Developer Wraypex was dealt a severe blow on Monday in the North Gauteng High Court when it lost its claim against four green lobbyists, whom it was suing for R170-million.
The case was viewed as a Slapp (strategic litigation against public participants) action — United States-style corporate hardball against environmental activism — and activists were keeping a sharp eye on the outcome to counter similar law suits in the future.
In the US, Slapp uses damages claims to deter environmental opponents of development.
It now appears that Wraypex might be in a bigger trouble and could end up with substantial punitive costs levelled against it. Judge Stanley Sapire separated the merits of the case and costs.
Arguments as to the level of costs against Wraypex will take place at the beginning of next year.
Wraypex sued four green lobbyists — Helen Duigan, Mervyn Gaylard, Lise Essberger and Arthur Barnes — for between R40-million and R50-million each for alleged defamation, desspite winning the required authorisation to continue with its development from the necessary authorities.
The current suit arose from green opposition to the now-completed Blair Atholl, the 330-house luxury estate, golf course and hotel development northwest of Johannesburg, which includes the Gary Player golf estate. The estate borders the Cradle of Humankind world heritage site and the Rhenosterspruit Conservancy.
Wraypex, developer of the golf estate, accused the four — all residents of the area and members of the Rhenosterspruit Conservancy — of publishing false and malicious statements concerning the company and alleged that it was done wrongfully with the intention to injure the firm.
‘Vexatious litigation’
But the developer received a tongue lashing from Judge Sapire, who did not read the full judgement in court.
He said Wraypex had failed in all four cases and on all accounts brought against the four members of the Rhenosterspruit Nature Conservancy (RNC).
He said the suit was “vexatious litigation” and confirmed that it could be labelled as a Slapp suit, one of the first in South Africa.
The case was handled as a public interest suit argued by advocate Rudolph Jansen, who was assisted by advocate Adrian Vorster for the four activists. It is expected that Wraypex will appeal the judgment.
After the judgment Duigan said the four’s court victory would hopefully give courage to other activists by reinforcing the precedent that supports the rights of ordinary people to stand up and defend their environment.
“The reasons we persisted in standing up against intimidation from the developer’s lawyer, who threatened us verbally and in writing as soon as we started questioning aspects of the development, was our belief in the principle of ordinary citizens standing up to bullying by developers,” she said. “We know we have the constitutional right and duty to do so in defence of the environment.
“Many people [have been] doing this and more are joining them. Those fighting for the preservation of Mapungubwe against coal mining, against nickel mining in Groot Marico and to prevent further destruction of the sand dunes of the north coast by Richards Bay Minerals are just some of these.”
She said many more are fighting in big and small ways across South Africa.
“I hope this case will give them encouragement and support.”
Test case
Melissa Fourie, executive director at the Centre for Environmental Rights said the Wraypex case was widely regarded as a test case.
“The case has been followed closely by environmental activists and organisations across the country, many of whom have been similarly threatened by developers in the past,” she said. “Some developers have even used the existence of this case to intimidate interested and affected parties in relation to other developments in other parts of the country.”
Although there are developers who respect the regulatory framework within which they operate, there are unfortunately some who resent any objection to their proposed business ventures, and show complete disregard for environmental rights, particularly the right of every person to participate in decisions that affect them and the environment, she said.
“The case is a message to all developers to think twice before threatening civil society organisations, communities and activists who are exercising their Constitutional rights to participate in environmental governance.”