IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE DIVISION, CAPE TOWN In the matter between MINERAL SANDS RESOURCES (PTY) LTD ‘ZAMILE QUNYA and CHRISTINE REODELL TRACEY DAVIES DAVINE CLOETE EXCEPTION IN TERMS OF RULE 23 (Case no,: 7595/2017 First Plain ‘Second Plaintiff Fist Defendant Second Defendant ‘Thi Defendant ‘TAKE NOTICE THAT the Piaintifs take exception to the special pleas of the Defendants, dated 12 November 2019 and amended on 12 March 2020, on the basis that they lack averments necessary to sustain a defence on the folowing ‘rounds: FIRST SPECIAL PLEA: ABUSE OF PROCESS AND STRATEGIC LITIGATION AGAINST PUBLIC PARTICIPATION 1. The protection in South African law for a defendant against abuse of process Is limited to:1.1. the Vexatious Proceedings Act 3 of 1956 (‘the Vexatious Proceedings Act’); and 1.2. the common law as enunciated, infer ala, in Member of the Executive Councll for the Department of Co-operative Governance and Traditional Affairs v Maphanga [2019] ZASCA 147 (18 November 2019) (‘Maphanga’) ‘The Defendants have not brought an application in terms ofthe Vexatious Proceedings Act, nor have they pleaded the requirements forthe common Jaw defence of abuse of process whch, intor alla, requires thatthe Cour finds that the proceedings are obviously unsustainable as a cortinty and not ‘merely on a preponderance of probability. (See Maphanga para 25). To the extent that itis contended in paragraph 7 ofthe first special plea that the common law is inconsistent withthe Constitution of the Republic of South ‘Arica, 1996, and, therefore, thatthe common law falls to be developed, the Plainttfs contend that the common law is not inconsistent with the Constitution and, accordingly, that it does not fal o be developed as, or on the basis, pleaded In the circumstances, the first special plea lacks averments necessary to ‘sustain a defence in terms of South African law.3 SECOND SPECIAL PLEA: FAILURE TO PLEAD PATRIMONIAL LOSS AND FAILURE TO PLEAD FALSITY 5. The requirements that must be satisfied by a corporation in a claim for {general damages in @ defamation action, which have been pleaded by the First Plainti, are as set out in the majorty judgment in Media 24 Ltd v SA ‘Taxl Securitisation (Pty) Ltd 2011 (6) SA 329 (SCA) (‘Media 24", 6. The additional requirements set out in the second special plea do not form part ofthe existing common law. In the circumstances, paragraphs & to 13 of the second special plea do not disclose a defence, 7. In Media 24 the majority of the Supreme Court of Appeal ("SCA") held that the existing common law is not inconsistent with the Consttution of the Republic of South Altica, 1996, and thatthe common law does not fall to be developed pursuant to section 30(2) of the Constitution, '8. Inthe crcumstances, the development ofthe common law cortended for in Paragraph 14 of the second special plea Is inconsistent with the majorty judgment of the SCA in Media 24, and accordingly cannot be considered by this Court n any event, the Plaintifs contend that the aferementioned position adopted by the SCA is correct in law. WHEREFORE the Plaintiis pray that the exception to the two special pleas be Upheld with costs, including the costs of three counselTo: Dated at CAPE TOWN on this 13" day of MARCH 2020 > HJ DEWAAL sc ‘cu QUINN Plaintif’ counsel BERNADT VUKIC POTASH & GETZ Plains’ attomeys 11% floor, No. 1 Thibault Square CAPE TOWN (021 408 3800 thudo@bvpa.co.za (Ret: RK/180772) ‘THE REGISTRAR High Court CAPE TOWNAND TO: AND TO: AND TO: WEBBER WENTZEL Defendants’ attorneys 90 Rivonia Road ‘SANDTON (Ret: M Hathom/S Robb/3014327) clo WEBBER WENTZEL 18" floor Convention Tower Heerengracht CAPE TOWN FAIRBRIDGES WERTHEIM BECKER ‘Attomeys for University of Cape Town as amicus curiae 16 floor, South Tower The Towers: Heerengracht CAPE TOWN (Ref. AP/aa/UN12910040) NDIFUNA UKWAZI LAW CENTRE ‘Attomeys for Centre for Applied Legal Studies as amicus curiae 18 Rosland Strest ‘CAPE TOWN (Ref: Ms Blouws/L. Mabhenxa/P Mad/ROLIOO71/M)