SA eco-activist faces R40m suit

A landmark case, in which a developer is suing an environmental activist for R40-million in damages for defamation, begins in the Pretoria High Court next week.

The suit against Arthur Barnes, a former secretary of the Rhenosterspruit Conservancy near Lanseria in Gauteng, has been brought by developer Wraypex. It arises from the conservancy’s opposition to a 330-house luxury estate, golf course and hotel development, Blair Atholl, north-west of Johannesburg.

The development borders on both the Cradle of Humankind World Heritage Site and the conservancy.

This is the first of five multi­million-rand defamation cases that Wraypex plans to bring against members of the conservancy, claiming a total of R210-million in damages. The case is expected to clarify the rights of lobbyists and interested parties who challenge developers in an attempt to protect the environment.

Among Wraypex’s claims in court papers is that Barnes maliciously spread rumours that the company had not submitted a comprehensive environmental impact assessment, and that Blair Atholl was illegally pumping water out of the Crocodile River. Wraypex also claims that Barnes accused the company of bribing government officials in order to get the go-ahead for the development.

Helen Duigan, chairperson of the conservancy, said the conservancy originally challenged the Wraypex development on the grounds that it created a precedent for township and residential development in a greenbelt area.

Duigan, who faces a suit of R45-million herself, said the conservancy told conservation authorities in August 2004 that the developer had started work on the site without the necessary reports and approvals.

The Gauteng conservation authorities acted on their complaint and stopped Wraypex from working without the necessary reports and public participation meetings, Duigan said. Summonses from Wraypex against members of the conservancy followed in late 2004.

The Gauteng department of agriculture, conservation and the environment gave the go-ahead for the project, saying the socio-economic benefits the estate would bring to the poverty-stricken local community would offset the many negative environmental impacts.

Duigan questioned whether Wraypex had stuck to the conditions imposed by the department. ‘Two years on, these socio-­economic benefits remain questionable.

‘For instance, Wraypex was required to build 250 houses for previously disadvantaged families, many of whom had lived on the property,” she said. ‘Not only has this not yet happened, but 21 families staying on the Blair Atholl property were evicted in February.”

In the United States, the kind of action in which corporations sue environmental lobbyists has been labelled ‘strategic litigation against public participants”, or Slapp.

Last year, developer Petro Props brought an interdict against Boksburg environmental campaigner Nicole Barlow to stop her publicity campaign against its construction of a petrol station in a wetland in Libradene, Gauteng. The developer also claimed R6-million in damages for ‘unlawful harassment”.

Barlow defended the case successfully early last year. High Court Judge Karel Tip ruled that the property rights of developers cannot outweigh other constitutionally guaranteed rights like freedom of expression.

He also rejected Petro Props’s argument that the right to freedom of expression can be circumscribed by administrative time-frames set out in laws that are promulgated to protect environmental rights.

Wraypex’s lawyer, Connie Myburgh, said the company declined to comment. He threatened to subpoena the Mail & Guardian to testify in the company’s case against Barnes next week ‘if you write anything” and to sue the M&G.

The Gauteng environmental department is monitoring the case, spokesperson Sizwe Matshikiza said, adding that his department encourages members of the public to report environmental transgressions and has set up a hotline to encourage people to be more vigilant.

‘We also are monitoring developments at Blair Atholl for the purposes of ensuring compliance with the developer’s conditions,” he said. ‘Where such conditions have been breached, appropriate measures will be followed.”

Barnes says he is hopeful of victory, but ‘you know anything can happen. One bad judgement and I lose my home, everything. They want an apology and for us to go away. I can’t apologise if I have done nothing wrong.”