South African SLAPP case reaches constitutional court

In 2017, Australian mining company Minerals Commodities Limited (MRC) and its South African subsidiary Minerals Sands Resources (MSR) launched a series of defamation actions against a group of six activists and public interest lawyers.

The activists had been targeted for opposing MSR's plan to set up a titanium mining operation in the Wild Coast region of South Africa’s Eastern Cape. The exploitation of what is thought to be the world's tenth largest titanium deposit stands to have a devastating impact on the environment in a region that depends on agriculture and eco-tourism.

As we reported last year, in February 2021 the Western Cape High Court ruled that the campaigners could argue that the MRC were bringing the legal action in order to stifle their opposition to the mining project.

In her ruling Deputy Judge President Patricia Goliath, made a powerful statement against the use of SLAPPs, writing that “SLAPP suits constitute an abuse of process, and are inconsistent with our constitutional values and scheme.”

MRC and MSR appealed Goliath's ruling and now the case has reached South Africa's highest tribunal, the Constitutional Court. The hearing itself was streamed online.

In this hearing, South Africa's Constiutional Court is considering two distinct issues: whether SLAPPs are an abuse of process and violation of South Africa's constitutional right to free speech; and whether a company is entitled to sue for damages without providing evidence of actual losses incurred.

These are preliminary issues which have to be settled before the substantive case is heard. However, if the defendants win in this round, it will make it much harder for MRC and MRS to prevail in court in this case, and help stop any further SLAPP cases being launched in future. If South Africa affirms that SLAPP cases are effectively unconstitutional abuses of process, that is a powerful precedent for effective anti-SLAPP action elsewhere.