An Australian mining magnate has been dealt a bruising legal smackdown by the South African legal system which he sought to ‘weaponise’, seemingly to bully and silence lawyers and environmental activists. The landmark legal case is set to shape future laws and tame intimidatory legal tactics by corporations, known as SLAPP suits.

Australian mining company chief Mark Victor Caruso will be nursing a bruised ego and legal black eye today after Western Cape High Court deputy judge president Patricia Goliath ruled strongly against him and his company in the preliminary rounds of a protracted legal case in which he has claimed at least R14.5-million in damages for “defamation”.

Goliath said it appeared that the legal action for alleged defamation was not aimed at obtaining monetary or financial damages, but rather to silence critics of its present and proposed mining ventures in South Africa.

She noted that Caruso and his fellow plaintiffs — including local empowerment partner Zamile Madiba Qunya — had indicated that they would be satisfied to dispose of the court case on the basis of a public apology.

“This is a signature mark of many SLAPP suits. The conclusion is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and had assumed a specific position in respect of the plaintiffs’ mining operations”

The three environmental attorneys — Cormac Cullinan, Tracey Davies and Christine Reddell — and activists John Clarke, Mzamo Dlamini and Davine Cloete were “slapped” in 2016 and 2017 with threats of punitive legal action by MRC and its local affiliates.

Goliath said the term SLAPP suit (Strategic Litigation Against Public Participation) was coined in the United States some years ago to describe “meritless or exaggerated lawsuits intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals as well as organisations acting in the public interest”. 

“They are litigated into silence by corporations and often times drained of their resources,” said the Western Cape deputy judge president.

“Essentially its aim is to silence those challenging powerful corporates on issues of public concern. In essence the main purpose of the suit is to punish or retaliate against citizens who have spoken out against the plaintiffs. 

“The signature elements of SLAPP cases is the use of the legal system, usually disguised as an ordinary civil claim, designed to discourage others from speaking on issues of public importance and exploiting the inequality of finances and human resources available to large corporations compared to the targets.

“These lawsuits are notoriously long, drawn out and extremely expensive legal battles, which consume vast amounts of time, energy, money and resources. In essence, SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their constitutional rights, restrain public interest in advocacy and activism; and convert matters of public interest into technical private law disputes.” 

Goliath suggested that companies instituting SLAPP suits “generally have more resources to sustain litigation against their targets” who were typically individuals, local community groups, activists or non-profit organisations who are advancing a social interest of some significance. 

“Many targets often act without any personal profit or commercial advantage. In some instances, the plaintiffs propose settlements which include a damages payment, an agreement to stop the activism that prompted the litigation, and an undertaking not to discuss the terms of the settlement.

“Generally, exorbitant damages claims are part of the strategy, chilling public participation and sending a clear message to activists that there are unaffordable financial risks attached to public participation.”

She noted that the emotional and financial harm caused by “the SLAPP” could induce people to withdraw from actions involving public participation.

“A SLAPP does not need to be successful in court to have its intended effect. Proceedings can be continued until the desired effect and impact is achieved. Prolonging and dragging out proceedings and shifting the debate out of the public domain to the courts can fulfil the intended objective. The mere threat of being sued is sometimes sufficient to engender fear and intimidate the target.” 

In this case, the South African defendants had argued that mining companies should not be allowed to bring these proceedings in circumstances where they knew they would never have any realistic prospect of recovering the damages they sought and where their purpose was to “intimidate and silence civil society, the public and the media”.

“They further assert that courts should not allow the mining companies to use its processes for such ulterior purposes.”

Goliath noted that activist and social worker John Clarke was issued with a legal summons in 2016 due to his environmental campaigns against the Australian company which seeks to mine heavy minerals at Xolobeni – an area which has been plagued by violent inter-community conflicts, including the unsolved assassination of local community activist Sikhosiphi “Bazooka” Radebe in March 2016,

“It is clear that (the MRC) summons was only issued after Clarke continued his environmental campaign in 2016. Clarke, Dlamini and Cullinan were targeted more or less at the same time in 2016, followed thereafter by Redell, Davies and Cloete in 2017.” 

Goliath said MRC was engaged in mining activities and had significant litigation and human resources. 

“Corporations can easily write off legal costs as a business expense. SLAPP filers, with substantial resources at their disposal, abuse the gross disparity of resources between them and the target. The defendants are activists and attorneys who do not possess the financial resources that the mining companies have.

“The plaintiffs must be fully aware that resources are important in relation to protest-based litigation. The vertical and unequal power relationship between the parties is glaringly obvious, where the applicant is in a position of power, and the other individuals are activists and lecturers.

“The strategy to target a group of environmental activists more or less at the same time may have the effect of intimidating them to such an extent, that they may withdraw from further engagement after being sued for damages.

“The impact of SLAPPs can be devastating for targets. This strategy may operate to produce a chilling effect not only on the defendants’ constitutional right to freedom of expression, but also on others who considered speaking out on the issue in the future.

“In fact, entire communities and groups can often be silenced out of fear of being dragged into a perpetual lawsuit.

“It is evident that the strategy adopted by the plaintiffs is that the more vocal and critical the activist is, as is the case with Clarke, the higher the damages amount claimed. The mining companies are claiming inexplicably exorbitant amounts for damages, which the defendants can ill afford. They instituted these proceedings fully aware of the fact that there is no realistic prospect of recovering the damages they seek.

“This action will without a doubt place an economic burden on the defendants. However, it appears that the action is not aimed at obtaining monetary, or financial damages, but rather vindicating a right, or for some other purpose. The plaintiffs have indicated that in the alternative, they would be satisfied to dispose of the matter on the basis of a public apology. This is a signature mark of many SLAPP suits. The conclusion is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and had assumed a specific position in respect of the plaintiffs’ mining operations“

Daily Maverick tried to contact Caruso and his senior officials, but no response had been received by late last night.

Cape Town environmental lawyer Cormac Cullinan (one of the six defendants) said he was “thrilled” by Goliath’s verdict and expressed the hope that the case would proceed to the Supreme Court of Appeal and the Constitutional Court to develop new South African case law on the issue of SLAPP suits.

By Tony Carnie - First published on Daily Maverick 10 February 2021