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Bulletin

Bool v Smuts - A Review of Privacy

Fasken
Reading Time 5 minute read
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Overview

  1. On 10 January 2022 the Supreme Court of Appeal handed down judgement in the matter of Smuts and Another v Botha Smuts and Another v Botha (887/2020) [2022] ZASCA 3 (10 January 2022) (saflii.org).
  2. The matter concerned the publication by Smuts of personal and private details of Botha on a Facebook page. Smuts is an environmental activist who came to know of certain animal trapping practices employed by Botha. Smuts regarded the practices as unethical and after a Whatsapp engagement with Botha published on Facebook pictures of Botha, some personal information relating to Botha and Smuts’ views on these practices.
  3. Smuts also included a picture of Botha holding his six-month old daughter.  Additionally, he posted a Google Search Location of Botha’s business, his home address and his telephone numbers.  The WhatsApp conversation between Smuts and Botha was also posted. In that post, Botha was asked by Smuts if he had a permit to trap animals to which he responded in the affirmative. Smuts captioned the post with the following commentary:

    ‘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.’

  4. Botha obtained an interdict in the Eastern Cape High Court. 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. It adopted an approach that the public interest lay in the topic and not in Botha’s personal information. As a result, the high court concluded that Smutshad acted unlawfully in linking Botha to the practice of animal trapping.
  5. The Supreme Court of Appeal succinctly set out the present state of the Law of Privacy in South Africa.At paragraph 8 of the judgement the Court 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. It is also about respect; every individual has a desire to keep at least some of his/her information private and away from prying eyes. Another individual or group does not have the right to ignore his wishes or to be disrespectful of his desire for privacy without a solid and reasoned basis”.

  6. The Court then reviewed the tension between the Right to Privacy and the right to freedom of expression as contained in Section 16 of the Constitution. In so doing it dealt with the leading cases relating to these topics.
  7. The Court concluded in paragraph 19: can it be said that Botha had the subjective expectation of privacy that society recognizes as objectively reasonable. Objectively speaking, the answer is in the negative. Violations of privacy are fact specific. The right to privacy must be approached from a people-centred perspective. It is abundantly clear, that society cannot countenance the use of traps which exposes the animals to cruelty and vile treatment. Doubtless Botha considered that there were particulars of the posts that offended his expectation of privacy. But would society concur that his expectation is objectively reasonable? And, more particularly do the posts reference the truly personal realm of Botha’s life, where the expectation of privacy is more likely to be considered reasonable?
  8. The Court was of the view that the publication of information relating to animal trapping was in the public interest. The Court held that the Eastern Cape High Court was wrong to prevent publication of this personal information as the High Court and failed to strike a balance between the right to privacy and the right to freedom of expression. It held that in this matter the right to freedom of expression i.e. the disclosure of the unethical animal trapping practices trumps the right to privacy. It would serve no purpose to publish pictures of the animals without referring to where the animal were trapped and by whom. This information was already in the public domain having been placed there by Botha. His details and the farm detail are a matter of public record.
  9. The Court concluded:


    “The high court, in recognising Mr Smuts’ right to freedom of expression, erred in two respects. First, it considered Mr Botha to have a right to privacy of comparable importance. That is not so because the information was in the public domain, and Mr Botha consequently had a weak right to privacy in respect of that information. Second, the high court approached the matter by asking whether Mr Smuts could have exercised his right to freedom of expression with greater restraint so as to afford Mr Botha’s right to privacy greater protection. That is not the correct way to look at the matter. 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. His claim, as I have explained, was weak.”

  10. The judgement is a usual reminder of the healthy state of our law relating to privacy.

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