MAJIEDT J JUDGMENT MAJIEDT J (Kollapen J, Madlanga J, Mathopo J, Mhlantla J, Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ concurring): Introduction [1] One of the more positive features of our nascent democratic order is vibrant, vigilant and vociferous civil society participation in public affairs. In a truly broad based participatory democracy characterised by that kind of active participation, our Constitution’s aspirations and values find meaning in the lives of the populace for whose benefit the Constitution was ultimately enacted.1 One of the notably active voices is that of the environmental interests lobby. [2] At the heart of this case lies the phenomenon of what has become known as SLAPP, short for Strategic Litigation Against Public Participation. It has been described as: “[L]awsuits initiated against individuals or organisations that speak out or take a position on an issue of public interest . . . not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others . . . and deter that party, or other potential interested parties, from participating in public affairs.”2 It is relatively new in this country,3 but far more settled in jurisdictions such as Canada and the United States of America. This is the first time that it has reached this Court. We must determine whether our law prohibits a SLAPP suit under the abuse of process See Phooko “What Should Be the Form of Public Participation in the Law-Making Process? An Analysis of South African Cases” (2014) Obiter 39 at 58. Phooko writes that “facilitating public participation is more than just hearing people’s views, rather the views should have an influence in the end products”. 1 2 1704604 Ontario Ltd v Pointes Protection Association 2020 SCC 22 449 DLR (4th) 1 (Pointes) at para 2. For ease of reference, I shall use the acronym SLAPP throughout. 3 There are some though who will say that while the nomenclature is new, the phenomenon is not. 3