HISTORIC JUDGEMENT AWARDS PUNITIVE COSTS AGAINST WRAYPEX

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”)

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.