On 10 January 2022 the Supreme Court of Appeal handed down a landmark judgment in the matter of Smuts and Another v Botha and Another (887/2020)  ZASCA 3 (10 January 2022) which gives us an inside look at how our privacy laws are applied by the courts.
In this matter, Bool Smuts, a wildlife conservationist; activist and founder of Landmark Leopard and Predator Project–South Africa, published certain personal and private information concerning Herman Botha on Facebook.
The lead up to this event started on 23 September 2019 when a group of cyclists participated in an adventure ride organised by Quantum Adventure. During the event, the cyclists crossed over the farm Varsfontein, owned by Botha. Nicholas Louw, one of the cyclists, noticed two cages on the farm. One of the cages contained a dead baboon and the other a dead porcupine. Louw took photographs of the dead animals in the cages and sent them to Smuts as he believed that the cages were positioned where there was no shade and water and the animals had died as a result of dehydration whilst trapped in the cages.
Smuts regarded the animal trapping practices employed by Botha as unethical and upon receipt of the photographs, he contacted Botha via WhatsApp. Botha confirmed that he had a valid permit to hunt, capture and/or kill the baboons, porcupines and other vermin.
After the WhatsApp engagement, on 9 October 2019, Smuts published on Landmark Leopard and Predator Project–South Africa’s Facebook page pictures of the dead animals; a picture of Botha holding his six-month old daughter; a Google location to Botha’s business; Botha’s home address and his telephone numbers.
Smuts also posted screenshots of the WhatsApp conversation with Botha. The publication was captioned with the following:
“While we spend our efforts trying to promote ecologically acceptable practices on livestock farms to promote ecological integrity and regeneration, we are inundated by reports of contrarian practices that are unethical, barbaric and utterly ruinous to biodiversity. These images are from a farm near Alicedale in the Eastern Cape owned by Mr Herman Botha of Port Elizabeth, who is involved in the insurance industry. The farm is Varsfontein. This is utterly vile. It is ecologically ruinous. Mr Botha claims to have permits to do this – see the Whatsapp conversation with him attached. The images show a trap to capture baboons (they climb through the drum to get access to the oranges – often poisoned – and then cannot get out). See the porcupine in traps too. Utterly unethical, cruel and barbaric.”
The Facebook post garnered many comments, which were mostly critical of Botha and the particular practice of trapping animals. People went on to post slanderous and insulting comments about Botha and his practice, including “he should be in that cage” and that he should be “paid a visit”. There were various calls for a boycott of Botha’s business.
High Court Urgent Application
Botha instituted an urgent application in the High Court of the Eastern Cape Division, Port Elizabeth for an interim interdict prohibiting Smuts and Landmark Leopard from publishing defamatory statements about him. Judge Mullins AJ granted a rule nisi, in terms of which Smuts and Landmark Leopard were ordered to remove the photographs of Botha and certain portions of the Facebook post that made reference to Botha, his business, its location and the name of the farm. Smuts and Landmark Leopard were also prohibited from making further posts referring to Botha, his family and his business. The photograph of Botha and his daughter was removed by Smuts before the interim order was granted.
The High Court reasoned that the name of the farm and Botha’s identity, as owner of it, constituted personal information protected by his right to privacy. It held that Botha established a clear right to an interdict, and his right to privacy was infringed by the publication of his personal information on Facebook. The Court adopted an approach that the public interest lay in the topic and not in Botha’s personal information. As a result, the Court concluded that Smuts had acted unlawfully in linking Botha to the practice of animal trapping.
Supreme Court of Appeal
The Supreme Court of Appeal had to answer the question whether the publication of Botha’s personal information such as his identity and his business and home address enjoyed the protection of the right to privacy. This issue raised three questions: 1) whether it was in the public interest that the personal information of Botha be published; 2) whether Smuts could inform the public about the activities on Botha’s farm without disclosing his personal information; and 3) was the High Court correct in placing emphasis on Botha’s personal information despite the fact that this was already in the public domain.
At the centre of this appeal is whether the publication of the Facebook posts by Smuts is protected by the right to freedom of expression. In essence, the age-old tension and delicate balance between the right to privacy and the right to freedom of expression was in play.
The Supreme Court of Appeal stated:
“The right to privacy is a fundamental right that is protected under the Constitution. It is a right of a person to be free from intrusion or publicity of information or matters of a personal nature. It is central to the protection of human dignity, and forms the cornerstone of any democratic society. It supports and buttresses other rights such as freedom of expression, information and association.”
The Court noted that “it is in the public interest that divergent views be aired in public and subjected to scrutiny and debate.”
The Court concluded that the right to privacy must be approached from a people-centred perspective. Botha was obviously of the view that there were parts of the Facebook post that offended his expectation of privacy, but the question was whether society would agree that his expectation is objectively reasonable under this specific circumstance. The Court held that the publication of information relating to animal trapping was in the public interest and that the High Court failed to strike a balance between the right to privacy and the right to freedom of expression.
The Court’s view was that “publicising the truth about Mr Botha’s animal trapping activities, to which the public have access and interest, does not trump his right of privacy.”
The Court agreed with Smuts that it would serve no useful purpose to publish the photographs of the animals without where the photos were taken, i.e., naming the farm and the owner.
Lastly, the Court also considered that the information published by Smuts could easily be found in the Deeds Office as well as on Google, i.e. it is in the public domain. “The fact that he (Botha) disclosed his personal information strips him of the right to claim privacy in respect of that information.”
The Court upheld the appeal, dismissed Botha’s interdict application and concluded:
“A court should not act as a censor to determine how best persons might speak. In this case, Mr Smuts enjoyed the right to air his views as to animal cruelty and attribute to Mr Botha the practice of trapping. After all, that information was true, never denied by Mr Botha, nor hidden by him. In these circumstances, the test is not whether Mr Smuts could have posted more cautiously, the question is whether Mr Botha had any claim to privacy in respect of the information posted.”
The outcome of this judgment is not only a good reminder of how our courts deal with matters of right to privacy versus freedom of expression, but also an important reminder for us to consider how we use social media and the internet and the way we make our own private information public.