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Monday Jul 04, 2011

Property developer Wraypex loses big in defamation suit

It was like being struck by lightning. That's how Helen Duigan remembers the terrifying moment when the sheriff handed her a summons for defending the environment. She was being sued for defamation to the tune of R170 million.

"You freeze, because you think 'what now?' We don't even have a flippin' lawyer and legal things are so far from my own experience," explains the 69-year-old chairwoman of the Rhenosterspruit Nature Conservancy. "The amount is totally ludicrous. But there you sit; you can't get out of it."

Rather than back down, the grandmother-of-five, along with three fellow activists, Mervyn Gaylard, Lise Essberger and Arthur Barnes, so becoming what was dubbed the Rhenosterspruit Four, took Wraypex on - and won, setting a legal precedent.

The defamation suit arose out of their opposition to the now complete Blair Atholl luxury estate, a Gary Player-signature golf course and hotel development, near Lanseria, which straddles their conservancy.

The case dragged on for six years, but last December, Judge Stanley Sapire threw out Wraypex's claim for R170m in damages and defamation claim, and ordered it to cough up the legal costs. Earlier this month, Sapire dismissed Wraypex's appeal.

The case is regarded as South Africa's first Strategic Litigation Against Public Participants (Slapp) lawsuit ever to go to court. The concept, which first arose in the US, is where companies and developers use the law to intimidate ordinary citizens who oppose their plans, chiefly environmentalists and civil society organisations, knowing that they are unable to foot hefty legal fees or damages claims.

"This 'big bully versus concerned citizens' is being repeated time and time again," says Duigan. "It's so easy for companies to sue because they lose very little. Now you (an ordinary person) are sitting with the tameletjie (sticking point).

"It's plain scare tactics. But it's absolutely crucial that people speak out. They must have the courage and support. People living in a specific area have roots there... and if a mine suddenly comes, for example, it's the most devastating thing to the community."

But it takes money - and guts. In Rhenosterspruit's case, the conservancy's legal team defended them on a contingency basis, and they were also aided by generous donations that streamed in from neighbours and similar resident groups countrywide. Duigan says the case still cost "an arm and a leg".

"But I don't regret one cent because somewhere someone had to draw the line. Too many organisations in too many areas in South Africa are battling with exactly the same thing where developers bulldoze or bribe. We all need mutual support because for so many years we were lone rangers fighting our own little fight. I think in all fairness, developers can get so moedeloos (despondent) when they can't get decisions from officials."

According to the Centre for Environmental Rights (CER), the environmental sector is seeing a rise in attempts to "deter and threaten" protest and participation in environmental governance by interested and affected parties.

These include threats of injury to the person and/or property of environmental activists, as well as actual and threatened civil litigation against activists and civil society organisations to censor, intimidate and silence criticism by burdening them with the cost of a legal defence until they abandon their criticism or opposition, in Slapp suits.

In 2006, PetroProps brought an interdict against Nicole Barlow and other environmental activists who had campaigned against the development of a petrol station on an ecologically sensitive wetland in Libradene, east of Joburg. As in the Wraypex case, PetroProps claimed the campaign amounted to harassment and interference with its use and enjoyment of its property and had caused severe financial losses.

"But the application did not succeed. Instead it was held that the activists' conduct was one of 'a standard that any vibrant democratic society would be glad to have raised in its midst'," says the CER.

In one of the latest cases, African Nickel, a mining exploration firm, has threatened Magaliesburg landowner Thys van As with a R50m damages claim. It has applied for an interdict in recent weeks to stop Van As, who belongs to the Landowners Association of Magaliesburg (Loam) from spreading "false allegations and mistruths" about its mining activities in Golden Valley, near the Cradle of Humankind.

Van As and Loam had voiced their concerns about African Nickel's failure to consult landowners and the potential impacts of mining on water sources.

But African Nickel's chief executive Timothy Keating claims Van As, who works at a car dealership in Potchefstroom, is part of a "larger smear campaign" and disputes Golden Valley's environmental sensitivity. In his affidavit, Keating says the application is not a "gagging order against the press" or an attempt to "prune individuals' freedom of expression", but rather that African Nickel has the right to not be subjected to false allegations.

Dina Townsend, a staff attorney for the CER, says judges have little patience for Slapp suits.

"What is heartening is that in each of those instances, judges have quite firmly dismissed those cases, emphasising the protection the constitution provides to environmental activists."

In the Wraypex case, the decision of Judge Sapire was influenced by the "belligerent style of Wraypex's attorney's letters to the conservancy calculated to intimidate and create enmity" and "the extravagant amount claimed by Wraypex".

Though Townsend applauds "judges taking a stand", she also believes the threat of litigation has a chilling effect and that is why these scarce tactics are dangerous.

"We're seeing very threatening language used in the correspondence of developers to our partner organisations and clients.

"Although South Africa doesn't have a large number of Slapp suits that get to court, I think the threat of litigation is certainly being used. We've seen it a few times.

"Even as successful as the Wraypex case was, it still takes up a huge amount of time and resources that civil society organisations and individuals simply don't have. The process of litigation is very traumatic... I think South Africa's legal system upholds principles of a free and just democracy. In any system where there are power imbalances, where the well-resourced can threaten individuals and communities, there is always the danger those principles are undermined.

"There are some companies and some industries where people are buying into the legislative framework that governs them, and understand the need for sustainable mining and public participation, and then there are any number of companies who don't.

"Organisations and individuals acting in the public interest are afforded special protection within South Africa's environmental legislation. Section 31 of Nema is whistle-blower protection, but it's broader than that: it's the disclosure of any information where you believe - it doesn't even need to be true - that there is risk to that environment."

Townsend says companies who seek defamation damages stand to lose more in court battles.

"We know the thing that really damaged Wraypex's reputation was the judgment and that looked bad ... (comments by) fairly obscure environmentalists have very little reach. It's the court case that has huge reach because everyone is interested."

She alludes to "a culture of secrecy" prevalent in the mining sector, where companies seek to scupper attempts to obtain information.

"The refusal of companies to give out sometimes very basic information, like their environmental management plans and copies of their environmental programmes, makes one very suspicious.

"What are they trying to hide? If you are an above-board company in full compliance with the law, why not give out the information, and to those objecting to your operations, all you need to do is say that they're wrong."

There are echoes of this in the current fight around the Promotion of Access to Information Amendment Bill.

"Some of the concerns with the 'secrecy bill' are that it legislates a culture of secrecy which we're already seeing.

"It gives people tools to do it legally and withhold information in a really powerful way. But what we want is to move in the opposite direction - for there to be more measures to make information more publicly available, not less," adds Townsend.

Elston Seppie, the executive director of the Freedom of Expression Institute (FXI), points out that it's not just mining companies and developers - the government too can be secretive with what it shares with communities.

"We're involved with some community organisations that simply want to know which land belongs to which level of government and you can't imagine the level of frustration of the community to get responses from the government.

"But more explicitly, when it comes to big companies, their bottom line is at stake and they will go to great lengths to show their muscle. It's really important that communities show the corporate world they won't simply sit back and take second-hand decisions about their environmental outcomes."

Back in the Magaliesburg, Koos Pretorius of the Federation for a Sustainable Environment, which lodged an appeal on Loam's behalf against African Nickel's plans for further exploration, says the legal process is suspended - for now.

"We're trying to work out exactly what it is they are unhappy about. We're trying to reach an out-of-court settlement. They made allegations to which we replied.

"Then they brought us the Slapp suit. If it continues, we have to go to court. The problem with all these Slapp suits, is if you don't oppose it they go to court and get a court order against you.

"So you have no choice but to oppose, whether you pay R50 million or R5 million, you spend money either way," says Pretorius.

For Duigan, and those like her who devote themselves to being custodians of the environment, the fight to safeguard it will continue.

"I am passionate about nature. It's in my bones, in my cells," she says. "The (Wraypex) judgment has given courage to other activists by reinforcing the precedent that supports the rights of ordinary people to stand up and defend their environment."

Pretoria News Weekend


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