Tessa Joubert, blamed for delaying the development, says the lawsuit is designed to silence her and others.
An architect’s impression of the proposed retirement complex at Sedgefield. Graphic: Eco Route Environmental Consultancy (Draft Amendment Report).
- Construction of a retirement village in the coastal zone of Sedgefield by Knysna developer Sandpiper Nature Reserve was delayed by 14 months.
- The developer accuses local environmental activist Tessa Joubert of causing the delay by unlawfully and untruthfully objecting to the project.
- Joubert says that she was legally entitled to make objections and that the developer’s R5m damages claim is designed to silence and intimidate her and other environmentalists.
A prominent Garden Route environmental activist is being sued for close to R5m by a property developer for causing a 14-month delay in its plans to construct a retirement village in an ecologically sensitive coastal dune zone at Sedgefield.
The plaintiff, Knysna developer Sandpiper Nature Reserve, argues in summons papers filed in December last year that the defendant – Sedgefield-based conservationist Tessa Joubert – caused a 14-month delay in a project to construct a new retirement complex by opposing its plans. This in turn caused the company a financial loss of R4.875m through inflated building costs and R119,570 in legal and consultancy fees, it says.
Sandpiper describes Joubert’s actions in opposing its development as “wilfully and unlawfully making material misrepresentations”; making “false representations”; raising objections “intentionally, wrongfully and irresponsibly”; and making “false and/or unlawful representations that she knew to be false, alternatively, wrongful, unfounded and speculative”.
But Joubert, who in 2023 was the recipient of one of Sedgefield Ratepayers & Residents Association’s inaugural Celebrate Sedgefield awards, has strongly denied all the accusations against her.
She is defending her action partly on the basis that the claim is a Strategic Litigation Against Public Participation or Slapp suit, and is an abuse of court processes. Slapp is described as “a meritless or exaggerated lawsuit intended to intimidate civil society advocates, human rights defenders, journalists, academics and individuals as well as organisations acting in the public interest”.
Although neither the acronym nor the phrase is used in the court papers in this particular action, one of Joubert’s arguments is based entirely on the claim that this is a Slapp suit.
She states that she exercised her rights under the 2021 Knysna Municipality Spatial Planning and Land Use Management By-law to intervene and object Sandpiper’s land-use applications.
She says Sandpiper has no right to censure public participation and that she does not owe the company a legal duty of care to refrain from public participation. She says her public participation is protected and lawful “and can never be wrongful,” and that she is not liable for any losses incurred by Sandpiper as a result of her public participation in the decision-making processes of the Knysna Municipality.
She says Sandpiper’s true objective is to “silence” her “and others who exercise their constitutional and statutory rights to participate meaningfully in decisions affecting the environment, for fear that they will be liable for damages and the costs of litigation in the event that their participation contributes to delays with a financial impact.”
Land use
The damages claim stems from land use planning applications for erf 4982 Sedgefield submitted to the Knysna Municipality by Sandpiper on 29 June 2022.
These applications involved rezoning, subdivision, consent use and departures from planning by-laws required to construct 52 two-storey and three-storey residential units on the 1.153ha property.
In September 2023, Knysna’s planning officials recommended that Sandpiper’s application be approved.
But in early February 2024, the municipal manager approved Joubert’s application for “intervener” status – 14 months after the official closing date for comments.
In terms of Knysna’s planning by-law, intervener status may be granted to those who have an interest in any planning application if, among other criteria, they have not received notice of the application and no decision has yet been taken – as it was in this case.
Sandpiper’s applications were then referred to the Knysna Municipal Planning Tribunal for consideration, where Joubert argued her concerns. These included the legitimacy of approvals given to Sandpiper, the site’s ecological value, climate resilience, the importance of sand reservoirs, the ecological role of sand dunes, community well-being, coastal flood hazard predictions, and the preservation of the primary dune.
The Tribunal agreed with Joubert, and in March last year refused all Sandpiper’s applications, without providing written reasons.
Sandpiper appealed, and in September was informed that its appeal had been upheld by the municipality.
Reversing the Tribunal’s decision and approving all Sandpiper’s applications, the municipality described the Tribunal’s findings as “irrational” and based on “irrelevant considerations”.
Three months later, Sandpiper issued summons against Joubert.
Slapp
In her first Special Plea, Joubert argues that Sandpiper’s conduct in bringing the action is an abuse of process of court, because:
- it was not brought to vindicate a right;
- it seeks to use court proceedings to achieve an improper end (to use litigation to cause the defendant financial and other prejudice in order to silence and deter her and others); and
- it materially violates the defendant’s statutory and constitutional rights.
Her second Special Plea is that she enjoys legal protection to oppose the development under the National Environmental Management Act (NEMA), which protects from civil liability anyone who discloses evidence of a possible environmental risk.
In its formal response, Sandpiper denies that erf 4982 is ecologically sensitive and calls the property “a rehabilitated dumping site”.
The planned area for the retirement resort is to the north of the existing coastal development setback line and does not form part of the sensitive dune system, it says.
It “specifically denies” that Joubert lawfully participated in the decision-making processes of the Knysna Municipality and also argues that she had “wilfully and unlawfully made material misrepresentations” in her application to intervene.
“Plaintiff denies that defendant is entitled to rely on and hide behind NEMA and pleads that defendant did not act in good faith, and that her actions were vexatious, meritless and calculated to frustrate the plaintiff in pursuing his lawful application.”
The damages action has been filed in the High Court’s Eastern Circuit Local Division, Thembalethu (George).
In early December, Sandpiper told the Court it believed the matter should not be referred to mediation. “There is no reasonable possibility of the parties reaching an agreement and the matter will have to be ventilated in court.”
If Joubert’s Special Pleas are accepted by the Court, the damages claim could be dismissed without further consideration of its merits.
This article was originally published on GroundUp.
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