/ 11 February 2011

Judge gives developer R1m slap(p)

Development company Wraypex received more than a slap on the wrist this week when it was ordered to pay the costs of its R170-million “vexatious litigation” against four environmental activists.

Attorney-to-client costs in the protracted suit are understood to total more than R1-million. Granting punitive costs against the company, which has built the 18-hole Blair Atholl Golfing Estate in grasslands bordering the Cradle of Humankind world heritage site, North Gauteng High Court Judge Stanley Sapire chided Wraypex’s attorneys for their “belligerent style”.

The order brings to a close five years of alleged harassment of neighbouring residents, who had a R170-million defamation suit slapped on them after they objected to the development. Judge Sapire threw the case out of court last December.

The Mail & Guardian reported in 2005 that the case appeared to be the first instance of “strategic litigation against public participation (Slapp)” in South Africa. The concept, which originated in the United States, involves the use of prohibitively expensive court cases to intimidate civil society organisations so that they refrain from taking an active role in public participation processes to oppose developments.

After the M&G ran an article on this and other controversial developments in September 2005, under the headline “Developers ride roughshod over laws”, Wraypex’s lawyers Connie Myburgh & Partners also threatened to sue the newspaper.

Belligerent style
In his order Judge Sapire said he was swayed by “the belligerent style of Wraypex’s attorney’s letters, which were calculated to intimidate and create enmity”.

He said that his decision was also influenced by “the extravagant amount claimed by Wraypex” and the timing of the defamation suit after Wraypex had already obtained approval for the development from Gauteng’s department of agriculture, conservation and environment.

Helen Duigan, one of the neighbours who is now chairperson of the Rhenosterspruit Nature Conservancy, said the outcome set an important precedent for other interested and affected parties taking developers to task.

About 30 more applications have been launched in connection with developments adjoining Blair Atholl, which is situated in rare Egoli granite grasslands, she said. “Other developers are using Blair Atholl as an example and it is creating a domino effect. Our objective has always been to be part of the process.”

Rhenosterspruit conservancy members are setting up a coalition to assist concerned residents battling with developers, a scenario that was particularly prevalent in the Western Cape, Duigan said.

“It’s getting more and more difficult to sift through legislation and to get information or decisions from government officials. We want to join forces to take them on so that it is not just up to the lone rangers,” she said.