...perhaps because we feel a connectedness to, and responsibility for, a place with a unique character. This 10 000 ha Conservancy. Perhaps because we did not take kindly to threats and bullying. Perhaps because we knew of too many people being bullied this way.
When Blair Atholl Golf Estate began to take shape and the Conservancy decided to monitor it, concerned about its impact and the precedent it would set, the committee ran the gamut of public opinion: from 100% supportive to being accused of having “personal vendettas”, of being interfering nosey parkers, of being naïve and stupid to tangle with powerful developers, and of trying to “stop inevitable and necessary progress”.
Then came the advice as the size of the legal demands against the Rhenosterspruit Five grew: apologise, cut your losses and get out before you're destroyed. Certainly, there was no visible gain for us in challenging what was to become one of South Africa's wealthiest residential developments.
Six years is a long time to have a multi-million threat hanging over one's head!
When Wraypex announced its plans in 2004 for developing the Blair Atholl Golf Estate on the border of the Rhenosterspruit Nature Conservancy we had no idea what was in store for all of us.
For 17 years, since 1987 when the Conservancy was created, there had been a variety of challenges and problems, mainly internal, which were faced and handled. The year 2004 marked a major shift for the Conservancy.
Developers started eyeing the wide open spaces of this area in terms of profits, huge profits. “A need has been established for upmarket housing” their applications stated; “buy your own piece of country” became the slogan for attracting buyers.
Open space was under siege. The Conservancy's stance was that it would monitor each development on its own merits, register as an Interested and Affected Party and submit comments and/or objections.
Since 2004, more than two dozen development applications in and adjoining the Conservancy, large and small, have been handled accordingly. The underlying aim was to conserve much-needed and valuable open space in a province under severe pressure from urbanisation.
The trouble started when Blair Atholl's developer tried to take a few short-cuts - probably, in all fairness, in frustration with the slowness of officialdom. The RNC blew the whistle on what we believed were unauthorised construction activities and this triggered a series of threats from Wraypex's lawyer, Connie Myburgh.
This culminated, in 2005, in summons of R210 million against five members of the Conservancy: Arthur Barnes, Lynne Clarke, Mervyn Gaylard, Lise Essberger and myself. Strangely enough, by that time Wraypex had already received its approval from the Gauteng Department of Agriculture, Conservation and Environment (GDACE), so this was a typical case of SLAPPing (Strategic Litigation Against Public Participants).
The SLAPP message to individuals and communities is clear: dare raise your voice or concerns and you will regret it. Or as Connie Mybugh said in a telephone call to me in 2004: “I warn you...we will take you to court...we will hurt you in your pocket.”
In June 2005 Blair Atholl was approved - with conditions. “Approval for a development typically gives objectors one month to lodge an appeal,” explains Arthur Barnes. “This Record of Decision (ROD) may also site specific conditions. In the case of Blair Atholl, it stated 'no development may commence prior to the expiry of the time period allowed for the submission of an appeal.” Wraypex promptly started with construction again, which the RNC reported to GDACE, which once more intervened.
By now Wraypex had sued Arthur for R40 million for “damages and defamation”.
Arthur was originally represented by Deneys Reitz, attorneys used to handling large corporate clients but much less effective in advising individuals targeted by a developer. Inappropriate legal advice was to cost the RNC dearly.
The RNC was advised to seek an urgent interdict to stop the developer doing construction during the appeal period. Open and shut. The Record of Decision was clear - “no construction” yet. What was not communicated to the Conservancy by GDACE was its capitulation, in the meantime, to threats from Connie Myburgh to sue individual officials if they insisted on preventing any construction until the appeal period was over. Wraypex was given permission to proceed with work at its “own risk”. The Conservancy was caught flat-footed in court and lost the interdict with costs. The chorus of criticism against the Conservancy reached a crescendo. The costs ran to more than R150 000, which Arthur fielded at the time, at great cost to his own business. The Conservancy is is still repaying him at R1 000 a month.
Soon after, Wraypex followed up with four more summonses and the media got interested. This was the most individuals had ever been sued for in South Africa. The scene was set for an ugly battle.
As events unfolded the sense of something fishy grew. At a meeting with the CEO of Wraypex in 2004, Arthur was told that approval for the development had already been secured “at the highest level”. How was this possible, months before final approval was given by GDACE? Also, GDACE records showed that line officials had not supported the development, which was located way beyond the Urban Edge. A subpoenaed official submitted a prepared but unsigned negative ROD, turning down the application. This was subsequently changed to a positive ROD with a long list of 'socioeconomic benefits' that Wraypex had to provide.
In 2006, a private investigator was hired by members of the Conservancy to determine whether there had in fact been any irregularities. His file grew, detailing what he alleged was evidence of irregularities.
“He warned us of 'a leak' in the Conservancy committee and recommended pay-as-you-go phones, which we got,” I testified in court. “He then announced that he'd been offered R2 million for the 'research' he had been doing on Blair Atholl. That was the last communication from him because he disappeared without trace with the files, the so-called evidence and R70 000 that he'd been paid for his services.”
In the meantime Deneys Reitz had also claimed that information was being leaked from “somewhere” within the RNC. The probable source of this became clear when Arthur received a call from the Muldersdrift police. A bug had been found on his landline. They provided photos of the equipment and the distribution box where it had been found. The battle had become even uglier and more scary.
The case was postponed several times and finally got to court on 1 November 2010 - six years after the initial engagement. By that time Wraypex had withdrawn its case against Lynne Clarke (R40m) and had to pay her costs.
That left Arthur, Mervyn, Lise and myself with a total summons of R170 million. For “damages and defamation”, the pleadings against us stated. “Damages” because we were accused of holding up the development, and “defamation” because of the queries circulating in the community as to exactly how approval had been obtained, but pinned onto Arthur Barnes.
As legal costs of countering this claim mounted up, the Conservancy Four looked for alternatives and ended up with a Pretoria firm of attorneys, Van den Bogert Göldner Inc. They took the case on contingency, making it possible for us not to capitulate - the aim of SLAPPing.
Advocates Rudolph Jansen and Adrian Vorster represented the Conservancy members and Judge Stanley Sapire presided.
Total costs to date are in the region of R500 000 - for the interdict and other legal fees, excluding the cost of our legal team. Travel and office expenses - printing thousands of pages, telephones and faxing, computer costs - cannot be calculated. Neither can the time and energy wasted. That's how SLAPPing works.
Court costs that had to be paid immediately during the case included R48 000 for court papers
(R24 000 each to plaintiff and defendants). Conservancy members, Bob and Christine Garbett, paid half of that on the spot, plus the airfare of a subpoenaed official. Another RNC member gave R5 000. More donations came from friends. Cape Town civic organisations rallied and collected R2 000 to help. “Many of us have been personally threatened and sued for defamation by a local developer,” one of them wrote. “We do understand the seriousness of your case for all civic organisations in the country.” Wrote another: “Even if it's a token amount it shows that we care intensely about what is happening to our country and all too often to our countryside, supposedly in the name of development and job creation at the expense of Nature and the little-man-in-the-street.” We had never even met these people!
Arthur has put his property in the RNC on the market and, close to retiring age, had to take a full-time engineering job in Canada. That's how SLAPPing works.
All of us say YES - because we believe it will give encouragement to others to stand firm and defend our environment.