HRW: SA Court denies human rights activists access to documents in defamation lawsuit by Mineral Sands Resources

Published by business-humanrights.org on 5 June 2019; Author Khulekani Magubane, Fin24 (South Africa); original article here

“Xolobeni lawsuit: Activists Denied Access to Documents for Defamation Defence”, 1 Jun 2019

The Western Cape High Court denied two attorneys and an activist opposing Mineral Sands Resources’ parent company’s plans to mine in Xolobeni access to documents which they hoped to use to defend against a defamation suit from the company.

The company that is looking to start mining in the heritage site community of Xolobeni in the Eastern Cape is taking environmental activists and attorneys to the Western Cape High Court for defamation. The two plaintiffs are Mineral Sands Resources – a subsidiary of Australian mining company, Mineral Commodities – and Mineral Sands Resources director, Zamile Qunya.

The defendants maintain that the defamation application is a “slapp-suit” intended to intimidate and financially exhaust their campaign. They made an interlocutory application for access to documents they said would prove their remarks constituted fair comment and not defamation. CER executive director Melissa Fourie said the organisation remained committed to resisting the threat that MRC’s “slapp suits” posed to civil society’s Constitutional rights to freedom of speech, freedom of the media and academic freedom.

“We are disappointed with the judge’s ruling. However, we are not deterred. This case is about defending the Constitutional right to freedom of speech and is of fundamental importance to activists defending the environment everywhere. We will continue to fight these claims until justice is served,” said Fourie.

For further background reading, link here to 28 May 2019 Fin24 article, by Khulekani Magubane, entitled “Activists Accuse Aspiring Xolobeni Miner of Malicious Litigation”.

Tendele Threatens To SLAPP Global Environmental Trust

Published 25 April 2019

Late Monday afternoon, 15 April, Youens Attorneys, who act for the Global Environmental Trust (GET), received a letter from Tendele mine’s attorneys stating that a recent post on our websites and social media pages was defamatory in stating that the South African Human Rights Commission (SAHRC) report on mining affected communities includes “numerous human rights abuses perpetrated by Tendele”.  

The letter from Malan Scholes Attorneys demanded we respond by 10am the next day, Tuesday, with an apology and that we remove from our website, Facebook and social media pages all references to Tendele in connection with being accused of committing human rights abuses in the report by the SAHRC. 

In response, Johan Lorenzen of Richard Spoor Attorneys, who was briefed to act on behalf of GET in this matter, dismissed the accusations of defamation levelled at us by Tendele’s lawyers and threatened to seek punitive costs if Tendele were to sue GET.

Tony Carnie’s article in the Daily Maverick, published this morning, explains that mining companies are increasingly using what has become known as SLAPP suits – Strategic Litigation Against Public Participation – to try to intimidate and silence opponents.  SLAPPS are intended to unsettle and constrain the opposition by taking up time and resources in responding to irksome claims that often have little or no substance. 

In response to the rising number of SLAPPS, several legal NGOs and civil society organisations have formed a coalition to challenge and counter SLAPPs.  

One must surely ask the question why Tendele is featured in research conducted on human rights infringements in the mining industry by the SAHRC?  The report was released in August 2018, just before our Pietermaritzburg High Court application and formed part of the evidence presented to the court. 

In an interesting twist of fate, on Tuesday, 16 April, the date GET was required to apologise and remove all references to Tendele and human rights abuses in the SAHRC report, a US organisation, Human Rights Watch, released its publication about the environment of fear in South Africa’s mining-affected communities, entitled: “We know our lives are in danger”.

The photo on the front is of a group of women activists, who are members of MCEJO, outside the Pietermaritzburg High Court on the day of the Tendele hearing in August. The photo on the back cover is of Tendele’s opencast operations dominating the rural landscape with a Zulu homestead in the foreground. Once again, the people in the community surrounding the Tendele mine, including many MCEJO members, feature strongly in this report.

With  two independent publications on human rights violations in the mining industry citing Tendele in their reports, it will be difficult for Tendele to prove their accusations of defamation. If they do try, GET is ready.

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Link to original article on Save Our Wilderness blog