When medical representative Nicole Barlow started asking questions about the building of a petrol station in a wetland, she never dreamed she would end up making legal history on the issues of freedom of expression and environmental rights.
In a precedent-setting high court judgement, Barlow this week won a major victory for civil society watchdogs guarding the environment. An application by the developers of the petrol station, Petro Props, for an interdict preventing Barlow from ”unlawfully harassing” them was dismissed with costs.
Witwatersrand High Court Acting Judge Karel Tip ruled against Petro Props’s claim that its property and commercial rights outweighed Barlow’s right to free expression. He also ruled that administrative processes stipulated under environmental legislation could not be used by developers to limit public debate.
”I never thought this would turn into an issue of freedom of expression. When I started, people kept telling me to shut up,” said a jubilant Barlow. ”The environment needed a victory, amid all the illegal developments taking place around the country.”
Barlow, dubbed the ”Erin Brockovich of Boksburg”, started asking questions after she drove past the development in the Libradene wetland a year ago. She noticed that excavation was going on at all water levels and that a channel had been created to drain the wetland.
Inquiries revealed that Libradene was listed as an ”irreplaceable site” by the Gauteng department of agriculture, conservation and environment. Despite this, the developers claimed to have permission to build from both the provincial department and the national Department of Water Affairs and Forestry.
Barlow contacted members of a local environmental action group and called a series of public meetings. The campaign to halt the development included contacting government officials, the media and the ministers of water affairs and environmental affairs, as well as getting the matter raised in Parliament.
Petro Props, which had invested more than R8,5-million in the development, applied for an interdict to stop Barlow and the Libradene Wetland Association (LWA) from ”unlawfully harassing and/or interfering with its rights of enjoyment of its property”. The developer said Sasol, the main investor in the project, had pulled out as a result of the ”negative” publicity.
Judge Tip pointed out that the campaigners had not tried to impede construction physically, but raised public support and managed to persuade other parties — including Sasol — that the development was a bad idea. Stifling this kind of campaign would have a ”chilling effect on the readiness of persons like Barlow and associations like the LWA to step forward as active citizens.
”Barlow and the association bear a standard that any vibrant democratic society would be glad to have raised in its midst. Their interest and motivation is selfless, being to contribute to environmental protection in the common good. None of them stands to gain material personal profit.
”Their modus operandi is entirely peaceful … geared towards public participation, information gathering and exchange, discussion and the production of community-based mandates,” said the judge.
He rejected Petro Props’s contention that constitutional guarantees of freedom of expression could not be exercised to the detriment of a landowner. ”Insofar as that submission may have been intended to convey that property rights will always trump rights of expression, it plainly cannot be endorsed.
”It should be borne in mind that the Constitution does not only afford a shield, to be resorted to passively and defensively. It also provides a sword, which groups like the association can and should draw to empower their initiatives and -interests.”
Petro Props argued that Barlow’s activities were unlawful because she had not registered as an interested and affected party within 14 days of the publication of newspaper adverts announcing the development. Her campaign was mounted outside the time frames stipulated for review and appeal procedures under the Environmental Conservation Act.
Judge Tip said restricting debate on development to these time frames would be ”absurd … The result is that a decision such as this one, to approve a petrol station in an eco-sensitive area, would be entirely immune from public debate or the lodging of representations outside the narrow and formal processes.”
Barlow was retrenched in March and effectively ended up fighting the case on her own, after other members of the LWA said they could not afford to lose it. Hence the comparisons with Brockovich, the American eco-heroine who fought a David–versus-Goliath compensation battle for families afflicted by poisoned water.
Since the judgement was delivered last Friday, Barlow said she had received several calls from lobby groups wanting advice and support in battles against undesirable -developments.
”My whole life now is dedicated to saving wetlands, which are being destroyed at the rate of about 20% a year,” she said. ”On the East Rand we have at least 4 200 of the country’s almost 7 000 wetlands.”