Xolobeni lawsuit: Activists denied access to documents for defamation defence

The Western Cape High Court in Cape Town. (Paul Herman, News24)
The Western Cape High Court in Cape Town. (Paul Herman, News24)

The Western Cape High Court denied two attorneys and an activist opposing Mineral Sands Resources’ parent company’s plans to mine in Xolobeni access to documents which they hoped to use to defend against a defamation suit from the company.

The company that is looking to start mining in the heritage site community of Xolobeni in the Eastern Cape is taking environmental activists and attorneys to the Western Cape High Court for defamation.

The two plaintiffs are Mineral Sands Resources – a subsidiary of Australian mining company, Mineral Commodities and Mineral Sands Resources director, Zamile Qunya.

The defendants maintain that the defamation application is a "slapp-suit" intended to intimidate and financially exhaust their campaign.

They made a interlocutory application for access to documents they said would prove their remarks constituted fair comment and not defamation.

The defendants are lawyers Tracey Davies and Christine Reddell, as well as community activist Davine Cloete. The former two are attorneys employed by the Centre for Environmental Rights (CER).

The suit relates to remarks the defendants made during a University of Cape Town summer school panel discussion when voicing their concerns about MSR’s compliance with laws and mining regulations at their Tormin mine operations in Vredendal.

Cloete, Davies and Reddell argued that documents or company reports produced after January of 2017 could shed light on any breach in legal obligations on MSR’s part and are therefore relevant in assisting the defendants advance their case.

In her ruling, Judge Judith Cloete found that the defendants should have pleaded their defence in greater detail, as providing the volume of documents they requested from the company was "an impossibly burdensome task".

CER executive director Melissa Fourie said the organisation remained committed to resisting the threat that MRC’s "slapp suits" posed to civil society’s Constitutional rights to freedom of speech, freedom of the media and academic freedom.

"We are disappointed with the judge’s ruling. However, we are not deterred. This case is about defending the Constitutional right to freedom of speech and is of fundamental importance to activists defending the environment everywhere. We will continue to fight these claims until justice is served," said Fourie.

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