Louis Case Reports

DEFAMATION – SLAPP SUIT DEFENCE

Defamation – SLAPP suit defence – Ulterior purpose – Abuse of process – Common law doctrine of abuse of process can accommodate SLAPP suit defence – Requirements.

Mineral Sands Resources v Reddell [2022] ZACC 37 at [42]-[99]

Facts: The Australian mining companies are engaged in extensive operations in the exploration and development of major mineral sands projects in South Africa. There is fierce community opposition to these mining activities and environmentalists are alleged to have made statements which are defamatory of the companies and some of their executives. Defamation suits were pursued in the High Court with claims of over R14 million against the environmentalists.

Appeal: Against the High Court’s dismissal of the mining companies’ exception to the special plea raised by the environmentalists, the SLAPP special plea (Strategic Litigation Against Public Participation).

Discussion: Whether our law currently permits that ulterior motive alone, to the exclusion of the merits of a claim, may be determinative of abuse of process, so that the claim can be dismissed solely on that basis; the contentions by the environmentalists that mining companies do not honestly believe that they have any prospect of recovering the damages and that the purpose is to intimidate and silence them; whether the common ought to be developed; the origin, nature, and development of the SLAPP suit; and abuse of process in our law.

Findings: Abusive litigation would fall within the common-law doctrine of abuse of process and can It conceivably accommodate the SLAPP type of defence pleaded by the environmentalists. (See the requirements at para [96].) The environmentalists supported their special plea on the basis that improper motive alone suffices to warrant dismissal of the actions. That was not so, and the merits also bear consideration. It followed that the special plea lacked averments necessary to satisfy the requirements of the SLAPP suit defence. To this extent, the exception taken by the companies holds good and must be upheld.

Order: The appeal is upheld and the order of the High Court replaced with one upholding the exception to the special plea. The mining companies are ordered to pay 60% of the environmentalists’ costs.

MAJIEDT J (unanimous)

[100] SLAPP suits appear to be on the increase here, as is the case globally. The finding here that the common law doctrine of abuse of process can accommodate the SLAPP suit defence ensures that courts can protect their own integrity by guarding over the use of their processes. And, ultimately, it ensures that the law serves its primary purpose, to see that justice is done, and not to be abused for odious, ulterior purposes.

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DEFAMATION OF A COMPANY

Defamation – Trading corporation as plaintiff – Reputation rights – Freedom of speech – Constitutionality of awarding general damages to trading corporations – Trading corporations can claim general damages for defamation – Not where the speech forms part of public discourse on issues of public interest – Court’s discretion.

Reddell v Mineral Sands Resources [2022] ZACC 38 at [100]-[150]

Facts and issue: Mining companies and some of their executives launched three defamation actions against environmentalists who raised two special pleas. The first special plea (the SLAPP suit defence) is dealt with in [2022] ZACC 37. The second was the “corporate defamation defence special plea”. The High Court upheld the mining companies’ exception to the corporate defamation special plea on the basis that the court was bound by the precedent of the Supreme Court of Appeal in SA Taxi, where it was decided that a trading corporation can sue for general damages for defamation.

Appeal: By the environmentalists directly to the Constitutional Court based on the fact that only this court can overrule the decision in SA Taxi.

Discussion: The contention by the environmentalists that the common law in terms of SA Taxi equates the position of trading corporations with that of natural persons in claims for defamation and that trading corporations cannot be the bearers of the right to human dignity; that the environmentalists only persisted with their alternative claim on the constitutionality of awarding general damages to trading corporations in defamation cases; our common law of defamation, the SA Taxi case and the minority judgment of Nugent JA; the source of a trading corporation’s reputation rights; and the right to freedom of expression.

Findings: An unqualified award of general damages to a trading corporation in respect of harm to its reputation limits the right to freedom of speech. A trading corporation has no hurt “human” feelings and no right to dignity. Instead, it has a common-law right to its good name and reputation, protected by the Constitution’s equality provisions.

Order: The appeal is upheld to the extent that it is declared that, save for where the speech forms part of public discourse on issues of public interest, and at the discretion of the court, trading corporations can claim general damages for defamation.

MAJIEDT J (majority)

UNTERHALTER AJ (dissenting) at paras [153] to [210]

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DAMAGES CLAIM AND MEDICAL RECORDS

Civil procedure – Documents and records – Medical and psychological records – Access by defendants in damages claim – Only those records germane to the assessment of records – Request for all medical records was invasive and would tamper with rights to privacy and dignity – Uniform Rule 36(4).

CPK v Mackenzie [2022] ZAECMKHC 96 at [25]-[45]

Facts: T was enrolled at the St Andrews College at the time of his demise. His parents and younger brother are the applicants. Mr Mackenzie was a water polo coach and an Assistant Deputy House Master. The applicants allege that he wrongfully and unlawfully sexually groomed and molested T. As a result of that unlawful conduct, they allege that T became depressed, withdrawn and committed suicide. They claim damages from St Andrews based on vicarious liability and breach of an agreement. The respondents sought access to T’s medical and psychological records in terms of Rule 36(4).

Application: In terms of Rule 30 to have the notices in terms of Rule 36(4) declared irregular and set aside.

Discussion: Whether the medical records are relevant to the assessment of the damages claimed; the purpose of Uniform Rule 36(4); whether Rule 36(4) envisages a request of medical records that belong to a person who is not a party to the litigation; whether the request for all medical records in both notices was overbroad; and that Rule 36(4) makes no provision for inspection and does not entitle a requestor to all medical records of a claimant, but only those medical records that are germane to the assessment of damages.

Findings: The request amounts to “a fishing expedition” and places the applicants at the mercy of the respondents who simply want to fish for anything and everything that they could find from any medical records available throughout the country. That is clearly not the intention of the rules and in particular Rule 36(4). A request for all the medical records is invasive and would tamper with the applicants and T’s right to privacy and dignity. The request is not based on relevance and for that reason is contrary to the purpose of the rule and thus irregular. It is incumbent upon the requester to make the request clear, simple and in line with the wording and purpose of the rule.

Order: The two notices delivered by the respondents in terms of Rule 36(4) are declared irregular and are set aside.

NORMAN J

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ABOUT THE EDITOR

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law

You can read his full CV and more about Louis on his LinkedIn profile where he shares interesting and recent cases.

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