Bool Smuts v Herman Botha [2022] ZASCA 3

Bool Smuts and Another v Herman Botha (887/20) [2022] ZASCA 3 (10 January 2022).

The Facts

The matter concerned the publication by Smuts - a wildlife conservationist and activist, of personal and private details of Botha - owner of a farm Varsfontein, on a facebook page. Smuts came to know of certain animal trapping practices employed by Botha after a cyclist noticed two cages on the farm, one containing a dead baboon and the other a dead porcupine. The cages were positioned where there was no shade and water.

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 Smut’s own personal views on these practices. Smuts also included a picture of Botha holding his six month old daughter, as well as a Google Search location of Botha’s business, his home addresses and his telephone numbers. The dialogue Smuts had had with Botha on WhatsApp was also posted.

In that post, Smuts had queried whether Botha had a permit to trap animals, to which he replied 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.”

The High Court Ruling

Unhappy with the posts and the publicity it generated, Botha instituted an urgent application in the High Court of the Eastern Cape Division, Port Elizabeth for an interim interdict (injunction) prohibiting Smuts and his company, Landmark Leopard, from publishing defamatory statements about him. The High Court reasoned that the name of the farm and Botha’s identity constituted personal information protected by his right to privacy.

It held that Botha established a clear right to obtain an injunction, and his right to privacy was infringed by the publication of his personal information on Facebook. It adopted the approach that public interest lay in the topic and not in Botha’s personal information. As a result, the High Court concluded that Smuts had acted unlawfully in linking Botha to the practice of animal trapping.

The Supreme Court of Appeal

The question to be answered is whether the publication of Mr. Botha’s personal information such as identity and his business and home address enjoys the protection of the right the privacy. In essence, what is implicated in the appeal is the tension between the right to privacy and the right to freedom of expression.

Mr. Smuts - in his defence, had stated his intention in publishing the posts was not to defame or otherwise harm Botha, but rather, to publicise or ‘out’ animal trapping practices so as to stimulate the debate on this thorny and controversial issue. He added that even if his views were extreme or prejudicial - the opinions he held was one which a fair person might honestly hold.

In coming to its decision, Court of Appeal set out the law of privacy in South Africa and reviewed the tension between the Right to Privacy and the Right to Freedom of Expression, and concluded through rhetoric: can it be said that Botha had the subjective expectation of privacy that society recognises as objectively reasonable?

The Court held, objectively speaking - the answer was in the negative. Violations of privacy were fact specific. The right to privacy must be approached from a people-centred perspective. It was abundantly clear that society could not countenance the use of traps which exposed animals to cruelty and vile treatment. Doubtless Botha considered that there were particulars of the posts that offended his expectation of privacy - but the question was whether society would concur that his expectation was objectively reasonable? More particularly, did the posts reference the true personal realm of Botha’s life - where the expectation of privacy was more likely to be considered reasonable?

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 were already a matter of public record.

The Court of Appeal concluded: -

“The High Court accepted that the use of animal traps is a matter of public interest and that voices of activists like Mr. Smuts must be heard and engaged. Nonetheless, it found that there were no compelling public interest in the disclosure of Mr. Botha’s personal information. In my view, the high court erred in three respects

Firstly, it disregarded the content of Mr Smuts’ post and focused on the response by members of the public. This approach, has far-reaching implications on activists like Mr Smuts because it stifles the debate and censors the activists’ rights to disseminate information to the public. In so doing, it denies citizens the right to receive information and a platform for the exchange of ideas, which is crucial to the development of a democratic culture.

Secondly, it interferes with the right of freedom of expression and activism and fails to strike a proper balance between personal information and the right to privacy.

Thirdly, it failed to recognise 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 found that the effect of limitation which the high court imposed on Smuts was substantial, affecting as it does, the right of activists such as Smuts, and that of the public to receive such information, views and opinions. It could not be denied that the public had a right to be informed about the animal practices at Mr. Botha’s farm.

In concluding, the Court determined that it should not act as a censor to determine how best persons might speak. Mr. Smuts enjoyed the right to air his views as to animal cruelty and attribute to Mr. Botha the practice of trapping. All of the information disseminated was true and never denied nor hidden by Botha. As such, the test was not whether Smuts could have posted more cautiously but rather whether Botha had any claim in privacy in respect of the information posted. Botha’s claim, as surmised by the Court of Appeal, was weak. The appeal was therefore allowed.

Importantly, in considering the public interest in speaking out about animal cruelty and practices, the Court of Appeal referred to the case of National Council of Societies for the Prevention of Cruelty to Animal v Opensha [2008] ZASCA 78, [2008] 4 All SA 225 (SCA) where Cameron JA held: -

"…animals are sentient beings that are capable of suffering and experiencing pain…humans are capable of inflicting suffering on animals and causing them pain.”

Read the Judgement HERE