An Erin Brockovich-style environmental whistle-blower who raised the alarm about the development of an allegedly illegal petrol station in an important wetland is being hauled before court for harassment.
Petro Props, developers of a Sasol filling station in Libradene on the East Rand, intends to apply for an urgent high court order on Tuesday to stop the whistle-blower, Nicole Barlow, from interfering with the development. If the action succeeds, Barlow could also face a damages claim of millions of rand.
Barlow, a medical rep who lives in Boksburg, raised the alarm because the filling station is being built in a wetland classified as an “irreplaceable site” by the Gauteng department of agriculture, conservation and environment. Not only does it support endangered species, it also protects large townships downstream against flooding.
Barlow is one of several whistle-blowers in Gauteng to be taken to court by developers in recent months. Unlike many of the others, she is not being sued for defamation, but she has been advised by her lawyer that she could be sued for up to R6-million in damages.
“Even if these intimidatory threats do not stand up in court, the case will cost her loss of working time, emotional trauma, costs of legal assistance and a court appearance. Even assuming she is awarded costs, she will be out of pocket,” commented Bob Dehning, from the Gauteng Conservancy Association committee.
“If this is allowed to go unchallenged, it is going to be increasingly difficult to persuade people to assert their rights of protest or appeal under environmental legislation if it is going to cost them a lot,” Dehning added.
Barlow said she did not set out to be like Brockovich, who discovered a cover-up involving contaminated water in the United States and ended up fighting a David- versus-Goliath battle that won 100 afflicted families compensation of $333-million. “I was just exercising my constitutional rights regarding the environment and free speech,” she said.
She started networking with local environmental activists and the media in April last year after she realised the wetland in which the filling station was due to be built feeds the Elsberg spruit. This stream passes through Katlehong, Vosloorus and Thokoza — which would be at risk from toxic spills and flooding — and eventually feeds into the Kliprivier and the Vaal River system.
“My fight was with [the provincial agriculture department], which had approved the development, and not with the developer,” she explained. “I spent hours in the law library, pestering authorities and even got the issue raised in Parliament.”
The technical advice she was given included the statistic that most filling stations drain about 200 litres of waste oil into sewerage systems every week. This polluted water usually ends in watercourses, rivers and dams — in the case of Libradene, probably in the surrounding wetland.
After nine months and “more than 200 letters and e-mails”, the department finally issued a directive in early December instructing Petro Props to halt development of the filling station while it investigated its original record of decision (RoD) granting approval. The department is currently investigating the authenticity of signatures on the RoD, amid allegations they may have been forged.
Petro Props continued construction work in early December despite the directive, leading the agriculture department to apply for an urgent interdict at the Witwatersrand High Court on December 19. The judge ruled the matter was not urgent, so the department intends to file papers for an ordinary interdict application early next week.
“In relation to possible penalties, developers can be charged with non- compliance with the directive and, if found guilty, may be sentenced to a 10-year jail term and/or fine of R100 000,” said department spokesperson Sizwe Matshikiza. In terms of the National Environmental Management Act, the developer could face court penalties of up to R5-million and/or 10 years in prison.
Barlow maintained Petro Props was taking out its anger at these hitches by launching legal action against her. The filling station was already close to completion and, whatever the outcome, Petro Props was likely to lose money.
“They are trying to gag me and prevent me from going any further,” she said. “But I did not exert any influence over the authorities; all my actions involved blowing the whistle.”
Petro Props’s attorney, Shane van Graan, had not returned the Mail & Guardian’s calls at the time of going to press.