Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Citation: 2023 (2) SA 68 (CC)

Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others
2023 (2) SA 68 (CC)

2023 (2) SA p68

Citation	2023 (2) SA 68 (CC)
Case No	CCT 66/21; [2022] ZACC 37
Court	Constitutional Court
Judge	Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Heard	November 14, 2022
Judgment	November 14, 2022
Counsel	P Hodes SC (with J de Waal SC and C Quinn) for the applicants.; G Budlender SC (with S Budlender SC, S Kazee and E Cohen) for the respondents.; L Phasha (with K Thobakgale) for the first amicus curiae, the Centre for Applied Legal Studies.; J Bhima (with M Marongo) for the second amicus curiae, the Southern African Human Rights Defenders Network.

Flynote : Sleutelwoorde

Abuse of process — SLAPP suit — Indicia of — Merits, motive and effect.

Headnote : Kopnota

Applicants, who were mining companies and certain of their executives, had instituted defamation actions against the respondents, who were environmentalists, and who had publicly criticised applicants' mining activities (see [3], [6], [9] and [13]).

In response, respondents made the special plea that the suits were an abuse of process, with the suits' motive, so they asserted, constituting the abuse, the motive being to discourage public criticism of the mining operations — so called strategic litigation against public participation, otherwise known acronymically as SLAPP suits (see [7], [42] – [43], [47] and [89]).

In turn, applicants excepted to the pleas, asserting that no such category of abuse existed in our law (see [7]).

The High Court dismissed the exception and here the applicants applied to the Constitutional Court for leave to appeal directly to it. This it granted (see [8]).

The issue there was whether such a species of abuse should be recognised (see [55] and [93]).

Held, that it should be, and that the indicia of the abuse were three (see [95]).

Firstly, the merits: the suit not being brought to vindicate a right (see [95]).

Secondly, the motive: to cause the defendants prejudice (financial or other) in order to silence them (see [43] and [95]).

And thirdly, the effect: material violation of the constitutional right to freedom of expression (see [95] – [96]).

Held further, that respondents' special plea, grounded as it was on motive alone, had lacked necessary averments, and on this basis applicants' exception to it ought to have been upheld (see [98]).

Conversely, applicants' assertion that no such defence existed was defeated (see [98]).

Appeal upheld and the High Court's order set aside and replaced with an order upholding the applicants' exception and granting respondents 30 days to seek leave to amend their special plea (see [103]).

Cases cited

Southern Africa

Ascendis Animal Health (Pty) Ltd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC) (2020 (1) BCLR 1; [2019] ZACC 41): referred to

Baliso v FirstRand Bank Ltd t/a Wesbank 2017 (1) SA 292 (CC) (2016 (10) BCLR 1253; [2016] ZACC 23): distinguished

Baloyi v Public Protector and Others 2022 (3) SA 321 (CC) ((2021) 42 ILJ 961; 2021 (2) BCLR 101; [2021] 4 BLLR 325; [2020] ZACC 27): referred to

Beckenstrater v Rottcher and Theunissen 1955 (1) SA 129 (A): referred to

2023 (2) SA p69

Beinash v Wixley 1997 (3) SA 721 (SCA) ([1997] 2 All SA 241; [1997] ZASCA 32): applied

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): referred to

Bisset and Others v Boland Bank Ltd and Others 1991 (4) SA 603 (D): distinguished

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Cassimjee v Minister of Finance 2014 (3) SA 198 (SCA) ([2012] ZASCA 101): referred to

Charlton v Parliament of the Republic of South Africa 2012 (1) SA 472 (SCA) ([2011] ZASCA 132): dictum in para [1] applied

Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA) ([2012] ZASCA 182): referred to

Company Secretary, ArcelorMittal South Africa Ltd and Another v Vaal Environmental Justice Alliance 2015 (1) SA 515 (SCA) ([2015] 1 All SA 261; [2014] ZASCA 184): referred to

Estate Logie v Priest 1926 AD 312: distinguished

Gold Fields Ltd and Others v Motley Rice LLC 2015 (4) SA 299 (GJ): considered

H v Fetal Assessment Centre 2015 (2) SA 193 (CC) (2015 (2) BCLR 127; [2014] ZACC 34): referred to

Hudson v Hudson 1927 AD 259: referred to

International Trade Administration Commission v SCAW South Africa (Pty) Ltd 2012 (4) SA 618 (CC) (2010 (5) BCLR 457; [2010] ZACC 6): referred to

Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): dictum in para [7] applied

Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480 (CC) (2017 (10) BCLR 1242; [2017] ZACC 22): considered

MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (2017 (12) BCLR 1528; [2017] ZACC 37): referred to

MEC, Department of Co-operative Governance and Traditional Affairs v Maphanga 2021 (4) SA 131 (SCA) ([2020] 1 All SA 52): considered

Media 24 Ltd and Others v SA Taxi Securitisation (Pty) Ltd (Avusa Media Ltd and Others as Amici Curiae) 2011 (5) SA 329 (SCA) ([2011] ZASCA 117): referred to

Mineral Sands Resources (Pty) Ltd v Reddell and Two Related Cases 2021 (4) SA 268 (WCC): upheld on appeal

Minister of Safety and Security and Another v Hamilton 2001 (3) SA 50 (SCA) ([2003] 4 All SA 117; [2001] ZASCA 22): referred to

Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC) (2013 (10) BCLR 1135; [2013] ZACC 23): referred to

National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) (2009 (1) SACR 361; 2009 (4) BCLR 393; [2009] 2 All SA 243; [2009] ZASCA 1): distinguished

National Treasury and Others v Opposition to Urban Tolling Alliance and Others 2012 (6) SA 223 (CC) (2012 (11) BCLR 1148; [2012] ZACC 18): referred to

Phillips v Botha 1999 (2) SA 555 (SCA) ([1998] ZASCA 105): distinguished

Price Waterhouse Coopers Inc and Others v National Potato Co-Operative Ltd 2004 (6) SA 66 (SCA) (2004 (9) BCLR 930; [2004] 3 All SA 20; [2004] ZASCA 64): considered

2023 (2) SA p70

Public Protector v Commissioner for the South African Revenue Service and Others 2022 (1) SA 340 (CC) (2021 (5) BCLR 522; [2020] ZACC 28): referred to

Reddell and Others v Mineral Sands Resources (Pty) Ltd and Others CCT 67/21: referred to

Roering NO and Another v Mahlangu and Others 2016 (5) SA 455 (SCA): considered

S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36; [2000] ZACC 25): referred to

South African Informal Traders Forum and Others v City of Johannesburg and Others 2014 (4) SA 371 (CC) (2014 (6) BCLR 726; [2014] ZACC 8): dictum in para [20] applied

Stewart and Another v Botha and Another ([2008] ZASCA 84) 2008 (6) SA 310 (SCA): dictum in para [4] applied

Tsose v Minister of Justice and Others 1951 (3) SA 10 (A): referred to

United Democratic Movement v Speaker, National Assembly and Others 2017 (5) SA 300 (CC) (2017 (8) BCLR 1061; [2017] ZACC 21): referred to

Zuma v Democratic Alliance and Others 2018 (1) SA 200 (SCA): referred to

Zweni v Minister of Law and Order 1993 (1) SA 523 (A) ([1993] 1 All SA 365; [1992] ZASCA 197): referred to.

Canada

1704604 Ontario Ltd v Pointes Protection Association 2020 SCC 22 449 DLR (4th) 1: referred to.

England

Ex parte Wilbran 5 Madd 1: referred to.

United States

Price v Stossel 620 F 3d 992 (9th Cir 2010): referred to.

Case Information

P Hodes SC (with J de Waal SC and C Quinn) for the applicants.

G Budlender SC (with S Budlender SC, S Kazee and E Cohen) for the respondents.

L Phasha (with K Thobakgale) for the first amicus curiae, the Centre for Applied Legal Studies.

J Bhima (with M Marongo) for the second amicus curiae, the Southern African Human Rights Defenders Network.

A direct appeal against a decision of the Western Cape Division.

Order

1.

Leave to appeal directly to this court is granted.

2.

The appeal is upheld.

3.

The order of the High Court is set aside, and the following order is made:

(a)

The plaintiffs' exception to the first special plea of the defendants is upheld on the basis that the first special plea lacks averments necessary to establish a defence.

(b)

The defendants are afforded 30 days from the date of this order to seek leave to amend their first special plea, failing which, the first special plea is dismissed.

2023 (2) SA p71

4.

The applicants are ordered to pay 60% of the respondents' costs in this court, including the costs of two counsel.

5.

Each party must pay its own costs in the High Court.

Judgment

Majiedt J (Kollapen J, Madlanga J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ concurring):

Introduction

[1] One of the more positive features of our nascent democratic order is vibrant, vigilant and vociferous civil society participation in public affairs. In a truly broad based participatory democracy characterised by that kind of active participation, our Constitution's aspirations and values find meaning in the lives of the populace for whose benefit the Constitution was ultimately enacted. [1] One of the notably active voices is that of the environmental interests lobby.

[2] At the heart of this case lies the phenomenon of what has become known as SLAPP, short for Strategic Litigation Against Public Participation. It has been described as:

'(L)awsuits initiated against individuals or organisations that speak out or take a position on an issue of public interest . . . not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others . . . and deter that party, or other potential interested parties...