South African court upholds common law abuse of process as defense in prototypical anti-enviro SLAPP

Petitioners demand EU anti-SLAPP legislation in 2022.
Ekō via Flickr CC BY 2.0

The Constitutional Court of South Africa upheld the use of common law abuse of process in defense of environmental activists against a defamation claim by a mining company.

I wrote about this case in its lower court iteration in 2021. The plaintiff mining company rather boldly sued the environmentalists to chill their activism with the burdens of litigation. Deputy Judge President of the Western Cape High Court Patricia Goliath employed a creative adaptation of common law abuse of process—conventionally a tort, not a defense—to work in the case like an anti-SLAPP law, which South Africa does not have as a matter of statute.

I have written at length on anti-SLAPP cases. I am not a fan of anti-SLAPP laws, but acknowledge that they can function well to protect the freedoms of expression and petition in cases that fit the historical pattern for which anti-SLAPP was conceived. Protecting environmentalists against developers is the very prototype, so I lauded DJP Goliath's decision.

In November 2022, the Constitutional Court upheld the abuse-of-process theory. The court expressly recognized the abuse-of-process defense as an anti-SLAPP measure and an evolution of common law. The court rejected the mining company's objection to the adaptations required to make abuse of process work. The common law test for the tort in South Africa requires that a claim have a near certainty of failure; the court refused to hold the defendant environmentalists to that burden. The common law test also did not allow abuse of process to be determined wholly upon ulterior motive. The court ruled that ulterior motive could support the abuse-of-process defense.

As I wrote in 2021, I prefer the common law approach to the blunt and overbroad device of statutory anti-SLAPP that prevails in the United States. The South African approach takes care to assess the power imbalance between the litigants to ensure conformity with the anti-SLAPP pattern. In the United States, anti-SLAPP is distorted to empower media conglomerates and public figures to extract high-dollar attorney fee awards from genuinely injured claimants who can't meet extraordinary requirements of proof upon mere pleading.

The case is Mineral Sands Resources (Pty) Ltd v Reddell, (CCT 66/21) [2022] ZACC 37; 2023 (2) SA 68 (CC) (14 November 2022). Justice Steven Arnold Majiedt authored the unanimous judgment.

Oil, uranium motivated Trump to slash Bears Ears; litigation, land use questions now sit on Biden's desk

President Biden is likely to undo the Trump Administration's dramatic reduction of protected land in southern Utah, including the Bears Ears National Monument.  If he does, the restoration will end litigation over the permissibility of rescission under the Antiquities Act and extinguish ambitions of the natural resource extraction industry.  [Update, Oct. 7.]

Traveling in Utah in recent weeks (drought, torts), I spent time crossing the south of the state from the Navajo Nation in the east to the Dixie National Forest in the west.  In the Escalante region in between, a whopping 1.88 million acres of south-central Utah is set aside as protected land under the Antiquities Act of 1906, an enactment of the Teddy Roosevelt Administration and genesis of the American park system, as the Grand Staircase-Escalante National Monument (GSENM).

A famous feature of GSENM is Grosvenor Arch, named for Gilbert H. Grosvenor,
the first full-time editor of National Geographic.

GSENM (U.S. BLM)

Immediately east of GSENM, the narrow Glen Canyon National Recreation Area tracks the Colorado River from Canyonlands National Park to Lake Powell.  And just east of there, couched within an L of the north-south Glen Canyon and the east-west Navajo Nation is the 1.35 million acres that President Obama designated, or proclaimed, in December 2016, as Bears Ears National Monument.

You might have heard of Bears Ears, because it was at the heart of the controversy ignited when President Trump attempted to substantially rescind the Obama proclamation and vastly reduce the size of public lands in southern Utah.  By proclamation in December 2017, President Trump shrank the Bears Ears designation from 1.35 million acres to just under 230,000 acres, and he cut GSENM almost in half, from 1.88 million acres to just about one million acres (L.A. Times graphics).

Bears Ears NM (U.S. BLM) (red border)

The power of a President to undo a designation under the Antiquities Act is an open legal question.  In the 1970s, Congress undid a perceived overreach by the Carter Administration in protecting land in Alaska.  But the executive power to roll back designations is untested, and Trump's rollbacks were, like so many things about the Trump Administration, unprecedented.  Lawsuits followed from environmentalists and Native American tribes.

"Bears Ears" refers specifically to two buttes, and they are a universally and immediately recognizable landmark in southern Utah.  On a clear day, they can be seen from both Monument Valley Tribal Park in Arizona and Mesa Verde National Park in Colorado.  Driving the Trail of the Ancients from the Valley of the Gods, up the Moki Dugway from Mexican Hat, Utah, I recognized the Bears Ears right away when they popped up over the scrubby horizon.  They truly do give the unmistakable impression of first sighting a bear in the wilderness, ears poking up over shrubbery.

My first sighting of Bears Ears buttes

Bears Ears buttes in a National Park Service photograph

Bears Ears National Monument embraces the Trail of the Ancients and a vast range of sites that are archaeologically invaluable and culturally precious to multiple tribes, including the Navajo, Ute, Pueblo, Hopi, and Zuni.  Historic cliff dwellings, sacred burial grounds, petroglyphs, and pictographs abound in the region.  Headlong development plans and rampant looting of indigenous artifacts were key motivators of pleas for federal protection.  The buttes are at the center of it all geographically and symbolically, but it's the surrounding land that really matters.

Petroglyphs such as these at Capitol Reef National Park date between 300 and 1300.

So that was the frame in which I understood the controversy over Bears Ears before I went to Utah: a classic problem of conservationism versus economic development, collectivist versus objectivist land use, both sides with fair claims to the greater good.  The heuristic is a cost-benefit analysis, but different decision-makers variably assess intangibles such as environment, culture, and history.  And the whole calculation is awkwardly tinged with the shame of America's imperial legacy vis-à-vis indigenous peoples.

That framing is accurate—but incomplete.

There is an angle that I was missing, and it became apparent on the ground, literally.  My back-country drive was the tip-off.  The Moki Dugway is a spectacular unpaved mountain pass, not for the vertigo-inclined.  The pass was carved out by private enterprise specifically to transport uranium mined in Fry Canyon to a processing facility in Mexican Hat.  Bears Ears is not just about conventional land use.  It's about what lies beneath: coal, oil, natural gas, and uranium.  The Trump reductions to Bears Ears and GSENM were mapped specifically to kowtow to the extractive industries.

Moki Dugway

Panorama from the Moki Dugway, looking south toward Monument Valley

Valley of the Gods from the Moki Dugway

This is a FOIA story.  Extraction is rarely mentioned in news reports about Bears Ears.  But a media lawsuit under the Freedom of Information Act yielded some 5,000 pages of records from the Department of Interior that show, The New York Times headlined in 2018, that "oil was central."

Bears Ears proposed boundary revision,
attached to Hatch office email,
to "resolve all known mineral conflicts"

In March 2017, the office of Senator Orrin Hatch (R-Utah) transmitted to the Trump Interior Department maps of mineral deposits in the Bears Ears National Monument with email messages, such as, "Please see attached for a shapefile and pdf of a map depicting boundary change for the southeast portion of Bears Ears monument." As the Times reported, a map recommending monument reduction "was incorporated almost exactly into the much larger reductions President Trump announced in December, shrinking Bears Ears by 85 percent."

Publicly, Trump Interior Secretary Ryan Zinke downplayed the role of extraction in the decision-making, for example, once declaring, according to the Times, "We also have a pretty good idea of, certainly, the oil and gas potential—not much! .... So Bears Ears isn't really about oil and gas."

Meanwhile, the Times reported, "internal Interior Department emails and memos also show the central role that concerns over gaining access to coal reserves played in the decision by the Trump administration to shrink the size of the [GSENM] by about 47 percent ...."  According to the Times, "Mr. Zinke's staff developed a series of estimates on the value of coal that could potentially be mined from a section of Grand Staircase called the Kaiparowits plateau.  As a result of Mr. Trump's action, major parts of the area are no longer part of the national monument.

"'The Kaiparowits plateau, located within the monument, contains one of the largest coal deposits in the United States,' an Interior Department memo, issued in spring 2017, said.  About 11.36 billion tons are 'technologically recoverable,' it projected."

In contrast, the Times reported, 20,000 pages of Interior records accessed in the FOIA lawsuit "detail the yearslong effort during the Obama administration to create new monuments, including input from environmental groups, Indian tribes, state officials and members of Congress."

Another Hatch office email attachment:
USGS-mapped uranium deposits
in and around Bears Ears

Earlier, in January 2018, Times reporting based on public records obtained from the Utah Bureau of Land Management revealed the centrality of uranium extraction in public policy on Bears Ears.  As controversial uranium mining operations were set to resume near the Grand Canyon, the Times reported, and "even as Interior Secretary Ryan Zinke declared last month that 'there is no mine within Bears Ears,' there were more than 300 uranium mining claims inside the monument.

"The vast majority of those claims fall neatly outside the new boundaries of Bears Ears set by the administration. And ... about a third of the claims are linked to Energy Fuels, a Canadian uranium producer. Energy Fuels also owns the Grand Canyon mine, where groundwater has already flooded the main shaft.

"Energy Fuels, together with other mining groups, lobbied extensively for a reduction of Bears Ears, preparing maps that marked the areas it wanted removed from the monument and distributing them during a visit to the monument by Mr. Zinke in May."

Straight line of uranium "road scar" at Capitol Reef,
visible from upper left to lower right

Not just on the Moki Dugway, the legacy of uranium mining is evident on the landscape in southern Utah.  For example, in the stunning vista of Grand Overlook at Canyonlands National Park, some unusually straight lines in the earth stand out in contrast with the curving tracks along the hilly contours.  The straight lines, a ranger told me, are "road scars" from truck routes, transporting the yield of uranium mines before the national park was established in 1964. 

At Capitol Reef National Park, on the eastern edge of GSENM north of Glen Canyon, one can see the fence-wood-sealed holes of old uranium mines on hillsides and cliff faces, always tracking a pale yellow stratum in the rock.  According to a National Park Service signboard, "[t]he thin band of yellow-gray" is "a layer of ancient, river-deposited sandstone containing trace amounts of uranium....

"Exploration and milling of uranium was encouraged by the US Atomic Energy Commission in the 1950s during the Cold War.  Prospectors flocked to the Colorado Plateau.  Even protected National Park Service lands were opened to mining.  Despite strong opposition from park managers, companies were allowed to build roads, dig mines, and construct camps in previously undisturbed lands."

Fenced uranium mine openings in yellow stratum at Capitol Reef National Park

Part of NPS signboard at Capitol Reef National Park

I do not here want to ignore the public good that flows from natural resource extraction.  I drive a car and heat a home with fossil fuels.  The Hatch memos to the Interior Department said that state taxes and fees on natural resource extraction would be used to fund public schools, libraries, and infrastructure.  Extraction provides jobs and drives economic development, which betters social conditions.  And as the Capitol Reef signboard intimated, domestic uranium yield was, and still is, vital to the national defense and can be supportive, or in other hands disruptive, of global security.

I don't here subscribe mindlessly to collectivist dogma.  My complaint is against opacity and deception.  The electorate can calculate the public good only with a complete and accurate accounting of the variables.

Three federal lawsuits over the Bear Ears/GSENM reductions were consolidated in Hopi Tribe v. Trump, No. 1:17-cv-02590-TSC (D.D.C. filed Dec. 4, 2017) (Court Listener).  By executive order on Inauguration Day in January 2021, President Biden instructed the Interior Department to review the Trump proclamations on Bears Ears and GSENM, as well as a marine national monument off the New England seaboard.  In March, the court granted a stay in Hopi Tribe, waiting to see what the Biden Administration would do.

Earlier this month, the Interior Department delivered its report to the White House.  The report has not been made public, but media outlets, including the Times, reported that Interior Secretary Deb Haaland, member of the Laguna Pueblo and the nation's first Native American cabinet secretary, recommended restoration of the national monuments to their pre-Trump proportions.  In a joint status report filed with the Hopi Tribe court on June 3, the parties asked the court to extend the stay, pending the President's reaction to the report from Interior.

Your humble blogger at Cedar Break National Monument in the Dixie National Forest

 (All photos not otherwise attributed: by RJ Peltz-Steele, CC BY-NC-SA 4.0.)

Despite lack of statute, anti-SLAPP blocks mining company suit as abuse of process in South Africa

Coffee Bay is a tourist destination on the Eastern Cape.
(photo by Jon Rawlinson CC BY 2.0)

Two weeks ago, a South African court recognized an anti-SLAPP defense in the absence of a statute, as an abuse of process, in a defamation case brought by mining companies against environmentalists.

In the case, mining companies Mineral Commodities Ltd and a subsidiary, and directors, sued environmentalist lawyers and activists for defamation, seeking R14.25m, close to US$1m, or in the alternative, an apology, for defendants' accusations of ecological and economic damage caused by excavation and mining projects at Tormin Mine on the Western Cape and at Xolobeni on the Eastern Cape.

Defense lawyers argued that the suit was a strategic lawsuit against public participation, or "SLAPP" suit, calculated to silence the defendants for their criticism of the plaintiffs, rather than a bona fide claim of defamation.  South Africa has no anti-SLAPP statute.  But the High Court for the Western Cape held, with reference to the freedom of expression in the South African constitution, that the judicial power to abate vexatious litigation and abuse of civil process may be deployed to dismiss a SLAPP suit.

"[T]he interests of justice should not be compromised due to a lacuna or the lack of legislative framework," the court wrote.

The court examined the history of the SLAPP as a legal strategy and traced its origin to anti-environmentalism in Colorado and recognition in the 1988 scholarship of professors Penelope Canan and George Pring.  The court discussed anti-SLAPP legislation in the United States, Canada, and Australia, including the statutes of Georgia, Washington, and New York, and the recent enhancement of the latter.  Anti-SLAPP has been recognized as meritorious in principle by the Supreme Court of Canada, the High Court observed, though anti-SLAPP is enacted by statute in only three provinces.

The court looked also to Europe, and specifically the "McLibel" lawsuit of the 1990s (1997 documentary) and 20-aughts, in which McDonald's Corp. sued environmentalists in England.  Anti-SLAPP has been debated in the European Union, the court explained, but legislation has not been enacted.  Nevertheless, the court opined, the ultimate disposition of the McLibel case in the European Court of Human Rights (ECtHR) was consistent with the principle of anti-SLAPP.  In the McLibel case, the English courts ruled in favor of McDonald's, finding some assertions in the environmentalist leaflets to be libelous.  Subsequently, the ECtHR, in 2005, ruled that British law (well before the 2013 UK Defamation Act) had not afforded the defendants sufficient protection for the freedom of speech.  

In the McLibel case, the ECtHR stressed the chilling effect on speech of the extraordinary cost burden on individual activist-defendants in defending a civil suit against a large corporation, especially in the shadow of attorney fee-shifting to the winner, which is the norm in civil litigation in the UK and most of the world.  The High Court pointed to a South African precedent that is similar on that point, Biowatch Trust v. Registrar, Genetic Resources, in the Constitutional Court of South Africa in 2009.

I have written before about Biowatch, which was an access-to-information (ATI, freedom of information, or FOI) case.  In that case, environmentalist NGO Biowatch, under South African environmental protection and access-to-information law, sought information about Monsanto (now Bayer) genetically modified organisms introduced into national agriculture.  The result in the case was mixed, and the trial court awarded the defendant government and intervenor Monsanto their substantial legal fees against Biowatch.  Subsequently, the Constitutional Court held that Biowatch should be exempt from a fee award, because such an award against a public-interest litigant would chill the exercise of constitutional rights, which, in South Africa, include the right to a healthy environment.

The exact contours of a common law anti-SLAPP defense will have to be worked out by South African courts if the High Court precedent sticks.  The instant case was not difficult for the court to map to the SLAPP paradigm:  The tort alleged was defamation.  The conduct of the defendants was expression specifically in furtherance of environmental protection.  The mismatch between plaintiffs and defendants in wealth and power was "glaringly obvious."

The plaintiffs' demand also drew the court's skepticism.  Referencing the findings of Canan and Pring in the 1980s, the court observed: "A common feature of SLAPP suits is ... a demand for an apology as an alternative to the exorbitant monetary claim."

I reiterate my dislike of anti-SLAPP laws.  I also acknowledge that anti-SLAPP measures sometimes are warranted.  South Africa in particular, in recent decades, has seen a rise in the weaponization of defamation and related torts, especially by powerful corporations and politicians, including former President Jacob Zuma.  Americans might note a parallel in former President Donald Trump, who used defamation for leverage in business and called for plaintiff-friendly libel reform.  At the same time, defamation defendant President Trump won a nearly $300,000 award against Stormy Daniels thanks to fee-shifting under the California anti-SLAPP law.

The problem with anti-SLAPP legislation in the United States is that it does not weigh factors that the Western Cape High Court took into account, such as the relative power of the plaintiff and the defendant.  Yes, anti-SLAPP laws in the United States and Canada protect environmentalists against developers.  American anti-SLAPP laws also protect fantastically wealthy and sloppy media conglomerates against individuals whose lives are ruined by mistakes and falsities on the internet, which never forgets.  The threat of fee shifting, characteristic of anti-SLAPP legislation and usually foreign to U.S. civil litigation, is especially terrifying in light of enormous U.S. transaction costs, including the high-dollar rents of American corporate defense firms.  Anti-SLAPP laws are the darling of the professional media defense bar, and, lest the journalist's aphorism be conveniently forgotten, we might ought follow the money.

For that reason, the High Court's "abuse of process" approach is intriguing.  The court's articulation of abuse of process, as applied to Mineral Commodities, while not the sole basis of the court's holding, accords with the American common law test.  The American tort may be expressed as "(1) use of judicial process (civil or criminal), (2) ulterior or improper motive, (3) process used not for its designed or intended purposes, and (4) resulting harm."

Typically, in the American context, abuse of process is exceedingly difficult to prove, because courts are generous in accepting the plaintiff's plea of honest intentions to negate the second element.  Mineral Commodities pleaded its genuineness, but the High Court was willing to doubt, sensibly, looking at the parties and the uncontroverted facts.  Maybe a bit less judicial generosity would allow abuse of process to police SLAPP better than the corporate-friendly statutes that 30 U.S. states have embraced, and for which media corporations are now lobbying Congress.

The opinion in the High Court was delivered by Deputy Judge President of the Western Cape High Court Patricia Goliath.  Her surname was not lost on commentators (below), who played on the "David vs. Goliath" ideal of anti-SLAPP.  Curiously, DJP Goliath, who served on the Constitutional Court in 2018, is embroiled presently in turmoil within the High Court.  In 2019, she alleged she had been pressured by President Zuma for favorable assignments of cases in which he was involved.  Possibly in retaliation for not playing ball, she has been, she has alleged further, subject to gross misconduct and verbal abuse, if not worse, by High Court President John Hlophe.  JP Hlophe denies the allegations.

I am indebted, for spying the case, to attorneys for the defendants, Odette Geldenhuys and Dario Milo, of Webber Wentzel, who wrote about the case for the Sunday Times (South Africa) (subscription required) and for the INFORRM blog.

The case is Mineral Sands Resources Ltd v. Reddell, No. 7595/2017, [2021] ZAWCHC 22 (High Ct. Wn. Cape Feb. 9, 2021) (South Africa).

Happy Independence Day, Namibia!

Your humble blogger reaches Swakopmund, crossroads of the Namib Desert and South Atlantic Ocean.
All photos RJ Peltz-Steele CC BY-SA 4.0.

Yesterday, March 21 was independence day in Namibia. One of the youngest countries in the world, Namibia attained independence from South Africa in 1990 after a brutal war and bloody history of subjugation as the German colony of Southwest Africa. Public celebrations of 30 years of independence were cancelled because of the coronavirus, though an inauguration ceremony of President Hage Geingob, for his second term, proceeded.

Sign fallen to the ground in Windhoek.

I found mixed feelings on the ground about Geingob, who was the country's first prime minister and a hero of the independence movement. One middle-aged man from Namibia's rural north told me Geingob can't be blamed for entrenched intransigence and corruption in the political establishment, that he can only do so much. Meanwhile a young woman in the capital, Windhoek, stringing together multiple jobs to put herself through university, blamed Geingob squarely for double-digit unemployment--by various estimates, one in three Namibians, or more, need work--and fiercely lamented his second term.

The National Museum and historic German Lutheran church stand in juxtaposition in Windhoek.

Me and Nujoma. He holds the Namibian constitution.

I've been sensitive in traveling Africa to the subtleties of foreign influence, especially that of China, and that shadow turned up in a curious way in Namibia. Like elsewhere in Africa (I wrote earlier about Guinea-Bissau), communists financed the independence movement as an aspect of the Cold War; consider, for Namibia, this was the 1980s. North Korea grew close to legendary independence leader Sam Nujoma. North Korea financed a great many public works projects in independent Namibia, including recently and strikingly, the National Museum, which opened in Windhoek in 2014. The building is modernist (technically "socialist realist"), marking a contrast with Windhoek's colonial center, and boasts a Kim Jong-ish statue of Nujoma. The interior is to match, celebrating Namibian independence with socialist-style murals and cult-of-personality-type homages to national leaders.

A mural in the National Museum celebrates independence.

The sun rises over the Rössing Uranium Mine in the Namib.

Why does North Korea's interest persist so many years after independence? Locals point to Namibia's especially valuable natural resource: uranium mines in the western Namib desert. Though North Korea formally is walled off by the West from materials that might advance the DPRK's nuclear capabilities, suspicions point to China as a willing intermediary. And so the African "natural resources curse" persists.

Namibian Parliament: A banner on the Parliament's administrative building heralds 30 years of independence.