A Johannesburg environmentalist and the conservancy she runs have hit back at two property builders who are suing them for R197-million, arguing that the case constitutes an abuse of process and strategic litigation against public participation (Slapp).
Century Property Developments and Riversands Developments “do not honestly believe that they have any prospect of recovering the amount of damages being claimed” from Kristen Kallesen, a private individual, and the nonprofit Greater Kyalami Conservancy (Gekco), which she chairs, according to the defendants in court papers.
They are being represented by Michael Power of Power Singh Inc.
In March, the Mail & Guardian reported how the two firms are suing Kallesen and Gekco for the income they have allegedly lost because of “obstructive, delaying and frustrating” objections and appeals raised against approvals for Riverside View Extensions in and adjoining the conservancy.
They are claiming damages of R197-million, further damages to be quantified in due course, and costs on an attorney-client scale.
But the lawsuit, the defendants said, seeks to intimidate and silence them, other members of civil society and the public.
The defendants alleged the court challenge seeks to discourage, coerce and intimidate Kallesen and Gekco and others into not “challenging any decisions made in favour of the applicants in current or future processes regarding land use change or similar applications made by the defendants”.
This, the defendants alleged, is an abuse of process of court and amounts to the use of court process and litigation “to achieve an improper end”.
According to the defendants, this violates the right to freedom of expression entrenched in section 15 of the Constitution and the environmental rights entrenched in section 24 of the Constitution as well as the provisions of the Town Planning and Townships Ordinance, provisions of the Spatial Planning and Land Use Management Act, the City of Johannesburg Municipal Planning By-Law and the provisions of the National Environmental Management Act. The legal action “falls to be dismissed with costs”.
Kallesen and Gekco’s grounds of objections and appeals centred on wetland systems that run through the sites and connect to the Jukskei River; the high densities and coverage stemming from property encroaching into “soft soak” areas that recharge the wetland system; and that the sites are host to wildlife to which commercial infrastructure would pose a threat.
Concerns about access to the sites were raised, as well as that approval for the proposed roads had not yet been received. Furthermore traffic would go through an equestrian and agricultural area.
“These objections and appeals were rejected and the defendant (Kallesen) did not pursue any judicial review processes, due to the substantial costs that would have had to be incurred in bringing such judicial review applications,” the defendants said.
Gecko and Kallesen acknowledge the City of Johannesburg has the executive statutory authority, duty and jurisdiction to adjudicate upon land use change applications.
The defendants allege that as the lawsuit was brought more than three years after the objections were lodged, the firms’ claims were “prescribed in their entirety”. This means that under the provisions of the Prescriptions Act of 1969, claims must be brought within three years.
The firms have claimed that Kallesen and Gekco had “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 plaintiffs alleged, was to procure delays, prevent the firms from building on 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 firms stated.
Kallesen and Gekco have denied the claims.