Abstract
In a recent judgment of the Constitutional Court in Mineral Sands Resources (Pty) Ltd v Reddell [2022] ZACC 37, the court received the so-called SLAPP defence in South African Law. A SLAPP defence denotes Strategic Litigation Against Public Participation and originates from the United States of America and Canada. In those jurisdictions, this special plea is often used in environmental law where a powerful litigant sues for the purpose of silencing its critics and not for genuinely vindicating its rights. In the case under discussion, the defendants (who were either environmental lawyers or environmental activists) raised a SLAPP defence against the plaintiff’s claim for damages. The plaintiff’s claim arose because of alleged defamatory remarks made by the defendants about the plaintiff’s mining operations in South Africa. Recognising the SLAPP defence in South African law for the first time, the Constitutional Court found it unnecessary to develop the South African common law in terms of the Constitution and found that the defence could be constitutionally accommodated within the South African common law principle against the abuse of court processes. South African law also has various statutory and other measures against the abuse of the court processes, such as the Vexatious Proceedings Act 3 of 1956. This further facilitated the reception of the special plea into our legal system. In essence, the SLAPP defence is aimed at the protection of the right of freedom of expression by way of public participation in matters of public interest in a democratic state.
The judgment, apart from recognising the SLAPP defence as a particular form of the misuse of court processes, provided a valuable exposition of other instances of abuse. This is particularly valuable in the face of recent frequent litigation described by commentators as “warfare” and the use of “Stalingrad tactics” by litigants. Some commentators are hopeful that the judgment in Mineral Sands will serve to curb unmeritorious and hopeless litigation. Courts are urged to refer such cases for investigation by legal professional bodies. The author argues that a refocussing on the abuse principle is necessary to maintain the public trust and confidence in the judiciary, and the public confidence in our democratic constitutional order in general. It is also necessary to preserve scarce court resources to facilitate greater access to justice for all. Of late, litigation in South Africa too often appears to be aimed at other purposes than to achieve justice. In this regard reference is also made to a recent judgment by the Free State High Court in the so-called and pending asbestos criminal case. Some of the accused persons brought it by civil motion, contrary to the settled principle that pre-trial matters in a criminal case ought to be adjudicated by the trial and not a civil motion court. The article also refers to the drawn-out disciplinary process of Justice John Hlophe and the findings of the disciplinary tribunal set up by the Judicial Services Commission regarding his conduct before the tribunal. Drawing on a 2017 article by Justice Roger Owens, currently serving as Constitutional Court judge, the author argues that in keeping with other jurisdictions, greater emphasis ought to be placed on the requirement that cases, in the interests of the proper administration of justice, should be arguable. A re-examination of the professional rules of conduct for legal practitioners are called for. In this regard, the organised South African legal profession, and our universities in particular, may take the lead to work towards the supplementation and prioritisation of the settled rule against the abuse of court processes.
Keywords: arguability; proper administration of law; improper litigation motives; merits; meritless cases; misuse of court process; improper motives; court misuse
- This article’s featured image contains a background image by Wesley Tingey on Unsplash and an image by Pfüderi on Pixabay.