SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION process and is vexatious.”64 The Court further considered the conduct of the plaintiffs in offering to make an apology as an alternative to the exorbitant damages pursued65 and concluded that the vertical and unequal power relationship between the parties was glaringly obvious.66 In order to conclude that the abuse of process threshold was met, the Court adopted two important criteria from the Supreme Court of Canada. First, it examined whether the tests of improper purpose were met; namely, that i) the defendant engaged in public participation on a public issue, ii) the plaintiff is pursuing an improper purpose, and iii) the lawsuit is meritless.67 Second, the Court stated that it should not hear a SLAPP suit “unless the plaintiff can pass a rigorous test to show that it suffered real harm that outweighs the public interest in the expression of those views.”68 Finally, the Court recognized the right to participate in environmental activism and the importance of protecting freedom of expression on matters of public interest.69 l l The Constitutional Court of South Africa, when examining the appeal of the plaintiff in Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others, also considered the abuse of the process provisions in the case, albeit on a slightly different basis. The Constitutional Court accepted that both the motive of the plaintiff and the merit of the case were important. After adopting its own definition of “abusive litigation”, it established the following criteria for assessment. “The defendants will have to prove at trial that the defamation suit brought by the plaintiffs: (a) is an abuse of process of court; (b) is not brought to vindicate a right; (c) amounts to the use of court process to achieve an improper end and to use litigation to cause the defendant’s financial and/or other prejudice in order to silence them; and (d) violates, or is likely to violate, the right to freedom of expression entrenched in section 16 of the Constitution in a material way.”70 In Koko v. Tanton,71 a case concerning a defamation application brought by a chief official in an electricity company against a 72-year pre-school principal, the Johannesburg High Court in South Africa relied on abuse of process provisions to dismiss the case. The Court found that Koko’s application constituted an abuse of the process72 and that his conduct was vexatious.73 The Court concluded that the conduct of the claimant (electricity company executive) was to punish the defendant and to prevent others from making public comments on matters of public importance.74 As such, the conduct of the plaintiff “was not aimed at the reparation of his rights, constitutional or otherwise, and the restoration of his 64 Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others, op. cit., para 66. 65 Ibid., para 62. 66 Ibid., paras 60 and 62. 67 Ibid., para 45. 68 Ibid., para 56. 69 Ibid., para 56. 70 Constitutional Court of South Africa, op. cit., paras 95 & 96. 71 High Court of South Africa, Gauteng Local Division, Johannesburg, Koko v. Tanton, Case no. 2021/2012, 7 September 2021. The case summary of the decision by Global Freedom of Expression is available here. 72 Ibid., para 40. 73 Ibid., para 48. 74 Ibid., para 39. 16