Growing threats to environmental human rights defenders: The latest SLAPP suit developments in South Africa

• Author: Chamberlain, L.
• Pages: 5-38
• Published date: 10 December 2021
• Citation: (2020) 26 SAJELP 5
• DOI: https://doi.org/10.47348/SAJELP/v26/a1
• Date: 10 December 2021

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https://doi.org/10.47348/SAJELP/v26/a1

GROWING THREATS TO

ENVIRONMENTAL HUMAN RIGHTS

DEFENDERS: THE LATEST SLAPP SUIT

DEVELOPMENTS IN SOUTH AFRICA

Lisa Chamberlain†

Abstract

Human rights defenders’ lives, activism, and livelihoods are under threat

globally. This is a particular reality for those working to protect land and

natural resources. This article examines one of the forms in which environmental

activists are being targeted in South Africa, namely the abuse of litigation

processes to silence dissent, referred to as Strategic Litigation Against Public

Participation (SLAPP suits). This article examines the development of SLAPP

suits in South Africa and the impact that they have on the environmental sector

and environmental rights. It then discusses some of the latest developments

in SLAPP suits locally, including how in recent years, in addition to the more

traditional defamation-style SLAPP suit, SLAPP suits have started to take

new forms such as costs proceedings and allegations of intellectual property

infringement. Lastly, this article explores possible responses to SLAPP suits,

concluding that serious consideration needs to be given to anti-SLAPP

legislation, the use of the special plea mechanism, and the opportunities for

enhanced advocacy and solidarity action that SLAPP suits provide.

1 INTRODUCTION

As concerns about the effects of climate change and the future of

the planet escalate, understanding the value of natural resources

and the environment, and how protection of these resources

facilitates the realisation of human rights, has never been more

critical� The close relationship between environmental protection

and the realisation of human rights is widely acknowledged�1 The

† BA LLB (Wits) LLM (Michigan)� Senior Lecturer, School of Law,

University of the Witwatersrand, Research Associate, Southern Centre for

Inequality Studies, University of the Witwatersrand�

1 Report of the Special Rapporteur on Human Rights and the Environment

on the issue of human rights obligations relating to the enjoyment of a safe,

clean, healthy and sustainable environment, submitted in accordance with

Human Rights Council Resolution 37/8 (19 July 2018) A/73/188 at para 12� See

also C Gonzalez ‘Environmental justice, human rights and the global South’

(2020) 26 SAJELP 5

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(2020) 26 SA JOURNAL OF ENVIRONMENTAL LAW AND POLICY

https://doi.org/10.47348/SAJELP/v26/a1

United Nations General Assembly has recognised that the impact

of climate change, the unsustainable use of natural resources,

biodiversity loss, and the decline in services provided by

ecosystems is likely to interfere with the enjoyment of a safe, clean,

healthy, and sustainable environment, and that environmental

damage can undermine the enjoyment of all human rights�2

Furthermore, the impact of threats to the environment on the

realisation of human rights has now been starkly illuminated by

the COVID-19 pandemic, given the origins of the corona 2 virus

in the exploitation of wildlife�3 Moreover, in a vicious circle of

causation, environmental harm has not only contributed to the

spread of COVID-19, but is also being caused by the pandemic�4

Now more than ever, it is necessary to protect natural resources

(such as land, water, air, forests and biodiversity) and to advance

environmental rights� Across the world, many people are working

to do so� They include community leaders, small-scale farmers

and fishers, activists, faith-based leaders, human rights lawyers,

journalists and academics� They are commonly referred to as

environmental human rights defenders (EHRDs), a term used by

the United Nations Special Rapporteur on Human Rights and the

Environment to mean ‘individuals and groups striving to protect

and promote human rights relating to the environment’�5

(2015) 13Santa Clara Journal of International Law 151 at 152; A Savaresi

‘Climate change and human rights: fragmentation, interplay and institutional

linkages’ in S Duyck et al (eds) Routledge Handbook of Human Rights and

Climate Governance (2018) at 31; M Murcott ‘Introducing Transformative

Environmental Constitutionalism in South Africa’ in E Daly et al (eds) New

Frontiers in Environmental Constitutionalism, a publication of the United

Nations Environment Programme (2017) at 280�

2 Preamble to United Nations General Assembly Resolution

A/HRC/40/L�22/Rev�1�

3 See for example J Vidal ‘“Tip of the iceberg”: is our destruction of

nature responsible for COVID-19?’ (18 March 2020) The Guardian at https://

www�theguardian�com/environment/2020/mar/18/tip-of-the-iceberg-is-our-

destruction-of-nature-responsible-for-COVID-19-aoe (accessed 18 August 2020)�

4 See for example, B Gardiner ‘Why COVID-19 will end up harming

the environment’ (18 June 2020) National Geographic at https://www�

nationalgeographic�com/science/2020/06/why-COVID-19-will-end-up-

harming-the-environment/ (accessed 18 August 2020)�

5 Report of the Special Rapporteur on Human Rights and the Environment

(n1) at para 26� Internationally, the term ‘human rights defender’ (HRD) is used

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GROWING THREATS TO ENVIRONMENTAL HUMAN RIGHTS DEFENDERS:

THE LATEST SLAPP SUIT DEVELOPMENTS IN SOUTH AFRICA

https://doi.org/10.47348/SAJELP/v26/a1

Human rights defenders (HRDs) in the broad sense play an

accepted and seminal role in furthering the realisation of

human rights, and thereby in promoting democracy, sustainable

development and the rule of law�6 In the environmental context

specifically, the United Nations General Assembly has recognised

the contribution of EHRDs to theenjoyment of human rights,

environmental protection and sustainable development, and has

acknowledged the particular role of EHRDs in furthering the

implementation of the Paris Agreement7 and in realising the 2030

Agenda for Sustainable Development�8

to describe anyone working to advance human rights� It has deliberately not

been given an exhaustive definition so as to cast the net of those who may fall

within the category of HRD – and thus the protections available to HRDs at an

international level – as broadly as possible� In South Africa, the term activist is

still more common� The South African Human Rights Commission (SAHRC)

has recognised that journalists, non-governmental organisations (NGOs)

and their employees, whistle-blowers, public interest lawyers, community

activists, student leaders, trade union leaders and others who are critical of

the government and state machinery are all becoming vulnerable groups that

need increased protection as HRDs (South Africa Human Rights Commission

Research Brief ‘The Status of Human Rights Defenders in South Africa’ (April

2018) at https://www�sahrc�org�za/home/21/files/Human%20Rights%20

Defenders%20Publication�pdf (accessed 7 February 2020) (SAHRC Report)

at 9)� This article will use the term ‘environmental human rights defender’

(EHRD) to refer to those working to protect the environment and advance

environmental rights�

6 See for example the preambles to Resolution 68/181: Promotion of the

Declaration on the Right and Responsibility of Individuals, Groups and Organs

of Society to Promote and Protect Universally Recognized Human Rights

and Fundamental Freedoms: Protecting Women Human Rights Defenders

(A/RES/68/181), 2013 and Resolution 273: Resolution on Extending the

Scope of the Mandate of the Special Rapporteur on Human Rights Defenders

in Africa, 2014, and the model law on HRD protection developed by the

International Service for Human Rights�

7 The Paris Agreement aims to strengthen the global response to the threat

of climate change by striving to limit the global temperature rise to 1�5 degrees

Celsius, and to strengthen the ability of countries to deal with the impacts of

climate change� See further https://unfccc�int/process-and-meetings/the-paris-

agreement/the-paris-agreement (accessed 18 August 2020)�

8 Clause 2 of General Assembly Resolution A/HRC/40/L�22/Rev�1 issued

on 21 March 2019�

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