Yet another defamation lawsuit has been filed by developers against their environmental critics. This time it is members of the Rhenosterspruit Nature Conservation (RNC) who are being sued by the developer of a golf course estate. This begs the question whether we are witnessing the mushrooming of so-called ‘slap†(strategic litigation against public participation) lawsuits against citizens concerned about non-compliance with environmental laws.
The RNC blew the whistle on the developer of a golf course and housing estate that commenced construction on a site without obtaining environmental authorisation from the Gauteng department of agriculture, conservation and environment. The developer did eventually receive a Record of Decision, which allowed the project to go ahead. The developer is now suing RNC members to the tune of R210-million for defamation.
This type of lawsuit is not new. It occurs so often in the United States that it has been deemed worthy of an acronym. Slap suits are often brought by powerful, moneyed entities against their less powerful, poorer critics to intimidate and silence them with the debilitating costs of defending a defamation claim.
South Africa has made great strides in adopting a range of laws to protect the environment against over-exploitation and degradation, but the truth is that the mere existence of laws will not ensure compliance.
While defamation claims are designed to legitimately protect privacy and integrity, slap suits masked as defamation suits do not serve privacy rights, but rather interfere with the rights of freedom of expression and public participation.
We need to guard against the unchecked proliferation of these vexatious lawsuits. Currently, our vast body of environmental legislation offers little assistance in identifying and understanding slap lawsuits, leaving such conduct unchecked and unchallenged.
The time may have come to assess our own law in light of this phenomenon.
Loretta Feris is associate professor of law and Bronwyn Williams an LLB student at the University of Pretoria