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‘Slapp’ now on the other cheek

Small-statured Helen Duigan does not look particularly threatening. At first glance, you wouldn’t take her for the firebrand who walked unwaveringly into a R50-million defamation lawsuit.

Developer Wraypex attempted to “slapp” her — a United States-style form of corporate hardball against environmental activism — because she spoke out against a proposed development on her doorstep. But Duigan’s doggedness paid off this week, when she and her fellow Rhenosterspruit activists won their R170-million collective lawsuit and turned the tables on Wraypex.

Slapp (strategic litigation against public participants) suits are very much the flavour in the US, where thousands of activists get sued every year to dampen their enthusiasm for their cause, usually involving speaking out against environmentally sensitive developments.

Now it seems South African developers are trying to copy these devious legal means. But so far South African courts have refused to play ball.

The Wraypex litigation arose out of Duigan and co-accused Mervyn Gaylard, Lise Essberger and Arthur Barnes’s opposition to a now completed 330-house luxury estate and golf course, Blair Atholl, near Jo’burg. The estate borders on the Rhenosterspruit Conservancy as well as the Cradle of Humankind, a World Heritage site.

Duigan and her co-accused refused to be intimidated by the outrageous amount Wraypex was suing them for and the threat of bankruptcy should they lose.

It is difficult to keep belief alive when a sheriff arrives at your door to take stock of your earthly possessions should you lose the case, or when you are served with lawyer’s letter after lawyer’s letter in the harshest legal terms possible.

Yet Duigan and her co-accused remained stubborn. They met the developer head-on in court, winning judge Stanley Sapire over with their sincere account of their battle against the developer and what they perceived to be his unlawful behaviour.

Sapire labeled the court action “vexatious litigation”.

Though argument for punitive costs against Wraypex will be heard only next year, the verdict shows that the judge saw through the suit. The wheel has turned and Wraypex is now in the hot seat.

The judgment is revolutionary for South Africa. It will certainly make juggernauts with endless funds think twice about taking on the little guys.

Wraypex thought that it could silence activists by bankrupting them. Instead, these ordinary people with everyday jobs are now the heroes of environmental activism in the country. The activists have been dubbed “the Rhenosterspruit Four” and greenies all over the country are taking heart from their David-versus-Goliath victory.

Because you can’t simply sue people for exercising their democratic right to speak out against development, developers use more devious means such as suing for defamation, harassment, conspiracy, invasion of privacy or loss of economic expectancy because of the actions of activists.

Although the case got a lot of publicity because of the outrageous size of the damages claimed, it wasn’t the first local slapp suit against environmentalists. Perhaps Wraypex would have been well advised to have heeded some earlier judgments.

Nicole Barlow, whom the Mail & Guardian dubbed South Africa’s very own Erin Brockovich, was part of a group of environmental activists on the East Rand interdicted by fuel-station developer PetroProps in 2006 as a result of their campaign against its plans to build a fuel service station on an ecologically sensitive wetland.

Much like Wraypex owner Robbie Wray testified in court last month, PetroProps claimed that the campaign amounted to harassment, and said Barlow’s interference with its use and enjoyment of its property had caused severe financial loss.

Judge Karel Tip did not agree, instead ruling that the East Rand activists’ campaign was of “a standard that any vibrant democratic society would be glad to have raised in its midst. Their motivation is selfless,” Tip said, “contributing to environmental protection for the
common good.”

None of the activists stood to gain any personal profit and their modus operandi was “entirely peaceful”.

“In my view, conduct of that sort earns the support of our Constitution in this context. It should be borne in mind that the Constitution does not only afford a shield to be resorted to passively and defensibly,” the judge said.

The Centre for Environmental Rights, which has taken a keen interest in slapp suits due to the threat they pose to environmental activism, has listed Van Rensburg vs Cloete as another slapp suit that failed to take off.

In this case last year, a farmer operating an abattoir in George brought an interdict against his neighbours to prevent them from defaming him by complaining about zoning rights, his entitlement to conduct the business and the environmental health hazard caused by it.

The farmer lost his bid and the court ruled that the “gag” order applied for would have extreme consequences for the neighbours’ right to freedom of expression, saying that, in a democracy, aggrieved citizens were entitled to raise their issues with the relevant authorities in the form of complaints.

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Yolandi Groenewald
Yolandi Groenewald
Yolandi Groenewald is a South African environmental reporter, particularly experienced in the investigative field. After 10 years at the Mail & Guardian, she signed on with City Press in 2011. Her investigative environmental features have been recognised with numerous national journalism awards. Her coverage revolves around climate change politics, land reform, polluting mines, and environmental health. The world’s journey to find a deal to address climate change has shaped her career to a great degree. Yolandi attended her first climate change conference in Montreal in 2005. In the last decade, she has been present at seven of the COP’s, including the all-important COP15 in Copenhagen in 2009. South Africa’s own addiction to coal in the midst of these talks has featured prominently in her reports.

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