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natural resources and environment | 28 Jul 2020
BY Carlyn Frittelli Davies AND Robynne Samuels
ENSight

natural resources and environment


Think twice before restraining environmental activism

Current events have been kicking-up the dust on a number of pressing issues in our world and perhaps, it is about time. As many people across class, generations and skill levels are forced to isolate at varying degrees, the access to social media and technology brings global issues to a head, creating a ripple effect across nations. Two of those issues, both related to the burgeoning of activism, are historic racial discrimination and the restraining of freedom of speech, in the mining space and the environment.

The practicalities of the ventilation of historic racial discrimination in the mining industry has been heavily debated in the legal arena and  is evident with the review of the Mining Charter, 2018 by the Minerals Council of South Africa, as well as the Draft Upstream Petroleum Resources Bill, 2019. The Bill seeks to avoid the pitfalls and mistakes made from a legal perspective with the charter. On 6 July 2020, the High Court in Pretoria ordered that a number of other industry stakeholders join the aforementioned matter, thereby delaying any substantive decision which focuses on the failure of the Charter to address the “once empowered always empowered” principle for mineral right renewals and transfers. The relevant industry stakeholders have in any event been part of wider frank and good spirited discussions, similar to those being had in the USA #BlackLivesMatter campaign, so the delay is unfortunate.

Environmental activism, particularly in the mining space, has been escalating for years and has, in June 2020, led to the advent of the introduction of Strategic Litigation Against Public Participation (“SLAPP”), which has been raised as a legal argument, in South African law. A SLAPP suit is often used by corporates (at times, with legal justification) to restrain public interest activism.

However, when engaging in SLAPPs, section 16 of the Constitution must always be taken into consideration. This section 16 enshrines the right to freedom of expression, and corporates must beware not to unjustifiably limit the enforcement of this right that other parties are duly entitled to, including the right to freely express one’s concerns for the protection of the environment.

In June 2020, the Western Cape High Court heard part one of the country’s first SLAPP suit, relating to the defendants’ first special plea of an abuse of court process. The defamation action against six individuals, compromising environmental lawyers, a social worker and community activists, claiming compensation amounting to millions of rands, or in the alternative, public apologies, was filed by the plaintiffs, an Australian global exploration and mining company which focuses on developing mineral deposits in the industrial and battery minerals sector, Mineral Commodities Limited, and its executive chairman and CEO, as well as its South African subsidiary, Mineral Sands Resources Proprietary Limited, and one of its partners.

The defamation actions were filed by the plaintiffs in response to statements made by the defendants during a mining summer school programme held at the University of Cape Town, as well as statements broadcasted in the public media, relating to the operations of the mining companies. The plaintiffs took an exception to the first special plea by the defendants on the basis that it is the duty of the legislature and not the courts, to decide whether a SLAPP defence is legally permissible in South African law.

The University of Witwatersrand’s Centre for Applied Legal Studies and the University of Cape Town have been joined as amicus curaie (friends of the court), due to the potential impact of the issues in the matter on community activism and academic freedom. Judgment had been reserved and the next stage of the litigation is on the way. The case could potentially be brought before the Constitutional Court in the future due to its novel nature and its significant impact on the Bill of Rights.

Whether the SLAPP argument will result in the common law being developed, or legislation being drafted and promulgated, is uncertain. What is certain is that the issues in dispute are of a novel nature in South Africa and the constitutional importance of this matter and its impact on corporate actions cannot be gainsaid. If the matter reaches the Constitutional Court, the court will be obliged to ensure that the constitutional right to freedom of expression, encompassing the freedom of the press and media, receiving and impartation of information, ideas and academic freedom, enshrined in the Constitution is not unjustifiably limited.

Anti-SLAPP legislation is gaining tremendous support in many US states, as well as in Europe, Canada and Australia. The Constitutional Court, when interpreting the Bill of Rights, may consider these foreign developments and must consider international law, which could entail, inter alia, section 11 of the United Nations Guiding Principles on Business and Human Rights, which expressly provides that “business enterprises should respect human rights” and “should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”

As the above-mentioned events have illustrated first-hand, the world needs to, and certainly has the capacity to, bring the “kind” in humankind to the fore for everyone’s benefit, and especially in these times and the future, for the benefit of our natural resources and the environment.

 

Carlyn Frittelli Davies

Executive | Natural Resources and Environment

cdavies@ENSafrica.com

+27 82 787 9830

 

Robynne Samuels

Candidate Attorney | Dispute Resolution

rsamuels@ENSafrica.com

+27 60 966 9690