In two days of hearings which took place via Zoom this week, the Western Cape High Court has heard arguments relating to the right of big companies to sue individuals for defamation – versus the rights of activists and lawyers to publicly voice criticism of big companies.

Underpinning the matter are important questions of law and freedom of expression, including how far companies should be able to go to protect their reputations, notes a Daily Maverick report.

Lawyers for Australian mining company MRC argued that companies have to have the right to ‘act on falsehoods’ about their businesses, regardless of the context in which criticism was made.

MRC is suing six South African individuals – social worker and activist John Clarke, environmental lawyers Corman Cullinan, Christine Reddell and Tracey Davies, Xolobeni community activist Mzamo Dlamini and Lutzville community activist Davine Cloete – for defamation as a result of negative claims made in public about the mining company.

MRC’s two SA mining ventures, the Tormin sands operation on the West Coast and an attempted titanium-related mining project at Xolobeni on the Wild Coast, have been the subject of controversy and fierce community opposition for more than half a decade. But when the six individuals in MRC’s legal crosshairs went public with allegations against the company of bribery, exploitation and even murder, MRC says they went too far.

What is being argued is a complex legal precursor to the upcoming defamation trial.

Lawyers for the six defendants have filed two special pleas which were the subject of this week’s hearing. The defendants’ counsel has argued that MRC is engaging in what is known in some countries as a Slapp (strategic litigation against public participation) suit: that MRC is abusing court processes in an attempt to muzzle criticism of its mining operations.

The DM report notes SA does not have any regulation preventing Slapp suits, which is one of the reasons why this case is being watched so closely by activists who support the introduction of anti-Slapp laws.

The defendants also plead that big companies like MRC should not have the right to claim damages (amounting cumulatively to R14.5m in this case) from individuals, since companies cannot claim a loss of dignity in the same way as ‘natural persons’ suing for defamation.

But in that case, asked Advocate Peter Hodes for MRC, what steps can companies take to protect their reputation from what they claim is false criticism?

Advocate Steven Budlender, for the defendants, suggested that one of the alternative remedies at MRC’s disposal was to seek an interdict against its critics – and that by means of the defamation suit, the company was attempting ‘to obtain an interdict via the back door’.

Yet, Hodes dismissed this suggestion on the grounds that the contentious statements about MRC have already been made in the public domain. ‘You can’t get an interdict against something that has already been said,’ Hodes stated.

Hodes argued it was ‘extraordinary’ that the defendants were seeking to prevent MRC from being given the constitutionally-enshrined right to a fair hearing in court by suggesting that the defamation suit constituted an abuse of court process because its real motive was to silence critics.

MRC contends that even if its purpose is to muzzle criticism, that in itself does not make its defamation suit an abuse of process because its defamation claims may still have merit, says the DM report.

It notes Judge Patricia Goliath pointed out that the claims made about MRC in the defendants’ public statements used words like ‘bribes, exploitation, killing’.

The judge asked: ‘Where must one draw the line in terms of the language that is used?’

Budlender replied that the question was ‘not one that has to be answered in this case’ – because the issue of whether the statements about MRC were accurate could be answered in the defamation trial. He said that although his clients were happy to proceed to that trial if necessary, it was impossible for them to be ‘sucked into extraordinarily lengthy litigation’ when the six defendants were all depending on pro bono legal assistance.

Adjourning proceedings after the second day of hearings, Goliath reserved judgment – noting that what had been raised in the matter was a ‘novel issue’.

Full Daily Maverick report

See also a GroundUp report