Digging for Dirt: SLAPPed South African Activists and Whistleblowers Stymie Mining Project

Satellite image of the Xolobeni coast, showing the mineral sands targeted for exploitation. Source: Google maps.

As pressure within the European Union mounts for community-wide measures to combat SLAPP suits, an Australian mining company is trying to deter a group of activists and environmental lawyers from opposing its plan to set up a titanium mining operation in the Wild Coast region of South Africa’s Eastern Cape.

SLAPP (strategic litigation against public participation) suits are designed to censor, intimidate and silence critics by burdening them with the cost of a legal defense and potentially huge penalties if found guilty.

Perth-based mining company Mineral Commodities (MRC) and its Chief Executive Mark Caruso had initiated a defamation suit against the six campaigners.

Investigative journalists have raised questions about the degree of support MRC has received from the South African government in its bid to develop what is thought to be the world’s 10th largest titanium deposit at Xolobeni. The scheme, first proposed in 2007, has long been controversial locally, due to the impact the works will have on a largely agricultural population as well as the local environment and the eco-tourism industry that depends on it.

Independent journalist, filmmaker and author John G.I. Clarke is among those being sued by MRC for a sum of 14.5 million Rand, or almost 1 million US dollars. He told Blueprint for Free Speech that “the core story is that the rule of law continues to erode, at least with respect to criminal justice, which bodes ill for communities who live atop significant mineral wealth.”

In what is an important step forward for anti-SLAPP efforts in South Africa, in February this year Western Cape Deputy Judge President Patricia Goliath agreed that the campaigners could argue that the MRC were bringing the legal action in order to stifle their opposition to the mining project.

In a 35 page judgment, Judge Goliath ruled that “SLAPP suits constitute an abuse of process, and are inconsistent with our constitutional values and scheme.” This is a preliminary ruling that allows the campaigners to raise the nature of SLAPPs as an argument in their defence - the merits of MRC’s defamation claims themselves have still to be decided.

While the legal case continues, the campaigners have already scored a partial victory. The case attracted so much negative attention that CEO Mark Caruso was relieved of his position in March, shortly after the preliminary ruling was handed down. He is currently suing his former employer in the Supreme Court of Western Australia and is seeking a $2.2 million payment.

Turning back to the MRC SLAPP, Clarke explained the group’s next steps. “We have made an application for direct access to the Constitutional Court for this to be cast in constitutional stone and serve as a landmark judgment to help other activists and whistleblowers who face this sort of vexatious litigation by attrition. We feel confident that we will succeed.”

Uphill Battle

MRC’s legal action is the culmination of a battle that has gone on for almost two decades. Clark believes that he and his colleagues are fighting a landmark legal case “set to shape future laws and tame intimidatory legal tactics by corporations.”

Given that the February ruling has already been cited in a subsequent, unrelated SLAPP matter, this may well turn out to be the case. The defence being put up by Clarke and his colleagues could prove to be a turning point against the abuse of the legal system in South Africa.

“If we can ensure better protection and support to whistleblowers it will help the media to get deep down and dirty into where the corruption arises. At least it will make civil litigation easier if not result in criminal prosecution,” said Clarke.

Journalists and the sources they rely on are common victims of SLAPPs and whistleblowers find themselves in a particularly difficult position in South Africa, where legal protections are undermined by real threats to their physical safety.

As a filmmaker, John Clarke has documented the decades long opposition to the mining project, which has often proven dangerous for those involved. He has also made a submission to the Zondo Commission into State Capture, South Africa’s major inquiry into Zuma-era corruption, urging it to use its subpoena power to obtain bank records of MRC transactions.

Illustrating the gravity of the risks whistleblowers face in South Africa, at least four whistleblowers and anti-mining activists associated with the campaign against the Xolobeni mine have lost their lives after speaking out.

The murder of community leader Sikhosiphi “Bazooka” Radebe attracted widespread attention in 2016. As leader of the Amadiba Crisis Committee (ACC) he was a prominent and vocal opponent of the plans to mine heavy minerals from coastal sand dunes along the Xolobeni section of the Wild Coast. Radebe was as shot dead by two gunmen in front of his 15-year-old son in 2016. Questions have been raised about the conduct of the murder investigation.

Radebe was not the first community leader to lose his life. Mandoda Ndovela was shot dead in 2003 after his outspoken criticism of the mining project at a meeting, although police said they could not conclusively link Ndovela’s murder directly to the dispute.

In 2006, Velaphi Ndovela, the ousted manager of a local tourism initiative, Amadiba Adventures, and a vociferous opponzent of the project, died from a spontaneous brain hemorrhage, raising community suspicions about foul play. There were similar suspicions over the death of activist Scorpion Dimane in 2008. He died not long after speaking out against people who had accepted gifts from the mining company.

Clarke said that he received an apparent death threat in August 2014 from the brother of a local director for the mining company - “He had told me to my face that, 'We have decided that your bell will be rung’” - and complained to police who said the threat was too ambiguous to act on.

He said several people had come forward to him to complain about the company allegedly trying to weaken resistance to the project by employing community leaders and using aggressive tactics.

“We need more whistleblowers to come forward. The success we have had to date is thanks to people from inside who have confided in me. Even thought it has not resulted in criminal prosecution because of the state of the criminal justice system, these anonymous whistleblowers have helped us piece together the game plan of the mining company,” he said.

The media connection

“The judgment has given whistleblowers and truth tellers encouragement to know that when they do speak truth to power, the courts will be a safe harbor for them to do so, and not a place of intimidation, high anxiety and unrelenting lawfare,” said Clarke.

“My clients are increasingly whistleblowers who have sought my counseling services as a safe and trusting space to deal with the trauma and risk they face from reprisals, and as a conduit for information to get to the media with less risk.

“They confided in me because I had made sure that they knew that I was a social worker with a professional accountability that ensured that whatever anyone shared with me was privileged.

“I would not disclose anything they told me to journalists, or at least to ensure that their identity would be kept anonymous if that was what they wished … . often my clients were not sophisticated or well educated and often they did not realize the importance or significance of the information as evidence of corruption or conflicts of interest.”

Clarke is trying to use the profile of the SLAPP case “to support whistleblowers who are really suffering far more than me, using my professional obligation to maintain client confidentiality as a cover for them.”

“I hope that the case illustrates that social workers have their uses, besides doing welfare work. We can provide a confidential safe space for whistleblowers, so that it is a trusting open space.

“We can then mediate information to journalists so they know where to look for damning information of wrongdoing, and also refer traumatized whistle blower clients to therapists to help them deal with the fear and anxiety.”