A Johannesburg environmentalist and the conservancy she runs have been slapped with a R197-million lawsuit by two property developers after raising what they allege are “obstructive, delaying and frustrating” objections to their projects in Riversands and Helderfontein.
Century Property Developments and Riversands Developments are suing Kristin Kallesen and her nonprofit, Greater Kyalami Conservancy (Gekco), for the income they have allegedly lost because of objections raised by her and Gekco against development approvals in and adjoining the conservancy.
Kallesen said she and Gekco could not comment at this stage and are seeking legal advice from the Centre for Environmental Rights.
Helen Duigan, of Action for Responsible Management of Our Rivers, said Kallesen’s objections were made in terms of her rights as an interested and affected party.
“This threat against Kirstin and Gekco should be opposed vehemently,” said Duigan. “Gekco has been a bulwark against unremitting pressure from development, pushing the urban boundary further and further into natural areas that include essential wetlands and threatened species such as grass owls.”
Developers too often use, “for their own profit”, ecosystem services that residents have conserved for many years at their own cost, she said. “In their advertising, developers glorify the open space, the lovely views, the fresh air — which the development tends to destroy.”
In legal papers, the developers say that Kallesen and Gekco have “abused” the statutory objection and public participation procedures because “frivolous and baseless” objections were filed against all the township applications by both defendants, none of which were upheld by the City of Johannesburg.
This, the developers allege, was to “procure delays”, prevent the developers from developing the properties and cause financial harm.
“The defendants, similarly, for the same reason, abused the statutory appeal procedures provided for in the prevailing town planning legislation and have lodged several entirely unsubstantiated and mala fide appeals against the decisions of the municipality, by virtue of which such townships have been approved.
“Not a single one of such appeals lodged by or on behalf of the defendants have been upheld by the municipal appeal tribunal.”
The financial harm, the developers allege, includes the extension of the holding cost period in respect of such properties before these could be developed in terms of the approved township applications; the continuous escalation of construction costs to be incurred for the development of such properties; the extended period to which the developers were obliged to pay assessment rates charged by the municipality and interest on such amounts as well as the loss of rental income from the delayed occupation of developed structures.”
For Duigan, the lawsuit is a stark reminder of the Strategic Litigation against Public Participation (SLAPP) suit brought in 2005 against five members of the Rhenosterspruit Conservancy, now proclaimed as the Crocodile River Reserve, by Robbie Wray, the developer of Blair Atholl Estate.
“We were sued for R210-million — my share was R45-million. The case was concluded in December 2010 with the developer given short shrift, with costs at the maximum level against him.”
This was the first major SLAPP suit in South Africa, garnering astounding publicity, particularly after the verdict, she said.
“It clearly struck a nerve nationally and we were bombarded by calls and letters from people who had been threatened by developers, warning them that they would be dealt with in the same way as the Rhenosterspruit Five. This made people realise that they could oppose intimidation tactics from developers.”
In early February, the high court in Cape Town held that a series of defamation lawsuits totalling R14.25-million brought by the Australian mining company, Mineral Commodities Ltd, and its local subsidiary, Mineral Sands Resources, against three environmental lawyers, two activists and a social worker who criticised its operations is an abuse of legal process.
The aim of such lawsuits is to silence those challenging powerful corporates on issues of public concern, according to the judgment.
“In essence the main purpose of the suit is to punish or retaliate against citizens who have spoken out against the plaintiffs,” the court found. “They are litigated into silence by corporations and oftentimes drained of their resources.”
These lawsuits are drawn-out, expensive legal battles, consuming vast amounts of time, energy money and resources.
“In essence, SLAPPs are designed to turn the justice system into a weapon to intimidate people who are exercising their constitutional rights, restrain public interest in advocacy and activism and convert matters of public interest into technical private law disputes,” the court found.