The crucial role of pro bono legal services for freedom of expression and development of the law

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Samantha Robb
Webber Wentzel, Johannesburg
samantha.robb@webberwentzel.com

In a precedent-setting judgment on 9 February 2021, a South African High Court dismissed a mining company’s exception against environmental activists’ special plea to use a Strategic Litigation Against Public Participation (SLAPP) suit defence and found that the SLAPP suit defence constitutes a valid defence to defamation actions. SLAPP is a common tool used by big corporations against activists in order to intimidate and silence them from speaking out against the corporate’s activities, with meritless, lengthy and expensive lawsuits. SLAPPs are often used in the environmental space, as was the case in this matter.

Community activists Davine Cloete and Mzamo Dlamini, social worker John Clarke and environmental attorneys Christine Reddell, Tracey Davies and Cormac Cullinan, are faced with defamation claims against them, which total ZAR 14.15m in damages. The defendants participated in public discourse about the impact of mining on the environment and specifically the plaintiffs’ mining operations. They expressed criticism and certain opinions in books, radio interviews and public lectures on separate occasions.

In the exceptions hearing, the defendants argued that the proceedings were nothing more than an abuse of legal process to achieve an improper end (ie, a SLAPP), and they should thus be able to raise a special plea to have the action dismissed for such an abuse. In making these arguments, the defendants relied on foreign jurisdictions and judgments where the SLAPP defence has been incorporated into the law and can be raised and adjudicated on before a matter proceeds. Such legislated steps can be found in, for example, California and Georgia in the United States and Quebec and Ontario in Canada and in case law in India.

The plaintiffs excepted to the special plea and argued that intention was irrelevant in the eyes of the law and that the only recourse available to the defendants was to rely on a statute which provides for vexatious proceedings, which they had not done.

In its judgment, the South African High Court provided clear guidelines on how to identify the signature characteristics of a SLAPP, which are as follows:

• usually disguised as an ordinary civil claim such as defamation;
• typically instigated by an entity with considerable resources which is seeking to protect its business or economic interests;
• typically target an activist, community group or non-governmental organisation advancing a social interest rather than a personal one;
• aim to silence or punish those challenging powerful corporates;
• try to exploit inequalities in power and resources; and
• typically claim exorbitant damages.

In coming to its decision, the High Court made insightful comments on the importance of freedom of speech and public debate, particularly in the environmental sphere. The High Court stated:

‘Public participation is a key component in environmental activism, and the chilling effect of SLAPP can be detrimental to the enforcement of environmental rights and land use decisions. The present matter arises in the context of debates about whether the mining companies have complied with their legal obligations and whether they have caused environmental damage. Matters such as this, self-evidently require public engagement and public debate. The social and economic power of large trading corporations renders it critically important that they be open to public scrutiny without the inhibiting risk of crippling liability for defamation.’^[1]

Although an important judgment and a step in the right direction for the right to freedom of expression, the matter has far to go before it is finalised. It has taken five years to reach this point and the dismissal of the exceptions only marks the first step in the defendants’ intention to introduce a SLAPP defence into South Africa’s jurisprudence. Legally, the effect of the judgment means that the defendants are entitled to rely on their special plea, but the defamation claims against them are still live and their special pleas and defence will be tested at trial.

As the SLAPP defence touches on various constitutional issues, such as the right to freedom of expression (which is provided for in section 16 of South Africa’s Constitution), it will have to be finally decided by South Africa’s apex court, the Constitutional Court.

This case emphasises the crucial role that pro bono legal services play in supporting civil society, activism and free speech. Webber Wentzel has been providing pro bono legal services to the defendants since 2016, when the first defamation action was launched. Because of the public interest in the matter, the Webber Wentzel Pro Bono team has also enjoyed the dedicated support of some of South Africa’s leading advocates.

The defendants’ cause has also been taken up by civil society. Off the back of these defamation actions, the Centre for Environmental Rights and other civil society organisations launched the Asina Loyiko Campaign: United against Corporate Bullying (Asina Loyika means ‘we have no fear’ in isiXhosa, which is one of South Africa’s 11 official languages). The campaign was launched in response to a growing number of corporations, both in South Africa and globally, who use SLAPP suits as a tactic to silence criticism and supress public activism. These SLAPPs undermine Constitutional rights of freedom of speech, freedom of the media and academic freedom.^[2]

Matters such as these have an incredibly important function in developing the law. Without pro bono legal services by attorneys, who are able to provide their full attention to such a matter and provide the best services to the litigants for lengthy periods of time, such legal developments may not be possible. The SLAPP defence is not yet part of South African jurisprudence. Should it ultimately be confirmed by South Africa’s apex court, this will be a first-rate example of the role of pro bono legal services in developing the common law and expanding the relevant jurisprudence. By providing services that impact on the broader public interest, such legal services are important not only for those litigants who cannot afford commercial legal fees, but also for society as a whole.

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