Slapp Suits: An Emerging Obstacle to Public Interest Environmental Litigation in South Africa

Abstract

The Constitutional project of South Africa depends on public interest litigation to ensure that rights in the Constitution are protected and fulfilled. The dialectic of promoting socio-economic rights while concomitantly promoting other constitutional interests remains a big challenge. Case in point is the protection of environmental rights, which poses a greater challenge given the tension between development and environmental protection. Among other strategies, the environment can most effectively be protected through public interest environmental litigation supported by democratic participation in environmental decision-making. However, emerging threats to such litigation include strategic litigation against public participation (SLAPP suits). SLAPPs were first identified in the USA. In the USA, particularly in California, targeted legislation has been used to deal with SLAPP suits and South Africa may have to consider taking this route to forestall this threat to public interest litigation. In the absence of such targeted legislation, however, courts should use existing procedural and substantive legal tools to protect litigants faced with SLAPP suits.

Keywords: SLAPP suits, public interest litigation, South Africa, environmental law, constitutional law, public participation

JEL Classification: K23, K32, K40, K41, K42