Bid to gag Magaliesburg landowner for 'bad-mouthing' mine (Pretoria News)

Mining outfit African Nickel turned to the Pretoria High Court last week in an attempt to gag a Magaliesburg landowner "from spreading false allegations" to the media and the public about the mine's activities near the Magaliesberg protected area.

Thys van As, a member of the Landowners Association of Magaliesberg (Loam) earlier objected in the media to African Nickel being granted a prospecting licence for the Golden Valley farm which runs adjacent to the Cradle of Humankind. His objections included that the mining entity conducted prospecting activities without consulting affected landowners.

Also, that the activities were conducted in the Cradle of Humankind buffer zone - a World Heritage Site - and that the activities would use all the underground water. Van As also said the mine was acting without a proper environmental management study (which later appeared not to be true). Van As was of the opinion that the prospective mine would "stuff up everything".

African Nickel chief executive Timothy Keating said in papers before court that Van As had embarked on a smear campaign against the applicant and should be interdicted. The statements made by Van As were false, he said.

But Van As, assisted by Lawyers for Human Rights (LHR), is opposing the application. LHR said it was concerned about the effect such an application might have on environmental activists and civil society. It argued that the degradation of the environment was the concern of everyone.

The main thrust of LHR's argument is that the expression of concern is protected by freedom of expression under the constitution. The court was told that the legal test could not be that an ordinary member of the public always had to make factually correct statements.

This, LHR said, was a sector where access to information was very difficult. Mining companies were notorious for withholding information and even government departments refused to divulge public documents such as prospecting licences, water use licences and environmental management plans.

LHR said this appeared to be a Slapp (strategic litigation against public participation) suit. Slapp suits are brought particularly against environmental activists as a way of scaring off criticism through the fear of legal costs.

Advocate Rudolph Jansen, acting for LHR, said it was a disturbing feature when a powerful entity resorted to a form of dispute resolution that involved costly litigation.

"This is almost always done as a measure to intimidate and silence public participants - not as a measure to set the record straight and vindicate a particular position."

He argued that the costs involved in litigation, coupled with the risk of an adverse cost order, created an environment in which it was difficult to participate in forums open to the public.

"In other words, litigation not only affects what happens in court, but it tends skew the processes in other forums in favour of the powerful and rich."

Jansen said applications such as this could pursue legitimate aims, but might also have a chilling effect on people such as Van As to step forward as active citizens. The court reserved judgment on whether it should interdict Van As from speaking further to the media.

Zelda Venter - Pretoria News