, in the present instance, the defendants will have to prove at
trial that the defamation suit brought by the plaintiffs:
(a) is an abuse of process of court;
(b) is not brought to vindicate a right;
(c) 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
(d) violates, or is likely to violate, the right to freedom of expression
entrenched in section 16 of the Constitution in a material way.
[97] While, as stated, what the re spondents raised is in effect a SLAPP suit defence,
their understanding of that defence differs from that in the U nited States of America
and Canada insofar as the respondents contend that the defence can be found on ulterior
purpose alone. That the contours of that defence may differ in other jurisdictions is not
determinative of the question before us. We must have regard to the exact terms in
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which this defence was raised by the respondents in their special plea. It may well be
that the scope and definition of a SLAPP suit defence in South Africa need not mimic
other jurisdictions. However, this cannot bring us to the conclusion that a SLAPP suit
defence can be based on ulterior purpose alone. This is because it was conceded during
oral argument by both parties that a consideration of both merits and motive is required,
as well as the fact that a consideration of the lack of merits will inform the ulterior
purpose. Furthermore, the respondents relied on case law dealing with ulterior purpose
in court process, where merits are absent, which is of limited assistance. It bears
repetition that merits play a central role in a SLAPP suit defence. This means that there
is no need to engage in a section 34 analysis.
[98] I have set out the component parts of the SLAPP suit defence in our law, as a
species of the common law doctrine of abuse of process. The respondents’ first special
plea, as pleaded, is predicated upon the proposition that the actions are brought for an
ulterior purpose. As I have explained, the respondents supported their special plea on
the basis that improper motive alone suffices to warrant dismissal of the actions. That
is not so. The merits also bear consideration. It follows that the first s pecial plea does
lack averments necessary to satisfy the requirements of the SLAPP suit defence . To
this extent, the exception taken by the applicants holds good, and must be upheld.
However, the substantive grounds upon which the exception was pleaded have not been
sustained. I have found that the SLAPP suit defence does form part of our law. To
make out the defence requires more than the respondents pleaded, but the defence
commands a place in our law that the applicants have unsuccessfully resisted. This has
consequences both for the order to be made and the question of costs.
[99] The foregoing conclusion means that it is not necessary to consider whether the
common law needs to be developed, since it already has room for this type of defence
in the doc trine of abuse of process. It is for Parliament to consider whether a more
comprehensive, specific SLAPP suit defence of the kind developed in Canada and the
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United States of America, ought to be legislated here. After all, Parliament is, generally
speaking, the main engine for law reform.90
Conclusion
[100] SLAPP suits appear to be on the increase here, 91 as is the case globally. 92 The
finding here that the common law doctrine of abuse of process can accommodate the
SLAPP suit defence ensures that courts can protect their own integrity by guarding over
the use of their processes. And, ultimately, it ensures that the law serves its primary
purpose, to see that justice is done, and not to be abused for odious, ulterior purposes.
[101] The applicants’ exception was properly taken, at least to the extent that it stated
that the respondents’ first special plea lacked averments necessary to sustain a defence.
The first special plea cannot be allowed to stand. The exception must be upheld, and
for this reason, so too, the appeal. The respondents must be afforded the opportunity to
amend their first special plea, should they wish to do so.
[102] That leaves the question of costs, first, in this Court. The applicants have enjoyed
success in that the first special plea has been found to be excipiable. But they have
prevailed for reasons not relied upon in their exception. The respondents have secured
the recognition of the SLAPP suit defence, albeit not on the basis that they pleaded the
defence, or supported the defence in the ir submissions. The respondents’ success is,
nonetheless, substantial and they deserve part of their costs. In the premises, I propose
making an apportionment of the costs in this Court. Second, with regard to the costs in
the High Court, for the reason s advanced, I am of the view that each party should pay
its own costs. Although the mining companies have been successful in having their
90 Carmichele v Minister of Safety and Security [2001] ZACC 22; 2001 (4) SA 938 (CC); 2001 (10) BCLR 995
(CC) at para 36.
91 See Murombo and Valentine above n 39, who describe SLAPP suits as “an emerging obstacle”.
92 The Info Note on SLAPPs and FoAA rights of the United Nations Special Rapporteur on the Rights to
Freedom of Peaceful Assembly and Association, Annalisa Ciampi, records that “SLAPPs have seen a significant
increase worldwide” available at:
https://www.ohchr.org/Documents/Issues/FAssociation/InfoNoteSLAPPsFoAA.docx.
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exception upheld, the basis for this Court doing so was not as claimed by the mining
companies. The High Court costs order against the mining companies ought therefore
to be set aside and substituted with the one proposed. The differentiation in the costs
orders is premised on the fact that the substantive outcome was fashioned in this Court,
and it would be equitable to make different costs orders in the two Courts.
Order
[103] The following order is made:
1. Leave to appeal directly to this Court is granted.
2. The appeal is upheld.
3. The order of the High Court is set aside, and the following order is made:
(a) The plaintiffs’ exception to the first special plea of the defendants
is upheld on the basis that the first special plea lacks averments
necessary to establish a defence.
(b) The defendants are afforded 30 days from the date of this order to
seek leave to amend their first special plea, failing which, the first
special plea is dismissed.
4. The applicants are ordered to pay 60% of the respondents’ costs in this
Court, including the costs of two counsel.
5. Each party must pay its own costs in the High Court.
For the Applicants:
For the Respondents:
For the first Amicus Curiae:
For the second Amicus Curiae:
P Hodes SC, J de Waal SC and C Quinn
instructed by Kudo Law
G Budlender SC, S Budlender SC,
S Kazee and E Cohen
instructed by Webber Wentzel
L Phasha and K Thobakgale instructed
by Centre for Applied Legal Studies
J Bhima and M Marongo instructed by
Lawyers for Human Rights