MAJIEDT J
agreement that the issues are of pressing constitutional import. This Court has both
constitutional and general jurisdiction in this case. We are concerned here with whether
the common law doctrine of abuse of process currently provides for a SLAPP suit
defence. In addition, this matter concerns the development of the common law and
right of access to courts in line with Boesak.23 This matter is directly linked to
CCT 67/21 (the corporate defamation defence), and as in that case, this matter
transcends the parties’ narrow interests. SLAPP suits, by definition, limit public
participation by abusing the legal process to silence and deter public participation. The
restrictions upon public participation, particularly in environmental matters where
“meaningful public participation” is required, is a matter of general public importance.24
Furthermore, and again much like the case in CCT 67/21, this matter engages the
constitutional rights of freedom of speech25 as well as access to courts.26
23
S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC).
24
Compare the comments of the Supreme Court of Appeal in Company Secretary, Arcelormittal South Africa Ltd
v Vaal Environmental Justice Alliance [2014] ZASCA 184; 2015 (1) SA 515 (SCA) at para 1, where the Court
noted:
“First, the world, for obvious reasons, is becoming increasingly ecologically sensitive. Second,
citizens in democracies around the world are growing alert to the dangers of a culture of secrecy
and unresponsiveness, both in respect of governments and in relation to corporations. In
South Africa, because of our past, the latter aspect has increased significance.”
And, at para 71, it said:
“It is clear, therefore, in accordance with international trends, and constitutional values and
norms, that our legislature has recognised, in the field of environmental protection, inter alia the
importance of consultation and interaction with the public. After all, environmental degradation
affects us all. One might rightly speak of collaborative corporate governance in relation to the
environment.”
25
Section 16 of the Constitution, which reads:
“(1)
(2)
26
Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
The right in subsection (1) does not extend to—
(a)
propaganda for war;
(b)
incitement of imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.”
Section 34 of the Constitution, which reads:
15