Picture: ISTOCK
Picture: ISTOCK

Dawid Markus is a community activist from Hondeklipbaai in the Northern Cape. He works on environmental issues affecting residents of the fishing community.

In November 2016, he and other members of the mine-affected community in which he lives held a peaceful protest outside the premises of West Coast Resources. They wanted a meeting to discuss the mining company’s social and labour commitments and they wanted it to know how badly the local fishing industry was faring, thanks to spillages from the mine.

But West Coast Resources clearly didn’t want to listen. Instead, it went to court to stop the community from protesting. In the end, the mine even got a cost order awarded against Markus. Thankfully, in June, the Centre for Applied Legal Studies successfully helped him challenge that order.

It wasn’t the first time this had happened. Three years ago, Canadian company Ivanhoe threatened legal action against Lawyers for Human Rights (LHR) over its allegedly "defamatory" statement regarding a mining licence that Ivanhoe had obtained to start its Platreef mining project in Mokopane, Limpopo. LHR didn’t believe its statement was defamatory, but it withdrew the statement, rather than fight a case when those resources could be used to help the community.

SA’s legal framework was designed to support environmental justice defenders

Most recently, attorneys Christine Reddell and Tracey Davies from the Centre for Environmental Rights and West Coast community activist Davine Cloete had legal action instituted against them by Australia’s Mineral Sands Resources, again for "defamation".

These three examples demonstrate the gradual but disturbing increase in the number of cases where public-interest environmental activists and concerned citizens are "slapped" with lawsuits for fighting for the public’s right to an environment that is not harmful to their health — a right enshrined in the bill of rights.

There’s a name for this type of legal action. it’s called strategic lawsuit against public participation, or Slapp.

Legal commentators define a Slapp as "a meritless case mounted to discourage a party from pursuing or vindicating [its] rights, often with the intention not necessarily to win the case, but simply to waste the resources and time of the other party until [it bows] out". Slapp actions are used to scare activists away from campaigning, and to silence them.

The fact that most Slapp actions have no legal merit doesn’t stop them from protecting corporations’ interests through silencing, intimidating and bankrupting activists.

Of course, Slapp actions can take many forms. Activists may be charged with instigating violence, damaging property or defamation. These suits are sometimes backed by public campaigns to demonise communities — often portraying them as the reason for job losses or a company’s failure to meet mining charter requirements.

This bid to stifle the political agency of marginalised communities is a symptom of a broader shut-down of democracy.

Watchdog role

There’s no little irony in this, considering that SA’s legal framework was designed precisely to support environmental justice defenders. The National Environmental Management Act places communities and activists in a critical watchdog role, requiring public participation in environmental management. It even recognises the pressure that activists come under from powerful interests, and contains measures to protect them, specifically to aid whistleblowers.

Besides violating the rights of environmental activists, the use of Slapp actions is a cowardly assault on the foundations of our constitutional order.

All stakeholders, including the department of mineral resources and the Chamber of Mines, need to take steps to counter this abuse.

• Authors from the Centre for Applied Legal Studies

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