A multi-million rand defamation lawsuit brought against five environmental activists by a developer is to continue, even though the golf estate they were trying to stop has been built.
This week a judge ordered that the two-year-old suit against three of the activists should be consolidated into one, while the R40-m case against another, former Rhenosterspruit Conservancy secretary Arthur Barnes will continue, although no court date has been set. Wraypex , the developer that has brought the case, withdrew its case against the fifth activist, Lynne Clarke, who will have to pay costs.
Judge Legodi Phatudi in the North Gauteng Court ordered that the cases against Mervyn Gaylard, Helen Duigan and Lise Essberger be consolidated into one single action, with a hearing on April 14. The legal costs of both sides will be carried forward. The five activists were sued for R210-million in damages for defamation two years ago, but their case has been on ice for most of the time. The suit arises from their opposition to a 330-house luxury estate, golf course and hotel development, Blair Atholl, north-west of Johannesburg. It borders on both the Cradle of Humankind world heritage site and the Rhenosterspruit Conservancy.
In the United States, the kind of action in which corporations sue environmental lobbyists has been labelled ”strategic litigation against public participants”, or Slapp.
At the time it was expected that the case would clarify the rights of lobbyists and interested parties who challenge developers in an attempt to protect the environment.
Duigan, the chairperson of Rhenosterspruit Conservancy, says that Wraypex had offered to withdraw the suit against Gaylard on condition he apologised and paid all the developer’s costs. Gaylard refused. Despite the lawsuit Duigan, who faced an individual suit of R45-million, has continued to fight the development and has engaged both the provincial and national departments of environment with little success.
Wraypex claims in court papers that the activists 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.
Duigan, said the Rhenosterspruit Conservancy originally challenged the Wraypex development on the grounds that it created a precedent for township and residential development in a greenbelt area. ”The Wraypex case is built on proving that our objections to their development delayed the project, thus causing them financial damage,” Duigan explained. ”In other words, a clear attempt to squash freedom of expression and public objections to developments and to send a message to the public not to ‘interfere’ in developers’ ‘rights’ to act as and where they please.”
Wraypex’s lawyer Connie Myburgh confirmed that they had withdrawn the case against Lynne Clarke for ”humanitarian reasons”. ”She is a single mother who was recently divorced. Keeping in mind her personal problems, the developer decided not to bother her further,” he said.
He also said the case had been going along at a snail’s pace due to the slow court process, adding that it was in the interests of Wraypex to speed it up.
Myburgh warned that Wraypex would pursue the remaining two cases ”vigorously.” ”This is about defamation,” he said. It is not about trying to prevent the people from opposing the Blair Atholl development. The development is finished. This has nothing to do with SLAPP-ing.”