Constitutional Court outlaws SLAPP suits in South Africa.
What that means for me.
There is a joke that defines a mine as “a hole in the ground, owned by an optimist, operated by a fool and usually followed by a lawsuit”.
Given the recent landmark ruling by the South African Constitutional Court that found SLAPP ‘lawfare’ to be an abuse of legal process, legal pundits are dissecting it to see what holes it fills in the law, what home truths it contains to moderate optimism and what warnings it heralds for greedy lawyers who are happy to fool their clients into paying vast sums to hold the truth hostage in litigation by attrition.
For me personally it ends a two decade long professional intervention doing what social workers are supposed to do: challenge social injustice.
Placed in the context of what happened a few months prior to the commencement of the SLAPP lawfare against me, the Constitutional Court’s judgement is about a lot more than legal jots and tittles, or how far we can go in speaking truth to power without incurring retaliation. It is about two serious life and death matters that continue to preoccupy me: the still un-prosecuted death of my client and friend Bazooka Rhadebe in March 2016, and the increasingly precarious state of life of the human species on Mother Earth.
Context matters. As in theology, it also matters in law. Dissociating law from geography, history and anthropology drains it of meaning. The litigation process that has now culminated in the Constitutional Court ruling that SLAPP suits are an abuse of legal process started in the geography of the Mpondoland Wild Coast, married itself to the cultural anthropology of the Amadiba traditional community, and spawned a history that inspires a living hope not only for the future of the people who live there, but for the human species on Mother Earth.
It came a week before the fourth anniversary of the landmark High Court ruling by Judge Annali Basson of the North Gauteng High Court that granted the Amadiba coastal residents of the Wild Coast their application to say no to mining in their ancestral lands. That judgement came to boost my confidence because by then the defamation claims against me were mounting steadily. I don’t know if Judge Basson was aware of the SLAPP suit, but she certainly was aware of the controversy. When interviewed by the Judicial Services Commission as a candidate for appointment to the Constitutional Court she spoke about that judgement as evidence of her “judicial activism”. This 30 minute excerpt from her full interview on 1 April 2019 left me quietly confident that the arc of the moral universe was indeed bending in the same direction that I was headed.
The Baleni vs Minister of Mineral Resources judgement aught to have been the conclusion of my professional support of the Amadiba coastal residents to assert their constitutional right to participate in all decisions that affect them and realise their right to self-determination. According to our social workers professional code of practice that is what we are obliged to do. But my skin was still in the game because the claims against me were still mounting. Having started on 18 July 2016 with seven claims totalling R2.25 million, the plaintiffs failed to deter me from speaking what I knew to be true, and they regularly added further claims. By the time the Baleni judgement came, I was already facing 18 claims totalling R5 million. The next month they added another and by February 202I, when Judge Patricia Goliath ruled on the special plea finding the action to have “the DNA of a SLAPP suit”, the quantum had escalated to R10 million for 27 claims in total.
She appears to have exercised some judicial activism herself, and I was much encouraged by these words.
“It is evident that the strategy adopted by the plaintiffs is that the more vocal and critical the activist is, as is the case with Clarke, the higher the damages amount claimed. The mining companies are claiming, inexplicably, exorbitant amounts for damages, which the defendants can ill-afford. They instituted these proceedings fully aware of the fact that there is no realistic prospect of recovering the damages they seek. …This is a signature mark of many SLAPP suits. The conclusion is incontrovertible that the lawsuit was initiated against the defendants because they have spoken out and had assumed a specific position in respect of the plaintiffs’ mining operations”.
My wife was likewise encouraged. “If my husband had R10 million I would have first dibs on it myself” she joked. We had made sure that I had no assets to speak of, and she undertook to support me financially while I continued to render my professional services largely on a pro-bono basis.
All the claims related to true statements I had made over the course of my (by then) decade long involvement with the Amadiba struggle to assert their constitutional right to Free, Prior and Informed consent before mining rights could be awarded to his company MRC and their BEE partner Xolco. But the founder/Executive Chair of MRC, a Perth mining entrepreneur Mark Victor Caruso was only stirred to act against me after the leader of that struggle Bazooka Rhadebe was assassinated in a hail of bullets on 22 March 2016. I had tried hard to engage with Mark (yes, we got to first name terms) repeatedly warning him that the situation was volatile and that he should restrain his local BEE partners and pro mining supporters. This was, after all, the very same place where the Mpondo Uprising of 1960 started. You don’t mess with the amaMpondo’s sacred connection with their land.
Going back another twelve years to December 2006, marks the first written communication I had with Mark. In an eight-page letter I begged him not to trust the assurances that his business partner Zamile Qunya was giving him that the Amadiba community welcomed his proposed Xolobeni mining venture.
My clients report that when asked to explain his interest in the mining prospecting Mr Qunya downplays it by saying that he has not committed the community to support the mining, but that it is only a prospecting/ research exercise to establish the feasibility of the mining as an additional generator of development, as “tourism cannot provide for all the needs of the community on its own”. He is particularly evasive about his shares in Xolco which claims to “represent broad community interests”.
In view of the above, I am in no doubt that MRC and its partners are following a strategy of obtaining the manipulated consent of the community for your mining proposals by sabotaging the community-based tourism initiative. One of my clients was issued with a death threat after attempting to expose this to the media, further contributing to a climate of fear and intimidation which has made it impossible to continue attracting tourists from South Africa and abroad with any degree of confidence.
Note, this was written sixteen years ago. Back then Zamile Qunya was confident that Xolco would swing community support toward mining because he had co-opted several influential community leaders into the structure, notably Bazooka Rhadebe. He was relying on them to get traction for the proposed mining venture. But as soon as Bazooka saw that the Shareholders Agreement was a swindle, and that Mark Caruso was telling his shareholders one thing, whereas on the ground entirely different things were happening, he dissociated himself from Xolco and led the campaign against them. He was supported in this by the Mpondo Royal family with Queen Lombikiso Sigcau roundly condemning the blatant misrepresentations that Caruso was making in his reports to shareholders.
I was concerned that the risk of pro-mining elements resorting to desperate measures was rising apace with the success the Amadiba Crisis Committee was having in winning public support to oppose the scheme. As more truth emerged, Xolco steadily lost support. Bazooka was elected chair of the Amadiba Crisis Committee when it was formed in June 2007
Alas for Qunya, with Bazooka leading them, the Amadiba coastal residents were emboldened to sound very loud blasts on their vuvuzela’s and the media cordon the mining group had tried to erect around the community fell like the walls of Jericho. In December 2006 the SABC’s 50/50 had started the demolition. The breached cordon allowed a succession of journalists to report on the matter, with CNN’s David McKenzie one of the first international media networks to focus attention on the saga.
The ACC mandated me to lodge a complaint with the South African Human Rights Commission on their behalf which gave the media even more reason to cover the story. In the months that followed the first attempt by Caruso and Qunya to obtaining mining rights for the Xolobeni mineral sands were soundly defeated, without having to go to court. The Minister or Minerals was forced to revoke the award of mining rights.
(If any media studies student is interested, I have three fat lever arch files of media clippings, hours of video footage as well as several academic studies by a succession of students that are begging for critical analysis. They testify to the powerful influence that the media has had in promoting constitutional rights and avoiding expensive litigation.)
In concert with the ACC acting locally I was mandated to initiate a shareholder activism strategy in Perth Australia where MRC is registered on the ASX, to educate investors to think globally. The story is told in this article Behind the Irony Curtain: Blood Diamond, Xolobeni and the real story of MRC.
Tragically, in 2012, the by then firmly captured South African Executive arm of the State had left a back door open to allow Caruso and Qunya to try for a second time to secure the mining rights that the then Director General of Mineral, Advocate Sandile Nogxina had evidently promised them. (For a full treatment of that issue see this report by Sam Sole of Amabungane Xolobeni: The mine, the murder and the DG.)
Things became increasingly violent, culminating in Bazooka’s murder. This article explains what happened before my first engagement with Caruso up until Bazooka’s murder. Wild Coast Mining Conflict: A synopsis of a 20 year saga.
Following theologian Walter Wink’s threefold activist strategy to “Name, Unmask and Engage the Powers” I had tried hard to engage with Caruso (and Qunya). At times Caruso pretended to listen, but his replies spoke so loudly as to his state of mind, that he could not hear what I was saying. His hard-boiled refusal to listen allowed the volatile climate to worsen. At no point did I accuse Mr Caruso or MRC of purposely commissioning the hitmen to kill Bazooka. But he didn’t take kindly to be reminded of all my prior warnings about the worsening climate. His SLAPP strategy seems to have been conceived in panic, and executed in fear.
After Bazooka’s funeral there was more violence when two journalists from The Citizen Nigel Sibanda, and his colleague Simnikiwe Hlatshaneni were attacked, allegedly by Zamile Qunya’s mother while driving in the area to take photos of the sand dunes. This four minute report shows the stark reality on the ground after Bazooka’s murder, and marks the inflection point that propelled me to confront the powers more directly and pointedly.
Having my stomach churned up by the devastating impact of his murder on his family and fellow ACC leaders, upon returning to Johannesburg I met with Colonel Frank Dutton. Before it was disbanded by the ANC under Jacob Zuma he was the head of the Scorpions Investigation Unit (sadly he died in 2021). I needed his advice on how we could ensure justice for Bazooka’s family, and his fellow leaders in the ACC who had been deeply traumatized by the brutal murder. How could the rule of law be buttressed as a basis for peace-building?
He admitted that, despite having served his entire career as police officer he no longer had much confidence in the criminal justice system (very much in a state of capture under Jacob Zuma’s presidency) and advised us to pursue a civil litigation strategy to at least ensure some judicial process to get to the truth. I realised that ‘engaging the powers’ now meant ´confronting the powers’ and explored options for doing that through the courts. Obligingly, Caruso provided one unwitting means to do that by launching the SLAPP suits against us.
That is the prism through which the Constitutional Court judgement on MSR, MRC, Qunya, & Caruso VS Reddell, Davies, Witbooi, Dlamini, Cullinan & Clarke must be read. It is about the realisation of the Promise of Justice, the title of one of my books that Caruso took exception to. See my author page on Amazon for details.
I will only feel at peace when Bazooka’s assassins are arrested and prosecuted. That has not yet happened, despite the passage of six long years. It is one thing being SLAPPed with a defamation suit. It is entirely something else to have lives lived with courage and integrity in broad service to the common good, brutally terminated for the narrow interests of selfishness and greed.
Part 2
The second life and death matter that this ruling will impact is much more serious: it concerns the life and death of the human species on planet earth.
Ever since my life changing encounter with Mother Earth in a Wilderness Leadership Trail as a pimply 17 year old, environmental stewardship has been a core value. An Amadiba Adventure horse trail on the Wild Coast with my family in 2001 was my initiation into the Amadiba struggle — a re-enchantment with the universe after the disenchantment of the collapse of the Environmental Justice Networking Forum that I had been part of.
The Amadida song became a new cantus firmus for me. In musicology a cantus firmus is a foundational melody that forms the basis of a larger musical work. Their struggle became the emblematic struggle of the human species in developing a mutually beneficial relation with Mother Earth.
Another irony is that while I was sitting waiting for the judgement on Constitutional Hill, two of the most outstanding leaders of the Amadiba struggle, Nonhle Mbuthuma and Sinegugu Zukulu happened to be in Cairo inspiring other civil society participants in COP 27 with their success story of how the Amadiba community had prevailed in their solemn stewardship duty for the Earth. Their leadership has not only stopped the Xolobeni Mineral Sands venture, but also the seismic exploration by Shell for gas and oil deposits along the Wild Coast. In the process they have helped me realise that their particular story manifests a universal truth that my mentor, the late Chilean ‘barefoot economist’ Manfred Max Neef taught me: unless we regain a balanced and harmonious interdependence between the World Survival Trinity of Nature, Humanity and Technology, we are facing a catastrophic future for humanity.
Egged on in this rise in consciousness by the “Green Bishop”, Geoff Davies the founder of the Southern African Faith Communities Environment Institute (SAFCEI) the Xolobeni struggle also became for us a cause for focusing attention of people of faith on the perilous state of biodiversity loss. I was simply obedient to Bishop Davies call to examine my own scriptures and traditions anew. Together with environmental activists of other faith communities we were simply working to cherish God’s creation as in fact a core scriptural value common to all faith communities. That also meant collectively confessing our misuse of Scripture to rationalise destructive practises over the centuries. This recent article in The Guardian Humans v nature: our long and destructive journey to the age of extinction, tells it like it is.
Although it wasn’t argued in court, for corporate entities to use the law as a weapon to suppress religious awakening about the destruction of eco-systems of biodiversity is clearly a particularly egregious violation of the freedom of religion and conscience. It is not simply about being a bad sport. There is something diabolical about it all.
The Extractive industries are overwhelmingly responsible for our planetary plight, and it would be wise for all mining companies to be obedient to the specific words of Pope Francis in his Papal Encyclical Laudato Si: On Care For Our Common Home.
“.. it is essential to show special care for indigenous communities and their cultural traditions. They are not merely one minority among others, but should be the principal dialogue partners, especially when large projects affecting their land are proposed…. When they remain on their land, they themselves care for it best. Nevertheless, in various parts of the world, pressure is being put on them to abandon their homelands to make room for agricultural or mining projects which are undertaken without regard for the degradation of nature and culture”. (Clause 146).
One of the key drafters of Laudato Si was Fr Sean McDonagh, a leading Catholic eco-theologian. I met him in Durban at COP 17 in 2011 and we spoke at length. He was particularly interested to learn about the Amadiba struggle. When the above paragraph was crafted it spoke directly of the Amadiba story.
When our lawyers get down to amending our plea to satisfy Concourt that Caruso and MRC are indeed waging a SLAPP suit against me, my affidavit will state that every one of the statements I have made arises from a well informed Catholic conscience, obedient to the Scriptures and Catholic Social teaching, and motivated by a strong conviction that the mining scheme as envisaged will lead to the degradation of nature on the Wild coast and the evisceration of the indigenous culture of the AmaMpondo.
The Constitution also affirms the right to freedom of conscience. As a person of faith, I believe that it is not simply the judgement of the Constitutional Court that should concern Caruso and MRC but the judgement of God. The Constitution also protects their right to disagree with me, but to continue to heap claims against me (or anyone else) for following our conscience betrays the absence of merit in their claims against us. I am an open-minded guy. Persuade me that Pope Francis and I are wrong.
In honour of Bazooka Rhadebe’s sacrifice, and in distress about the future of planet earth, I have been longing to have my day in court. Caruso and Qunya do not apparently share my desire to also take the stand and argue the merits.
Why not?
Conclusion
I am very pleased with the judgement because my whistleblower clients, fellow activists and journalist friends will sleep a little easier knowing that our apex court has bent the arc of the moral universe a few degrees further toward justice.
Will the judgement bring final closure? For me personally, yes it will and allow me to concentrate on my current work to support whistleblowers. I am especially focused on supporting whistleblowers within the SAPS and NPA because Bazooka’s killers have still not been arrested. The Criminal Justice System is still as broken as it was when I spoke to Frank Dutton six years ago.
Nevertheless, the judgement has at least levelled the playing field for other social workers, lawyers and activists to hold the feet of any mining entrepreneur closely to the fire that flames in the Bill of Rights, with less risk of getting SLAPPed for doing so.
But for as long as the titanium and heavy mineral deposits have a high commercial market value, and remain buried along our coastal dunes the arc will need some further bending if justice is to be fully realised. For Bazooka’s family and for Mother Earth.
