Ian Fife

A fruitless four-year battle at Johannesburg’s urban edge comes to a head in a R170m defamation case at the Pretoria high court next week. It’s a bitter lesson in how environmentalists and developers must still learn to work together.

The applicant is developer Robby Wray’s company Wraypex, which has created the Blair Atholl golf estate on 600ha northwest of Johannesburg, between the Cradle of Mankind, the Renosterspruit conservancy and Lanseria airport. The land was owned by golf legend Gary Player, who promised he would design the world’s best golf estate if Wray developed the property. The defendants are four committee members of a local environmentalist group, the Renosterspruit Conservancy.

To hear their side, you imagine Wray rampaging through the pristine countryside, plundering for profits and building a water-guzzling golf course with no regard for the environment.

But Wray talks of a group of fanatics who wilfully abandoned the truth to destroy his environmental dream, having decided in advance that because he was a developer, he was bad. “They’ve given us — and we consider ourselves environmentalists — trauma for four years.”

Things seemed to start well, with Wray agreeing to abandon his plan for boreholes and to pipe water 22km and bring in Eskom electricity. But Wray clearly didn’t understand the sensitivities among local property owners. He seems sincere in wanting to do something both beautiful and acceptable to the inhabitants.

But it’s a big step to there from the tradition of SA property developers, fashioned over 40 years of boom and bust. Survival meant getting in and out of a development as quickly and cheaply as possible, aided by town planners whose job was merely to push through the rights the developer demanded.

It took some preparatory site-clearing by Wray in 2004 for suspicion to set in. Conservancy chairman Helen Duigan wrote articles in the local Karee Chronicle that Wray found offensive.

“They ignored the school and housing I was creating for the community, and concentrated on the old housing I was demolishing,” says Wray. “They put the worst interpretation on anything I did.”

When Wray applied to Tshwane municipality for development rights, the conservancy objected to any development outside the urban edge. When Wray proposed his 22km water pipeline, they objected because that would encourage other developers, though the pipeline can supply only two developments.

Hostility reached a high point in June when Wray got his record of decision (ROD) from the Gauteng department of agriculture, conservation & the environment. “They approved my development, but a clause at the end of the ROD said I couldn’t start until an appeal process and various other things had happened,” says Wray. “I told them that they didn’t have the right to say that. Either I had developments rights or not. I told them they must withdraw that clause and that I would go ahead with preparatory work. They withdrew the clause.”

Unaware of this, Duigan and company launched a court application to interdict Wray, which they lost. “We’re still paying off the legal costs,” says Duigan.

Wray says they implied that he had a corrupt relationship with the Gauteng department, “but I’m no friend of theirs”.

The famously dysfunctional department doesn’t help allay suspicions of corruption. For instance, Duigan has an internal government document that proposed refusing Wray’s application despite its subsequent approval.

Wray says the delays caused by the conservancy and their continuing “lies” were too much. He resolved to sue for defamation and damages, claiming to be particularly hurt that the 18000 trees he planted, the low density of the housing, and the sensitive placement of buildings was demeaned.

Handing the matter to his lawyer, Connie Myburgh — whose aggressiveness on behalf of his clients is legendary — was a mistake. He sued five conservancy members for R210m.

This turned out to be a PR disaster. It was labelled a Slapp (strategic litigation against public participants) suit that developers had started using in America to silence opponents of their projects.

Wray denies that was his intention: “I already had my rights, so there was nothing to stop.”

But it’s difficult to argue that the quantum demanded was anything but intimidating. No SA court would award a fraction of such a claim.

Wray has told the defendants he will drop the action if they apologise. But they refuse. “I withdrew the action against one person because mutual friends told me she was going through a divorce,” adds Wray.

If the conservancy members successfully defend the action, they still lose. Even after Wray pays costs, their additional legal fees for 10 days in court could top R1m. Besides, Wray has his development rights.

And if Wray wins, he can still lose in the court of public opinion.

Blair Atholl includes some of the most beautiful scenic aspects of Gauteng, perhaps tarnished by the enormous traditionalist houses going up on it. It’s popular with wealthy locals such as Ronnie Lubner and the Kunene brothers.

Buildings aside, Wray’s claims to being an environmentalist will be questioned by those who point to a golf course that can consume up to 1ml of water a day. There are accusations that he is selfishly, and possibly illegally, drawing much of it from the river, to the detriment of property owners downstream from him. “A facility to collect grey water from all homeowners will meet the needs of the golf course,” says Wray.

It hasn’t helped Wray that the adjoining Monaghan farm is being developed by landowner Prospero Bailey, scion of Randlord grandfather Sir Abe Bailey and father Jim Bailey, the World War 2 fighter pilot and founder-publisher of Drum magazine.

Bailey doesn’t have a golf course. He and his architect wife Anna are converting the 520ha farm on which he has lived all his life into an eco-estate, with single-storey, low-energy, modernist houses.

The Conservancy opposed them too, but the Baileys are using an alternative route — the Development Facilitation Act — to apply for their rights. Bailey claims this was far more professional and transparent than Wray’s standard municipal application. “Helen Duigan had to sit through four days of expert evidence,” he says.

Duigan and her committee have learnt at great cost how to deal with development applications. “It was useful. There have been 22 since the Blair Atholl application,” she says.

It’s possible to avoid such a waste of time, money and reputation. Equity Estates director Mike Deacon managed it well when he built high-density townhouses on Alphen estate in Constantia, Cape Town, with the full approval of the alert and seasoned homeowners of the suburb and a bevy of historic and environmental groups.

It doesn’t seem like either party will back down before next week — an option which could save them millions. But the experience will be noted by developers who will want to learn how to handle objections more skilfully.

Source: Financial Mail