Wraypex (developers of Blair Atholl Golf Estate near Lanseria Airport) is suing five members of the adjoining Rhenosterspruit Nature Conservancy (RNC) for R210 million for "damages" and defamation" after we'd consistently objected to irregularities in the development process.

I quote from a letter from the GDACE MEC, Mosunkutu, to Mervyn Gaylard, whose case comes up next week, in which the MEC admits to "construction-related activities" commencing "unlawfully" on Blair Atholl:

"...Dr Cornelius informed me that these allegations have been investigated and the the developer was in deed commencing with construction related activities unlawfully."

Wraypex has lined up individual court dates for four of us this year (10 days each): Lynne Clarke, Mervyn Gaylard, myself and Lise Essberger, all residents of the Rhenosterspruit Nature Conservancy. The case of the fifth person, Arthur Barnes, came up two years ago and was postponed. We have no return date for his case yet.

The first case was Lynne Clarke's - set for 10 February. A week or so before that she got a call from Connie Myburgh, Wraypex's lawyer (although he is not handling the actual case - Schwarz North is) proposing "a cup of tea" and suggesting that they drop the case against her - irregular, as the case is handled between the lawyers. Our lawyer, Adrian Vorster, contacted Schwarz North immediately and the outcome was that they've withdrawn the case against Lynne, with costs tendered to Adrian Vorster.

Current situation:

We met with our lawyer and advocate yesterday (Thursday). The situation is as follows:

  • The next "summonsee", Mervyn Gaylard, was offered a withdrawal by Wraypex, on condition he apologised and paid all their costs. He emphatically declined. His case is set to start on Tuesday 10 March in the High Court in Pretoria.
  • My case follows for a further 10 days from 14 - 24 April. Lise Essberger's comes up in June. No date for Arthur Barnes' case.
  • Our legal team's expectation is that two of the cases (Gaylard and Essberger) will be settled before they actually hit court (as with Lynne Clarke's)/ My and Barnes's are expected to go ahead.
  • The Wraypex case is built on proving that our objections to their development delayed the project, thus causing them financial damage. Our view is that this is a clear attempt to squash freedom of expression and public objections to developments and to send a message to the public not to "interfere" in developers' "rights" to act as and where they please.
  • Our legal team is convinced Wraypex has no case. MEC Mosunkutu's letter to Mervyn Gaylard is plain - admitting that Wraypex was doing illegal construction before the appeal period was up (in the month following the positive ROD issued June 2005 - with a clear clause in the ROD stating "no construction" during this period).
  • The core of our case rests on the constitutional right of all citizens to both free speech and to object to actions regarded as detrimental to the environment. (Adrian Vorster handled a similar case - that of Nicole Barlow and the Boksburg Libradene Filling Station, which she won. High Court Judge Karel Tip ruled in that case that the property rights of developers could not trump other constitutionally guaranteed rights like the freedom of expression.)

General background:

The gist of our complaint as whistleblowers (since 2004) was that Wraypex had ignored the required legal processes and commenced with construction activities on Blair Atholl before the necessary processes were in place (ie approval from GDACE, appointment of a consultant, public participation, etc). The essence of the Wraypex summons is that we caused "damage" by holding them up.

Four of us were sued AFTER the appeals were considered and Wraypex had received the go-ahead - when there was nothing more we could do to influence the process. This was clearly a vindictive SLAPP suit (Strategic Litigation Against Public Participants). Arthur Barnes was sued for "damages" and "defamation", during the appeal period.

I can supply a summary (backed by documents if necessary) of how the whole case unfolded. The internal GDACE documents from line officials stated that Blair Atholl should not be given approval.

During the appeal period in July 2005 we (the RNC) lodged an urgent interdict to stop construction. We lost this case with costs against us, becasue we as Interested & Affected Parties (I&APs) had not been notified by GDACE at that point that the HOD, Dr Cornelius, had backed down from the "No construction" clause, because of threats from Connie Myburgh, Wraypex's lawyer against the department and officials. (Letters available.)

We are still paying back tens of thousands of rands for this case.

During this period, Deneys Reitz, Barnes's lawyers, wanted to know from Barnes where Connie Myburgh got certain inside information about our moves. They also queried whether there was a leak in our Conservancy committee. During this time Barnes was phoned by the Muldersdrift Police to say that a tap had been found by Telkom technicians on his phone. The docket for the case that was opened then disappeared. We were advised to get extra cellphones for confidential calls.

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