Developer Wraypex may say it has never heard the term, but South Africa appears to be getting a taste of Slapp — United States-style corporate hard ball against environmental activism — in the North Gauteng High Court.
Wraypex is suing four green lobbyists: Helen Duigan, Mervyn Gaylard, Lise Essberger and Arthur Barnes for between R40-million and R50-million each for alleged defamation, in spite of winning the required authorisation to continue with the development from the necessary authorities.
In the US Slapp, “strategic litigation against public participants”, uses damages claims to deter environmental opponents of development.
The current suit arises from green opposition to the now-completed Blair Atholl, the 330-house luxury estate, golf course and hotel development northwest of Johannesburg, which includes the Gary Player Golf Estate.
The estate borders the Cradle of Humankind world heritage site and the Rhenosterspruit Conservancy.
Wraypex has accused the four, all residents of the area and members of the Rhenosterspruit Conservancy, of publishing false and malicious statements concerning the company and alleges that this was done wrongfully and with the intention to injure the firm.
Accusation of bribes
It alleges that it was slandered in a September 2004 letter to the Tshwane town planner in Centurion, and that Barnes falsely claimed to a third party that Wraypex bribed former Gauteng environment minister Khabisi Mosunkutu.
In letters to the authorities the four made allegations about water usage, the processes followed and premature action by the developers.
The defamation case was first lodged three-and-a-half years ago.
Activists are following the case closely to see whether it sets a precedent for future interactions with developers.
Testifying in court, Wraypex chief executive Robbie Wray said he had never heard of Slapp before John Robbie of Talk Radio 702 asked him about it.
Wray testified that he was “harassed” by the media for interviews and was asked uncomfortable questions. At one point, he became irate with the SABC programme 50/50 “and used a bad word”.
Effects of accusations
He said his reputation was questioned and he lost friends because of the allegations.
Counsel for the defendants, Rudolph Jansen, put it to him that the media attention started only when he instituted the Slapp action.
“It was the litigation the press was interested in that made the case unique,” Jansen said. Wray said the media was interested because the defendants had contacted them about the development.
He said in all the developments on which he had worked, he had never encountered such vociferous opposition. The level of hostility against Blair Atholl surprised him.
At one point presiding Judge Stanley Sapire stopped Wray mid-sentence to ask him what he wanted from the four defendants. “The golf course has been built and you have made lots of money. Do you want money from these people, or do you want to punish them?” he asked.
Jansen asked Wray whether the public participation process in securing environmental approval for a development was not a “robust game”. Wray replied that it was no longer a game if “you are threatened with imprisonment and fines”.
Threats
Letters written by Wraypex’s lawyer, Connie Myburgh, were also scrutinised in court, with Jansen putting it to Wray that the company’s aim was to intimidate defendants who were threatening litigation.
“They clearly weren’t intimidated,” Wray replied. “They didn’t withdraw their illegal statements, although we clearly didn’t take legal action against them at the time.”
Wray testified about his frustration about the delay in launching the project in 2004 and the fact that approval came only in June 2005. He blamed the delay on the defendants’ complaints to the authorities.
He said that at a meeting with three senior officials at the provincial environment department, including department head Steve Cornelis, he was told that it was a very difficult decision to adjudicate in terms of giving an environmental green light because of a string of objections from the defendants and other groups.
Judge Sapire questioned Wraypex’s pleadings, saying that the litigation should have been dealt with long ago and that for individuals to be involved in a trial of this duration was ruinous.
Earlier, Duigan alleged that the company had tapped Barnes’s phone and that Myburgh always seemed to be a step ahead of the conservancy.
A former provincial department official, Gerard van Weele, testified that the initial decision was to refuse permission for the development, but that this was reversed because of the socioeconomic benefits it would bring.
He also testified that delays in the department over approval for developments were standard.
The plaintiff closed its case on Wednesday afternoon (October 10).