MSR and Zamile Qunya v Christine Reddell, Tracey Davies and Davine Cloete
In May 2017, Tracey Davies and Christine Reddell, former attorneys of CER, together with Davine Cloete, an environmental activist from the Western Cape, were served with papers in a defamation suit brought by MSR and its Director Zamile Qunya.
The three defendants are sued in relation to statements made which were critical of MSR’s Tormin operation on the West Coast. These statements were made at a lecture at the University of Cape Town’s Summer School Programme.
An example of the claims against Davies, Reddell and Cloete appears from the summons, in which it is alleged that MSR has been damaged in its reputation and has suffered damages in the sum of R750 000 (R250 000 for each defendant). Extracts of the statements which are alleged to be defamatory are as follows:
The first defendant:
“If we could just focus on one of the biggest environmental problems, which is the cliff collapse. And the cause of that is really through illegal action. So we are talking a mining operation that changed their, Glenn referred to it as their modus operandi, and their design. So they applied for one thing, they did assessments, for one thing and then what they did was something entirely different – and that is unlawful.”
The second defendant:
“They have armed guards on site and they have, on occasion, been extremely violent… We now have a situation where this company operates and continues to operate in circumstances where it is in breach of multiple environmental laws, mining laws, municipal by-laws, as well as planning laws. They don’t have planning authorisation to conduct the operation in the expanded footprint and a regulatory system that is supposed to stop from happening is just completely absent… we have a situation where a very predatory and ruthless company has taken advantage of our regulatory system… because of the combination of regulatory confusion, regulatory ineffectiveness, political corruption and the extraordinary tactics of this outrageous company it’s left to people like us… to actually apply, try and enforce the law.”
The third defendant:
“The people who were involved in this whole application from the community were people who received money from the MSR mine to mislead the community… What had happened here is that some of the police are employed as security at the MSR mine… I wanted this film to be shown in the community so that the people can see that because of the bribery at the mine therefore some people in the community were misleading other people in the community…”
In response to these allegations, the defendants state in their court papers that the company does not allege any patrimonial loss, nor that the alleged defamatory statements are false. They state further that the defamation suit has been brought with the ulterior purpose of discouraging, censoring, intimidating and silencing the defendants and members of civil society and the public in relation to public criticism of the company. Importantly, the defendants argue that the bringing of these SLAPP suits amount to an abuse of court process to achieve an improper end, and that it violates our constitutional right to freedom of expression.
The defendants’ legal counsel state in their written argument for the hearing scheduled for 9 – 10 June, that “it is quite impermissible for the mining companies to bring these proceedings in circumstances where they know that they will never have any realistic prospect of recovering the damages they seek and where their purpose is to intimidate and silence public criticism by the named defendants, civil society, the public and the media“.
A recording of Day 1 of the hearing on 9 June 2020 is available here: W Cape High Court MRC Exception Hearing. 9 June 2020
A recording of Day 2 of the hearing on 10 June 2020 is available here: W Cape High Court MRC Exception Hearing. 10 June 2020
Pleadings in the Main Defamation Action/SLAPP Suit
- 2017 05 02 Combined summons
- 2017 05 18 Notice of intention to defend_Cloete
- 2017 06 08 Notice of intention to defend_Davies
- 2017 06 08 Notice of intention to defend_Reddell
- 2017 07 04 Notice of exception
- 2017 07 04 Notice of the raising of Constitutional issues (Rule 16A)
- 2017 07 28 Notice of intention to amend particulars
- 2017 08 17 Amended Particulars of Claim
- 2017 09 14 Plea
- 2017 09 15 Plaintiffs Rule 35(12) Notice
- 2017 09 19 Defendants Rule 16A Notice
- 2017 09 26 Plaintiffs request for Trial Particulars
- 2017 09 26 Plaintiffs Rule 35(12) Notice
- 2017 10 20 Defendants response to request for trial particulars
- 2017 10 25 Plaintiffs Rule 35 Notice
- 2017 11 09 Index to pleadings
- 2017 11 21 Defendants Rule 35 Notice
- 2017 11 21 Plaintiffs discovery affidavit
- 2017 12 18 Defendants Discovery Affidavit
- 2017 12 19 Defendants Rule 35 Notice
- 2018 02 16 Plaintiffs reply to defendants rule 35 notice
- 2018 07 05 Defendants Supplementary Affidavit
- 2019 10 17 Defendants Notice of Intention to Amend Pleadings
- 2019 11 12 Amended plea
- 2019 11 26 Plaintiffs exception to special plea ito Rule 23 (unsigned)
- 2020 01 31 Order re Special Pleas
- 2020 02 12 Defendants Notice of intention to amend
- 2020 03 12 Defendants Amended Plea
- 2020 03 16 Plaintiffs exception to special plea ito Rule 23 (signed)
- 2020 05 18 Joint Practice Note (special plea)
- 2020 05 18 Plaintiffs Heads of Argument (special plea)
- 2020 05 18 Filing Sheet- Plaintiffs Heads of Argument (special plea)
- 2020 05 18 Special Plea recod Index
- 2020 05 18 Special Plea Record
- 2020 05 26 Defendants Heads of Argument (Special Plea) – filing sheet
- 2020 05 26 Defendants Heads of Argument (Special Plea) (1)
- 2020 05 26 UCT Heads of Argument (special plea)
- 2020 05 27 CALS Heads of Argument (special plea)
Amicus Interventions
Pleadings in Interlocutory Application for Further and Better Discovery
- 2018 08 07 Notice of Motion & Founding Affidavit
- 2018 08 15 Respondents Notice of intention to oppose application for better discovery
- 2018 09 18 Respondents Answering Affidavit (without annexures)
- 2018 10 04 Applicants Replying Affidavit
- 2019 05 05 Index and paginated pleadings bundle
- 2019 05 15 Applicants Heads of Argument
- 2019 05 17 Applicants Practice Note
- 2019 05 21 Respondents Heads of Argument
- 2019 05 27 Applicants supplementary note
- 2019 11 05 Respondents Notice of Intention toTax Bill of Costs
- 2019 11 19 Respondents notice of taxation