In recent years, the environmental sector has seen the rise of attempts to deter and threaten protest and participation in environmental governance by interested and affected parties (I&APs). These include threats of injury to the person and or property of environmental activists, as well as actual and threatened civil litigation against environmental activists and civil society organisations in order to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition, known as SLAPP suits (“strategic litigation against public participation”).
On 1 November 2010, the trial of Wraypex Developers versus four members of the Rhenosterspruit Conservancy started in the Pretoria High Court. This case, a defamation suit brought by the developers of a luxury golf estate, Wraypex, against four environmental activists, Mervyn Gaylard, Helen Duigan, Lise Essberger and Arthur Barnes, started more than four years ago. The litigation arose out of their opposition to a now completed 330 house luxury estate, a Gary Player designed golf course and hotel development, Blair Atholl, near Johannesburg. The estate borders on the Rhenosterspruit Conservancy (www.rhenosterspruit.co.za) as well as the Cradle of Humankind, a World Heritage site.
It was claimed by Wraypex in court papers that the four activists wrongfully and with intention to injure the developer, published false and malicious statements that it had not complied with the legal requirements for the development, that it had not submitted a comprehensive environmental impact assessment, that there had been no public participation and that Wraypex had attempted to bribe officials. As a result it claimed that its good name and reputation were damaged and that the approval of the development had been delayed as a result.
The defendants, however, claimed that the Rhenosterspruit Conservancy had opposed the development on the basis that it created a precedent for township and residential development in a greenbelt area.
On 6 December 2010, Judge Stanley Sapire handed down judgement in favour of the defendants, thereby defeating the developer’s claim. On 9 February 2011, the judge handed down a punitive costs order against Wraypex. Costs were awarded on an attorney and client scale, which is significantly more than the ordinary costs awarded against an unsuccessful plaintiff. According to a media release from the Rhenosterspruit Conservancy, Judge Sapire cited “the belligerent style of Wraypex’s attorney’s letters which were calculated to intimidate and create enmity”, “the extravagant amount claimed by Wraypex” and the timing of the institution of the actions against the Conservancy members (when Wraypex had already obtained approval for the establishment of the township) as reasons for his decision.
The Plaintiff filed its notice of appeal against Judge Sapire’s decision on 1 March 2011. Leave to appeal was refused on 9 June 2011.
You can download copies of the pleadings, heads of argument and both judgements handed down in December 2010 and February 2011, as well as the Plaintiff’s Notice of Appeal, from the Centre’s Virtual Library here.
The Wraypex case is not the first such lawsuit in South Africa. In the case of PetroProps (Pty) Ltd v Barlow and Another 2006 (5) SA 160, an interdict was brought against a group of environmental activists who had campaigned against the development of a fuel service station on the basis that it was on an ecologically sensitive wetland. Like in the Wraypex case, the developer PetroProps claimed that the campaign amounted to harassment and interference with its use and enjoyment of its property and had caused severe financial loss.
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. Their interest in motivation is selfless, being to contribute to environmental protection in the common good. None of them stands to gain material personal profit. Their modus operandi is entirely peaceful. It is mobilised within a self-funding voluntary association. It is geared towards public participation, information gathering and exchange, discussion and the production of community-based mandates. Its accompanying public discourse and media coverage have been fair, with participants and readers alike being presented in a balanced way with the viewpoints of all sides. 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. It also provides a sword, which groups like the Association can and should draw to empower their initiatives and interests.”
Van Rensburg v Cloete
In a more recent example, an interdict was also brought by a farmer operating an abattoir in George against his neighbours from defaming him by complaining about the zoning rights, his entitlement to conduct the business and the environmental health hazard caused by it. In dismissing the application, the court held that the statements made did not amount to defamation and that the “gag” order applied for would have extreme consequences on the neighbours’ rights to freedom of expression and would impose upon them the onerous task of self-censorship. It was held that, in a democracy, aggrieved citizens are entitled to raise their issues with the relevant authorities in the form of complaints and seek redress of such issues, whether in their own interest or the broader interest of society. They are likewise entitled to raise such issues for publication and public discourse in the media. (See Van Rensburg & Another v Dr A Cloete & Another CASE No: 8270/09 (2009) WCHC)
Both the PetroProps and Van Rensburg judgements can be downloaded from the Centre’s Virtual Library.
SLAPP suits
In recent years, the environmental sector has seen the rise of attempts to deter and threaten protest and participation in environmental governance by interested and affected parties (I&APs). These include threats of injury to the person and or property of environmental activists, as well as actual and threatened civil litigation against environmental activists and civil society organisations in order to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition, known as SLAPP suits (“strategic litigation against public participation”).
Read more about SLAPP suits in South Africa generally in Murombo, T. and Valentine, H. “SLAPP suits: An emerging obstacle to public interest environmental litigation in South Africa“, South African Journal of Human Rights, 2011
Wraypex v Rhenosterspruit Conservancy Members
On 1 November 2010, the trial of Wraypex Developers versus four members of the Rhenosterspruit Conservancy started in the Pretoria High Court. This case, a defamation suit brought by the developers of a luxury golf estate, Wraypex, against four environmental activists, Mervyn Gaylard, Helen Duigan, Lise Essberger and Arthur Barnes, started more than four years ago. The litigation arose out of their opposition to a now completed 330 house luxury estate, a Gary Player designed golf course and hotel development, Blair Atholl, near Johannesburg. The estate borders on the Rhenosterspruit Conservancy (www.rhenosterspruit.co.za) as well as the Cradle of Humankind, a World Heritage site.
It was claimed by Wraypex in court papers that the four activists wrongfully and with intention to injure the developer, published false and malicious statements that it had not complied with the legal requirements for the development, that it had not submitted a comprehensive environmental impact assessment, that there had been no public participation and that Wraypex had attempted to bribe officials. As a result it claimed that its good name and reputation were damaged and that the approval of the development had been delayed as a result.
The defendants, however, claimed that the Rhenosterspruit Conservancy had opposed the development on the basis that it created a precedent for township and residential development in a greenbelt area.
On 6 December 2010, Judge Stanley Sapire handed down judgement in favour of the defendants, thereby defeating the developer’s claim. On 9 February 2011, the judge handed down a punitive costs order against Wraypex. Costs were awarded on an attorney and client scale, which is significantly more than the ordinary costs awarded against an unsuccessful plaintiff. According to a media release from the Rhenosterspruit Conservancy, Judge Sapire cited “the belligerent style of Wraypex’s attorney’s letters which were calculated to intimidate and create enmity”, “the extravagant amount claimed by Wraypex” and the timing of the institution of the actions against the Conservancy members (when Wraypex had already obtained approval for the establishment of the township) as reasons for his decision.
The Plaintiff filed its notice of appeal against Judge Sapire’s decision on 1 March 2011. Leave to appeal was refused on 9 June 2011.
You can download copies of the pleadings, heads of argument and both judgements handed down in December 2010 and February 2011, as well as the Plaintiff’s Notice of Appeal, from the Centre’s Virtual Library here.
For media coverage of this case, see:
http://www.mg.co.za/article/2009-03-13-environment-slapp-reduced.
PetroProps v Barlow
The Wraypex case is not the first such lawsuit in South Africa. In the case of PetroProps (Pty) Ltd v Barlow and Another 2006 (5) SA 160, an interdict was brought against a group of environmental activists who had campaigned against the development of a fuel service station on the basis that it was on an ecologically sensitive wetland. Like in the Wraypex case, the developer PetroProps claimed that the campaign amounted to harassment and interference with its use and enjoyment of its property and had caused severe financial loss.
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. Their interest in motivation is selfless, being to contribute to environmental protection in the common good. None of them stands to gain material personal profit. Their modus operandi is entirely peaceful. It is mobilised within a self-funding voluntary association. It is geared towards public participation, information gathering and exchange, discussion and the production of community-based mandates. Its accompanying public discourse and media coverage have been fair, with participants and readers alike being presented in a balanced way with the viewpoints of all sides. 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. It also provides a sword, which groups like the Association can and should draw to empower their initiatives and interests.”
Van Rensburg v Cloete
In a more recent example, an interdict was also brought by a farmer operating an abattoir in George against his neighbours from defaming him by complaining about the zoning rights, his entitlement to conduct the business and the environmental health hazard caused by it. In dismissing the application, the court held that the statements made did not amount to defamation and that the “gag” order applied for would have extreme consequences on the neighbours’ rights to freedom of expression and would impose upon them the onerous task of self-censorship. It was held that, in a democracy, aggrieved citizens are entitled to raise their issues with the relevant authorities in the form of complaints and seek redress of such issues, whether in their own interest or the broader interest of society. They are likewise entitled to raise such issues for publication and public discourse in the media. (See Van Rensburg & Another v Dr A Cloete & Another CASE No: 8270/09 (2009) WCHC)
Both the PetroProps and Van Rensburg judgements can be downloaded from the Centre’s Virtual Library.