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[2020] ZAECPEHC 19
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Botha v Smuts and Another (2832/2019) [2020] ZAECPEHC 19 (4 June 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, PORT ELIZABETH)
CASE
NO
: 2832/2019
Date
heard: 30/04/2020
Date
delivered: 04/06/2020
In
the matter between:
HERMAN
BOTHA Applicant
and
BOOL
SMUTS First
Respondent
LANDMARK LEOPARD AND
PREDATOR PROJECT- Second
Respondent
SOUTH AFRICA
JUDGMENT
ROBERSON
J:
[1]
The applicant carries on business as an insurance broker in Port
Elizabeth. He also owns a farm, Varsfontein,
in the Alicedale,
Eastern Cape, district, on which he conducts the business of cattle
farming. The first respondent is the
founder and executive
director of the Landmark Foundation, which operates the second
respondent. The first respondent is,
inter alia, a wildlife
conservationist and activist who has for 17 years been a leader in
efforts to promote the conservation of
indigenous wildlife in South
Africa, particularly in the Eastern, Western, and Northern Cape
provinces.
[2]
On the morning of 23 September 2019, Mr Nicholas Louw was one of a
group of cyclists participating in an adventure
ride organised by
Quantum Adventures. Their route traversed Varsfontein.
According to Louw the organiser of the ride
is obliged to obtain
permission from the relevant landowners over whose land the
participants ride. During the ride over
Varsfontein, Louw came
across two cages on the farm, one containing a dead baboon and the
other containing a dead porcupine.
The cages were positioned
where there was no shade and there was no water in the cages.
Oranges lay on the ground near to
the baboon. Not seeing any
blood from a gunshot wound, or any obvious indication of the cause of
the death of the animals,
Louw gained the impression that they had
suffered a drawn-out death, probably from dehydration, while trapped
in the cage.
Louw was outraged and viewed what he had seen as
barbaric and unethical. He took photographs of the cages
containing the
dead animals and sent them to the first respondent.
[3]
What happened next is the subject of this litigation. On 9
October 2019 the first respondent posted
the photographs on the
second respondent’s Facebook page, together with a photograph
of the applicant and his baby daughter,
which was the applicant’s
Whatsapp profile picture. The first respondent further posted a
Google search location of
the applicant’s business and home
address and his telephone number. A Whatsapp conversation
between the applicant and
the first respondent was also posted, in
which the applicant was asked if he had permits to trap animals, to
which he answered
in the affirmative. The written content of
the post was as follows:
“
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 WhatApp
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]
The posts sparked many comments on the Facebook page, some of which
were annexed to the applicant’s
founding affidavit. They
were mostly critical of the applicant and the particular practice of
trapping. Some of the
comments entailed offensive language,
such as “What an absolute asshole. He should be in that
cage.” and “What
a joke!! Dumb f**k! ”
One person said that produce from farmers like Botha should be
boycotted, another
person suggested a social media campaign to shame
the applicant until he lost all his insurance clients, and another
said “Someone
drop him a visit”.
[5]
There were some comments in defence of the applicant. One
person referred to the problem that baboons
and porcupines cause to
farmers and asked how farmers should get rid of the problem.
Another warned the first respondent
that a civil case awaited him,
saying it was illegal to post private information about a person with
the intention of damaging
his reputation.
[6]
The applicant approached this court on an urgent basis and Mullins AJ
granted a rule nisi in terms of which
the respondents were to show
cause why an order should not be granted to the effect that they were
to remove the Facebook post
and were prohibited from submitting any
further posts which made reference to the applicant, his family, his
addresses and his
business. The post was removed. The
photograph of the applicant and his daughter was removed before the
application
was launched.
[7]
The matter came before me on the extended return day.
In view of the Covid-19 crisis it was agreed that
oral submissions
would be dispensed with.
[8]
In his founding affidavit the applicant stated that prior to the
launching of the application the respondents
were invited by his
attorney to remove the post and that on the same day he attempted
unsuccessfully to contact the first respondent
to provide him with
his hunting permit and in the light thereof to remove the post.
The applicant annexed a copy of his hunting
permit and stated that he
is entitled to capture in cages, inter alia, an unrestricted number
of Chacma baboons and porcupine.
He denied that the oranges
seen near the baboon were poisoned. The applicant stated that
the respondents had no regard for
the reputational damage the post
might have caused, and further stated that the respondents had
created a security risk by posting
the photographs, the name and
location of his farm, and the Google search result depicting his home
and business address.
He said that at the time of deposing to
the founding affidavit, the post had been shared 108 times and that
there had been 212
comments on the post. He pointed out that
each shared post could itself be shared, and that each comment could
have a number
of replies.
[9]
The applicant maintained that the respondents’ comments on the
post were defamatory and intended to
undermine his reputation, status
and good name, to cause harm to his business and to endanger him and
his family.
[10] The
applicant included in his founding affidavit an extract from an open
letter written by the first respondent
in 2005 and published in an
article, seemingly in the Mail and Guardian newspaper. The
extract quoted the first respondent
as saying:
“
Baboons
have raided my house on three occasions in the last month, with one
incident involving more than 10 juveniles ransacking
my house –
despite all doors being closed and every window having burglar bars –
destroying my property and defecating
and urinating on beds, the
kitchen and anything in sight. They also destroyed anything edible in
the house.”
The author of the article
wrote:
“
Bool
believes shooting ‘one, or a few of the problematic baboons is
definitely a management tool that must be considered,
in conjunction
with other measures’.”
[11]
In his answering affidavit, the first respondent explained how he
came to know the identity of the applicant
and his personal
particulars. Louw had sent him a map of Varsfontein and he set
out to determine the identity of the owner
of Varsfontein. One
Professor Alkers, who resides in Alicedale, informed the first
respondent that the applicant was the
owner of Varsfontein and was a
businessman in Port Elizabeth, and further provided the first
respondent with the applicant’s
telephone number (presumably
his cellphone number because the first respondent contacted the
applicant using Whatsapp). A
Google search of the applicant’s
name revealed the applicant’s business and contact details.
The first respondent
maintained that the information revealed by the
Google search had been placed in the public domain by the applicant
himself.
He assumed that the address revealed by the Google
search was the applicant’s insurance business address and not
his home
address.
[12] On 3
September 2019 the first respondent contacted the applicant via
Whatsapp. Again the first respondent
said that the applicant’s
Whatsapp profile picture had been placed in the public domain by the
applicant himself for use
on social media, and was available to
anyone who had the applicant’s cellphone number. The
first respondent sent the
photographs taken by Louw via Whatsapp to
the applicant and in the Whatsapp conversation asked the applicant if
he wished to comment
on the photographs and whether he had permits.
The applicant declined to comment on the photographs and answered yes
in respect
of the permits. During an ensuing telephone call the
applicant verbally abused the first respondent for enquiring about
the
matter and the first respondent explained that he advocates
against such practices. The applicant terminated the call.
The first respondent requested copies of the permit via Whatsapp and
SMS during the next few days but the applicant did not respond.
The Facebook post followed. The first respondent informed his
attorney of the post. His attorney advised him to remove
the
applicant’s Whatsapp profile picture because it included the
image of a child and he immediately removed the profile
picture.
This was a few hours after the post. He apologised for posting
the profile picture and said he regrets having
done so.
[13]
The first respondent holds degrees in biological anthropology,
medicine and environmental management. He
is a wildlife
researcher and a Research Fellow of the University of the Western
Cape. His principal research
focus is the efficacy of
human-wildlife conflict mitigation efforts and the management of
leopards. He considers himself
to be an expert in both
fields and believes that he is regarded as such.
[14]
The first respondent stated that the comments he made on the Facebook
page are his genuinely-held view, based on
his qualifications and
experience in the field of wildlife conservation. Part of his
purpose of the post was to stimulate
robust debate on a thorny and
controversial topic. He said that his comments were not aimed
at the legality of the trapping
practices in question, given that he
had included in his post the applicant’s affirmation that he
had a permit. He
referred to certain provisions of the Nature
Conservation Ordinance 19 of 1974, inter alia s 29 (e), which
prohibits hunting after
sunset without a permit to do so. He
invited the applicant in reply to clarify whether or not he limits
his hunting activities
to the day- time. He further referred to
s 2 (1) of the Animals Protection Act 71 of 1962, which sets out
various offences
pertaining to ill-treatment of and cruelty to
animals. He said that while he did not in his post comment on
the legality
of the applicant’s practices, he did not accept
that they were in all respects lawful and in particular that they
were in
compliance with the Animals Protection Act.
[15]
He went on to say that apart from the question of lawfulness, he
stood by his comments that the applicant’s
trapping practices
depicted in the photographs were unethical, cruel and barbaric, and
referred to the “potential for disjuncture
between law and
ethics – the former not infrequently trailing behind the
latter”.
[16]
The first respondent annexed affidavits from five persons who he said
are recognised experts in the field of wildlife
conservation.
He summarised the contents which I have in turn abbreviated. A
baboon’s response to being trapped
is similar to that of a
human, and similarly the response of the baboon’s family is
similar to that of a human family.
Baboons suffer trauma when
separated from the family and often injure themselves seriously when
trying to escape from a trap.
There is also social disruption
when an individual is removed from a troop. For example the
removal of a dominant male can
result in increased aberrant
behaviour. Further, indiscriminate trapping does not
target the individual animal thought
to be responsible for damage
caused. It is therefore arbitrary and largely ineffective.
There are non-lethal and ethical
ways to deal with baboons.
Baboons play an important role in biodiversity and the
ecosystem. For example hoofed animals
forage on vegetation
dropped by baboons from trees, baboons kill ticks which cause tick
borne disease in cattle, and they spread
broader and more varied
species of seeds than other animals.
[17]
With regard to the photographs taken by Louw, the first respondent
said that the animals had apparently been left
without water or shade
and there was no indication that their death had been brought about
painlessly, as opposed to death from
shock, exhaustion, dehydration,
hyperthermia or injuries sustained in attempting to escape from the
trap.
[18]
The first respondent maintained that his post amounted to the
exercise of his right to freedom of expression as
well as fair
comment on facts which were true and related to matters of public
interest. Any prejudice caused to the applicant
by the post, so
he stated, was owing to the nature of the applicant’s trapping
practices which he cannot legally shield from
the public eye.
If the applicant’s reputation or business interests were
affected, again this was owing to the nature
of his trapping
practices for which he is to blame. The first respondent took
no responsibility for the comments made by
others on the post.
He said that Facebook employs several thousand censors who monitor,
and where necessary remove or sanitise,
harmful content.
[19]
With regard to the newspaper article in which he was quoted, the
first respondent said that the quotes were misleading
and selective.
He had written the open letter after he had encountered ongoing
problems with baboons in a built-up residential
area in the town of
Nature’s Valley. He attached the full letter. It
seems to have been in response to a petition
circulated by someone
concerned about the protection of baboons. In the letter the
first respondent said, inter alia, that
the baboon problem had become
a threat to human life, domestic animals, and property. He
suggested that the problem be dealt
with realistically and with a
practical approach to environmental management. He listed
certain management strategies to
be implemented as a solution to the
baboon problem in Nature’s Valley. These included
shooting one or several of the
offending troop, baboon chasers,
non-lethal cage traps to move baboons away from problem sites, and
electric fencing. He
pointed out further that it is not illegal
to shoot baboons. He stated that he did not support the
extermination of animals
especially animals which are wild and part
of natural ecosystems. He did not believe that the baboons in
Nature’s Valley
were totally in their natural environment.
[20]
In his replying affidavit the applicant denied that his trapping
practices, which he said were followed by most
if not all cattle and
game farmers, are cruel and damaging to biodiversity. He
annexed an affidavit from a Mr Lance Henegan
in which Henegan
recounted how the animals photographed in the cages had died.
He was on Varsfontein on the day the photographs
were taken,
intending to hunt warthog. He drove past the cages and did not
see any animals in them. Later that day,
on his return from
hunting, he drove past the cages and saw the baboon and the porcupine
in the cages. He estimated the time
as between 9 and 11 am.
He shot both animals and sent a radio message to the farm employees
to collect the dead animals.
He is an experienced hunter and
said that they did not suffer a drawn out death and did not die from
dehydration. They had
been in the cages for a few hours.
He has hunted on Varsfontein on many occasions in the applicant’s
absence.
The applicant has always requested that he check that
the cages are empty after the day’s hunt. The applicant
confirmed
that traps are only set when either he or hunters are on
Varsfontein and he gives instructions that the cages are checked
daily
and it is ensured that they are empty. The applicant also
said that his certificate of adequate enclosure, which he annexed,
entitled him to hunt at night but that baboons are terrestrial and
diurnal, spending most of their daylight hours foraging on the
ground
and in trees and sleeping at night.
[21]
The applicant did not take issue with the first respondent expressing
his views on his trapping practices and accepted
that the topic was
of public interest, but he objected to the posting of his personal
information on social media, including the
Whatsapp profile picture,
his name, his business and home address and the name of his farm,
without his permission. He said
that if the first respondent
wished to take issue with his practices the appropriate action would
have been to report him to the
provincial Department of Environmental
Affairs and Nature Conservation. If the first respondent
intended to highlight what
he considered to be unethical, cruel and
barbaric behaviour which is ruinous to biodiversity, he could and
should have done so
without reference to the applicant’s
personal information. If the first respondent had wanted to
open up a debate on
this trapping practice, he could have done so
without mentioning the applicant’s personal information, and no
one would have
linked the practice to the applicant and his family.
Members of the public would still have been able to debate the
topic.
If it had not been for the first respondent posting the
applicant’s personal information, no member of the public would
have
obtained such information, and the applicant would not have been
subjected to social media “warfare”, which included
threatening comments against him and his business.
[22]
With regard to the respondents’ contentions that his personal
particulars were in the public domain, the
applicant pointed out that
the only way in which the first respondent could have obtained this
information was when Louw gave him
the name of the farm, and
Professor Alkers, a farmer in the area, provided him with the
applicant’s name as owner of the
farm and his telephone
number. Had the applicant’s personal information been in
the public domain, the first respondent
would not have needed to ask
a private person (Alkers) for the information. While the
subject matter of the post is of public
interest, the applicant’s
personal information was not in the public interest nor was it fair
comment. He said that his cellphone
is for his personal and business
use. The first respondent did not fall into either of these
categories and did not have
the authority to demand information from
him about his trapping practices. Nonetheless he did advise the
first respondent
that he had a permit. He denied verbally
abusing the first respondent during the Whatsapp call.
[23]
The applicant accepted that the first respondent’s post, aside
from the applicant’s personal information,
fell within his
right of freedom of expression. He further did not take issue
with the publication of photographs depicting
the traps taken on his
farm. However he said that such right could not outweigh the
applicant’s and his family’s
right to privacy and not to
suffer potential physical or economic harm. He expressed the
view that the first respondent’s
intention was to defame him
and “out” him for participating in a common and legal
practice.
DISCUSSION
[24]
The treatment of animals by humans is very much a topic of public
interest. Views are diverse, some extreme
and some balanced and
objective. Practices which are legal are often deplored.
For example shooting a wild animal merely
for a trophy evokes outrage
in some quarters, and those who are outraged are in turn criticised
for their views. Some people
choose not to eat animal products
for ethical reasons and are considered by some to be irrational in so
choosing. Some people
are horrified at the unprohibited
conditions in which, for example, cattle and chickens are kept prior
to slaughter for human consumption,
their natural habits
obliterated. Others are not bothered at all. There is
also hypocrisy and ignorance. A person
who might label the
shooting of a baboon as cruel and unethical, without attempting to
learn the proffered rationale behind the
shooting, will happily eat
beef purchased in the supermarket. It is an ongoing debate
which in my view must be kept alive
so that animal suffering is
minimised as much as possible.
[25] In my
view this case resorts in the tension between the right to privacy
and the right to freedom of expression,
both constitutionally
protected. I do not intend to consider the question of damage
to reputation, or the risk of personal
and economic harm.
[26] Section 14 of
the Constitution provides:
“
Privacy
Everyone has the right to
privacy, which includes the right not to have
(a) their person or home
searched;
(b) their property
searched;
(c) their possessions
seized; or
(d)
the privacy of their communications infringed.”
Section 16 of the
Constitution provides:
“
Freedom
of expression
(1) Everyone has the
right to freedom of expression, which includes
(a) freedom of the press
and other media;
(b) freedom to receive or
impart information or ideas;
(c) freedom of artistic
creativity; and
(d)
academic freedom and freedom of scientific research.
(2) The right in
subsection (1) does not extend to
(a) propaganda for war;
(b) incitement of
imminent violence; or
(c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm.”
[27] In
NM
and Others v Smith and Others
(2007) (5) SA 250 (CC) O’Regan
J said the following at paragraph [145] (footnote omitted):
“
Freedom
of expression is important because it is an indispensable element of
a democratic society. But it is indispensable not only
because it
makes democracy possible, but also because of its importance to the
development of individuals, for it enables them
to form and share
opinions and thus enhances human dignity and autonomy. Recognising
the role of freedom of expression in asserting
the moral autonomy of
individuals demonstrates the close links between freedom of
expression and other constitutional rights such
as human dignity,
privacy and freedom. Underlying all these constitutional rights
is the constitutional celebration of the
possibility of morally
autonomous human beings independently able to form opinions and act
on them. As Scanlon described in his
seminal essay on freedom of
expression, an autonomous person
'.
. . cannot accept without independent consideration the judgment of
others as to what he should believe or what he should do.
He may rely
on the judgment of others, but when he does so he must be prepared to
advance independent reasons for thinking their
judgment likely to be
correct, and to weigh the evidential value of their opinion against
contrary evidence.'”
[28] In
National Media Ltd and Another v Jooste
[1996] ZASCA 24
;
1996 (3) SA 262
Harms
JA said the following at 271G-272B:
“
A
right to privacy encompasses the competence to determine the destiny
of private facts (see Neethling's comment on the judgment
of the
court
a
quo
:
1994
THRHR
703
at
706). The individual concerned is entitled to dictate the ambit of
disclosure e g to a circle of friends, a professional adviser
or the
public (cf
Jansen
van Vuuren and Another NNO v Kruger
[1993]
ZASCA 145
;
1993
(4) SA 842
(A);
Neethling
Persoonlikheidsreg
(3rd ed) p 238-9). He may prescribe the purpose and method of the
disclosure (cf the facts in
O'Keeffe
v Argus Printing and Publishing Co Ltd and Another
1954
(3) SA 244
(C)
- whether that case was truly concerned with privacy does not require
consideration). Similarly, I am of the view that a person
is entitled
to decide when and under what conditions private facts may be made
public. A contrary view will place undue constraints
upon the
individual's so-called "absolute rights of personality"
(
Minister
of Justice v Hofmeyr
[1993]
ZASCA 40
[1993] ZASCA 40
; ;
1993
(3) SA 131
(A)
1451). It will also mean that rights of personality are of a lower
order than real or personal rights. These can be limited
conditionally or unconditionally and irrespective of motive.”
[29] In
NM
and Others
(supra) Madala J considered the right to privacy at
paragraph [34] (footnotes omitted):
“
Private
facts have been defined as those matters the disclosure of which will
cause mental distress and injury to anyone possessed
of ordinary
feelings and intelligence in the same circumstances and in respect of
which there is a will to keep them private.”
And at paragraph [45]:
“
This
protection of privacy in my view raises in every individual an
expectation that he or she will not be interfered with. Indeed
there
must be a pressing social need for that expectation to be violated
and the person’s rights to privacy interfered with.
There was
no such compelling public interest in this case.”
[30] In
Prinsloo v RCP Media Ltd t/a Rapport
2003 (4) SA 456
(T), van
der Westhuizen J dealt with the balancing of the right to freedom of
expression and the right to dignity and privacy.
At 466 I-J he
said:
“
The
issue at the core of this dispute seems to be the complex and
delicate process of balancing the right of an individual to human
dignity and to privacy against the right to freedom of expression,
including freedom of the media, and related values such as openness
and public interest.”
Further at 469D-H he
said:
“
The
reasons for the importance of free expression are often explained as
the need in a democracy of a free-flow of information and
ideas, the
role of free expression in the so-called search for the truth, and
the ordinary human need to express oneself and to
communicate with
others. However, it is also recognised,
inter
alia
by
the Constitutional Court in
Khumalo
and Others v Holomisa
2002
(5) SA 401 (CC)
at
417D, 418D - 419B and 419, that dignity and privacy as constitutional
rights and values, and freedom of expression as a right
and value,
often compete and thus have to be balanced against one another. Our
constitutional jurisprudence does not recognise
a hierarchy of
rights, but all rights may be limited and have to be balanced when
competing. Obviously, the outcome of such a process
of balancing will
depend not only on the nature and contents of the rights, but also on
the context of the circumstances of each
particular case.
The
kind of freedom of expression related to issues which are
politically, socially, economically and scientifically important,
to
mention but a few areas, in other words the kind of expression which
is related to the abovementioned ideal of democracy and
the quest for
the truth, could perhaps often outweigh concerns such as privacy,
ownership and even the dignity of an individual.
Examples would
include the exposure by the media of serious crime, corruption or
dishonesty amongst political or other community
leaders, the
judiciary, senior government officials, or police officers, in other
words of conduct which can be crucially and seriously
harmful to
society and its members, and the publication of scientific findings.”
[31]
The debate concerning the rights of animals and the treatment of
animals by humans, being in the public interest,
is in my view one
that should be aired in the exercise of the right to freedom of
expression. Progressive legislation for
the protection of
animals will have been informed by the expression of peoples’
opinions and the efforts of campaigners for
animal rights.
Voices such as those of the first respondent and of the experts with
whose views he associates himself need
to be heard and engaged with.
As indicated above, there are divergent views on the topic, often
strongly expressed, and criticism
and intolerance of others’
views are equally strongly expressed. This constitutes “freedom
to impart and receive
information and ideas”. The
applicant has no quarrel with this concept.
[32]
It was submitted on behalf of the respondents that the information
published in the post was already in the public
domain and does not
fall within the sphere of the applicant’s right to privacy.
His ownership of Varsfontein was to
be found in the Deeds Registry
and he himself had placed his personal information on the internet,
and his photograph on his Whatsapp
profile.
[33]
The first respondent did not learn the name of the owner of
Varsfontein from the Deeds Registry. He requested
the
information from Alkers who also gave him the applicant’s
cellphone number, which the applicant stated is for personal
and
business use. Through this number the first respondent
discovered the applicant’s Whatsapp profile picture.
[34]
Further, I am of the view that the information revealed by the Google
search was not placed by the applicant on
the internet for
publication on as broad a public platform as Facebook, coupled with
information about his farming practices.
It is well known that
a Facebook post will attract numerous unbridled comments, as this
case illustrates. The publication
of the applicant’s
personal information on the internet was in my view to identify him
as being in the insurance broking
business and to attract clients.
Similarly, and perhaps even more so, his Whatsapp profile picture
revealed through his cellphone
number, which was for personal and
business use, was not for publication on such a broad platform.
In
Mistry v Interim Medical and Dental
Council of South Africa and Others
1998
(4) SA 1127
(CC), Sachs J, in deciding that the imparting of certain
information had not breached the applicant’s right to privacy,
took
into account that “
[the information] did not
involve data provided by applicant himself for one purpose and used
for another” and that “it
was not disseminated to the
press or the general public or persons from whom the applicant could
reasonably expect such private
information would be withheld”
(at paragraph [51]). In my view it was reasonable for the
applicant to expect that his
personal information on the internet and
his Whatsapp profile picture would not be published on a platform
such as Facebook, together
with an article bound to instigate
comments.
[35]
In
NM and Others
the applicants had instituted an action in
the High Court for damages arising from the publication of their
names and HIV status
in a book. One of the defences raised was
that the applicants’ HIV status was already in the public
domain. Prior
to the publishing of the book the applicants’
names had been mentioned in an application for an interdict to
prevent the
inclusion of their names in the book, and at various
commissions of enquiry. In this regard, and relevant to the
present
case, Madala J said at paragraph [39]:
“
In
my view, when they made their application for the interdict in their
names, they were not thereby saying their names should be
published
in a book having a wide circulation throughout South Africa, which
would be the position since the second applicant is
a national
figure. Similarly by attending the various inquiries they were not
giving blanket consent to the publication of their
status.”
[36]
What was said by Harms JA in
National Media
(supra) is also
relevant to this aspect, when he spoke of “the competence to
determine the destiny of private facts”.
[37]
Further, Madala J’s reference, in
NM and Another
, to the
right not to be interfered with is relevant to this aspect. The
publication of the applicant’s personal information
on Facebook
resulted in interference by way of offensive and threatening
comments, where there was no compelling public interest.
The
public interest lay in the topic, not in the applicant’s
personal information. The applicant was singled out and
his
photograph published on a broad platform for a practice for which he
has a permit and which he says is common to many farmers
(my personal
views on the practice are irrelevant). This is part of the
context of the publication and is a factor to be
taken into account
in balancing the competing rights (see
Prinsloo
supra).
[38]
It was submitted that the applicant’s use of animal traps on
his farm is not covered by the right to privacy
and that his practice
is seen by hunters and cyclists on his farm. This may be so but
in my view it does not justify the
publishing of his personal
information and photograph on Facebook for the purpose of
highlighting and debating the practice of
animal trapping.
[39]
It was further submitted that the applicant had publicly and openly
on oath set out all this information in his
affidavits in this
matter. I cannot agree with this submission. It is a kind
of ex post facto justification.
The applicant exercised his
right to approach a court because of the Facebook post which
published his personal information.
His trapping practice was
the topic in the post and he was obliged to deal with it,
particularly because the first respondent suggested
that the animals
had died a cruel death and expressed some reservations about the
legality of the applicant’s practice.
[40]
I am therefore of the view that the applicant’s right to
privacy was infringed and that the balancing exercise
must result in
his favour. He therefore demonstrated a clear right to an interdict.
[41]
The contents of the applicant’s affidavits were also relied
upon in submitting that there was no reasonable
apprehension of harm,
because what he sought to keep hidden had now been publicly disclosed
by him in his affidavits. Again,
the applicant was entitled to
approach a court to seek relief and in order to do so, had to provide
this information in his affidavits.
It was also submitted that
the applicant has no genuine apprehension that the respondents might
re-post the photograph of his daughter
and that there is no need for
an interdict to prevent such re-posting. An interdict is aimed
at preventing an ongoing or
future infringement of a right.
Even if the photograph is not re-posted (it seems that if it had not
included the applicant’s
daughter the respondents would not
have deleted the photograph prior to the launching of the
application), the applicant’s
personal information which in the
context of all the circumstances he reasonably expected not to be
published on Facebook, would
remain published and there would be an
ongoing breach of his right to privacy.
[42]
I therefore intend to confirm the rule with some amendments.
The photographs of the animals and the comments of
the first
respondent on the trapping practice should remain on the post but the
applicant’s personal information should be
removed.
[43]
This means that the ambit of the relief claimed by the applicant is
somewhat reduced. I am of the view that
he is nonetheless the
substantially successful party. His complaint was always the
wide public exposure to which he was subjected.
[44]
There may be practical difficulties in the implementation of my order
because the post has already been removed.
However it is
necessary for me to amend the order to allow a portion of the post to
remain.
[45]
The following order will issue:
[45.1] The rule
nisi granted on 11 October 2019 is confirmed, as amended, as follows:
[45.1.1] The
respondents are to remove from the second respondent’s Facebook
post made on its Facebook page on 9 October
2019 the photograph of
the applicant on annexure D to the founding affidavit, and the
content contained in annexures E, F, and
G to the founding affidavit,
and any reference to the name of the applicant, his insurance
business and its location, and the name
of his farm, contained in
annexure H to the founding affidavit.
[45.1.2] The
respondents are prohibited from submitting any further posts on the
second respondent’s Facebook page which
make reference to the
applicant, his family, his addresses and his business.
[45.2] The respondents
are to pay the applicant’s costs, jointly and severally, the
one paying the other to be absolved.
_______________
J M ROBERSON
JUDGE
OF THE HIGH COURT
Applicant’s heads
of argument prepared by Adv D Bands, instructed by Lawrence Masiza
Vorster Inc, Port Elizabeth.
Respondents’ heads
of argument prepared by Adv M Blumberg SC, instructed by BDLS
Attorneys, Port Elizabeth.
Judgment delivered
electronically by email to the parties’ attorneys, by
arrangement.