Botha v Smuts and Another (CCT 40/22) [2024] ZACC 22 (9 October 2024)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 40/22

In the matter between:


HERMAN BOTHA Applicant

and

BOOL SMUTS First Respondent

LANDMARK LEOPARD AND PREDATOR
PROJECT – SOUTH AFRICA Second Respondent

and

CAMPAIGN FOR FREE
EXPRESSION NPC Amicus Curiae



Neutral citation: Botha v Smuts and Another [2024] ZACC 22

Coram: Zondo CJ, Chaskalson AJ, Dodson AJ, Kollapen J, Mhlantla J,
Rogers J, Schippers AJ and Tshiqi J


Judgments: Kollapen J: [1] to [179]
Chaskalson AJ: [180] to [242]
Rogers J: [243] to [257]
Zondo CJ: [258] to [335]

Heard on: 9 November 2023

Decided on: 9 October 2024

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Summary: Section 14 of the Constitution of the Republic of South Africa —
right to privacy — information in public domain — voluntary
public disclosure of information — purpose of disclosure — scope
of privacy protection for information in public domain —
section 16 of the Constitution of the Republic of South Africa —
right to freedom o f expression in the public interest




ORDER



On application for leave to appeal from the Supreme Court of Appeal (hearing from the
High Court of South Africa, Eastern Cape Local Division, Port Elizabeth):
1. Leave to appeal is granted.
2. The appeal is upheld in part and to the extent set out in paragraph 3 below.
3. The order of the Supreme Court of Appeal is set aside and replaced with
the following order:
“1. The appeal is upheld.
2. The order of the High Court of South Africa, Eastern Cape Local
Division, Port Elizabeth is set aside and replaced with the
following:
‘(a) The rule nisi granted on 11 October 2019 is discharged
subject to paragraphs (b) to (d) below.
(b) The respondents must delete annexure F to the founding
affidavit dated 9 October 2019 in its entirety from the
second respondent’s Facebook page .
(c) The respondents are interdicted from publishing any further
posts which make reference to the applicant’s address.
(d) The respondents are directed to ensure that any posts by
third parties on the second respondent’s Facebook page
THE COURT
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which make reference to the applicant’s address are
promptly deleted so as to remove the address after such
posts have come to the attention of the respondents. ’
3. The parties shall bear their own costs in the High Court and in this
Court.”
4. The parties shall bear their own costs in this Court.



JUDGMENT




THE COURT:


This matter has produced four judgments. The majority of the court (Chaskalson AJ,
Dodson AJ, Kollapen J, Mhlantla J, Rogers J, Schippers AJ and Tshiqi J) has concluded
that leave to appeal should be granted. The same majority of the Court has concluded
that Mr Botha had no reas onable expectation of privacy in respect to his ownership and
control of his farm (including the trapping activities) and no reasonable expectation of
privacy in respect of his insurance brokerage address. Regarding Mr Botha’s home
address, a different ma jority of the Court (Chaskalson AJ, Dodson AJ, Kollapen J,
Mhlantla J and Tshiqi J) has concluded that Mr Botha had a reasonable expectation of
privacy over his home address. Regarding Mr Botha’s insurance brokerage address, a
different majority of the Co urt ( Dodson AJ, Kollapen J, Mhlantla J, Rogers J,
Schippers AJ and Tshiqi J) has concluded that Mr Botha did not hold a reasonable
expectation of privacy in respect of the insurance brokerage address because he
published the information himself with the purpose of bringing public attention towards
his insurance brokerage. There is a majority in the reasons for the conclusion relating
to the insurance brokerage address. There is no majority in the reasons for the
conclusion relating to Mr Botha’s ownership and control of his farm (including the
THE COURT / KOLLAPEN J
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trapping activities). There is also no majority in the reasons for the conclusion in respect
of Mr Botha’s home address.

The effect of the four judgments is that seven members of the Court grant leave to
appeal. Seven me mbers of the Court find that Mr Botha’s information regarding his
ownership and control of his farm (including the trapping activities) and his insurance
brokerage address are not private and therefore the appeal is dismissed in this respect.
Five members of the Court find that Mr Botha’s information regarding his home address
is private and therefore the appeal is upheld only in this respect.



KOLLAPEN J (Dodson AJ, Mhlantla J and Tshiqi J concurring):


Introduction
[1] This is an application for leave to appeal against a judgment and order of the
Supreme Court of Appeal. The Supreme Court of Appeal judgment reversed the
High Court judgment which had ordered the first respondent, Mr Boudewyn Homburg
de Vries “Bool” Smuts, to remove all references to the applicant, Mr Herman Botha,
his businesses and his family, from a post on the Facebook page of the second
respondent, the Landmark Leopard and Predator Project. The High Court had also
interdicted Mr Smuts from making any further posts on Facebook with such references.

[2] This case centres on the intersection between the right to privacy , including
where information is already in the public domain, and the right to freedom of
expression. These issues play out within the larger context of social media’s
ascendancy and the digitalisation of information.

KOLLAPEN J
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The parties
[3] The applicant, Mr Botha, is an insurance broker who resides and conducts
business in Gqeberha. He is also the owner of the farm Varsfontein situated in Alicedale
in the Eastern Cape Province.

[4] The first respondent, Mr Smuts, is a wildlife conservationist, farmer, researcher
and activist. The second respondent, the Landmark Leopard and Predator Project –
South Africa, is a conservation non -governmental organisation focusing on
human-wildlife conflict management and leopard and carnivore conservation. It was
founded by Mr Smuts who is its executive director.

[5] The Campaign for Free Expression NPC, a non -profit company th at describes
itself as being dedicated to expanding the right to free expression, was admitted as an
amicus curiae (friend of the court) and made written and oral submissions.

Factual background
[6] On 23 September 2019, Mr Nicolaas Louw (Mr Louw) was part of a group of
cyclists who participated in an organised adventure ride that traversed Mr Botha’s farm,
Varsfontein. It is common cause that his presence on the farm as part of the adventure
ride was lawful and authorised. In the ordinary cours e of h is cycle across the farm,
Mr Louw encountered a dead baboon and porcupine in cage traps. The animals
appeared to him to have been exposed to suffering and distress . Outraged by what he
saw, Mr Louw photographed the dead animals in the cages with the intention of sharing
the photographs with an organisation capable of taking action. He shared them with
Mr Smuts on 1 October 2019.

[7] Mr Louw also sent Mr Smuts a detailed map depicting the location of
Mr Botha’s farm on which he indicated the place on t he farm where the photographs
were taken. In a quest to identify the owner of the farm, Mr Smuts contacted
Mr Botha’s neighbour, Professor Alkers, who provided him with Mr Botha’s name and
KOLLAPEN J
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his mobile telephone number and also told him that Mr Botha was an insurance broker.
Mr Smuts then did a Google search for Mr Botha which produced his insurance
brokerage name, location and telephone number.

[8] On 3 October 2019, Mr Smuts sent the photographs to Mr Botha through
WhatsApp. He also called him to explain hi s interest in the matter as a conservationist,
communicated his view that what was depicted in the photographs was cruel and
unethical, and inquired whether Mr Botha had the required trapping permits. Mr Botha
indicated that he had the necessary permits but was not willing to discuss the matter any
further, taking the view that there was no need for him to entertain Mr Smuts’ enquiries
because he was involved in a lawful activity on his property. He also blocked Mr Smuts
from making further contact with him through WhatsApp.

[9] On 9 October 2019, Mr Smuts publish ed a post on the second respondent’s
Facebook page with—
(a) a photograph of a baboon trapped in a cage;
(b) a photograph of a porcupine trapped in a cage;
(c) a photograph of Mr Botha and his minor daughter, si x months old at the
time (this photograph was removed on the same day it was posted
following advice from Mr Smuts’ attorney);
(d) a Google search location of Mr Botha’s insurance brokerage address
(which turned out also to be Mr Botha’s residential address) a nd
telephone number; and
(e) a WhatsApp conversation in which Mr Smuts asked Mr Botha whether he
had valid permits to trap animals.

[10] Accompanying this information was a written post condemning Mr Botha’s
trapping activity. It labelled the traps as “unethical”, “barbaric”, and “environmentally
damaging”. Comments in response to the post were mainly negative and strongly
critical of Mr Botha’s conduct. Some comments, however, highlighted the dangers that
baboons pose to farming operations and pointed out that Mr Botha’s conduct was legal.
KOLLAPEN J
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Litigation history
High Court
[11] Mr Botha initiated urgent legal proceedings against the respondents to remove
the post. The High Court granted urgent relief in the form of a rule nisi with an interim
interdict ordering Mr Smuts to delete the post and refrain from posting further with
reference to Mr Botha, his family, his addresses and his insurance brokerage. 1 Given
the urgent timeline which accompanied the application and his absence from the Eastern
Cape, Mr Smuts was unable to file an opposing affidavit. Accordingly, the matter was
only opposed at that stage on the issue of urgency.

[12] Mr Smuts did, however, oppose confirmation of the interim interdict and filed
an opposing affidavit to which Mr Botha replied. The relief Mr Botha sought was
premised on his assertion that the post was “defamatory and intended to undermine [his]
reputation, status and good name, cause harm to [his] business and endanger [him] and
[his] family”. He also included a prayer seeking to interdict the respondents from
publishing his confidential information , saying that it exposed him and his family to
risk. In answer to this, Mr Smuts relied on his right to freedom of expression to publish
the post and disputed that the post was defamatory, argui ng that it constituted fair
comment based on facts that were true and on matters of public interest. In addition, he
denied that what was published constituted private information , saying that he sourced
most of it from public sources where it had been pl aced by Mr Botha himself.


1 The High Court ordered as follows —
“1. That a rule nisi shall issue returnable on 12 November 2019, calling on the
Respondents to show cause, if any, why the following order should not be granted
against them:
1.1. The Respondents are to forthwit h remove the Facebook post made on the Second
Respondent’s Facebook page on 9 October 2019
. . . .
1.2 The Respondents are hereby prohibited from submitting any further posts which make
reference to the Applicant, his family, his addresses and his business .”
KOLLAPEN J
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[13] Mr Botha in reply invoked by name his right to privacy for the first time. He did
not challenge Mr Smuts’ constitutional right to post the photographs (except for one
depicting his daughter which by then had been removed ) and ex press his view on
trapping. He explicitly accepted that publication of the post may have been in the public
interest. While this was not the main thrust of the case made out in the founding
affidavit, Mr Botha in reply challenged Mr Smuts’ right to use his personal information
to link him to the post on the basis that this would unjustifiably infringe his right to
privacy.

[14] The High Court described the issue to be determined as follows:

“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.”2

[15] The High Court’s judgment then canvassed the ground of privacy a s the basis
for the relief sought. It accepted that animal trapping raised strong and diverse public
views and that despite being legal, such practices were open to criticism. The Court
noted the ongoing debate on animal rights and the importance of breathing life into
public conversation to minimise animal suffering. 3 It also recognised the central role
that voices like those of Mr Smuts might play in advancing the debate.

[16] The High Court, however, concluded that Mr Botha’s privacy rights prevailed
over the respondents’ rights of expression. Despite the fact that Mr Botha published his
personal and insurance brokerage details on the internet, the Court emphasised his
purpose in doing so – namely, to identify himself as an insurance broker and attrac t
clients. That purpose, it said, did not include re -publication on as broad a platform as
Facebook. It also concluded that , as Mr Smuts had obtained information regarding
Mr Botha’s ownership of the farm from Professor Alkers and not the Deeds Registry, it

2 Botha v Smuts 2020 JDR 1231 (ECP) (High Court Judgment) at para 25.
3 Id at para 24.
KOLLAPEN J
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was not information obtained from a public source , suggesting that it was private
information.

[17] The High Court relied in part on this Court’s judgment in Mistry:4

“[I]n deciding that the imparting of certain information had not breached the applicant's
right to privacy, [the Court] 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’.”5

[18] The High Court found that Mr Botha’s right to privacy was infringed as he held
an expectation that his personal information on the internet would not be published on
a platform such as Facebook together with a post bound to instigate comments. It also
concluded that the public interest lay in the topic of animal trapping and stopped short
of Mr Botha’s personal information including his identity and his ownership of the farm
where the photographs were taken.

[19] The High Court confirmed the rule nisi but did not order the removal of the post
in its entirety. It ordered that any reference to Mr Botha, his insurance brokerage and
its location and the name of his farm be excised from the post. The photographs of the
animal traps and the anti-trapping commentary could remain. The Court awarded costs
in Mr Botha’s favour.

[20] Aggrieved by the outcome, the respondents brought a successful application in
the High Court for leave to appeal to the Supreme Court of Appeal.


4 Mistry v Interim National Medical and Dental Council of South Africa [1998] ZACC 10; 1998 (4) SA 1127
(CC); 1998 (7) BCLR 880 (CC) (Mistry).
5 High Court Judgment above n 2 at para 34.
KOLLAPEN J
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Supreme Court of Appeal
[21] The Supreme Court of Appeal reversed the order of the High Court. It focused
on whether Mr Botha’s personal information enjoyed privacy protection and identified
the following issues —
(a) whether it is in the public interest to have the personal information of
Mr Botha published;
(b) whether Mr Smuts could have shared the activities happening on
Mr Botha’s farm without disclosing Mr Botha’s personal informat ion;
and
(c) whether the High Court erred in placing emphasis on Mr Botha’s right to
privacy in his information despite the fact that it was already in the public
domain.

[22] On the first issue, the Supreme Court of Appeal found that section 16 of the
Constitution gives activists the right to share information with the public if such
dissemination is in the public interest by weighing the right to privacy against freedom
of expression. The “issue resolves itself” , according to the Supreme Court of Appeal,
because Bernstein 6 vitiates Mr Botha’s privacy claims. The Supreme Court of Appeal
reasoned that it cannot “be said that Mr Botha ha[d] the subjective expectation of
privacy that society recognises as objectively reasonable”. 7

[23] On the second issue, the Supreme Court of Appeal found that Mr Smuts could
not use less restrictive means to name and shame Mr Botha. It found that he had a right
to share honest information about animal trapping, including the personal information
of those involved. The Court reasoned that the public had a similar right to receive such
information. All of this was part of the development of a democratic culture which was
founded on the dissemination of information in the public interest and the creation of a
platform for the ex change of ideas.

6 Bernstein v Bester N NO [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) (Bernstein ).
7 Smuts v Botha [2022] ZASCA 3; 2022 (2) SA 425 (SCA) ( Supreme Court of Appeal Judgment) at para 19.
KOLLAPEN J
11

[24] On the last issue, the Supreme Court of Appeal considered whether Mr Botha
had a subjective expectation of privacy in respect of the information in question that
society would recognise as objectively reasonable. It considered that Mr Botha’s
information was already in the public domain. Mr Botha’s ownership of the farm was
registered at the Deeds Registry and his insurance brokerage information and address
were publicly available. The Court found that Mr Botha did not hold a subjective
expectation of privacy that was objectively reasonable , largely due to the information
being in the public domain, placed there by Mr Botha.

[25] Finding that the High Court had erred in confirming the rule nisi , the
Supreme Court of Appeal upheld the appeal and discharged the rule nisi.

In this Court
[26] Mr Botha applies for leave to appeal against the judgment and order of the
Supreme Court of Appeal. After the receipt of the opposing affidavit, the Chief Justice
issued directions calling for written submissio ns on the following four questions:
(a) What personal or business information of or related to Mr Botha was
publicised?
(b) For what purposes was Mr Botha’s personal or business information
publicised?
(c) Is the publication of the personal or business information defensible under
the right to freedom of expression and, if so, on what basis?
(d) Are there any legal restrictions to the further publication of personal or
business information available to the public through the internet,
Deeds Registry or any other format?

[27] The parties responded to the directions and filed written submissions. On
2 May 2023, this Court admitted Campaign for Free Expression NPC as amicus curiae
and granted it leave to make written and oral submissions. The parties and the
amicus curiae filed written submissions prior to the hearing of the matter. I briefly
KOLLAPEN J
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summarise the parties’ and the amicus curiae’s submissions below. Much of the
substance of their submissions is also referred to in my analysis.

The applicant’s submissions
[28] On jurisdiction, Mr Botha says that the matter engages this Court’s constitutional
jurisdiction to the extent that it involves the relationship between the right to privacy
and the right to freedom of expression. In particular, he argues that the issue in di spute
relates to the expectation of privacy and whether and under what circumstances it can
be forfeited. Mr Botha also says the matter engages our general jurisdiction in raising
an arguable point of law of general public importance which this Court shou ld consider
because it requires this Court to consider how personal and business information may
still activate a claim for privacy even when it voluntarily enters the public domain.

[29] On the merits, Mr Botha takes issue with the post as a whole, rather tha n its
composite parts, but does so purely on the basis that it contains his personal information
which then links him to what he describes as the practice of trapping on his private farm,
“paired with a narrative slandering [him] as an animal abuser” . Before this Court, and
for the first time, he disputes that the photographs were lawfully obtained and published.
This was not an issue in dispute before the High Court and the Supreme Court
of Appeal. He also accepts that he published information online ab out his insurance
brokerage prior to Mr Smuts’ post. He submits that he could never have reasonably
expected that any person would link him to the lawful trapping on the farm and he had
every right to believe that private facts would remain private, even if cyclists traversed
the farm and saw evidence of such trapping.

[30] Mr Botha stresses, in part, “personal risk” to his family and “potential ruin” for
his insurance brokerage . He rejects the Supreme Court of Appeal ’s approach as
“miss[ing] the point” – the point being that the “linkage [was] designed to hurt [him]”.

KOLLAPEN J
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The respondents’ submissions
[31] Mr Botha’s submissions on jurisdiction are not disputed. On th e merits, the
respondents say that Mr Botha does not meet the dual analysis set out in Bernstein (and
discussed below). They contend that the right to privacy is not truly implicated given
that the information was in the public domain, diminishing any pri vacy interest. They
endorse the Supreme Court of Appeal ’s finding that a commercial farm carries very
little expectation of privacy in relation to the practice of animal trapping . As for
Mr Botha’s home, the respondents highlight that his business and residence shared an
address and Mr Botha published this address on ten online commercial directories. 8

[32] The respondents also explore the importance of freedom of expression. Relying
on Islamic Unity Convention ,9 they point out that all speech not excluded by
section 16(2) is, by default, protected under section 16(1) of the Constitution.

The amicus curiae’s submissions
[33] The amicus curiae’s submissions focus on three key areas: the application of the
Protection of Personal Information Act 10 (POPIA), international and comparative law
considerations, and the merits of the appeal.

[34] Regarding the application of POPIA, the amicus curiae argues that, despite the
legislation coming into effect after this case ’s initiation, it would be desirable for this
Court to gi ve guidance on the meaning of some of POPIA’s provisions for the benefit
of future cases under POPIA.

[35] The second area concerns international and comparative law, relying on
section 39(1)(b) and (c) of the Constitution which enjoins the consideration of

8 Brabys.com, port-elizabeth.infoisinfo.co.za, mype.co.za, zalinkedin.com, buype .co.za, tuugo.co.za, ivote.co.za,
thinklocal.co.za, africanadvice.com and sayellow.com.
9 Islamic Unity Convention v Independent Broadcasting Authority [2002] ZACC 3; 2002 (4) SA 294 (CC); 2 002
(5) BCLR 433 (CC).
10 4 of 2013.
KOLLAPEN J
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international law and permits consideration of foreign law. The amicus curiae
concentrates on the re -publication of private information in the public domain and the
collation of discrete facts from public sources. It also provides an overview of different
jurisdictions’ varied approaches to privacy protections for publicly available personal
information.

[36] On the merits, the amicus curiae outlines factors to consider when distinguishing
private facts from matters of public interest and assessing alleged harm and submits that
the published information was not private, served the public interest and was not
calculated to cause harm.

Analysis
Jurisdiction and leave to appeal
[37] Our constitutional and general jurisdiction is engaged because this matter
directly implicates the right to privacy and the right to freedom of expression . It raises
an arguable point of l aw of general public importance: is a claim to privacy in respect
of personal information extinguished if already in the public domain and placed there
by the data subject ?11

[38] The Court is tasked with considering the public domain as including a wide range
of online platforms, including social media. This matter is of appreciable significance
to the broader public that engages with the access and dissemi nation of information in
any online context. Today, that broader public is growing in its engagement with online
platforms. In an ever -evolving digital age, this Court must address this issue as
technology and its use develop in order to provide relevant direction on the lawful use
of publicly available information and certainty on the expectation of privacy in those

11 A data subject is the person to whom personal information relates, as defined in section 1 of POPIA.
KOLLAPEN J
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circumstances. The issue is arguable in all of the respects alluded to by this Court in
Paulsen ,12 in that—
(a) there is no authoritative pronouncement on the issue, with available ,
cogent, academic or expert views on it being divergent;
(b) it raises new and difficult questions of law; and
(c) the answer to the question in issue is not readily discernible. 13

[39] It is also in the interests of justice t hat leave be granted as there are good
prospects that the Court will reverse or materially alter the findings of the
Supreme Court of Appeal. The issue is also of importance to a large sector of the
general public and it is in the public interest for the Court to determine it. As such, this
Court’s jurisdiction is engaged and leave to appeal should be granted.

Preliminary issues for consideration
[40] There are three preliminary issues that need to be addressed. They are:
(a) Has the matter become moot? While this was not raised in the papers , it
was the subject of some debate during the hearing.
(b) Has a case based on privacy been properly pleaded to warrant its
consideration?
(c) How should the Court consider t he belated challenge to the photographs
depicting the tr apped animals?

Mootness
[41] During the hearing, the practical effect of any relief that the Court might grant
was raised. In Premier, Provinsie Mpum alanga 14 the Supreme Court of Appeal
imposed a positive test for mootness: will a judgment or order have a prac tical effect or

12 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC).
13 Id at para 23.
14 Premier, Provinsi e Mpumalanga v Groblersdalse Stadsraad [1998] ZASCA 20; 1998 (2) SA 1136 (SCA).
KOLLAPEN J
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result?15 This Court has similarly held that “ it may be in the interests of justice to hear
a matter even if it is moot if ‘any order which [it] may make will have some practical
effect either on the parties or on others ’”.16 Certainly, after years on the internet and
three stages of litigation, the link between Mr Botha and animal trapping is readily
available online. The appeal , if successful , would restore the order of the High Court
which would effectively delink Mr Botha from the post. That may not undo what has
occurred. It will , however, have a practical effect. Future visitors to the
Landmark Leopard and Predator Project Facebook page will not be able to view the
excised reference to Mr Botha. As such, any debate sp arked by the photo graphs or in
consideration of the post will exclude him. That in itself constitutes an order capable
of having practical effect even if that effect is diminished by the passage of time.

[42] Most cases of online publication will generally run into a mootness problem. By
the time this Court is in a position to consider actions for defamation and privacy
infringements, the relevant information posted on social media will likely have been
widely disseminated. In a rough analogy, the Supreme Courts of Canada17 and the
United States 18 have heard factually moot cases relati ng to pregnancy. They both
rejected arguments which would have rendered moot any case brought by pregnant
women seeking abortions. In Roe, the Court held: “[i]f that termination makes a case
moot, pregnancy litigation seldom will survive much beyond the trial stage, and
appellate review will be effectively denied. Our law should not be that rigid”. 19

[43] Ours is not. A consideration of the interests of justice, which is already par t of
this Court’s jurisprudence, ensures that there is no rigidity. The ability of appellate

15 Director-General Department of Home Affairs v Mukhamadiva [2013] ZACC 47; 2013 JDR 2860 (CC); 2014
(3) BCLR 306 (CC) at para 35.
16 MEC for Education , KwaZulu-Natal v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC)
at para 32 citing Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23 ; 2001 (3) SA
925 (CC); 2001 (9) BCLR 883 (CC) (Langeberg Municipality ) at para 11.
17 Borowski v Canada (Attorney General ) 1989 CanLII 123 (SCC), [1989] 1 SCR 342 and Tremblay v Da igle
1989 CanLII 33 (SCC), [1989] 2 SCR 530.
18 Roe v Wade 410 US 113 (1973) (Roe).
19 Id at para 125.
KOLLAPEN J
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courts to address the rapid, widespread dissemination of information on social media
may be rendered impotent by a rigid approach to mootness. Even if the practi cal effect
of removal is lessened over the course of litigation, mootness jurisprudence cannot be
so rigid as t o deny relief. Here, Mr Smuts’ post is still publicly accessible and, if this
Court chooses to revive the High Court’s interdict or change it, i t will have effect, even
if limited.

[44] Even if the practical effect of an order may be greatly diminished for the parties,
or is lacking practical effect altogether, there is still a public interest in this Court
grappling with the issues the case raises. Those issues may have continued importance
for the litigants as well as the broader public. T his Court has previously considered
moot matters in the interests of justice. In POPCRU,20 this Court held that “mootness
is not an absolute bar to the justi ciability of an issue [and that] the Court may entertain
an appeal, even if moot, where the interests of justice so require ”.21 According to
AAA Investments (Pty) Ltd,22 when two courts issue conflicting judgments, particularly
when an appeal court’s decisio n holds significant implications for future cases, there is
a preference to consider a matter that is moot. On both points, this matter warrants
consideration. First, the High Court and the Supreme Court of Appeal disagreed.
Second, this matter implicat es more than the rights of the parties . It implicates our
collective relationship with the internet and its power over our online personae. As
such, considerations of mootness should not prevent this Court from dealing with the
matter.

The proper pleadi ng of a case in support of the right to privacy
[45] At the hearing, the respondents raised concerns that Mr Botha never properly
pleaded an infringement of his right to privacy in his founding affidavit in the
High Court and that they thus did not have an opportunity to answer a case based on the

20 POPCRU v SACOSWU [2018] ZACC 24; 2018 (11) BCLR 1411 (CC) ; 2019 (1) SA 73 (CC).
21 Id at para 44.
22 AAA Investments (Pty) Ltd v Micro Finance Regulatory Council [2006] ZACC 9; 2006 (11) BCLR 1255 (CC) ;
2007 (1) SA 343 (CC) at para 27.
KOLLAPEN J
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right to privacy . According to the respondents, such a case was only made out by
Mr Botha in his reply.

[46] I set out how the privacy issue arose on the papers in the High Court. In his
notice of motion, Mr Botha included interdictory relief that would prevent Mr Smuts
from disclosing his “confidential” information. Paragraph 2.1.2 of the notice of motion
reads:

“[T]hat the Respondents be ordered to refrain from making any further social media
posts, or other pub lications of any nature whatsoever, including both verbal and
written, disclosing any information and/or confidential information and/or posts of,
including but not limited to, a defamatory nature regarding the Applicant / his business
/ his farm in any manner whatsoever and treat all communication associated with this
matter as confidential.”

[47] In support thereof Mr Botha said this in his founding affidavit:

“In addition to reputational damage he caused, the Respondent(s) have caused a
security risk by posting photographs of me and my daughter, providing the name and
location of my farm and by attaching a Google Search result depicting my home and
business address.”

[48] The scope of the relief sought in the notice of motion and supported in the
founding affida vit was to urgently interdict the publication of information that was
defamatory as well as information that Mr Botha regarded as confidential.

[49] Mr Smuts, in his answering affidavit, responded to that part of the case relating
to the publication of confide ntial information as follows:

“None of the information that I published concerning the applicant was private, much
less confidential. (I mention this in light of paragraph 2.1.2 of the notice of motion,
which is directed inter alia at the publication of confidential information concerning
the applicant.) On the contrary, with the exception of the photographs taken by
Mr Louw, the published information had been placed in the public domain by the
KOLLAPEN J
19
applicant himself. This includes the applicant’s WhatsApp profile picture which the
applicant had himself selected for use on social media – and which was, as a result,
available to anyone who had the applicant’s cell phone number, or who was otherwise
in contact with the applicant by cell phone.”

[50] The answering affidavit thus addressed the privacy issue that arose out of
Mr Botha’s notice of motion and founding affidavit.

[51] Mr Botha on numerous occasions in reply , and relying substantially on the same
facts advanced in the founding affidavit, formally invoked his right to privacy by name.
He argued that the information , to which reference ha d been made in the notice of
motion and in the founding affidavit, was personal information and its disclosure
infringed his privacy rights. He sa ys:

“[T]he relief sought by me is that the First and Second Respondent should not be
permitted to place any of my personal information on social media (including the
photograph of me and my daughter, my name, my business/home address, business
name and farm name – hereinafter referred to as “my personal information”) without
my permission.” (Emphasis in original.)

[52] He says further:

“I respectfully submit that the First Respondent’s right to freedom of expression cannot
outweigh our right to privacy nor our right to not be placed in potential physical and /
or economic harm.”

[53] While Mr Botha’s case in the High Court was substantially grounded on his
reputational right , it also included, to a lesser extent , the protection of his confidential
information. While it was only in reply that Mr Botha directly clarified his reliance on
his right to privacy, the basis for this was laid in the notice of motion and founding
affidavit.

KOLLAPEN J
20
[54] The purpose of pleadings is to define the issues for the other party and the court.23
The respondents knew from the outset that the case they were required to meet included
a privacy case. Mr Smuts responded appropriately, in his answering affidavit, to the
allegation that he had posted confidential information concerning Mr Botha and his
family. He denied that the information was confidential, arguing t hat what he had
published was already in the public domain , having been placed there voluntarily by
Mr Botha.

[55] At that stage, which was prior to the filing of the replying affidavit, the issue of
privacy had been raised by Mr Botha even though not as elegantly or directly as would
have been desired , perhaps because the application was launched as one of urgency .
Notwithstanding, Mr Smuts knew that the case he was required to meet included a
privacy challenge and he responded to that in his answering affidavit. The privacy case
was squarely and properly before the High Court for determination.

[56] The respondents did not bring an application to strike out the privacy averments
in the replying affidavit, nor any request to file a further affidavit. 24 The only reference
to the pleading issue in the Courts other than this Court is in t he judgment of the
High Court granting leave to appeal to the Supreme Court of Appeal where it was
included as one of the grounds on which leave to appeal was granted. But for this, there
is nothing in the judgments of the High Court and the Supreme Court of Appeal
addressing any complaint about the pleading of the privacy issue . In this Court, the
respondents, in opposing leave to appeal, allude in their answering affidavit only to the
changing nature of Mr Botha’s case . They raised no objection to it, nor did they allege

23 Molusi v Voges N.O. [2016] ZACC 6 ; 2016 (3) SA 370 (CC); 2016 (7) BCLR 839 (CC) at para 28. Almost a
century ago in Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 (Robinson ) at 198, the Court held there
to be no justification for interference by an appellate tribunal, merely because the pleading of the opponent has
not been as explicit as it might have been :
“The object of pleading is to define the issues; and parties will be kept strictly to their
[pleadings] where any departure would cause prejudice or would prevent full enquiry. But
within those limits the Court has a wide discretion. For pleadings are made for the Court, not
the Court for pleadings. ”
24 See, for example, Sigaba v Minister of Defence and Police 1980 (3) SA 535 ( TkS) at 550F; Pretoria Portland
Cement Company Ltd v Competition Commission [2002] ZASCA 63; 2003 (2) SA 385 (SCA) at para 63; and
Tantoush v Refugee Appeal Board 2008 (1) SA 232 (T) at paras 51 and 7 1.
KOLLAPEN J
21
any prejudice or unfairness. In fact, Mr Smuts says in h is answering affidavit in this
Court that the privacy issue was pro perly considered by the Supreme Court of Appeal
and the conclusion reached by that Court was “unassailable”. These sentiments militate
against any suggestion of prejudice or unfairness and in any event none is advanced by
Mr Smuts.

[57] I accordingly conclude that the privacy issue was raised in the notice of motion
and founding affidavit and was responded to in the answering affidavit . It was not
raised for the first time in reply. I proceed nevertheless to deal briefly with the
proposition that what occurred here was that a new case, alternatively a new argument,
was raised for the first time in reply.

[58] In our law, there is a general rule that in motion proceedings “it is to the founding
affidavit which a Judge will look to determine what the complaint is” .25 Ordinarily, a
new case or new facts in support of the relief claimed should not be advanced in a
replying affidavit or on appeal. There are exceptions to the general rule which I consider
below.

[59] In Barkhuizen ,26 which considered on appeal a new legal point arising out of the
trial, this Court characterised the test for making an exception as one which is
underlined by considerations of fairness:

“The mere fact that a point of law is raised for the first time on appeal is not in itself
sufficient reason for refusing to consider it. If the point is covered by the pleadings,
and if its consideration on appeal involves no unfairness to the other party against
whom it is directed, this Court may in the exercise of its discretion consider the point.”27


25 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) ( Director of Hospital Services ) at 635H.
26 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC) ( Barkhuizen ).
27 Id at para 39.
KOLLAPEN J
22
[60] Betlane 28 dealt with a new legal argument raised in reply, but where the applicant
was a “lay litigant”. This Court stated in express terms that a “case cannot be made out
in the replying affidavit” as “ one ought to stand or fall by one’s notice of motion and
the averments made in one’s founding affidavit ”.29 However, this Court made an
exception on the facts of the case, stating that the app licant’s situation was “special” as
he did not until late in the day have the benefit of legal assistance . It went on to state
that it was “in the interests of justice to decide” the issue, “given the exceptional
circumstances under which it arose”. 30

[61] In My Vote Counts,31 when considering a new legal point on appeal which arose
in argument and not in the replying affidavit, this Court provided a concise expression
of the general rule and the exception to the general rule :

“It is, in any event, imperative that a litigant should make out its case in its founding
affidavit, and certainly not belatedly in argument. The exception, of course, is that a
point that has not been raised in the affidavits may only be argued or determined by a
court if it is legal in nature, foreshadowed in the pleaded case and does not cause
prejudice to the other party.”32

[62] In Smith33 and dealing with the same theme , the Supreme Court of Appeal said
that the rule against a new matter in reply is not absolute and should be applied with a
fair measure of common sense when it found that the new matter raised in reply before
it provided no material advantage to the applicant.34


28 Betlane v Shelly Court CC [2010] ZACC 23; 2011 (1) SA 388 (CC); 2011 (3) BCLR 264 (CC) ( Betlane ).
29 Id at para 29.
30 Id at paras 29 and 31.
31 My Vote Counts NPC v Speaker of the National Assembly [2015] ZACC 31; 2015 (12) BCLR 1407 (CC); 2016
(1) SA 132 (CC) ( My Vote Counts ).
32 Id at para 177.
33 Smith v Kwanonqubela Town Council [1999] ZASCA 58; 1999 (4) SA 947 (SCA) ( Smith).
34 Id at para 15.
KOLLAPEN J
23
[63] What emerges from the above is that our courts have adopted an approach largely
predicated on fairness to the parties and the proper ventilation of the issue raised, even
if belatedly so. If the new case is legal in nature, foreshadowed in the pleaded case, and
does not cause prejudice to the other party, then a court should allow an applicant to
make the new case in reply.35 The default position remains that a party must make out
its case in the founding affidavit and a departure from that rule will only apply in
exceptional circumstances. The present is a quintessential ca se where the exception to
the general rule should apply.

[64] In these proceedings, while the privacy issue was not raised as directly as it could
have been, there is sufficient reference in the notice of motion and the founding affidavit
to foreshadow its lat er invocation. This emerges from the nature of the relief sought in
the notice of motion as well as Mr Botha’s reference to the details of his ownership of
the farm at Varsfontein, the activities that took place there, the details of his brokerage
and his address, and the photograph of him and his minor daughter.

[65] To the extent that Mr Botha made out a new case for privacy only in reply, the
Court had a discretion to allow it to remain in the replying affidavit, giving the
respondent an opportunity, on request, to reply should special or exceptional
circumstances exist and in the absence of prejudice .36

[66] The High Court ultimately deal t with the case as one that was centrally
concerned with the tension between the right to privacy and the right to freedom of
expression. It did not do so purely on what was raised in Mr Smuts’ replying affidavit.
It did so on the basis of all the papers that were before it. This was proper. As is noted
in Erasmus:


35 My Vote Counts above n 31 at para 177.
36 Juta & Co Ltd v De Koker 1994 (3) SA 499 (T) ( Juta & Co Ltd ) at 511E-F and Nkengana v Schnetler [2010]
ZASCA 64; [2011] 1 All SA 272 (SCA) ( Nkengana ) at para 9.
KOLLAPEN J
24
“The court’s central role in the identification of issues is important. It is only after
careful thought has been given to a matter that the true issue for determination can be
properly identified. That task should never be left solely to the parties or their legal
representatives.”37

[67] If there is any doubt that this matter was sufficiently pleaded on the founding
papers, the exception would apply in allowing proper pleading in reply because the
High Court’s consideration of the privacy case was not unfair or prejudicial towards
Mr Smuts, was foreshadowed in the pleadings, and was fully ventilated on the papers.

[68] Common sense suggests that this was never an issue of concern to the
respondents and that they were not prejudiced by the privacy argument. I conclude that
the High Court was correct in considering the privacy case because it was properly
before it on the pleadings. Alternatively, the unique circumstances under which the
privacy issue arose, including the urgent nature of the initial application, which justifies
some leniency in favour of Mr Botha, satisfies its consideration as an exception to the
general rule.

[69] This Court i s equally entitled to consider the privacy challenge , having been
favoured with the fullest argument on the issue . Whether sufficient evidence was
advanced in support of the privacy claim is another matter.

The status of Mr Louw’s photographs
[70] Before this Court, Mr Botha states that the granting of permission to cyclists did
not constitute a waiver of his right to privacy in respect of the activities carried out on
the farm. Based on this , he alleges the publication of the photographs violated his
privacy.


37 Van Loggerenberg Erasmus: Superior Court Practice Revision Service 22 (Juta & Co, Cape Town 2023)
at D1 Rule 6-28. See also De Wet v Khammissa [2021] ZASCA 70; 2021 JDR 1070 (SCA) at para 14.
KOLLAPEN J
25
[71] The respondents’ right to publish the photographs was not disputed in the
High Court or the Supreme Court of Appeal. Mr Botha only took issue with the linkage
between the post and himself. In this Court, Mr Botha however took the position that
the photographs taken by Mr Louw and their publication violated his right to privacy as
he did not waive his right to privacy in respect of the activities carried out on the farm.
This position is inconsistent with his position before the High Court and the
Supreme Court of Appeal . His objection never extended to the taking of the
photographs by Mr Louw as constituting a breach of his privacy rights.

[72] It is not open to Mr Botha at this late stage of the matter to argue that Mr Louw
was not entitled to take th e photographs that he did. If this was allowed, this Court
would be required to consider that issue for the first time; it would be required to do so
in the absence of the facts relating to the issue and it would not have the consideration
of the other co urts that dealt with the matter. There is also no reference to the issue
being raised in the record before us. For these reasons, it would be neither appropriate
nor fair to consider the question of whether Mr Louw infringed Mr Botha’s right to
privacy by taking photographs of the animal traps and passing them on to Mr Smuts.

The legal framework
The three relevant rights
[73] The two central and operative rights in question are the right to privacy and the
right to freedom of expression. Though not central t o the determination of this matter,
section 24 of the Constitution – the right to a healthy environment – is also implicated.
As such, it is discussed insofar as the right to freedom of expression is used to draw
attention to the issues concerning animal practices, which relate to our right to a healthy
environment. Before the applicable legal tests are examined, the scope of each of the
three rights is discussed.

KOLLAPEN J
26
Freedom of expression and the associated right to receive and impart
information and ideas
[74] Section 16 of the Constitution provides :

“(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.”

[75] The very essence of an open and participatory society where debate is
encouraged and flourishes is dependent on the free flow and exchange of information
and ideas. Those debates are often robust and at times they traverse complex and
contentious issues, often giving rise to difficult discussions.

[76] In Khumalo, this Court held:

“Freedom of expression is integral to a democratic society for many reasons. It is
constitutive of the dignity and autonomy of human beings. Moreover, without it, the
ability of citizens to make responsible political decisions and to participate effectively
in public life would be stifled.”38

[77] In SANDU,39 this Court reflected on how freedom of expression was vital to
moral agency and the search for truth when it said:

“Freedom of expression lies at the heart of a democracy. It is valuable for many
reasons, including its instrumental function as a guarantor of democracy, its implicit
recognition and protection of the moral agenc y of individuals in our society and its
facilitation of the search for truth by individuals and society generally. The

38 Khumalo v Holomisa [2002] ZACC 12; 2002 (5) SA 401; 2002 (8) BCLR 771 (Khumalo ) at para 21. See also
S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) (Mamabolo ) at para 37 for
another discussion of freedom of expression in a democratic society.
39 South African National Defence Union v Minister of Defence [1999] ZACC 7; 1999 (4) SA 469 (CC); 1999 (6)
BCLR 615 (CC) (SANDU).
KOLLAPEN J
27
Constitution recognises that individuals in our society need to be able to hear, form and
express opinions and views freely on a wide range of matters.”40

[78] This Court has also considered the relationship between free expression and
activism on controversial topics. While activism is an indispensable feature of our
common life and the struggle for freedom and democracy, it has also, in the
post-apartheid era, taken on and embraced new challenges located in the Constitution.
In Mineral Sands ,41 this Court observed:

“One of the more positive features of our nascent democratic order is vibrant, vigilant
and vociferous civil society participati on in public affairs. In a truly broad based
participatory democracy characterised by that kind of active participation, our
Constitution’s aspirations and values find meaning in the lives of the populace for
whose benefit the Constitution was ultimately enacted. One of the notably active
voices is that of the environmental interests lobby.”42

[79] Other democracies similarly afford activist speech a high degree of protection. 43
For example, in Steel and Morris 44 the European Court of Human Rights observed:

“[I]n a democratic society even small and informal campaign groups . . . must be able
to carry on their activities effectively and . . . there exists a strong public interest in
enabling such groups and individuals outside the mainstream to contribute to the public
debate by disseminating information and ideas on matters of general public interest
such as health and the environment.”45


40 Id at para 7.
41 Mineral Sands Resources (Pty) Ltd v Reddell [2022] ZACC 37; 2023 (2) SA 68 (CC) ; 2023 (7) BCLR 779
(CC).
42 Id at para 1.
43 Either by way of strategic lawsuit against public participation legislation or judge-made law.
44 Steel and Morris v The United Kingdom [2005] ECHR 103, the so -called McLibel case.
45 Id at para 89.
KOLLAPEN J
28
[80] In Reddell,46 this Court also explored how free expression interacts with social
media. Part of its discussion highlighted social media’s dual capacity to both
communicate and cause harm:

“The real world of speech today is dominated by social media platforms. . . . Social
media platforms are at once the greatest means by which freedom of speech may be
exercised, and the greatest engine for falsity. They enhance democratic participation
and threaten its foundations.”47

[81] While in this application, the issue is one of publishing allegedly private
information and not false information, the Court recognises that the benefits that s ocial
media has brought with it are at times accompanied by practices that have the potential
to encroach upon human rights. This does not mean that social media should be viewed
through the lens of scepticism or undue suspicion but simply that these tens ions may be
inevitable and must be managed in accordance with the norms established by and the
values underlying the Constitution.

[82] With this in mind, I now turn to the right to privacy.

The right to privacy
[83] The right to privacy is enshrined in section 14 of the Constitution which
provides:

“14. 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.”


46 Reddell v Mineral Sands Resources (Pty) Ltd [2022] ZACC 38; 2023 (2) SA 404 (CC); 2023 (7) BCLR 830
(CC).
47 Id at para 195.
KOLLAPEN J
29
[84] Privacy is an individual condition of life characterised by seclusion from the
public, publicity and public scrutiny. In Bernstein , the seminal case on the
constitutional right to privacy, this Court acknowledged the difficult task of defining
the scope of the right to privacy. It said “the nature of privacy implicated by the ‘right
to privacy’ relates only to the most personal aspe cts of a person’s existence, and not to
every aspect within his/her personal knowledge and experience”. 48

[85] In Financial Mail 49 it was held that a breach of the right to privacy could occur
either by way of an unlawful intrusion upon the personal privacy of a nother or by way
of unlawful disclosure o f private facts about a person.

[86] The right to privacy accordingly recognises that we all have a right to a sphere
of private intimacy and autonomy without interference from the outside community.
The right to privacy represents the arena into which society is not entitled to intrude. It
includes the right of the individual to make autonomous decisions, particularly in
respect of controversial topics. 50 It is, of course, a limited sphere.

[87] This Court has stressed th at the right to privacy “can never be overstated. It is
fundamental to our existence as human beings ”.51 Dignity and privacy are closely
linked, as recognised in Khumalo.52

Environmental rights and their location within the dispute
[88] Section 24(b) of the Constitution proclaims that everyone has the right :


48 Bernstein above n 6 at para 79.
49 Financial Mail (Pty) Ltd v Sage Holdings Ltd [1993] ZASCA 3; 1993 (2) SA 451 (A) (Financial Mail ).
50 This topic is broached by Didcott J in Case v Minister of Safety and Security ; Curtis v Minister of Safety and
Security [1996] ZACC 7; 1996 (3) SA 617 (CC); 1996 (5) BCLR 60 9 (CC) at paras 90-5 when he writes on state
regulation of erotic material.
51 Le Roux v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae) [2011] ZACC
4; 2011 (3) SA 274 (CC); 2011 (6) BCLR 577 (CC) at para 45.
52 Khumalo above n 38 at para 27.
KOLLAPEN J
30
“(b) to have the environment protected, for the benefit of present and future
generations, through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
development.”

[89] In National Society for the Prevention of Cruelty to Animals 53 this Court ,
referri ng to Lemthongthai ,54 explained the connection between animal welfare and the
protection of the environment:

“Lemthongthai is also notable because it relates animal welfare to questions of
biodiversity. Animal welfare is connected with the constitutional right to have the
‘environment protected . . . through legislative and other means’. This integrative
approach correctly links the suffering of individual animals to conservation, and
illustrates the extent to which showing respect and concern for individ ual animals
reinforces broader environmental protection efforts. Animal welfare and animal
conservation together reflect two intertwined values.”55

[90] Activists’ “long history of guarding the interests of animals reflects
constitutional values”56 which are those embodied in section 24 of the Constitution. But
it has been said that section 24 suffers from “ongoing silence” and “under-utilisation ”57

53 National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development
[2016] ZACC 46; 2017 (1) SACR 284 (CC); 2017 (4) BCLR 517 (CC) (National Society for the Prevention of
Cruelty to Animals ).
54 S v Lemthongthai [2014] ZASCA 131; 2015 (1) SACR 353 (SCA) .
55 National Society for the Prevention of Cruelty to Animals above n 53 at para 58.
56 Id at para 59.
57 Murcott “Minding the Gap: The Constitutional Court’s Jurisprudence Concerning the Environmental Right ”
(2023) 13 Constitutional Court Review 147 at 148 citing Krüger “The Silent Right: Environmental Rights in the
Constitutional Court of South Africa ” (2019) 9 Constitutional Court Revie w 473; Kotzé and du Plessis “Some
Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa ” (2010) 3(1) Journal
of Court Innovation 157 at 169-174; and Murcott Transformative Environmental Constitutionalism (Brill, Leiden
2022) at 89-92 and 113-126.
KOLLAPEN J
31
in that, while it provides what some call the world’s most expansive and sophisticated
rights-based approach to en vironmental protection, the right is often ignored. 58

[91] The uncontested expert evidence on trapping highlights the practice’s
far-reaching and prejudicial consequences. Indiscriminate traps exacerbate the
problems associated with trapping. 59 For instance, a trapped baboon’s response is
similar to that of a human. The family responds similarly as well. They make rescue
attempts, they experience trauma and they injure themselves trying to escape. There is
also acute social disruption in the troop when a bab oon is removed from its social
community. When the trapped baboon is a dominant male, the troop may manifest
aberrant behaviour.

[92] At the same time , this Court is cognisant of the concerns raised by farmers in
general and by Mr Botha in particular of the dangers posed by baboons and other wild
animals to the farming community and to farming activities. To that end , the need to
properly manage this concern is similarly recognised. In this , I understand Mr Smuts
and others to say that the problems posed by wild animals to far mers and others can be
managed by methods other than trapping.

[93] This Court recognises the divergent views on animal trapping prompting
legitimate debate in the public interest . Of course, rights regularly come into conflict
with each other, giving rise to disputes as to where their respective boundaries start and
end in any given scenario. This Court dealt with that situation in Arena Holdings ,60
when it observed:

“Modern democracies are in many respects characterised by the challenge of
competing interests, especially in diverse societies – such as ours. In this diversity, it

58 May and Daly Global Environmental Constitutionalism (CUP, Cambridge 2014) at 43-54, 69 and Kotzé “The
Conceptual Contours of Environmental Constitutionalism ” (2015) 21 Widener Law Review 187 at 196-8.
59 High Court Judgment above n 2 at para 16.
60 Arena Holdings (Pty) Ltd t/a Financial Mail v South African Revenue Service [2023] ZACC 13; 2023 (5) SA
319; 2023 (8) BCLR 905 (CC).
KOLLAPEN J
32
is not uncommon for communal interests to stand in conflict with individual interests.
It is also not uncommon for the interests of privacy and individual self-determination
to stand in conflict with the collective public interest and the values of openness and
transparency. When those interests and rights come into conflict, there is no magical
hierarchy that one can resort to in order to resolve the conflict. The conflict is
invariably approached through the lens of the Bill of Rights by balancing those rights
and interests in the manner contemplated by the limitation exercise in section 36 of
the Constitution.”61

The breach of privacy enquiry
[94] In Bernstein , Ackermann J wrote that while “[p]rivacy is acknowledged in the
truly personal realm . . . as a person moves into communal relations . . . such as business
and social interaction, the scope of personal space shrinks accordingly”. 62 Privacy
rights are not ab andoned merely because a person moves into communal relations.
Instead, they “shrink”. In Prince63 and Bernstein 64 this Court reasoned that privacy
rights weaken once information is exposed to the public, abandoned, or obtained by
consent. However, whether information is private or public cannot be determined by a
bright-line rule .

[95] Since Bernstein , some courts have also made reference to the older American
formulation of privacy as “the right to be le[f]t alone ”, “to be free from unwanted and
unwarranted intrusions” in interpreting the scope of privacy rights .65 In S v H and
Kampher, both dealing with criminalised homosexual sex, the Court aligned itself with
Justice Blackmun’s dissent in Bowers v Hardwick 66 which placed the “ fundament al

61 Id at para 129.
62 Bernstein above n 6 at para 67.
63 Minister of Justice and Constitutional Development v Prince [2018] ZACC 30; 2018 (6) SA 393 (CC); 2018
(10) BCLR 1220 (CC) (Prince) at para 47.
64 Bernstein above n 6 at para 75.
65 Makhanya v Vodacom Service Provider Co (Pty) Ltd 2010 (3) SA 79 (GNP) (Makha nya) at paras 11-3; Brandeis
and Warren “The Right to Privacy” (1890) 4 Harvard Law Review 193; S v H 1995 (1) SA 120 (C) at paras 125-
6 (S v H); S v Kampher 1997 (4) SA 460 (C) (Kampher ) at 481G-482I; and Pretorius v Minister of Correctional
Services 2004 (2) SA 658 (T) (Pretorius ) at paras 39-43.
66 Bowers v Hardwick 478 US 186 (1986).
KOLLAPEN J
33
right to engage in homosexual sodomy” within “the right to be left alone” without heed
given to “traditional Judeo -Christian values”.67

[96] The starting point in the breach of privacy enquiry is to determine the scope of
the privacy interest in question . This Court in Bernstein commended the approach
adopted in the United States that a party seeking to assert a claim of privacy “must
establish both that he or she has a subjective expectation of privacy and that the society
has recogni sed that expectation as objectively reasonabl e”.68 I will refer to this as the
test of dual expectations or the Bernstein test. It is used to determine the scope of the
right and has been referred to and followed in numerous cases in this Court following
Bernstein .

[97] In Tulip Diamonds ,69 this Court, in considering a claim based on privacy in
review proceedings, referred to and applied the Bernstein test incorporating the
subjective and objective expectation s of privacy.70 In Prince, which dealt with the
confirmation of an order of constit utional invalidity, this Court in its examination of the
scope of the right to privacy, referred to the discussion in Bernstein culminating in the
dual expectations test incorporating the subjective and objective expectations of
privacy.71 Finally, in Centre for Child Law ,72 this Court, also in confirmation
proceedings, referred to and applied the Bernstein test based on the legitimate
expectations of privacy in determining the scope of the right.73

[98] That test may then practically be formulated as follows :

67 S v H above n 65 at 125E-126A and Kampher above n 65 at 481G-482I.
68 Bernstein above n 6 at para 75.
69 Tulip Diamonds FZE v Minister for Justice and Constitutional Development [2013] ZACC 19; 2013 (2) SACR
443 (CC); 2013 (10) BCLR 1180 (CC) (Tulip Diamonds ).
70 Id at para 35.
71 Prince above n 63 a t para 47.
72 Centre for Child Law v Media 24 Ltd [2019] ZACC 46; 2020 (3) BCLR 245 (CC) ; 2020 (4) SA 319 (CC).
73 Id at para 45.
KOLLAPEN J
34
(a) Did the data subject have a subjective expectation of privacy? No element
of reasonableness enters the equation here . If the answer is no, the data
subject’s privacy claim fails.
(b) If the data subject in fact entertained a subjective expectation of priva cy,
does that expectation pass the objective reasonableness test? That is,
would society consider the data subject’s expectation of privacy to be
reasonable?

[99] If the conclusion is reached that a subjective expectation is reasonable then an
intrusion into the privacy of another or a disclosure of private facts would constitute a
breach of privacy. In that event, the court undertakes a justification exercise in
determining how the right to privacy is balanced against the strength of other rights or
interests that may compete for recognition. In instances where the breach of privacy is
a consequence of a law of general application, a court would embark on a limitation
analysis in terms of section 36 of the Constitution. 74 In any other instance, where a
breach is due to some other consequence, a court would embark on a justification
exercise to balance any competing rights or interests. 75 Section 36 would not apply, but
the justification exercise may be broadly guided by the principles it contains. Strict
adherence to the factors listed in section 36 would not be appropriate in all instances of
justification as they are designed for a limitation by a law of general application. What
constitutes relevant factors to be considered and an appropriate balance to b e found
ought to be determined by the set of facts at hand.

[100] The objective/subjective distinction is said to split hairs. Jurisprudentially,
Bernstein performs an objective analysis of subjective expectations. 76 One may hold a
subjective expectation of privacy, but Bernstein requires us to evaluate that subjective

74 See Prince above n 63 at paras 59-61.
75 In Prinsloo v RCP Media Ltd 2003 (4) SA 456 (T) ( Prinsloo ) at 475J-476A, the Court weighed the rights of
privacy and dignity against the right of free expression , and despite making no order, held in principle that free
expression in that instance would not justify the breach of privacy and dignity. See also South African
Broadcasting Corporation Ltd v National Director of Public Prosecutions [2006] ZACC 15; 2007 (1) SA 523
(CC); 2007 (2) BCLR 167 (CC ) at paras 125 -7 and Khumalo above n 38 at para s 28 and 33.
76 Bernstein above n 6 at para 75.
KOLLAPEN J
35
expectation through a reasonable ness lens.77 However, as the first part of the dual
analysis centred on Mr Botha’s mindset, a conundrum emerges known to American
scholars as the “phantom doctrine”. Kerr writes that the subjective test is very often
subsumed by the objective test in practice. 78 According to Kerr only 43% of all
United States Supreme Court cases discussing Katz79 – the American equivalent of
Bernstein – even mention the subjective enquiry.80 The objective enquiry effectively
“does the work originally intend ed for the subjective test”. 81

[101] Mindful of this development in the United States, our courts retain the dual
expectations test for good reason. Due to the inherently personal nature of privacy
rights, the proper place to start a privacy enquiry is to ask whether an expectation of
privacy on the part of the data subject exists at all. If not, the enquiry ends there. A
privacy claim is triggered by an individual’s expectation of it and there is no reason for
our law to protect privacy where no subjective expectation exists. The subjective
expectation is then moderated by a reasonableness standard to ensure certainty and an
alignment between subjective expectations with those expectations that society would
regard as reasonable.

[102] In applying the dual expectations test set out in Bernstein , case-specific factors
will always be considered. Moshikaro 82 suggests that when determining whether there
was a violation of the right to privacy, a court should have regard to a number of factors,
none of which are individually dispositive. These include —

“(a) how the information was obtained;

77 Id.
78 See Kerr “ Katz Has Only One Step: The Irrelevance of Subjective Expectations ” (2015) 82 University of
Chicago Law Review 113.
79 Katz v United States 389 US 347 (1967).
80 Kerr above n 78 at 116.
81 Id at 122.
82 Moshikaro “ Privacy” in Brickhill et al South African Constitutional Law (Juta, Cape Town 2023).
KOLLAPEN J
36
(b) whether the information pertains to intimate details o f the infringed party’s
personal life;
(c) whether the information was provided by the infringed party, but for a purpose
other than the purpose for which it was ultimately used;
(d) whether the information was garnered from a search or led to a search; and
(e) whether the information was communicated only to person or persons who had
statutory responsibilities subject to requirements of confidentiality, or people
from whom the infringed party could reasonably expect the information to be
withheld.”83

Application of the Bernstein test
[103] I categorise the personal information posted by the respondents into two parts —
(a) the information relating to Mr Botha’s identity and his ownership and
control of the farm; and
(b) information relating to his insuranc e brokerage and its address.

[104] I do so for two reasons. First, both parties agreed in the High Court that the
photographs and anti-trapping commentary were published in the public interest. There
was no such consensus in respect of the disclosure of Mr Bo tha’s insurance brokerage
and home address. Second, there is also a difference in how the information was
sourced. The one category of information was received from a visitor to the farm,
supplemented by a neighbour of Mr Botha’s, part of which is contained in a public
record. The other was obtained through publicly available websites where Mr Botha
placed the information. While ultimately the applicable legal test remains the same,
different factual considerations warrant their separate treatment .

[105] Our test for privacy inherently disaggregates the post into its composite facts
because it focuses on whether each fact is objectively or subjectively private.
Mr Botha’s request that we only consider the “post as a whole” has no support in the
law and better aligns with a defamation analysis. For instance, in Financial Mail,84 the

83 Id at 18.
84 Financial Mail above n 49 at 464-5.
KOLLAPEN J
37
Court disaggregated the published information and dealt with it paragraph by paragraph.
This makes good sense: a privacy analysis inherently probes whether facts are private
and such an enquiry necessitates the isolation of each fact.

[106] Mr Botha submits that while the publication of the post and anti -trapping
commentary constituted expression within the meaning of section 16, it exceeded the
bounds of free speech in that it un reasonably intruded on his right to privacy. It was
argued on Mr Botha’s behalf that even though his ownership of his farm is reflected in
a Deeds Registry and he posted his insurance brokerage information online, he
continued to retain an expectation of privacy over this information. He argues that the
important debate about the treatment of animals and the place of animal trapping in that
discussion could have occurred without the publication of his personal details. He says
that the publication of tho se details did not advance the public interest nor the right to
expression and that the post could have used pseudonyms instead of his name.

[107] Mr Smuts’ stance is that the information published, while personal, is not private
in that it relates to neutral, objective information and lacks any quality of being intimate
and sensitive. He further argues that what was published is not untrue and that the
activity of trapping is something that Mr Botha accepts and defends as part of his
commercial farming operati ons. There could therefore be no basis to suppress this
information or treat it as secret and it forms both what Mr Smuts is entitled in law to
share with the public and what the public in turn is entitled in law to receive as
information relevant to and linked to the photographs and the post.

[108] The starting point is whether, applying the Bernstein test, each category of
information is a private fact. If it is, its publication would constitute an invasion of the
privacy rights of Mr Botha. In that event, the Court would be required to balance the
privacy and expression rights. 85


85 See Prinsloo above n 75 at 469 (“Privacy . . . and freedom of expression . . . often compete and thus have to be
balanced against one another”). See also Khumalo above n 38 at paras 23 and 26-30.
KOLLAPEN J
38
Personal information: Mr Botha’s identity and his ownership and control of the
farm
The first Bernstein question
[109] The enquiry here is whether Mr Botha in truth had a subjective expectation of
privacy over the information that related to his ownership and control of the farm.
Mr Botha asks this Court to “ take cognisance of the right of individuals to control
information about themselves”. This is what is described as information al
self-determination. Moshikaro 86 says that privacy is not just about protection against
intrusion but also includes the protection of access to information about a legal
subject.87

[110] Of course, individual data subjects are not the sole arbiters of the parameters of
their informational self -determination. A voluntary decision to disclose information to
the public in itself changes the boundaries of self -determination and shapes the data
subject’s subjective expectation of privacy. While the subjective expectation of privacy
may not always be totally eroded when this happens, it is arguably diminished.

[111] Mr Botha says he held a subjective expectation of privacy in respect of his
ownership and control of the farm including the trapping activities. There i s very little
that he says in support of this. At the time of publication of the post and when the
interdict was originally granted , Mr Botha only raised privacy considerations in the
notice of motion as part of the interdictory relief sought with no subs tantiation on his
expectation of privacy in respect of his ownership and control of the farm including the
trapping activities.


86 Moshikaro above n 82.
87 Id at para 23.9.2.1, Moshikaro says:
“This . . . m ay be better described as protecting the decision by a person to disclose cer tain
information to the public. It is this aspect of decision making autonomy that leads to the aspect
of the right to be labelled informational ‘self -determination.’ This right to informational self -
determination extends to being protected against the unlimited collection, storage and sharing
of one’s personal data. ”
KOLLAPEN J
39
[112] Mr Botha says Mr Smuts was only able to obtain his contact information after
Mr Smuts obtained the farm name from Mr Louw and his name and mobile telephone
number from Professor Alkers. There is nothing that Mr Botha says that suggests that
Mr Louw or Professor Alkers were required to treat the information that they shared
with Mr Smuts as private. Mr Botha accepts that Mr Louw was entitled to be on his
farm, take the photographs that he took and share them with Mr Smuts. If all of this
was acceptable, why then would Mr Louw be required to treat the location of the farm
as a private fact but everything else as a public fact? There is no basis advanced by
Mr Botha as to why this distinction should be made except that he did not wish to be
associated with the animal trapping p ractice that was taking place on his farm.

[113] Professor Alkers is a neighbour who knew that Mr Botha was an insurance
broker and the owner of the farm. He shared this information with Mr Smuts. There is
nothing that Mr Botha says that suggests that Profess or Alkers shared private facts or
information. In addition, it would not be unusual for neighbours to know the identity
of owners of properties in their neighbourhood. Mr Botha does not say why his
ownership of the farm is a private fact.

[114] The manner in which Mr Botha exercised his ownership rights in respect of the
commercial farm, which included its use for an adventure ride, also militates against
the suggestion that his ownership of the farm is a private fact. The public nature of the
access he allow ed and the commercial nature of the farm locate both the farm and his
ownership of it far from the inner sanctum of Mr Botha’s life. In addition, Mr Botha
does not say why they should be treated as private facts except that he held an
expectation of priva cy in respect of them. A subjective expectation does not arise
simply because someone asserts it after the event. If the data subject does not
sufficiently demonstrate that such an expectation was held, then a court cannot accept
that it genuinely existe d simply on the say-so of the data subject.

[115] On Mr Botha’s own exposition of the facts, he could not have subjectively had
the expectation of privacy in respect of his ownership of the farm and the animal
KOLLAPEN J
40
trapping activities that Mr Louw witnessed and phot ographed. These were not private
facts and there was nothing advanced by Mr Botha to suggest otherwise.

[116] I do not advance the proposition that an expectation of privacy is waived when
the public has legitimate access to private property or to private info rmation. This
determination will always be case -specific and will be subject to the dual expectations
analysis that Bernstein commends. It may often be the case that there are implicit or
explicit conditions in place when a member of the public is invite d onto private
property. The purpose of access should be considered, although it is not dispositive of
the determination of a privacy right. Mr Botha’s proposition of an expectation of
privacy in respect of visitors photographing children swimming in the family pool may
well be one such case where a subjective expectation of privacy would arise. That
however is not the case in the matter of Mr Louw’s traversal of the farm on the
adventure ride.

The second Bernstein question
[117] The second Bernstein question examines the objective reasonableness of the data
subject’s expectation of privacy. Having concluded that Mr Botha did not hold a
subjective expectation of privacy in respect of his ownership of his farm, there is no
need to address the second question. However, I deal briefly with this question if it
could somehow be said that such a subjective expectation of privacy may have existed.

[118] Bernstein describes the scope of shrinking privacy expectations when one moves
from the personal to the social and busi ness realm. Ackerma nn J writes that “[i] t is
clear that any information pertaining to participation in such a public sphere [as a
limited liability company] cannot rightly be held to be inher ing in the person”. 88 It is
true that individuals can traverse the spectrum posed by Bernstein and “move into
communal relations” via online platforms with far greater ease today. This comes with
great advantages; instantaneous advertising often for little or no cost and rapid

88 Bernstein above n 6 at para 85.
KOLLAPEN J
41
communication are only two. But it also comes with disadvantages; in particular, it is
difficult to keep information both private and public. In many ways, it is necessary to
divulge information on the internet in order to competitively operate a busine ss.89 The
inner sanctum still exists, even if the boundary between inner and outer sanct ums has
become relatively porous. While there has been an increase in the frequency and ease
with which individuals cross that b oundary, individuals still must make a conscious
choice to do so.

[119] Against that background, I consider the following submission, raised pertinently
in the written submissions of Mr Botha:

“[T]he applicant could never have reasonably expected that any person would link him
to the trapping conduct on the farm and had every right to believe that private facts
would remain private, even if cyclists traversed the farm and saw such trapping taking
place.”

[120] This formulation covers both the subjective and objective expectation of privacy
and I deal her e only with the objective expectation – the reasonableness of the
expectation that Mr Botha references.

[121] In considering the reasonableness of Mr Botha’s assertions viewed against the
legal convictions of the community the following facts are relevant:
(a) The trapping practices on the farm are matters that the parties correctly
accepted were in the public interest. Society has a legitimate interest in
them as they relate to conduct that impacts on the environment we live in.
It accords with the expectatio ns of contemporary society that the
existence of trapping permits does not stand in the way of the important
debate that is triggered by trapping practices. The High Court aptly

89 In R v Bykovets 2024 SCC 6 at para 48, the Canadian Supreme Court highlights the importance of informational
self-determination, commenting that a choice not to use internet services is “not a meaningful one . . . . Canadians
are not required to become digital recluses in order to maintain some semblance of privacy in their lives ”.
KOLLAPEN J
42
captured this when it said that “[p]ractices which are legal are often
deplored”.90
(b) Varsfontein is a commercial business and not a private place of abode.
The practice of animal trapping is a part of the commercial operations of
the farm. While Mr Botha described the trapping as a private fact, society
would not. It is a practice in which society, including Mr Louw, has an
interest, which would have entitled Mr Louw to take the photographs that
he did and share them. It is a practice that, at least objectively, would
raise the legitimate interest of visitors to the farm and would justify them
in taking account of it and sharing it with others.

[122] For all of the above reasons, these facts do not, objectively speaking, constitute
private facts. Their publication does not result in a breach of the privacy rights of
Mr Botha.

[123] Although the issue of the public accessibility of information at the
Deeds Registry was raised in the judgment of the High Court, on the papers neither
party had the opportunity of dealing with it. It is therefore not possible to say whether
the map that Mr Smuts received from Mr Louw reflecting the name and location of the
farm would have been sufficient to conduct a successful search in the Deeds Office and
the extent to which this would affect Mr Botha’s reasonable expectation of privacy.
Accordingly, it is no t appropriate nor is there a need to consider the issue any further.

The debate without identification argument
[124] Mr Botha says that any debate on the photographs and the post could have
occurred without mention of his identity and his ownership of the farm . The question,
however, is not whether a public debate can occur without his personal information but
rather whether there is any basis to withhold his personal information in publishing a
post about a practice that occurs on a farm that he owns and that is managed under his

90 High Court Judgment above n 2 at para 24.
KOLLAPEN J
43
control and authority. The answer must be no. There is no obligation to withhold
information in the absence of a legitimate privacy claim.

[125] It would be artificial to engage in open and transparent public debate on a specific
incident and form of trapping captured by photographs and a descriptive post without
describing the location of the activity or person responsible for it. The essence of public
debate is full disclosure which provides an opportunity to persuade others and a foru m
for different views to be aired. Conducting such a debate under conditions of anonymity
undermines the transparency and newsworthiness of the dialogue. On the reasoning of
Mr Botha, are we required to debate the benefit or otherwise of dune mining, or other
activities which may be lawful but are seen as constituting a threat to the environment,
anonymously or using pseudonyms without identifying those responsible? Society
would not support an expectation of privacy under those circumstances. Our court s
have said that there is little room for secrecy in matters affecting the environment. 91

[126] If Mr Botha accepts that when members of the public witness the trapped
animals, this would attract attention as a matter of public interest, then it is difficult to
follow his reasoning that his identity and involvement should remain private. This is
very different from th e example he offers of passers -by not being entitled to take
photographs of children swimming naked in the family pool. The latter represents
personal information, close to the inner sanctum, of a private, personal and intimate
nature. The matter at hand represents information that is not close to the inner sanctum,
triggers public interest , and was openly on display and discovered in an ordinary and
lawful way.

[127] Finally, if regard is had to the personal information in question, none constitute d
private facts – the photographs and the commentary are accepted as being in the public
interest while the identity and ownership of the farm are also not private facts. What
emerges, though, is the discomfort Mr Botha feels in linking these two categories of

91 Company Secretary, Arcelormittal South Africa Ltd v Vaal Environmental Justice Alliance [2014] ZASCA 184;
2015 (1) SA 515 (SCA) at paras 66 and 71.
KOLLAPEN J
44
information. While I have dealt with why his resistance to having them linked is
unsustainable, it does appear that it may be located in his original stance that the linkage
is defamatory. That was the original basis for his application. But this is not a
defamation case. Mr Botha elected to base the final relief on a right to privacy and the
High Court was clear that it was not adjudicating an alleged infringement of any
reputational right or the risk of personal or economic harm. 92 Mr Botha himself
described the reasoning of the High Court as unimpeachable in his application to this
Court.

[128] It would simply be untenable for a privacy claim to now ride on the back of a
defamation claim that has not been ventilated. Even accepting that privacy
considerations may impact on the right to dignity as Khumalo reminds us, this case, its
evolution and the relief that Mr Botha sought were ultimately premised on his privacy
rights.93 If there is a defamation claim lurking somewhere, then that may be pursued
separately a nd independently but it cannot be subsumed into this privacy enquiry.
Mr Botha cannot have it both ways.

[129] In conclusion, it cannot be said that society would consider any expectation of
privacy which may exist in relation to the ownership of the farm and the trapping
activities as objectively reasonable. On this basis, I agree with the
Supreme Court of Appeal that the respondents did not violate Mr Botha’s privacy rights
in respect of this component of the information in that Mr Botha did not establish an
expectation of privacy that was objectively reasonable. As no privacy expectation has
been established, the matter of Mr Smuts’ right to freedom of expression does not arise.


92 High Court Judgment above n 2 at para 25.
93 Khumalo above n 38 at para 27.
KOLLAPEN J
45
Business information: Mr Botha’s insurance brokerage and b usiness (and home)
address
The first Bernstein question
[130] Mr Botha posted details of his insurance brokerage and its address (which also
served as his home address) online. It was clear from the posts that he wished the world
at large to know that he was in the insurance busin ess. Indeed, Professor Alkers also
knew that Mr Botha was an insurance broker and shared this with Mr Smuts. He could
hold no expectation of privacy in his profession as an insurance broker when this is
what he wished the world to know. That concludes t he part of the enquiry in relation
to his status as an insurance broker. I move to deal with his address and the debate
around that.

[131] Mr Botha’s residential and business address were one and the same. By the time
of the High Court proceedings, the respondents were aware of this. Did Mr Botha enjoy
a subjective expectation of privacy over his home address? Any answer in the
affirmative is complicated by the fact that he personally published that address as part
of his advertisement of the insurance brokerage on ten separate websites.

[132] At least subjectively speaking, Mr Botha cannot be said to enjoy an unqualified
expectation of privacy over information he willingly put into the public domain. His
expectation must have been that his information woul d be shared and responded to in
furtherance of his business as a broker. That is, after all, the object of a successful
advertising campaign, which is what his information evidenced.

[133] While Mr Botha sacrificed part of his subjective expectation of privacy when he
published his insurance brokerage information on ten websites, it cannot be said that by
doing so he renounced all expectations of privacy in respect of his address. In particular,
his subjective expectation would not have been that the address was open to be revealed
to the world at large in connection with matters unrelated to the brokerage which shared
the same address.
KOLLAPEN J
46

[134] Mr Botha’s advertisements had the effect of revealing the location of his home.
Their consequence would at the very least h ave been that those who sought to engage
him in respect of his insurance brokerage would know the address for that purpose. To
that extent, it would have the potential to make inroads into the privacy he would
ordinarily be entitled to expect in respect o f his home, at least in matters related to his
brokerage business. But even then it is important to separate out business and home in
determining privacy considerations.

[135] In business, one is generally involved in activity removed from the inner sanctum
of one’s life and in which one generally engages with the world outside. A home is a
closed and private space where people live and in which they are entitled to expect the
protection of their privacy. This accords with the “right to be left alone” formula tion
of privacy. That people may use the same space for another aspect of their lives should
not unduly matter as the issue should not be about the common space that is used for
dual purposes but rather the wholly divergent nature of the use to which that space is
put. The one is public in nature, the other, intensely personal and private. This is an
important distinction and moves the discussion away from the address to the difference
in the activities taking place there, the interests at stake , and the ir claim to privacy
protection. And so, it is another matter to suggest that the address as a home address
was also fair game in respect of publication linking it to the operations on the farm. In
those circumstances, a subjective expectation of privacy may well exist that in a post
relating to animal trapping on his farm, his home address, even one widely published,
could be a private fact.

[136] It is not inconsistent to find that the address published by Mr Botha on various
directories was public for the pu rposes of his brokerage, but private to the extent that it
constituted his home address. It will also be recalled that nowhere in Mr Botha’s post
of his brokerage did he indicate that the address he had chosen for his business was his
home address. He di d not conflate business and home and to that extent he expected
that the privacy of his home and its location would continue to enjoy protection. This
KOLLAPEN J
47
distinction also avoids a formalistic and mechanical approach to the privacy enquiry
that is invariably fact-specific. It is for these reasons that I conclude that Mr Botha
retained an expectation of privacy that his address would remain a private fact for all
purposes except the business of his insurance brokerage.

The second Bernstein question
[137] Given that there was no subjective expectation of privacy over the brokerage
details, there is no need to determine the objective expectation of privacy in that regard.
It is only Mr Botha’s address that needs further consideration.

[138] An important consideration is t he purpose for which information is published.
Purpose is relevant here because Mr Botha published his address as part of advertising
his insurance brokerage. Mr Smuts, however, re -published that information which
included Mr Botha’s address, in relation to animal trapping. If compatibility of purpose
is relevant, then the reason for referring to his address falls to be interrogated in the
infringement of privacy enquiry. If the mere fact of deliberate publication of the
information renders it public fo r all purposes, then questions of purpose become
academic. This should not be so.

[139] In New Zealand, Principle 11 of the Information Privacy Principles introduced
in the Privacy Act of 2020 limits disclosure by an agency of personal information unless
it believes on reasonable grounds that the disclosure of that information is one of the
purposes in connection with which the information was disclosed or is closely related
to such purpose.94


94 Information Privacy Principle 11, subtitled “ Limits on disclosure of personal information” reads in section 1(a)
that:
“(1) An agency that holds personal information must not di sclose the information to any
other agency or to any person unless the agency believes, on reasonable grounds —
(a) that the disclosure of the information is one of the purposes in connection
with which the information was obtained or is directly related to the purposes
in connection with which the information was obtained .”
KOLLAPEN J
48
[140] Care Park New Zealand Limited 95 involved the disclosure of parking ti ckets
collected by a car park agency to the employer of the data subject under circumstances
where the employer had significant control over the issuing of tickets and the clamping
of vehicles for unpaid tickets. The Human Rights Review Tribunal said, in interpreting
Principle 11, that the requirement that the belief that the disclosure of information aligns
with the purpose of its provision must be held on reasonable grounds, has a subjective
element (the belief) and an objective element (reasonable groun ds). It concluded that
the disclosure of the tickets did not breach the privacy rights of the plaintiff in that both
requirements existed at the time of disclosure.

[141] Duchess of Sussex 96 related to the publication by the media of portions of a letter
sent by the claimant to her father with whom she had a strained relationship. The Court
referred to what has become known as the Murray97 factors in determining the question
of whether a clai mant could be said to enjoy a reasonable expectation of privacy in
respect of the information in question. 98 Those factors include the purpose of the
intrusion and the purpose for which information came into the hands of the publisher.
The other Murray factors include the attributes of the claimant, the nature of the activity
in which the claimant was engaged, the place at which it was happening, the absence of
consent and whether it was known or could be inferred, and the effect on the claimant.
After enumerating the Murray factors, the Court in Duchess of Sussex also noted that it
“must have regard” to whether the information is already “in the public domain”. 99

[142] While purpose considerations are not dispositive, they are relevant to the
enquiry. The reco nciliation of the purpose of the re -publication and the reason that the
information is already in the public domain are important. In cases where the
information in question was placed in the public domain for a limited purpose and it is

95 Judge v Care Park New Zealand Limited [2023] NZHRRT 10.
96 HRH The Duchess of Sussex v Associated Newspapers L imited [2021] EWCA Civ 1810 (Duchess of Sussex ).
97 Murray v Express Newspapers plc [2008] EWCA Civ 446 at para 36.
98 Duchess of Sussex above n 96 at para 34.
99 Id.
KOLLAPEN J
49
subsequently used for other purposes, the tension between the original purpose and the
subsequent use may be more significant , and purpose may qualify and limit the future
use of that information.

[143] Individual autonomy and self -determination are weighty matters that go to t he
very heart of who we are and how we locate our place in society . They structure the
relationship we have with others and inform decisions about what personal information
is made public and where this is done . In using online platforms, we are not requ ired
to surrender our autonomy nor the intimate aspects of our lives. We will invariably face
challenges in how we take advantage of online publication and protect our private lives,
but that is the task of living in the modern world wh ere competing priorities and rights
come into sharp conflict. It is how they are managed that ultimately matters.

[144] With regard to the home address, some delimitation is necessary to navigate how
matters relevant to business activity may affect the right to privacy. In these
proceedings, a vigorous debate arose as to whether Mr Botha made his residential
address public by advertising his business as an insurance broker and including details
of his address (which doubled as a business and residential address). Certainly, the dual
status of his address brought the fact closer to his “inner sanctum”. To suggest that his
choice also to use his home as a place of business removed any privacy protection of
his address as a place of residence would not only be overly formalist ic but would
undermine the importance that our courts have attached to the home and the right to
privacy that must attach to that. 100

[145] In addition, it would leave many who work and live at the same address in an
untenable position. We live in a time when many may elect to work from the address
where they live, while for many others, it may be an economic necessity. The privacy

100 Bernstein above n 6 at para 67; Residents, Industry House v Minister of Police [2021] ZACC 37; 2022 (1)
BCLR 46 (CC); 2023 (1) SACR 14 (CC) (Industry House ) at paras 1, 49 and 198; and S v Murphy 2024 (1) SACR
138 (WCC) at para 20. In Prince above n 63 at para 108, this Court went as far as to use the term “in private” as
an expansion of the concept of “at home”, so synonymous are the two concepts.
KOLLAPEN J
50
they would ordinarily be entitled to in respect of their home details would be eroded
once they chose their home as a place of wo rk.

[146] In conclusion, locating his home and business at the same address cannot have
the effect of extinguishing Mr Botha’s right to privacy in respect of the place of his
home. Mr Botha enjoyed a reasonable expectation that his home address would
generally remain separate and private, certainly in relation to his farming and trapping
operations. This is consistent with what the Court in Jooste 101 referred to when it said
that the right to privacy encompasses the right to determine the destiny of private
facts.102

Mr Smuts’ right to free expression
[147] In concluding that Mr Botha’s home address is private information, we must now
consider how his privacy right weighs up against the respondents’ right to freedom of
expression.

[148] Our task is to balance two rights: Mr Botha’s right to privacy and the
respondents’ right to freedom of expression. Doing so requires this Court to consider
whether, in the circumstances of this particular case, the public interest mandates
prioritising expression over privacy. 103 Simply put, the question is whether it is in the
public interest to link Mr Botha’s home address with legal trapping on a commercial
farm.

[149] At its fullest, and absent any privacy considerations, the section 16(1)(b)
freedom to receive or impart information bestows on the respondents and their audience
the right to know about Mr Botha’s home address. But this right is not absolute. It is
weakest when it confronts private information. For our purposes, Mr Botha had a

101 National Media Ltd v Jooste [1996] ZASCA 24; 1996 (3) SA 262 (SCA ).
102 Id at para 15.
103 Financial Mail above n 49 at 464-5.
KOLLAPEN J
51
partial expectation of privacy over his home addres s. If his home address were critical
to the respondents’ cause, then the freedom to receive or impart information might well
prevail over his partial expectation of privacy. His address was, at best for the
respondents, merely peripheral.

[150] In other cases involving privacy and expression, foreign courts have ex amined
the journalistic choice to publish peripheral, private information. In Campbell,104 the
House of Lords considered whether certain private information added “colour and
conviction” to a wider se t of published information. Campbell dealt with the free press
and here we deal with activists. Still, we ought to consider whether the disclosure of
Mr Botha’s address added any colour or conviction to a campaign against animal
trapping. It did not.

[151] In short, Mr Botha’s partial expectation of privacy over his address must prevail
over the right the respondents might have had to publish it. As this Court said in
Mamabolo , “freedom of expression does not enjoy superior status in our law ”.105 The
nature of Mr Botha’s information is deeply intimate. It is difficult to ascertain what
public interest value Mr Botha’s home address added to the post. It is certainly
indicative of its minimal effect that most commenters on the post ignored it. Where
private information is of a deeply intimate nature with little public interest value, courts
have found the right to privacy weighs heavier in the competition with the right to free
expression.106

[152] When deciding whether an invasion of privacy “is unlawful or not, th e Court
must have regard to the facts of the case and must test them in the light of contemporary
boni mores”.107 Part of this test involves an analysis akin to the English proportionality
test: even when an invasion of privacy is warranted, the invasion mu st “only go as far

104 Campbell v MGN Limited [2004] UKHL 22.
105 Mamabolo above n 38 at para 41.
106 Prinsloo above n 75.
107 Huey Extreme Club v McDonald t/a Sport Helicopters 2005 (1) SA 485 (C) at para 27.
KOLLAPEN J
52
as is reasonably necessary”. 108 Here, the inclusion of the home address did little to
advance the respondents’ cause but had serious potential to bring into the public domain
details of Mr Botha and his family that were personal and intimate – their home address.

[153] It is for those reasons that I find that the inclusion in the post of Mr Botha’s home
address constituted an invasion of his right to privacy that cannot be justified by any
assertion that the free expression rights of the respon dents should enjoy preference.
Mr Smuts claims that the photographs and the post, including the details of Mr Botha’s
ownership of the farm, had the object of highlighting the practice of trapping and
Mr Botha’s involvement in it. Having accepted that no private facts accompanied the
information in relation to the ownership of the farm or insurance brokerage, the same
cannot be true in respect of the address of his insurance brokerage, because it shared a
location with Mr Botha’s home, an intimately priva te fact, adding very little to the
respondents’ exercise of expression. No freedom of expression imperatives
accompanied its inclusion and, in the balancing exercise between privacy and
expression in this case, privacy must clearly prevail. To that exten t only, the appeal
must succeed and the order of the Supreme Court of Appeal be amended to reflect this.

The suggestions of vilification and those of digital vigilantism
[154] Mr Botha argued that the post, in the manner in which it was curated, constituted
a campaign to vilify him and was part of what was described as “digital vigilantism”.
These are strong and forceful words. Vigilantism evokes unsettling images of
unlawfulness, self -help and a disregard for consequence or legality. The question is
whether these facts support a charge of digital vigilantism. I disagree with this
hyperbolic characterisation of the conduct of the respondents, having regard to
Mr Louw’s bona fide discovery of the caged animals, Mr Smuts’ willingness to engage
with Mr Botha prior to the post, the omission of Mr Botha’s mobile telephone number
from the post and the immediate retraction of the photograph of Mr Botha’s minor child.


108 Id at para 33.
KOLLAPEN J
53
[155] The risks and dangers of digital vigilantism may well exist and should ideally be
addressed in a manner that undertakes a proper assessment of the law in relation to the
matter, the protections the law may offer in instances of abuse of online platforms and
any gaps that may exist. Such a process is well suited to the deliberative and
participative proc esses of law reform institutions and the Legislature, if this should be
deemed necessary , but to the extent that courts may be required to consider it, this is
not the case to do so.

Second, third and fourth judgments
[156] I have read t he carefully crafted sec ond judgment in which Chaskalson AJ
concurs with the conclusions reached in this judgment but does so for different reasons
in respect of some of those conclusions. The second judgment agrees with the
conclusion that Mr Botha’s home address should not be published. However, it does so
by considering the responses to the post to determine whether the post results in a breach
of privacy. It asks the question whether, at the time that Mr Botha sued for interdictory
relief, he had a reasonable apprehension o f ongoing or future threats to his privacy
caused by the ongoing publication of Mr Smuts’ post.

[157] This is a novel approach to the determination of whether the re is a breach of
privacy rights. It suggests that the post, irrespective of its content, may subsequently
be found to constitute a breach of privacy because the response to it results in a threat
to privacy. With respect, such an approach will result in significant conceptual
confusion as it shifts the focus away from what is posted to the consequence of the post
in determining whether a breach of privacy occurred.

[158] That approach ignores that Mr Botha’s case for relief was initially premised on
the post itself and what he said was primarily its defamatory nature. The mischief that
Mr Botha identified was the post , even when his case shifted to being primarily based
on a breach of privacy. The responses to the post were used to support the defamation
argument that the post resulted in or was likely to result in harm in relation to
Mr Botha’s personal security and business.
KOLLAPEN J
54

[159] The second judgment’s focus on potential harm to “the security of Mr Botha and
his family at their family home” suggests a cause of action based more on the right to
bodily and psychological integrity in section 12(2) than the right to privacy. This was
not the case Mr Botha asked the High Court to adjudicate. That Court was clear that
the case before it was about resolving the tension between privacy and free express ion
and that questions of harm or of damage to reputation would not feature in its
consideration.109 It is this judgment that Mr Botha defends in this Court and which he
describes as unimpeachable.

[160] Although publication on social media persists and could li kely attract
uncontrolled interactions and reactions, the online context ought not to change the test
of whether an expectation of privacy exists. A determination that has regard to the
content of the post enables a court to reach a n informed conclusion based on the dual
test that Bernstein advocates. The test postulated by the second judgment is located
outside of the spectrum that Bernstein contemplates and conflates a test for harm for
interdictory relief and the test for whether a breach of the right to privacy occurred. No
good reason exists for a departure from the Bernstein test, even if interdictory relief was
sought by Mr Botha.

[161] It is untenable to determine privacy by the unknown variable of the public
response to the post . If the responses to a lawful post are unlawful then it is those
responses that should be addressed. A separate harm would exist from the harm of a
breach of privacy , and such separate harm might activate remedies that are more
appropriate and based on th e threatened harm rather than the lawful post. The
respondents are not responsible for and ought not to bear the brunt of such a threat.

[162] The second judgment says that a lawful publication is capable of becoming
unlawful if circumstances change. This may be true in respect of defamation when the

109 High Court Judgment above n 2 at 25.
KOLLAPEN J
55
reasonableness of a belief at the time of publication is later called into question when
new facts become available. That defence would then no longer avail a publisher. It is
a totally different matter, however , to suggest that public responses to a post,
irrespective of whether they are informed, reasonable or proportionate, can render a post
lawfully made, retrospectively unlawful. In addition, the changed circumstances that
the second judgment relies on are not facts as in the defamation -type cases based on
reasonable belief but responses by third parties. These changed circumstances in the
form of public responses cannot make private something that may not in itself warrant
the description of being private.

[163] The second judgment says that privacy is about unwanted and unwarranted
intrusion into the private sphere of one’s life. The publication of private facts on a
public platform would itself constitute such an intrusion into one’s right to privacy,
irrespective of the public response to it or whether it raises the risk of harm in other
forms. The harm lies in making public that which is private. This is quintessentially
what the right to be left alone is about. Harm is an important consideration when
considering interdictory relief and in this instance, the breach of Mr Botha’s privacy
right is harm in itself, due to the very nature of privacy protection. The suggestion that,
in this case, the focus should be on the threat of a physical intrusion to Mr Botha’s home
is unsustainable and Mr Botha should not need to rely on it. It was not the case
Mr Botha asked the High Court to determine in confirming the rule nisi – that case was
that the publication of private facts constituted a breach of the privacy r ights of
Mr Botha.

[164] It is for these reasons that I disagree with the stance taken in the second judgment
and say that it will contribute to legal uncertainty and leave important legal questions
around privacy to be determined by the nature of public responses to a publication, often
generated by what the second judgment describes as excited groups . The approach
penalises the publisher of the information due to the inappropriate reactions of others.
There lurks the clear danger that an identical post may e ither constitute a breach of
privacy or not , based purely on the responses to the post . Such responses , whatever
KOLLAPEN J
56
they may be, cannot be dispositive of a determination of privacy, however relevant they
may be in other contexts . Our law should not be t he subject of such uncertainty.

[165] I have also read the judgment of my Colleague Rogers J (the third judgment)
which says the appeal should be dismissed. The substantial difference in our approach
lies in the conclusion reached in the third judgment that Mr Botha’s home address was
not a private fact and as such did not enjoy protection. In addition, and while it agrees
with the rest of the conclusions and the approach taken in this judgment, it says that in
respect of the photographs, it reaches the same conclusion but does so by a more direct
and simple route. I deal with these two matters of difference.

[166] The third judgment says that one must distinguish between a breach of privacy
in the form of publishing information and a breach of privacy when someb ody acts on
that information in a particular way. It goes on to point out that there is no evidence
that anybody reacted to the post by protesting outside Mr Botha’s home, let alone in a
way that might have disturbed the privacy of anyone working or livin g there. While
there may be a distinction between a breach of privacy when publishing information
and a breach of privacy when reacting to the information published, they are separate
and independent breaches. While there is no evidence that anyone react ed to the post
in a manner that led to harm, it does not mean that the original publication of the address
did not constitute a breach of privacy. The post can and should be assessed on its own
content in the determination of the privacy enquiry. This, a fter all, is the case that
Mr Botha pursued in the High Court.

[167] It is neither practical nor legally sound to separate out, as the third judgment
does, a home’s location from what happens within the home itself. The privacy
expectation of a home is not onl y a lack of intrusion in the physicality of the four walls
of a house. Among other things, it is an expectation of privacy about the identities of
those who enter and leave and the activities that may be undertaken inside the home –
all of these private f acts may be established merely by the presence of someone who
observes the home from the outside. They are so close and so inextricably linked that
KOLLAPEN J
57
there is little difference in the privacy enquiry between the location of a home and what
occurs inside of it, as the third judgment suggests.

[168] The third judgment also says that one may expect some members of the public
to know where one lives or be obliged to provide one’s address for legal and regulatory
purposes. That is so, but it is a different matter when that address is revealed in a context
where it has no relevance or connection to the publication to which it is attached. The
limited disclosure of where one lives either through the coercion of the law or through
the observation of others does not in i tself render what is a private fact, public.

[169] The third judgment also says that Mr Smuts’ publication of the address was the
same as what Mr Botha published and there was no indication in what Mr Smuts
published that the address was a home address – therefore there was no breach of
privacy by doing so. Mr Smuts came to know, after publication, that the address he
published was a home address and persisted with his publication. It cannot be said that
because Mr Botha published his address it was open to Mr Smuts to do so as well. This
contention ignores the question of purpose which this judgment has dealt with in some
detail. Mr Botha, in publishing his address, did so purely in the context of his brokerage
advertisement and for no other reason that can be discerned. Mr Smuts used this
information for a totally different and unrelated purpose. The considerable difference
in purpose, which is not in itself dispositive, must enable us to view the publication of
the address with purpose in mind in the determination of whether the address constituted
a private fact.

[170] Finally, in respect of the photographs, I agree that the lawfulness of an acti vity
may trigger a conclusion on whether a breach of privacy occurred. I am not however
satisfied that this can be dispositive of privacy. Even if one is on a property with the
permission of the owner and no restrictions are attached to the permission, it cannot
mean that there will never be a breach of privacy. The example of photographing
children swimming in a fam ily pool comes to mind. The absence of access restrictions
could never immunise such conduct from constituting a breach of privacy. And so,
KOLLAPEN J
58
while the distinction the third judgment seeks to draw may be useful, I am not sure if it
can be dispositive for t he reasons I have given.

[171] I have also read the judgment of my Colleague Zondo CJ (the fourth judgment)
which says leave to appeal should be refused on the basis that Mr Botha’s privacy case
was insufficiently pleaded. Accepting the authorities set out in the fourth judgment, I
am of the view that Mr Botha’s privacy case was advanced in the noti ce of motion and
the founding affidavit in the High Court.

[172] The fourth judgment says at [298]:

“[E]ven if Mr Botha were entitled to rely on an alleged infringement of his right to
privacy, the respondents have put up a valid defence to a claim that by publishing the
information they published concerning him, they infringed his right to privacy. This is
so because, if you repeat publicly information about somebody that is already in the
public domain, you cannot be said to infringe his right to privacy.”

[173] That the respondents have sought to advance a defence to the privacy issue in
their answering affidavit is ind icative of the fact that they were aware that a privacy
issue had been raised and they were required to address it. This puts paid to any
suggestion that privacy was not properly pleaded. In addition, the respondents’
argument that repeating what is alre ady in the public domain cannot constitute a breach
of privacy is exactly the argument that the High Court and the Supreme Court of Appeal
considered and decided and the argument that this Court has been called upon to decide.
No question of unfairness or prejudice arises or has been raised in the fourth judgment
in this regard.

[174] Even if it can be said that the privacy issue was only raised in reply, I am of the
view that it was a legal argument that was foreshadowed on the facts set out on the
papers, inc luding the founding affidavit and the answering affidavit , a nd thus
permissible. It is for those reasons that I disagree with the conclusion reached in the
fourth judgment that the appeal be dismissed.
KOLLAPEN J
59

Conclusion
[175] This case has highlighted some of the dif ficult areas the law is required to
navigate in the era of online platforms, easy access to information and the growing
phenomenon of personal information being placed in the public domain. People
construct different relationships with social media and on line platforms. Informational
self-determination requires respect for these relationships and the acceptance by the
data subject of the consequences that come with using online platforms. The law must
retain the necessary flexibility to acknowledge diffe rent expectations of privacy and be
sensitive to context, individual choice and the demands that the public interest
generates.

[176] What has emerged from this case is that public disclosure of information does
not necessarily mean that a data subject loses all expectation of privacy over that
information. The compatibility in the purpose for which information was originally
posted and thereafter used will remain a relevant factor in determining the bounds of
the expectation of privacy.

Relief
[177] For the reasons given, an appropriate order would be to uphold the appeal in part,
set aside the order of the Supreme Court of Appeal and in its place order that any
reference to the address of Mr Botha in the post of 9 October 2019 be deleted and the
respondents interdicted from publishing the address further. In addition, the
respondents should be directed to ensure that any posts by third parties on the second
respondent’s Facebook page are edited, if necessary, to exclude all references to
Mr Botha’s address. Practically, this would require the respondents to delete the
attachment to the post that contains the information about Mr Botha’s insurance
brokerage (annexure F to the founding affidavit in the High Court). However, the grant
of this relief should not be taken as precluding the publication of the name of Mr Botha
or his insurance brokerage on the second respondent’s Facebook page.
KOLLAPEN J
60

[178] Given the complexity of the matter, the unique and unusual nature of the dispute
and the rights implicated , as well as the fact that the parties enjoyed some measure of
success in all stages of the litigation, an appropriate order in respect of costs would be
to direct that the parties bear their own costs in the proceedings before the High Court,
the Supreme Court of Appeal and in this Court.

Order
[179] The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld in part and to the extent set out in paragraph 3 below.
3. The order of the Supreme Court of Appeal is set aside and replaced with
the following order:
“1. The appeal is upheld.
2. The order of the High Court of South Africa, Eastern Cape Local
Division, Port Elizabeth is set aside and replaced with the
following:
‘(a) The rule nisi granted on 11 October 2019 is discharged
subject to paragraphs (b) to (d) below.
(b) The respondents must delete annexure F to the founding
affidavit dated 9 October 2019 in its entirety from the
second respondent’s Facebook page .
(c) The respondents are interdicted from publishing any further
posts which make reference to the applicant’s address.
(d) The respondents are directed to ensure that any posts by
third parties on the second respondent’s Facebook page
which make reference to the applicant’s address are
promptly deleted so as t o remove the address after such
posts have come to the attention of the respondents. ’
3. The parties shall bear their own costs in the High Court and in this
Court.”
KOLLAPEN J / CHASKALSON AJ
61
4. The parties shall bear their own costs in this Court.



CHASKALSON AJ:


Introduction
[180] I have had the pleasure of reading the judgment s of my Colleagues Kollapen J
(first judgment), Rogers J (third judgment) and Zondo CJ (fourth judgment) . I agree
with the first and third judgment that leave to appeal must be granted.

[181] Subject to a difference concerning the mootness of any dispute regarding the
ongoing publication of posts identifying Mr Botha’s involvement in the insurance
industry (the insurance posts), 110 I agree with the judgment of Kollapen J in relation to
the question of mootness which he addresses in [41] to [44] of the first judgment.

[182] I also find myself in agreement with Kollapen J’s ultimate conclusions in relation
to the matter. However, my reason ing for reaching these conclusions differs materially
from his. My differences with the first judgment can be summarised as follows:
(a) First, I take a different view on the pleadings. In my opinion, the only
plausible privacy case that can be advanced on t he basis of the founding
papers in this case is a case that the respondents’ refusal to take down the
posts on the Facebook page of the second respondent (Landmark) violated
the privacy of Mr Botha in that it subjected him and his family to the
threat of harassment at their home .
(b) Second, in regard to whether such a privacy case can be sustained, I
consider that it is important to have regard to the digital/online context to
the present dispute and the implications of this context not only for the
right to privacy, but also for the fact that online publication is an ongoing
process as opposed to an instantaneous act.

110 See [234] below .
CHASKALSON AJ
62
(c) Third, I place much more emphasis on the nature of the interdictory relief
sought by Mr Botha. Linked to the fact that this is a case about an
interdict which is a prospective remedy, I rely on facts that took place
between the original post made by Mr Smuts, and the launch of the urgent
proceedings before the High Court.
(d) Finally, I emphasise that an important element of the fundamental right
to privacy is the right to be left alone from unwanted and unwarranted
intrusion. With this focus, I differ from my Colleague Kollapen J in how
the dual expectations “Bernstein test”111 should apply in this case. I n my
view, having regard to the pleadings in this case, the correct approach is
not to focus on the particular pieces of information in the post of
Mr Smuts and to ask whether Mr Botha had a reasonable expectation of
privacy in respect of each such piece of information. Rather it is to
recognise that Mr Botha (like everyone else) has a subjective expectation
of privacy in the form of being protected from unwanted harassment at
his family home and that this subjective expectation of privacy is
undoubtedly an objectively reasonable expectation of priva cy. The test
then shifts to a balancing enquiry. The questions to ask are whether the
respondents’ ongoing publication of any information posted by Mr Smuts
infringed or threatened Mr Botha’s privacy right to be free from unwanted
and unwarranted intrusi on at his family home, and if so whether the
respondents’ freedom of expression interest in the continued publication
of the post outweighs Mr Botha’s privacy right.

The pleadings
[183] The applic ation for leave to appeal to this Court frames this case, almost
exclusively, as a case about privacy. However, the case, as framed in the founding
affidavit, was not based on the right to privacy. The right to privacy was not mentioned

111 Bernstein above n 6 at para 85. See also Tulip Diamonds above n 69 at para 35 and Prince above n 63 at
para 47.
CHASKALSON AJ
63
at all in the fou nding affidavit. Instead, the privacy case of Mr Botha is one that was
first retrofitted onto his application in the replying affidavit. The genesis of the privacy
case, appears to be the following:
(a) No reliance was expressly placed on the right to privacy in the founding
affidavit.
(b) The causes of action advanced in the founding affidavit were essentially
threefold: a complaint about the allegedly defamatory nature of the posts
made by the respondents; an allegation that the posts presented an
unlawful threat of economic harm to Mr Botha in the form of a boycott of
his insurance and farming businesses ; and an allegation that the posts
unlawfully created a security risk to Mr Botha and his family at their
home. Mr Botha expressly alleged that the latte r threat was caused by
Mr Smuts’ publication of his home address in the post on the
Landmark Facebook page.
(c) Despite the absence of any express reliance in the founding affidavit on
the right to privacy, prayer 2.1.2 of the notice of motion was a prayer for
an order directing the respondents “ to refrain from . . . disclosing any
information and/or confidential information and/or posts . . . regarding the
Applicant / his business·/ his farm in any manner whatsoever .”
(d) In response to prayer 2.1.2 of the notice of motion , the respondents, in
their answering affidavit, simply denied that any of the information
published in the posts was of a confidential nature. As there were no
allegations in the founding affidavit that sought to establish the
confidential natur e of any of the information in the posts, there was no
confidentiality or “private information” case for the respondents to meet.
Therefore, beyond pointing out that all of the published information
which they still sought to maintain on the Landmark Face book page was
information which had originally been published by Mr Botha, they
contented themselves with a bald denial that any of this information was
confidential.
CHASKALSON AJ
64
(e) In the replying affidavit, Mr Botha expressly invoked the right to privacy
for the first time and now alleged that information of his name, his
address, his business name and farm name was private information.
Mr Botha labelled this information as his “personal information” and
alleged that it could not be published on social media without hi s
permission. He continued to link the publication of this “personal
information” to an alleged threat to the safety of himself and his family,
and he specifically referred in this regard to a threatening post in an
annexure to the founding affidavit sugg esting that someone should pay
him a visit.

[184] We were informed from the bar that although the High Court judgment and the
Supreme Court of Appeal judgment both treated the case as one about the right to
privacy, the respondents had maintained before both co urts that they had not been
brought to court on founding papers that called upon them to answer a case based on
the right to privacy.

[185] The respondents clearly raised the pleading issue as a ground of appeal before
the High Court. The first basis upon whic h the High Court granted leave to appeal to
the Supreme Court of Appeal was that there was a “ reasonable prospect that another
court would have approached the matter differently and considered the initial basis of
relief which was dealt with in the answering affidavit, and not decided the matter based
on the case raised in reply .”112

[186] In their affidavit opposing leave to appeal to this Court, the respondents pointed
out that “the applicant only raised his right to privacy as something of an afterthought
in reply. He did not raise the right to privacy in his founding papers.” At three separate
places in their affidavit opposing leave to appeal to this Court, the respondents repeated
their complaint that the right to privacy was not raised in the founding papers.

112 Botha v Smuts unreported judgment of the Eastern Cape High Court, Port Elizabeth, Case No 2832/2019
(25 August 2020) at para 9.
CHASKALSON AJ
65

[187] We are accordingly faced with a privacy case which was not pleaded in the
founding papers and to which the respondents have objected before the High Court, the
Supreme Court of Appeal and this Court. It is trite that —

“in motion proceedings the affidavits serve not only to place evidence before the Court
but also to define the issues between the parties. In so doing the issues between the
parties are identified. This is not only for the benefit of the Court but also, and
primarily, for the parties. The parties must know the case that must be met and in
respect of which they must adduce evidence in the affidavits.”113

[188] This problem is an issue of pleading that is more fundamental than the problem
presented when an applicant seeks to introduce in a replying affidavit a new matter
designed to bolster a cause of action already rais ed in the founding papers or to answer
a defence to that cause of action raised in the answering affidavit. 114

[189] In the circumstances, we can only consider Mr Botha’s case based on privacy if,
and to the extent that, we conclude that the respondents will not be prejudiced by having
now to answer a case that was not pleaded in the founding papers and was accordingly
not canvassed by them in the answering affidavit. 115 This is a matter to which I return
below under the heading “privacy analysis” and when I consid er the specific categories
of information which Mr Botha seeks to interdict from publication by the respondents.


113 Swissborough Diamond Mines (Pty) Ltd v Government of the R epublic of South Africa 1999 (2) SA 279 (T)
at 323F-G.
114 The authorit ies cited in footnote 23 of the first judgment address this latter problem. See also Smith above n 33
at para 15; Juta & Co Ltd above n 36 at 511E-F and Nkengana above n 36 at para 9.
115 In [272]-[278], the fourth judgment sets out the authorities for the basic rule that applicants must stand or fall
by the case pleaded in their founding affidavit. The basic rule is subject to an exception in cases where the
respondent will not be prejudiced if the Cour t considers an issue that was not pleaded in the foundin g affidavit.
See Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd [2022] ZACC 44; 2023 (4) SA
325 (CC); 2023 (5) BCLR 527 (CC) at para 277; My Vote Counts above n 31 at para 177; Robinson above n 23
at 198; and F v Minister of Safety & Security [2011] ZACC 37; 2012 (1) SA 536 (CC); 2012 (3) BCLR 244 (CC)
at para 128.
CHASKALSON AJ
66
The digital/online context
[190] This case concerns the publication by Mr Smuts of information concerning
baboon trapping practices on Mr Botha’s fa rm. The publication took place on
9 October 2019 on the Facebook page of Landmark that Mr Smuts controlled on behalf
of Landmark. The original post of Mr Smuts was read by third parties who then posted
their responses onto the Landmark Facebook page. By the time that Mr Botha
approached the Eastern Cape High Court a day later, over 200 posts had been made in
response to the original post of Mr Smuts.

[191] The digital context of this case is central to how the problems it presents should
be understood. In pa rticular, my view is that our judgment must take account of three
features of the digital age that are directly relevant to the present dispute:
(a) First, it is almost impossible to exist in the contemporary world without
leaving a substantial online trail of information about oneself that a hostile
third party can assemble into a targeted profile with a few online searches
and investigations.
(b) Second, online publication is not a single act. It is a continuous process.
As long as an online publication remains online, it continues to be
published to third parties to whom the publication is accessible on the
internet. Therefore, when the lawfulness of online publication is assessed,
a court cannot confine its focus to the moment of initial publication.
Online publication that originally may have been lawful, can become
unlawful if the statement or document originally published continues to
be published online despite changed circumstances that affect the
lawfulness of ongoing publication. In this regard, it is significant that
Mr Botha’s complaint, from the outset, was a complaint about the
continuing harm he was being exposed to as a result, not merely of the
original publication of the post, but the failure of the respondents to take
down the post (that is, their ongoing publication of the post) in light of the
public responses which the ongoing publication of the post continued to
invite.
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(c) Third, social media platforms have specific features that are important for
purposes of the present case. Publication on social media is frequently
not a unidirectional process in the way that publication in print or
broadcast media has historically been. Publication on social media is
often designed to initiate or to engage in a process where participants on
a social media platform respond to the posts that have preceded their
posts. In this way, social media platforms can facilitate the active
exchange of views and information in a way that print media publications
could never do. However, social media platforms can also function as an
echo chamber and can lend themselves to processes where like -minded
individuals respond without reflection in an online crowd. When the
excited responses of the online crowd are targeted at individuals, there is
a particular risk of harm t o those targeted individuals. It is that risk that
Mr Botha raised when he repeatedly complained in the application papers
about “social media warfare” directed against him.

[192] If we fail to take account of these three features of the digital age in the present
case, we run the risk s of—
(a) ignoring the threats to the personal privacy of individuals that can be
presented by the harvesting of information that those individuals have
voluntarily published themselves;
(b) focusing too closely on individual s ocial media posts originally published
at a single point in time and not enough on the ongoing process of posts
and responses as continuous publication of the original post takes place
and a social media “discussion” unfolds ; and
(c) underappreciating the harm that can be suffered by individuals who find
themselves selected for targeting on social media by an online crowd.

[193] In relation to the latter point, I agree with the first judgment that the risks and
dangers of “digital vigilantism” are issues best left for Parliament to address. This Court
is required to pronounce on the lawfulness of the conduct of the respondents. It must
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do so by investigating whether that conduct violated the rights of Mr Botha. The
category of “digital vigilantism” is not of any u tility in that regard. Accordingly, I
decline to express any view on whether the conduct of the respondents could
appropriately be described as “digital vigilantism” .

The interdictory relief and the facts
[194] Mr Botha’s application is an application for inte rdictory relief. An interdict
seeks prospective relief. It is designed not to address harm that has already taken place,
but rather to prevent harm happening in the future. 116 So the question that this Court
must answer is not whether , at the time that Mr Smuts made his original post, it was
foreseeable that the post would trigger the responses that it did. Rather , it is whether,
at the time that Mr Botha sued for interdictory relief, he had a reasonable apprehension
of ongoing or future threats to his pr ivacy caused by the continuing publication of
Mr Smuts’ post on the Landmark Facebook page. The latter question requires us to
have regard not only to the content of the original post of Mr Smuts, but also to the
ongoing publication of that post online and the ever-increasing re sponses that it was
eliciting on the Landmark Facebook page controlled by Mr Smuts.

[195] As pointed out above, by the time that Mr Botha instituted his urgent interdict
application on 10 October 2019, the original post of Mr Smuts had continuously been
published on the Landmark Facebook page for over a day and, in the process, had
prompted over 200 responses. Most of those responses were hostile to Mr Botha. The
interim interdict obtained by Mr Botha ensured that the original post and the responses
were taken down pending finalisation of the High Court proceedings. It was only after
the Supreme Court of Appeal judgment in favour of Mr Smuts and Landmark, that the
original post and the responses were reinstated on the Landmark Facebook page.

[196] When the respondents received the High Court interdict application , they were
faced with an election. They could accept that, in the light of the responses the original

116 Philip Morris Incorporated v Marlboro Shirt Co SA Ltd 1991 (2) SA 720 (A) at 735B.
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post had already generated, and was c ontinuing to generate, it was now clear that
ongoing publication of the post presented a threat to the rights of Mr Botha.
Alternatively, they could double down and insist on a right to continue publishing the
original post, and in the process to invite f urther responses . The respondents chose the
latter route. Save in relation to the photo of Mr Botha’s minor daughter, in Mr Smuts’
answering affidavit filed on 29 November 2019, the respondents insisted on their right
to reinstate the original post . So it is necessary to analyse not only the original post, but
also the respon ding posts in the context of which the respondents sought to re instate
Mr Smuts’ original post .

[197] In the record that served before us , we do not have copies of all 212 posts that
the original response of Mr Smuts elicited . However, the undisputed evidence is that
the majority of the posts were hostile to Mr Botha. The posts that made their way into
the record included the following:
(a) “This CANNOT be legal!! Herman Botha you should be ashamed of
yourself!!!”
(b) “Shame him, let’s start a social media campaign and shame him till he
loses all his insurance clients”
(c) “What insurance companies does he work with?”
(d) “How do we find out where his produce goes? Is there a way? These
unethical farmers absolutely need to feel it in their POCKET and reali se
if they commit these heinous acts of cruelty there will be a massive
consequence.”
(e) “Someone drop him a visit”
(f) “Not farmers, but killers.”
(g) “Permits to poison wildlife? I don’t think so.”
(h) “Shockingly despicable of this human.”
(i) “What an absolute asshole. He should be in that cage.”
(j) “Share and shame”
(k) “What a joke!! Dumb f**k!”
(l) “What an idiot”
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(m) “A PE insurance salesman pretending to be a farmer while hiding behind
his silly lawyer. How low c an one go!!”

[198] Mr Smuts maintains that he did not intend to harm Mr Botha by making his
original post on 9 October 2019, only to “out” his animal trapping processes . He also
maintains that he did not allege that Mr Botha had poisoned baboons or otherwise a cted
illegally, as opposed to unethically. Whatever the original intention of Mr Smuts may
have been, by the time they received the interdict application, the respondents knew that
their ongoing publication of the original post had, in just over a day, generated more
than 200 third -party responses, the vast majority of which were hostile to Mr Botha.
When the respondents filed their answering affidavit more than a month after the
original post had been taken down in compliance with the interim interdict, they insisted
on their right to reinstate the original post . Accordingly, when they asserted a right to
reinstate Mr Smuts’ post, the respondents must have foreseen that the reinstatement of
the post was likely to generate a new wave of responding posts hostile to Mr Botha.

[199] After receiving the interdict application, the respondents knew that the address
of Mr Botha that w as contained in the original post was not only the address of
Mr Botha’s business (as Mr Smuts thought when he originally posted it) but was also
the address of the home at which Mr Botha resided with his family, including his then
14-month-old daughter. In addition, the respondents knew by then that Mr Smuts’ post
had been interpreted to mean that Mr Botha was illegally poisoning baboons, that
several responders were urging follow -up action to target Mr Botha , and that one of
them was suggesting that some one should “drop him a visit” (presumably at the address
that was included in Mr Smuts’ post).

[200] The respondents did not tender any measures to constrain the responses on the
Landmark Facebook page that reinstatement of the post was likely to prompt. Inste ad,
they suggested that such moderation was the exclusive responsibility of Facebook and
they asserted a right “to stimulate robust debate on a thorny and controversial topic” .
They did not even explicitly dissociate themselves from the more extreme respo nses
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(although they sought to avoid responsibility for the m). So when the respondents
resisted the interdict, and sought a right to reinstate the post, they were asserting a right
to continue publishing the post with knowledge of the responses that it had already
prompted and was likely to continue to prompt in the future.

The privacy analysis
[201] It is in the context set out above that we must consider whether Mr Botha faced
an ongoing violation of, or threat to, his privacy rights as a result of the conduct and
attitude of the respondents . For the purposes of answering this question, it is useful to
remember that in one of its earliest formulations, the right to privacy was described a s
the right “to be le [f]t alone from unwanted and unwarranted intrusion” . This
formulation was first developed over a century ago in the article by Brandeis and
Warren that came to shape U nited States jurisprudence on privacy. 117 It was then
expressed by Justice Brandeis in his famous dissent in Olmstead v United States 118 that
has repeatedly been cited with approval by this Court. The formulation has been
adopted by this Court in NM,119 Hyundai, 120 Gaertner121 and Prince122 and has an even
longer pedigree in the High Court. 123

[202] Consistent with its origins in the libertarian world of the 1 9th century United
States, the right “to be left alone ” was framed by Brandies and Warren with reference
only to unwanted and unwarranted intrusion from the State. However, we live in a
21st century world of online cyberbullying, privately owned and freely accessible

117 Brandeis and Warren above n 65.
118 Olmstead v United States 277 US 438 (1928) (72 L Ed 944).
119 NM v Smith (Freedom of Expression Institute as Amicus Curiae) [2007] ZACC 6; 2007 (5) SA 250 (CC); 2007
(7) BCLR 751 (CC) at para 32.
120 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) L imited: In re
Hyundai Motor Distributors (Pty) L imited v Smit N.O. [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (2) SACR
349; 2000 (10) BCLR 1079 (CC) ( Hyundai ) at para 16.
121 Gaertner v Minister of Finance [2013] ZACC 38; 2 014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC) (Gaertner)
at para 47.
122 Prince above n 63 at paras 54 and 71.
123 S v H above n 65 at 125; Kampher above n 65 at 481; Pretorius above n 65 at paras 39-43; and Makhanya
above n 65 at paras 11-3.
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search engines , and digital surveillance by private corporations of movements,
purchasing patterns, internet browsing preferences and the like . In our 21 st century
world the right to privacy would be eviscerated if it did not also protect against
unwanted and unwarranted intrusion by private parties.

[203] Since the original formulation of the right to privacy as a right to be protected
from unwanted and unwarranted intrusion , jurisprudence on the right to privacy has
developed. The right to privacy is now understood to embrace much more than the
original protection contemplated by Brandeis and Warren. In this regard, Sachs J noted
in his concurring judgment in National Coalition 124 that—

“the much-quoted ‘right to be left alone’ should be seen not simply as a negative right
to occupy a private space free from government intrusion, but as a right to get on with
your life, express your personality and make fundamental decisions about your intimate
relationships without penalisation.”125

[204] The problem of defining the developed fundamental right to privacy led this
Court in Bernstein to observe that the “concept of privacy is an amorphous and elusive
one”.126 However, any formulation of the right to privacy in its developed form must
still recognise that the right includes protection from unwarranted and unwanted
intrusion. The right to privacy may have expanded beyond its libertarian origins, but

124 National Coalition for Gay and Lesbian Equality v Minister of Justice [1998] ZACC 15; 1998 (12) BCLR
1517 (CC); 1999 (1) SA 6 (CC).
125 Bernstein above n 6 at para 116.
126 Id at para 65. In his article “Privacy: Its Meaning and Value” (2003) 40 American Philosophical Quarterly
215 at 215 Adam D Moore describes some of the different ways in which jurists and philosophers have attempted
to define the right to privacy:
“Privacy has been defined in many ways over the last century. Warren and Brandeis called it
‘the right to be let alone.’ Pound and Freund have defined privacy in terms of an extension of
personality or personhood. Westin and others including myself have cashed out privacy in terms
of information control. Still others have insisted that priv acy consists of a form of autonom y
over personal matters . Parent offers a purely descriptive account of priv acy ‘Privacy is the
condition of not having undocumented personal knowledge about one possessed by others.’
Finally, with all of these competing c onceptions of privacy some have argued that there is no
overarching concept of privacy but rather several distinct core notions that have been lumped
together.”
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the freedom from unwarranted and unwanted intrusion remains an important element
of the expanded right.

[205] The right to be left alone from unwanted and unwarranted intrusion is obviously
subject to the general observations on the right to privacy emerging from the judgments
of this Court in its founding judgments on privacy. In Bernstein this Court stated:

“In the context of privacy . . . it is only the inner sanctum of a person, such as his/her
family life, sexual preference and home environment, which is shielded from erosion
by conflicting rights of the community. This implies that community rights and the
rights of fellow members place a corresponding obligation on a citizen, thereby shaping
the abstract notion of individualism towards identifying a concre te member of civil
society. Privacy is acknowledged in the truly personal realm, but as a person moves
into communal relations and activities such as business and social interaction, the scope
of personal space shrinks accordingly.”127

[206] Reflecting on this passage in Mistry,128 this Court stated the following:

“In Bernstein and Others v Bester and Others N.N.O. Ackermann J posited a
continuum of privacy rights which may be regarded as starting with a wholly inviolable
inner self, moving to a relatively impervious sanctum of the home and personal life and
ending in a public realm where privacy would only remotely be implicated.”129

[207] While all people have a clear privacy interest in being left alone from unwanted
and unwarranted intrusion in relation to their families and homes, they have little if any
privacy interest in being left alone from unwanted and unwarranted int erference in
relation to their businesses.130 The owner of a business may well have commercial and

127 Bernstein above n 6 at para 67.
128 Mistry above n 4.
129 Id at para 27.
130 This is not to deny that violations of personal privacy can occur at the place of the business. To take a clear
example – clandestine surveillance of employees in toilets at work would amount to a gross violation of personal
privacy. See López Ribalda a nd Others v Spain no 1874/13 ECHR 2020 at para 125 and the international
instruments cited in paras 61 and 65 of that judgment.
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proprietary rights against interference with their business, but for the most part, these
are not privacy rights. It is only when the interference is like the intrusive searches
contemplated in Hyundai that the interest of that business owner can be treated as a
privacy interest, as opposed to a com mercial or proprietary interest that falls outside the
right to privacy. 131 This distinction is important to hold in mind. If Mr Botha has
commercial and proprietary rights that have been violated by the respondents, he will
have other remedies available t o him. The present application for leave to appeal to
this Court concerns only his right to interdictory relief to protect his right to privacy.

[208] Concentrating on the “unwanted and unwarranted intrusion” element of the right
to privacy in the present case allows us to focus the enquiry on the only privacy issue
that, in my view, is open for us to consider in light of the case pleaded by Mr Botha in
the founding affidavit. That issue is not whether the information originally published
by Mr Smuts was of a private nature. As pointed out above, the founding affidavit
contains no allegations that Mr Smuts published private or confidential information. So
questions of the “private” nature of the information published by Mr Smuts were not
fully canvassed on th e papers by the respondents and in my view, it is not open to us to
decide this case on the basis of whether particular information published in the post of
Mr Smuts was private information. 132

[209] I disagree with the statement in the first judgment that privac y concerns in this
regard “[were] fully ventilated on the papers ”. The privacy concerns in this regard were
ventilated in argument, but the respondents did not have the opportunity to ventilate
them on the papers because they were raised for the first tim e in the replying affidavit.
Moreover, before every Court, the respondents invoked the prejudice to them of
allowing the applicant to rely on a privacy case in this regard that was not pleaded in
the founding affidavit.


131 Hyundai above n 120 at para 18.
132 For this reason, I do not believe it is open to us to decide this case on the basis of whether particular information
published in the post of Mr Smuts was private information.
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[210] However, it is open to us to consi der whether ongoing publication of the
information on the Landm ark Facebook page threatened Mr Botha’s right to privacy,
by subjecting him to threats of unwanted and unwarranted intrusion in the form alleged
in the founding affidavit, namely a threat to th e security of Mr Botha and his family at
their family home and a threat of commercial harm to Mr Botha’s insurance and farming
businesses through a possible boycott campaign.

[211] The case in the founding affidavit was based on an allegation that the ongoing
publication by Mr Smuts of certain information concerning Mr Botha and his
businesses133 and the responses the ongoing publication of that post was eliciting
presented a threat to the security of Mr Botha and his family at their family home and a
threat of co mmercial harm to Mr Botha’s insurance and farming businesses through a
possible boycott campaign.134 These threats were not pertinently pleaded as violations
of Mr Botha’s right to privacy. However, the facts relevant to these threats were fully
canvassed in the papers and there is no apparent prejudice to the respondents in allowing
the applicant’s complaint in this regard to be re -characterised as a privacy complaint of
exposure to the threat of unwanted and unwarranted intrusion.

[212] In the written and oral argument submitted on behalf of Mr Botha, these threats
were re -characterised as a privacy issue. Counsel for Mr Botha made extensive
submissions about online bullying and the problem of doxing – the collection of
information available online about a per son and the re -publication of that information
in circumstances calculated to cause harm to that person. 135 Therefore, to the extent
that Mr Smuts’ ongoing publication of information about Mr Botha implicated his

133 When the case was expressly pleaded as a privacy case for the first time in the replying affidavit, thi s
information was described as “personal information.” The label “personal information” was not used in the
founding affidavit.
134 There was also a defamation cause of action which is not relevant for present purposes.
135 Counsel for Mr Botha referred in this regard to the analogous case of Dutch Reformed Church Vergesig
Johannesburg Congregation v Rayan Sooknunan t/a Glory Divine World Ministries 2012 (6) SA 201 (GSJ) and
to the Hong Kong case of Junior Police Officers’ Associatio n of the Hong Kong Police Force v Electoral Affairs
Commission CACV 489/2019 [2019] HKCA 1197. He also referred to the discussion of doxing in South African
Human Rights Commission “Social Media Charter” (2023) at 16, available at:
https://w ww.sahrc.org.za/home/21/files/SAHRC%20Social%20Media%20Charter%20FINAL.pdf .
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privacy rights by presenting him with a fear of harassment at his family home and a fear
of boycotts of his businesses, there is no apparent prejudice to the respondents in
allowing Mr Botha to argue a privacy case in this regard.

[213] The fourth judgment takes issue with my conclusion that there would be no
prejudice to the respondents in allowing the applicant to recast his case in this narrow
respect. It suggests that if the applicant had pertinently pleaded his harassment
complaint as a privacy complaint, the respondents may have answered it differe ntly. I
disagree. This is not, as suggested in the fourth judgment, to argue that a hearing would
have made no difference. It is to argue that the hearing took place, albeit under a
different label. Any facts potentially relevant to the re-characterised privacy complaints
would have been equally relevant to the originally pleaded complaints of a threat to
security at Mr Botha’s family home and a threat of commercial harm to his businesses.
At the level of fact, the respondents’ answer to the complaint about a risk to the security
of the applicant and his family was not to deny the risk. It was merely to contend that
this was not something for which they could be held responsible because, at best for the
applicant, that risk flowed from thir d-party responses to the original post. There is no
reason to believe that the respondents may have answered differently on the facts if the
complaint had been framed expressly as a privacy complaint based on a risk of
harassment of Mr Botha and his famil y at their home, rather than a complaint about a
risk to the security of Mr Botha and his family at their home, which latter risk would
have included any risk of harassment of Mr Botha and his family at their home. The
same applies to the re -characterisation of the commercial harm complaint as a privacy
complaint.

Application of the privacy analysis
[214] The relief claimed by Mr Botha and granted by the High Court dealt with five
categories of posts: posts referencing Mr Botha himself, posts referencing his family,
posts referencing his home address, posts referencing the name and location of his farm
and the insurance posts. I address each of these categories in turn.

CHASKALSON AJ
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References to Mr Botha’s family
[215] Mr Smuts and Landmark have apologised for posting a photograph of
Mr Botha’s infant daughter and have removed that photograph from the post. There is
no suggestion on the papers that Mr Smuts or Landmark have ever threatened to make
any other posts referencing Mr Botha’s family. So this category of post d oes not need
the protection of an interdict. This was already the case by the time the interim interdict
was granted.

Mr Botha’s address
[216] The refusal to remove the post of Mr Botha’s address infringes his privacy
because it subjects him to the threat of unwanted and unwarranted intrusion at his family
home. At the time that Mr Smuts posted the address, he thought that it was only a
business address. However, Mr Botha runs his business from home. So the address is
the address of Mr Botha’s home where he resides with his wife and young daughter.

[217] The original post of Mr Smuts triggered an excited group response targeting
Mr Botha. Apart from various abusive posts directed against Mr Botha, one responder
specifically suggested that Mr Botha should be paid a visit. It is clear from the founding
affidavit that Mr Botha subjectively feared harassment at his family home. In his
founding affidavit he repeatedly alleged that the effect of Mr Smuts’ post, including its
reference to what is his home address, was to endanger him and his family. This
complaint was made again in the replying affidavit and in the affidavit in support of the
application for leave to appeal in this Court.

[218] In relation to the fundamental right to privacy, this Court has repeatedly
described the home as “the inner sanctum”.136 It has emphasised that this inner sanctum
is a “relatively impervious sanctum”. 137 Much of this Court’s jurisprudence dealing

136 Gaertner above n 121 at para 49 and Magajane v Chairperson, North West Gambling Board [2006] ZACC 8;
2006 (5) SA 250 (CC); 2006 (10) BCLR 1133 (CC) at para 45.
137 Mistry above n 4 at para 27. See also Industry House above n 100 at para 34.
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with legislation authorising searches has emphasised the need to protect the sanctity of
the private home. 138 The core of the right to be left alone from unwanted and
unwarranted intrusion is the right to be left alone from unwanted and unwarranted
intrusion in one’s own home. So a fear of being harassed at one’s family home is a fear
that goes to the heart of the fundamental right to privacy. In the language of Bernstein,
everyone has an objectively reasonable expectation not to be subjected to unwanted and
unwarranted intrusion at one’s own home .

[219] Mr Botha’s fear of harassment at his family home was not a frivolous fear.
Within the class of responders to Mr Smuts’ original post there was a group of people
who felt passionately about the trapping of baboons, and who felt free to abuse
Mr Botha in strong terms. There is nothing in the record to suggest that the responder
who suggested a visit to Mr Botha was in any way repudiated by the rest of the group
that targeted Mr Botha. In the circumstances, Mr Botha would have had to be unusually
thick-skinned not to fear that he and his family might be harassed at their home by some
of the more reckless members of the group targeting him. In this regard, I disagree with
the third judgment that because no -one had yet protested outside Mr Botha’s home, he
could not make out a case for the interdictory relief that he sought. The question, for
the purposes of interdictory relief, is not whether Mr Botha could show that he had
already been harassed at his family home; it is whether he had a reasonable fear that he
would be harassed at his family home.

[220] The respondents do not suggest that there was no basis for Mr Botha to fear
harassment at his family home. Instead, in the answering affidavit Mr Smuts confines
himself to two different defences. First, he maintains that he personally had not in any
way suggested harassment or abuse of Mr Botha and he disavows responsibility for the
responses to his original post that may have done so. Second, he maintains that
Mr Botha had no right to prevent publication of his home and business address because
he had widely advertised this address online.

138 See for example Gaertner above n 121, Industry House above n 100, Mistry above n 4 and Estate Agency
Affairs Board v Auction Alliance (Pty) Ltd [2014] ZACC 3; 2014 (3) SA 106 (CC); 2014 (4) BC LR 373 (CC).
CHASKALSON AJ
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[221] The first defence of the respondents does not avail them. As has been
emphasised above, online publication is a continuous process and an interdict is a
prospective remedy. So, the issue is not whether the original p ost of Mr Smuts
deliberately or foreseeably invited abuse and harassment of Mr Botha. The issue is that,
at the time that Mr Botha sought interdictory relief, he reasonably feared that, having
regard to the responses Mr Smuts’ post had triggered, ongoing publication of that post
presented a continuing risk that he and his family would be harassed at their home.

[222] This concern with the harm threatened by continuing publication of the original
post was raised pertinently in the founding affidavit. In his founding affidavit Mr Botha
relied not only on the post itself, but also on the responses that its ongoing publication
was triggering. He attached to the founding affidavit what he described as “the more
egregious comments to the respondents’ post” and he pe rtinently complained that:
(a) “the respondents’ post has still not been removed and the public continue
to respond on same”
(b) “These comments . . . cause harm to my business and endanger me and
my family”
(c) “the comments made on Facebook have been made to cause, and have in
fact caused, severe prejudice to me .”

[223] In the circumstances, the respondents were clearly faced with a case in the
founding affidavit that concerned not only the content of the original post but also its
ongoing publication in the light of the responses that it had triggered on the
Landmark Facebook page.

[224] As pointed out above, the second defence of the respondents is the claim that
Mr Botha cannot rely on his right to privacy to prevent publication of his home and
business address because he ha s widely advertised this address online. This defence is
also unfounded. It is correct that Mr Botha has used the internet to publish his home
and business address to the world. But the violation of Mr Botha’s privacy with which
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this judgment is concern ed is not one based on publication of confidential or private
information.139 It is one based on the fact that the continuing publication of Mr Botha’s
address on the Landmark Facebook page, in the light of the responses that such
publication had already tr iggered, left Mr Botha reasonably fearing that he and his
family might be harassed at their family home.

[225] By subjecting Mr Botha to a fear of harassment at his family home, the ongoing
publication of Mr Botha’s address violated his fundamental right to pri vacy in a manner
that goes to the very essence of the right. There may be cases where a respondent can
show a freedom of expression interest that would justify such a violation of the
fundamental right to privacy. However, this is not one of them. There is no apparent
link between Mr Botha’s address and the campaign against baboon trapping that the
respondents seek to advance through Mr Smuts’ post. In fact, the question does not
even arise in the present case. Mr Smuts does not seek to justify publica tion of
Mr Botha’s home address with reference to any freedom of expression interest. His
defence of publication of the address is confined to an argument that Mr Botha has
already published the address himself and so it cannot be protected from re -publication
on the Landmark Facebook page. As has already been pointed out, that defence does
not avail the respondents because it misconceives the basis upon which Mr Botha’s
privacy rights were violated by the posting of his address on the Landmark Facebook
page.

[226] It might be suggested that because Mr Botha’s address is freely available on the
internet, it would be pointless to compel Mr Smuts and Landmark to remove that
address from any ongoing publication of Mr Smuts’ post. This suggestion ignores the
collective nature of social media and its capacity to act as an “echo chamber” for
individuals with strong feelings on particular topics. 140 A Facebook post is designed to

139 In any event, as the first judgment shows, there remains scope for a claim to privacy in respect of personal
information that the data subject has placed in the public domain.
140 See for example the Sir Henry Brooke Memorial Lecture for BAILI I delivered by Lord Justice Sales and
published as Sales “Algorithms, Artificial Intelligence and the Law” (2021) 105 Judicature 22 at 32. See also
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invite comment from a wide range of people. A Facebook page is a platform for group
responses, and can serve as a platform for excited group responses in which individual
responders react in less controlled ways than they do in individual face to face
interactions.141 This aspect of social media was a particular concern for Mr Botha as
evidenced by his repeated complaints on the papers of “social media warfare” against
him.

[227] It is true that individuals wanting to target Mr Botha can individually find his
address on the internet. However, the risk of harassment of Mr Botha at his family
home is materially increased if that address is allowed to remain on the
Landmark Facebook page where the group wishing to target him “meet” collectively
online.

[228] The respondents may not be able to control the information that individual
responders to Mr Smut s’ post can find on the internet. But they can control what
information is published on the Landmark Facebook page. It is therefore appropriate
for this Court to order the respondents to use that control to ensure that Mr Botha’s fear
of harassment at hi s family home is not compounded by the ongoing publication of his
home address on that Facebook page.

The posts referring to Mr Botha himself and his far m
[229] The status of posts referencing Mr Botha himself and his farm name and location
has been analysed at length in the first judgment. Even if it were open on the pleadings
for Mr Botha to advance the privacy case that he does advance in relation to these posts,
I would agree, for the reasons similar to those set out in the first judgment, that any such

N Gillani et al “ Me, My Echo Chamber, and I: Introspection on Social Media Polarization” (2018) WWW ’18:
Proceedings of the 2018 World Wide Web Conference at 823–31.
141 The nature of excited group responses in virtual crowds on social media platforms can bear some similarities
to the phenomenon of “deindividuation” that courts in the 1980s and 1990s considered in relation to individual
actions within physical crowds. See for example S v Motaung 1990 (4) SA 485 (A) and S v Matshili 1991 (3) SA
264 (A).
CHASKALSON AJ
82
privacy case should fail. Having regard to the constraints of the pleadings, in my view,
it is clear that no privacy case can succeed in this regard.
(a) As stated above, the only privacy interest that Mr Botha can assert on the
pleadings is his privacy interest in being protected from unwanted and
unwarranted intrusion.
(b) To the extent that the disclosure of Mr Botha’s identity affects his right to
privacy in this respect, any such privacy interest of Mr Botha is
outweighed by the freedom of expre ssion interest of Mr Smuts and
Landmark.
(c) The respondents are activists who regard the practice of baboon trapping
as unethical even if it may be legal. Their freedom of political expression
entitles them to criticise Mr Botha publicly for engaging in the practice of
baboon trapping and for that purpose they are entitled to disclose his
identity.
(d) In relation to the address of the farm, there does not appear to be any risk
of unwanted or unwarranted intrusion that would violate the right to
privacy. Mr Both a does not live at his farm. It is more than 100
kilometres away from his home. Apart from bald allegations in the
founding affidavit, Mr Botha does not provide any evidence that the
disclosure of the address of the farm exposes him, his family or anyone
else to a risk of harassment at the farm.

[230] In relation to the freedom of expression interest of Mr Smuts and Landmark, the
following observation of the Supreme Court of Appeal142 is instructive:

“[T]he 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 be st persons might
speak. The Constitution recognises that individuals in our society need to be able to

142 Supreme Court of Appeal Judgment above n 7 at para 29.
CHASKALSON AJ
83
hear, form and express opinions freely, on a wide range of topics. Honest information
and publication of animal trappings is no exception. Mr Smuts had a right to expose
what he considered to be the cruel and inhumane treatment of animals at Mr Botha’s
farm.”

[231] The speech with which this case is concerned is political speech expressed by an
animal rights activist on the Facebook page of an animal rights organisation. This Court
has repeatedly emphasised “the importance, both for a democracy and the individuals
who comprise it, of being able to form and express opinions — particularly
controversial or unpopular views”.143

[232] It is in the nature of political s peech that it may cause discomfort to the persons
at whom it is directed. Freedom of expression prevents a court from imposing its
sensibilities onto expressive acts.144 In particular, a court cannot require political speech
to be more finely tuned to avoi d discomfort to third parties unless the rights of those
third parties are violated in such a manner as to trump the freedom of expression interest
of the speaker. This is not such a case.

The insurance posts
[233] There would be an element of absurdity in int erdicting Mr Smuts and Landmark
from disclosing the fact that Mr Botha has an insurance business, by handing down a
judgment that must, of necessity, refer extensively to the fact that Mr Botha has an
insurance business. The absurdity would be compounded when one has regard to the
fact that this judgment follows widely published High Court and
Supreme Court of Appeal judgments that have already referred to the fact that Mr Botha
is an insurance broker, and that Mr Botha’s status as an insurance broker has been
republished online in countless press reports and law firm commentaries that analyse

143 Democratic Alliance v African National Congress [2015] ZACC 1; 2015 (2) SA 232 (CC); 2015 (3) BCLR
298 (CC) at para 125. See also SANDU above n 39 at para 8.
144 Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a SabMark International
(Freedom of Expression Institute as Amicus Curiae) [2005] ZACC 7; 2005 (8) BCLR 743 (CC); 2006 (1) SA 144
(CC) at paras 55 and 108 ; and Premier, Western Cape v Public Protector [2022] ZASCA 16; 2022 (3) SA 121
(SCA) at para 36.
CHASKALSON AJ
84
the High Court and Supreme Court of Appeal judgments. In this respect, the dispute
over whether the respondents must take down the insurance posts should now be
regarded as moot. The contrary approach runs the risk of subjecting the process of
this Court to ridicule.

[234] Even if we were to ignore the mootness of this issue, in my view, there is no
basis for interdicting publication of the insurance posts. Mr Botha’s involvement in the
insurance business lies far from the inner sanctum of his right to privacy in the personal
world. His insurance business activities are activities that he publicly advertises on ten
different websites. They are commercial activities a nd part of his involvement “in a
public realm where privacy would only remotely be implicated” .145

[235] Mr Botha’s interest in preserving the secrecy of his insurance business is to
prevent that business from suffering economic harm by being associated with his
baboon trapping practices, or by being targeted for a consumer boycott organised by
some of the contributors to the Landmark Facebook page. That is a commercial and
economic interest which does not carry any significant weight in an appeal before this
Court concerning an application for an interdict founded on the right to privacy. In the
language of Bernstein ,146 Mr Botha has no objectively reasonable expectation of privacy
in this regard.

The first and third judgments
[236] I have addressed above147 the central point of difference between this judgment
and the fourth judgment. The first and third judgments both take issue with my focus
on the ongoing publication of Mr Smuts’ post on the Landmark Facebook page in the
light of the responses that it had triggered o n that page. They complain that my
approach creates uncertainty because it means that the lawfulness of ongoing

145 Mistry above n 4 at para 27.
146 Bernstein above n 6 at para 85.
147 At [213].
CHASKALSON AJ
85
publication may change over time and that, depending on circumstances, ongoing
publication of a post that was originally lawfully published may become unlawful.

[237] This objection to my approach ignores the interactive nature of a Facebook post
and the ongoing or continuous nature of its publication. Publication by means of a
Facebook post is not a unidirectional process. By their own admission, the respondents
published Mr Smuts’ post on the Landmark Facebook page with the intention that it
would “stimulate debate on a thorny and controversial topic”. They then asserted a right
to continue publishing the post and to continue stimulating the debat e on the
Landmark Facebook page after that debate took on a hostile character that they claim
they did not intend.

[238] At the level of principle, ongoing online publication of a post that was originally
lawfully published must be capable of becoming unlawful if circumstances change.
That is a necessary consequence of the continuous nature of ongoing online publication.
A simple example from the law of defamation illustrates this proposition. A media
company may be able to invoke the defence of reasonable pu blication148 to justify the
original online publication of an article containing defamatory statements about a
plaintiff if, prior to initial online publication of those statements, it had taken
satisfactory steps to verify the truth of the statements, and r easonably believed them to
be true. However, once facts subsequently emerge that make clear that the defamatory
statements are not true, if the media company continues to publish the defamatory
article online in the face of those facts, it cannot rely on the reasonableness of its original
publication of the article to justify its continued online publication of the article .

[239] The present case is no different in principle from the example posited above and
I am not convinced by the attempt in the first judgment to distinguish the two situations.
When Mr Smuts originally made his post on the Landmark Facebook page, the
respondents did not intend to prompt responses that would leave Mr Botha fearing that

148 National Media Limited v Bogoshi [1998] ZASCA 94; 1998 (4) SA 1196 (SCA) at 1211.
CHASKALSON AJ
86
he and his family would be harassed in their home. Inde ed, at the time of original
publication, the respondents were unaware that Mr Botha’s business address that they
had published was also his home address. However, by the time that Mr Botha instituted
his interdict application, the situation had changed. By this stage, the respondents knew
that Mr Botha’s business address and his home address were one and the same. They
had also seen that the original post of Mr Smuts had triggered responses from visitors
to the Landmark Facebook page that left Mr Botha reasonably fearing harassment at the
address that they now knew to be his family home.

[240] These third-party responses were no longer an “ unknown variable” as suggested
in the first judgment. They were facts that were self -evident to the respondents who
controlled the Landmark Facebook page onto which these responses had been posted.
These facts were now no more an “unknown variable” than was the initially unknown
fact that Mr Botha’s business address and home address were one and the sam e.149 The
respondents nevertheless asserted a right to continue publishing the original post and
thus to continue to invite responses of the sort that had already been made to that post
on the Landmark Facebook page.

[241] In those circumstances, to escape interdictory relief, it was not enough for the
respondents to defend the initial publication of the post on the Landmark Facebook
page. It was necessary for them also to defend ongoing publication of the post into the
future in view of (1) the now-known fact that the address published in that post was the
address of the home of Mr Botha and his family and (2) the now -known fact that
ongoing publication the original post was likely to trigger more responses of the sort

149 The first judgment at [112] appears to accept the relevance of the fact that between original publication of
Mr Smuts’ post and Mr Botha’s launch of the interdict proceedings the respondents acquired knowledge of the
fact that Mr Botha’s business address and home address were on e and the same. It is not clear why this changed
fact might affect the lawfulness of ongoing publication of the post, but other changed facts (that is, the responses
that the post had triggered) should be treated as irrelevant in this regard.
CHASKALSON AJ / ROGERS J
87
that it had already generated on the Landmark Facebook page. This they have failed to
do.150

Conclusion
[242] For the reasons set out above, I concur in the order set out in the first judgment.



ROGERS J (SCHIPPERS AJ concurring):


[243] I have had the pleasure of reading the judgments authored by my Colleagues
Kollapen J (first judgment), Chaskalson AJ (second judgment) and Zondo CJ
(fourth judgment). The first and second judgments agree on the disposition of the case
– that Mr Botha should be granted leave to appeal and that the appeal should succeed
in part – but differ in their reasoning. The fourth judgment holds that leave to appeal
should be refused because Mr Botha did not make out a privacy case in his founding
papers in the High Court. I conclude that leave to appeal should be granted but that the
appeal should be dismissed.

[244] In general, I agree with the first judgment’s approach to the pleadings and the
legal tests to be applied. However, since there is no outr ight majority in favour of any
one judgment, I should perhaps be more specific about the parts of the first judgment
with which I agree (paragraph references are to paragraphs in the first judgment):
(a) On jurisdiction and leave to appeal, I agree with [37] to [39] of the first
judgment, save that I would not describe Mr Botha’s prospects of success
on appeal as “good”. His prospects of success are, however, adequate,
and for this reason in conjunction with others leave to appeal should be
granted.
(b) On mootness, I agree with [41] to [44].

150 Given the importance of political expression, there may well be cases where a respondent could justify ongoi ng
publication of activist material which leaves its target fearing harassment at their family home. However, as
pointed out in [224] above , no such justification case has been made out in the present case.
ROGERS J
88
(c) On the question of pleadings, I agree with [45] to [69].
(d) Regarding the legal framework, I agree with [73] to [102].
(e) On the application of the Bernstein test, I agree with [105], [108] and
[130].
(f) Regarding vilificatio n and digital vigilantism, I agree with [154] and
[155].
(g) I agree with the first judgment’s responses to the second and fourth
judgments contained in [156] to [164] and [171] to [174] respectively.

[245] While the above tabulation does not necessarily mean that I positively disagree
with everything else in the first judgment, I do not wish positively to associate myself
with anything else. The extent to which I disagree will hopefully be apparent from my
judgment. With reference to [124] to [126] of the first judgment, I entertain
considerable doubt as to whether identifying Mr Botha as the farmer responsible for the
trapping advanced the debate on the practice of trapping. Mr Botha is simply one of
many farmers who lawfully engage in the practice. However, unless the information
published by the respondents violated Mr Botha’s right to privacy, he cannot complain
if he is named.

[246] I agree, for the reasons given in the first judgment, that privacy does not attach
to the information about the ownership of the farm Varsfontein. In truth, so it seems to
me, Mr Botha does not really object to his identification as the owner of the farm. The
problem for him is that, as the owner of this farm, he has been identified as being
responsible for the trapping shown in the photographs. This is the result of the
publishing of the photographs alongside information that they were taken on
Varsfontein.

[247] On this part of the case, my approach is simpler than that of the authors of the
first and second judgments. In principle, what happens on private property is private.
The fact that property is used for a commercial purpose does not negate this pri vacy. A
trespasser who snoops around my property and publishes photographs of what I do there
ROGERS J
89
violates my privacy, even though I am using the property for a commercial purpose. I
am entitled to keep private the things I do on my private property, whether they are
domestic or commercial in nature.

[248] In the case of officials charged with policing a commercial activity, they must
comply with the law if they want to come onto my property to inspect and take
photographs of what is happening there. In assessing , from the perspective of privacy,
the constitutionality of a law that permits officials to enter private property, the fact that
the property is used for a regulated commercial purpose is relevant to the analysis, since
the intensity of privacy may be less for such property than in the case of a home. Privacy
in the case of a regulated commercial activity may more readily be overridden than in
the case of non-commercial domestic activity, but it still exists.

[249] So if Mr Louw had come onto Mr Botha’s property without permission and taken
photographs of trapped animals, the publication of such photographs would in my view
have violated Mr Botha’s privacy. But Mr Louw did not come onto the property
without permission. He was part of a group of cyclists whom Mr Botha allowed to
traverse his property. With whom that arrangement was made does not appear from the
papers. If Mr Botha had granted permission to traverse on terms which did not allow
the cyclists to take photographs, the publication of Mr Louw’s photographs would have
breached Mr Botha’s privacy. There was, however, no evidence of the terms on which
the group was permitted to traverse and as to whether there were any express or implied
limits on their right to take photographs. Given the way in whi ch the privacy case was
belatedly raised, and in the absence of an allegation by Mr Botha that his permission
did not include a right to take photographs, the privacy case in that respect cannot
succeed.

[250] In regard to the information about Mr Botha’s insur ance brokerage business,
these particulars were widely published by Mr Botha himself on the internet. I
understand the first and second judgments to accept that, if the address in Summerstrand
had not also been Mr Botha’s home, there would have been no vi olation of his privacy
ROGERS J
90
by the publication of the particulars. I agree. A person who publishes the name and
location of his business on the internet cannot complain if some members of the public
use that information for reasons adverse rather than favoura ble to the business owner.
It is a legitimate form of activism to encourage a boycott of a business because its owner
does things of which the campaigners disapprove, even if the subject of the campaign
is unrelated to the business.

[251] The question is wheth er this form of campaigning breaches privacy because it
turns out that the address is also the home of the business owner. Mr Smuts did not
make public that the address was also the place where Mr Botha lived. Mr Smuts did
not know this to be the case. He merely posted a screenshot of an online page in respect
of “Botha Herman Insurance Brokers”. The fact that the address was also Mr Botha’s
home was disclosed by Mr Botha himself when he launched his application.

[252] So all that Mr Smuts published was that Mr Botha conducted an insurance
brokerage business at a particular address. It was exactly the same information as
Mr Botha himself had widely published (in ten online commercial directories). The
persons to whom the information was published would not have known that it was also
Mr Botha’s home. If they were inclined to do anything in response to the information,
it would have been a response in respect of Mr Botha’s business.

[253] The second judgment states that Mr Smuts knew the true position by the time he
opposed the application. However, by opposing the application Mr Smuts was trying
to show that Mr Botha should not have been granted an interim interdict in the first
place. He was saying that the information had been lawfully posted when it was
published and that he should not have been required to take it down. He was not wanting
to publish it afresh but to justify its initial publication. And he was not wanting to
include new information so as to disclose that the address was also Mr Botha’s home .
He merely contended that his initial posting of the brokerage business’ online page was
and remained lawful.

ROGERS J
91
[254] One must distinguish between a breach of privacy in the form of publishing
information and a breach of privacy when somebody acts on that infor mation in a
particular way. There is no evidence that anybody reacted to the information by
protesting outside the published address, let alone in a way that might have disturbed
the privacy of anyone working or living there. But if that had happened, th e question
might have arisen whether the conduct of the protesters was a violation of the privacy
of Mr Botha and his family. That question could have arisen whether or not the
protesters had got their information from Mr Smuts’ social media post.

[255] It is unnecessary to decide under what circumstances, if any, activity outside a
person’s residential address can amount to a violation of the occupants’ privacy. There
is a difference between what goes on inside a home – the inner sanctum – and what
happens on a public road outside the home. While some people may prefer not to
publish their residential addresses, the fact that a person lives at a particular address, if
private, is not comparable to the privacy of what happens within the home. For many
purposes, including legal proceedings, a person’s address may have to be disclosed.
Most people are able to preserve privacy in relation to what happens within their homes.
Where one lives, on the other hand, cannot usually be kept private, because people need
to use public roads to enter and leave their homes. Where a person lives can be publicly
observed.

[256] I agree that the parties should bear their own costs in this Court. I would not,
however, interfere with the costs orders made by the Supreme Court of App eal.

[257] I would thus make the following order :
1. Leave to appeal is granted.
2. The appeal is dismissed.






ZONDO CJ
92
ZONDO CJ:


Introduction
[258] I have had the benefit of reading the judgments by Kollapen J (first judgment),
Chaskalson AJ (second judgment) and Rogers J (third judgment) in this matter. I am
unable to agree with the outcomes in any of the three judgments. In my view, leave to
appeal should be refused with costs. My reasons are that it is not in the interests of
justice to grant th e applicant leave to appeal against the judgment and order of the
Supreme Court of Appeal because the only point on which it seeks to attack the
judgment of the Supreme Court of Appeal is a point which the applicant may not pursue
because it was not part of his case in the High Court. I elaborate below. However, first,
I must deal briefly with the background.

Background
[259] The first judgment has sufficiently set out the factual background to this matter.
Accordingly, it is not necessary to repeat that exercise. It is only necessary to state a
few factual points in order to facilitate a proper understanding of my judgment. The
few factual points are set out below:
(a) The first respondent, namely, Mr Bool Smuts, and, the second respondent,
namely, Landmark Leopard and Predator Project South Africa, posted
photos on a Facebook page which depicted scenes of a dead baboon in a
cage and a porcupine trapped in the cage together with a photograph of
Mr Botha and his minor daughter.
(b) The respondents also posted a Google search location of Mr Botha’s home
and business addresses and attached a WhatsApp conversation between
Mr Botha and Mr Smuts in which Mr Botha had confirmed that he was
the holder of a necessary permit to hunt and / or capture and / or kill
baboons and porcupines.
ZONDO CJ
93
(c) The respondents allowed the sharing of the post and the post had been
shared 108 times at the time of Mr Botha deposing to the founding
affidavit in the present matter in the High Court.
(d) Mr Botha contended that the publicatio n of the material by the
respondents on the second respondent’s Facebook page concerning
himself was unlawful on the basis that it was defamatory. Mr Botha
demanded that Mr Smuts “remove the defamatory post from the Second
Respondent’s Facebook page” but Mr Smuts had already removed the
photo depicting Mr Botha with his minor daughter.
(e) The respondents did not accept that there was anything unlawful about
their conduct and refused to remove the post content.

High Court
[260] Mr Botha then brought an urgent application in the High Court for a rule nisi
with an interim interdict prohibiting Mr Smuts and the second respondent from
publishing defamatory statements about him. However, Mullins AJ granted a different
order. He ordered the respondents to remove th e photographs of Mr Botha and certain
portions of the Facebook post that made reference to Mr Botha, his business, its location
and the name of the farm. The respondents were also prohibited from making further
posts that referred to Mr Botha, his family and the businesses.

[261] In opposing the confirmation of the rule nisi , the respondents stated the
following:
(a) None of the information published by the respondents was private, much
less confidential. In this regard, Mr Smuts said that he was mentioning
this in the light of prayer 2.1.2 of the notice of motion. Paragraph or
prayer 2.1.2 of the notice of motion sought to have the respondents
ordered “to refrain from making any further social media posts or other
publications of any nature whatsoever, includ ing verbal and written,
disclosing any information and / or confidential information and / or posts
of, including but not limited to, a defamatory nature regarding the
ZONDO CJ
94
applicant / his business / his farm in any manner whatsoever and treat all
communication associated with this matter as confidential”.
(b) With the exception of the photographs taken by Mr Louw, the published
information had previously been placed in the public domain by Mr Botha
himself.
(c) Mr Smuts was entitled to post the comments that he posted in the exercise
of his constitutionally -guaranteed right to freedom of expression
(section 16(4)).
(d) Mr Botha stated that, in any event, his comments amounted to fair
comment based on the facts that are true and that relate to matters of
public i nterest. He also pointed out that his posting of the photographs
and commentary was, on these grounds, lawful.

[262] On the return day Roberson J confirmed the rule nisi . Part of the conclusion
reached by the High Court was that the respondents had infringed Mr Botha’s right to
privacy. The High Court held that the respondents were entitled to publish the
photographs and to comment on them. However, it held that the respondents were not
entitled to publish the fact that the photographs were taken on a farm b elonging to
Mr Botha. The High Court said that the name of the farm and Mr Botha’s identity, as
owner thereof, constituted personal information protected by his right to privacy. It also
concluded that the respondents had acted unlawfully in linking Mr B otha to the practice
of animal trapping. As already indicated above, the High Court confirmed the rule nisi
with costs.

Supreme Court of Appeal
[263] A subsequent appeal to the Supreme Court of Appeal by the respondents was
upheld and that Court set aside the judgment and order of the High Court and replaced
it with an order discharging the rule nisi. The Supreme Court of Appeal decided the
appeal on the basis that Mr Botha’s right to privacy had not been infringed. It therefore,
upheld Mr Smuts’ and the seco nd respondent ’s appeal, set aside the decision of the
High Court and replaced it with an order discharging the rule nisi with costs. The
ZONDO CJ
95
Supreme Court of Appeal did not deal with the question whether it had been Mr Botha’s
case in the founding affidavit i n the High Court that the respondents had infringed his
right to privacy.

In this Court
Jurisdiction
[264] If leave to appeal is granted in the appeal, this Court will adjudicate the question
whether or not the respondents’ conduct infringed the applicant’s rig ht to privacy which
is entrenched in section 14 of the Constitution. That is a constitutional matter. There
is also the question whether Mr Botha is entitled to pursue a case based on the right to
privacy. That will depend upon whether an alleged infrin gement of such right was part
of Mr Botha’s case as set out in his founding affidavit in the High Court. That question
implicates the right to a fair public hearing in terms of sectio n 34 of the Constitution.
That too, is a constitutional matter. Accord ingly, this Court has jurisdiction to
adjudicate this matter.

Leave to appeal
[265] The applicant has brought an application in this Court for leave to appeal against
the decision of the Supreme Court of Appeal in terms of which the
Supreme Court of Appeal held that the respondents had not violated the applicant’s
right to privacy, upheld the respondents’ appeal and set aside the judgment and order of
the High Court which had been in favour of the applicant with costs. The only ground
upon which the applicant s eeks to appeal against the judgment and order of the
Supreme Court of Appeal is that the respondents’ publication of the comments that they
published on the Facebook page about the applicant violated his right to privacy. This
is reflected in paragraph 8 of the applicant’s founding affidavit in the application for
leave to appeal to this Court. In that paragraph, the applicant says:

“The question to be answered is whether the Facebook post is lawful or
whether it violates my privacy. That determination ultimately turns on
ZONDO CJ
96
whether my personal information including about my residential home
is protected by the right to privacy.” (Emphasis added.)


[266] In paragraph 24.1 of the applicant’s founding affidavit before this Court , the
applicant says:

“The application is premised on, and seeking to enforce, my
constitutional rights to privacy in terms of section 14 of the Constitution
and the common law;”


Referring to what happened in the High Court in his founding affidavit in this Court,
the applicant says in paragraph 43.5:

“[M]y right to privacy was infringed by the publication, and I thus had
a clear right to an interdict.” (Emphasis added.)

As will be shown later, the applicant never relied in his founding affidavit on an alleged
infringement of his right to privacy.

[267] Before this Court the respondents have submitted that the alleged infringement
of the applicant’s right to privacy was not part of the applicant’s case in his founding
affidavit in the High Court and that, therefore, the applicant ca nnot be allowed to
advance on appeal before this Court a case based on the alleged infringement of the
applicant’s right to privacy.

[268] It seems to me that the question whether or not the applicant is entitled to pursue
before this Court a case that is based on an alleged infringement of his right to privacy
may be determinative of the application for leave to appeal. I say this because, if it is
not permissible for the applicant to pursue a case based on an alleged infringement of
the right to privacy, then leave to appeal should be refused because the applicant sought
to pursue an appeal only on that ground.

ZONDO CJ
97
The law
[269] In order to determine whether the applicant is entitled to rely on the alleged
infringement of his right to privacy in this matter depends upo n whether the applicant’s
case as set out in the founding affidavit in the High Court included an alleged
infringement of his right to privacy. If it did, then the applicant is entitled to pursue the
matter on that basis. However, if it did not, then the applicant is not entitled to pursue
the matter on the basis of an alleged infringement of his right to privacy. I explain
below why this is so.

[270] In our law, when legal proceedings are instituted by way of a notice of motion,
the applicant is required to set out his or her case in his or her founding affidavit and
the respondent is obliged to set out his or her defence or grounds of opposition in his or
her answering affidavit. An applicant is not permitted to make a new case in his or her
replying affidavit. The reason why an applicant is required to make out his or her case
in the founding affidavit is that that enables the respondent to know what case to meet
in preparing his answering affidavit.

[271] If an applicant makes his case in a replying affidavit, that is unfair to the
respondent because the respondent is thus deprived of the opportunity to defend her or
himself against such a case or to oppose such a case. This is so because, as a general
rule, only three sets of affidavits are allowed in motion proceedings. This means that,
when the applicant seeks to make a new case in his or her replying affidavit, the
respondent does not get a chance to put his or her case in response to the applicant’s
case as contained in the replying affidavit. If the Cou rt then decides the matter on the
basis of the case raised for the first time in the replying affidavit, the respondent’s right
to a fair hearing as entrenched in section 34 of the Constitution is violated. Denying a
party the opportunity to be heard seri ously prejudices such party as the case is then
decided without his side of the story. Indeed, it is a gross irregularity for any tribunal
to do that.

ZONDO CJ
98
[272] A century ago Krause J said in Pountas’ Trustee 151 :

“I think it has been laid down in this Court repeatedly that an applicant
must stand or fall by his petition and the facts alleged therein, and that,
although it is sometimes permissible to supplement the allegations
contained in the petition, still the main foundation of the application is
the allegation o f facts stated therein because these are the facts which
the respondent is called upon to affirm or deny.”152 (Emphasis added.)

This passage was quoted with approval in Director of Hospital Services .153

[273] In Openshaw 154 Mhlantla AJA, writing for the majority, s aid:

“It is trite law that the applicant in motion proceedings must make out
a proper case in the founding papers. Miller J in Shakot Investm ents
(Pty) Ltd v Town Council of the Borough of Stanger , puts the matter
thus:
In proceedings by way of motion the party seeking relief
ought in his founding affidavit to disclose such facts as
would, if true, justify the relief sought and which would,
at the same time, sufficiently inform the other party of the
case he was required to meet.”155

[274] In Betlane 156 this Court said through Mogoeng J as he then was:

“It is trite that one ought to stand or fall by one's notice of motion and
the averments made in one’s founding affidavit. A case cannot be m ade
out in the replying affidavit for the first time. It was for this reason that

151 Pountas’ Trustee v Lahanas 1924 WLD 67.
152 See Geanotes v Geanotes 1947 (2) SA 512 (C) at 515.
153 Director of Hospital Services above n 25 at 636.
154 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78; 2008
(5) SA 339 (SCA).
155 Id at para 29.
156 Betlane above n 28.
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some of the allegations made in the replying affidavit, such as the
unlawfulness of the writ of execution, were challenged. The applicant's
situation is special, though. He is a lay person who, until recently, did
not have the benefit of legal assistance. When he approached this court,
he did so on his own. Consequently, his notice of motion and founding
affidavit did not properly set out all the relevant issues. It was as a
result of the legal advice that was not previously available to him that
he became aware of the need to attack frontally the lawfulness of the
writ of execution that was issued and executed, w hile his application
for leave to appeal was pending.”157 (Emphasis added.)

In Betlane this Court only entertained an issue that h ad not been set out in the founding
affidavit because of exceptional circumstances arising out of the fact that the applicant
was a lay litigant who was not legally represented when he prepared his founding
affidavit.

[275] There are no exceptional circumstance s in the present case nor has the applicant
proffered any reason why he did not include in his founding affidavit a complaint that
his right to privacy had been infringed. It would be wrong for this Court to entertain a
case made for the first time in the replying affidavit. Accordingly, Betlane provides no
justification for this Court to deviate from the well -established rule of practice that an
applicant stands or falls by the case in his or her founding affidavit.

[276] In Director of Hospital Services 158 the then Appellate Division of the
Supreme Court, now the Supreme Court of Appeal, said:

“When, as in this case, the proceedings are launched by way of notice
of motion, it is to the founding affidavit which a Judge will look to
determine what the complaint is. As was pointed out by Krause J in
Pountas’ Trustee v Lahanas 1924 WLD 67 at 68 and as has been said
in many other cases:

157 Betlane above n 28 at para 29.
158 Director of Hospital Services above n 25.
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‘. . . an applicant must stand or fall by his petition and the
facts alleged therein and that, although sometimes it is
permissible to supplement the allegations contained in
the petition, still the main foundation of the application
is the allegation of facts stated therein, because those are
the facts which the respondent is called upon either to
affirm or deny.’
Since it is clear that the applicant stands or falls by his petition and the
facts therein alleged, ‘it is not permissible to make out new grounds for
the application in the replying affidavit’ ( per Van Winsen J in SA
Railways Recreation Club and Another v Gordonia Liquor L icensing
Board 1953 (3) SA 256 (C) at 260.) It follows that the applicant in this
matter could not extend the issue in dispute between the parties by
making fresh allegations in the replying affidavits filed on 8 June 1977
or by making such allegations from the Bar. I am not losing sight of
the fact that, in the absence of an averment in the pleadings or the
petition, a point may arise which is fully canvassed in the evidence, but
then it must be fully canvassed by both sides in the sense that the Court
is expected to pronounce upon it as an issue.”159 (Emphasis added.)

[277] In Genesis 160 this Court quoted the first sentence in the above quotation from
Director of Hospital Services and then said:

“Obviously, when you want to establish in motion proceedings what the
respondent’s case or defence is or was, you look at the respondent’s
answering affidavit.”161

[278] In Bel Porto162 Chaskalson CJ, writing for the majority, said:


159 Id at 635-6.
160 Genesis Medical Aid Scheme v Registrar, Medical Schemes [2017] ZACC 16; 2017 (6) SA 1 (CC ); 2017 (9)
BCLR 1164.
161 Id at para 169.
162 Bel Porto School Governing Body v Premier of the Western Cape Province [2002] ZACC 2; 2002 (3) SA 265
(CC); 2002 (9) BCLR 89 1 (CC) ( Bel Porto ).
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“In [Prince v President, Law Society, Cape of Good Hope] it was made
clear the parties must make out their case in their founding papers and
will not ordinarily be allowed to supplement and make their case on
appeal.”163

In relation to proceedings where a party challenged the constitutionality of a provision
in a statute, this Court said in Prince v President, Law Society, Cape of Good Hope:164


“Parties who challenge the constitutionality of a provision in a statute
must raise the constitutionality of the provisions sought to be
challenged at the time they institute legal proceedings. In addition, a
party must place before the court information relevant to the
determination of the constitutionality of the impugned provisions.
Similarly, a party seeking to justify a limitation of a constitutional right
must place before the court information relevant to the issue of
justification. I would emphasise that all this information must be placed
before the court of first instance. The placing of the relevant
information is necessary to warn the other party of the case it will have
to meet, so as allow it th e opportunity to present factual material and
legal argument to meet that case. It is not sufficient for a party to raise
the constitutionality of a statute only in the heads of argument, without
laying a proper foundation for such a challenge in the pape rs or the
pleadings. The other party must be left in no doubt as to the nature of
the case it has to meet and the relief that is sought. Nor can parties hope
to supplement and make their case on appeal.”165

It is now appropriate to turn to the question whether the applicant’s case in his founding
affidavit in the High Court included an alleged infringement of his right to privacy.


163 Id at para 119.
164 Prince v President, Law Society, Cape of Good Hope [2000] ZACC 28; 2001 (2) SA 388 (CC); 2001 (2) BCLR
133 (CC).
165 Id at para 22.
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Did the applicant’s case as set out in his founding affidavit in the High Court include
an alleged infringement of his right to privacy?
[279] It seems to me indisputable that it was not the applicant’s case in his founding
affidavit in the High Court that the respondents’ conduct infringed his right to privacy.
Nevertheless, I consider it important to go through his founding affidav it to identify
what case he sought to make out in his founding affidavit.

[280] It is trite that in motion proceedings an applicant must set out his or her cause of
action in the founding affidavit. Where the issue is to establish what an applicant’s case
or cause of action is, we look at the founding affidavit. We only look at the notice of
motion to establish the relief sought for the cause of action set out in the founding
affidavit.

Mr Botha’s founding affidavit in the High Court
[281] In the present case Mr B otha’s founding affidavit in the High Court was made
up of 34 paragraphs and annexures. Does Mr Botha make out a case of an alleged
infringement of his right to privacy in those paragraphs? The answer is that nowhere in
his founding affidavit did Mr Both a attempt to base his application on the infringement
of his right to privacy. Instead, in paragraph 6 of his founding affidavit Mr Botha says
that the application was brought on truncated time periods as “ the damage caused by
the Respondent to my persona l and professional reputation is irreparable ”. This relates
to defamation rather than the infringement of the right to privacy.

[282] In paragraph 14 Mr Botha states that on various occasions he attempted to
contact Mr Smuts in order to provide him with the re levant hunting permit and, in the
light thereof, “to request him to remove the defamatory post from the Second
Respondents’ Facebook page, to no avail ”. From this paragraph it is clear that
Mr Botha’s concern was that the publication was “ defamatory ” material and he wanted
it removed. This shows that his case was one of defamation.

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[283] In paragraph 15 Mr Botha complained that Mr Smuts and the second respondent
“kept the account and the post alive” “clearly having no regard to, inter alia, the
reputational da mage he / they have caused ”. Mr Botha continued in the same
paragraph:

“In addition to reputational damage caused, the Respondent(s) have
caused a security risk by posting photographs of me and my daughter,
providing the name and location of my farm and by attaching a Google
Search result depicting my home and business address.”

The second part of this paragraph does not relate to the right to privacy but it relates to
a complaint that the respondents were exposing Mr Botha and his family to possible
physical attacks by keeping the account and post alive.

[284] Just above paragraph 17 of his founding affidavit Mr Botha announced very
clearly the basis of his case. Mr Botha gave the following heading to paragraphs 17
to 24 of his founding affidavit:

“THE DEFAMATORY PUBLICATIONS”

I suggest that, through this heading, Mr Botha announced that his case was based on
defamation . In paragraph 21 Mr Botha stated that some of the replies from the public
were “ defamatory and were fuelled by the Respondents’ choice to post content
suggesting that the practice was ‘unethical and barbaric’ as the animals were
poisoned ”. (Emphasis added.)

[285] In paragraph 25 Mr Botha stated that he was advised that, in order to obtain an
interim interdict, the following requirements had to b e met:
(a) a prima facie right;
(b) a balance of convenience; and
(c) no alternative remedy.

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He then says in paragraph 26:

“I submit that I have a prima facie right. These comments are per se
defamatory and intended to undermine my reputation, status and good
name, cause harm to my business and endanger me and my family. ”
(Emphasis added.)

In this paragraph Mr Botha made it crystal clear that his case was one of defamation.
He made no mention of the right to privacy.

[286] In paragraph 28 Mr Botha went on to also emphasise that the case was about
defamation. He said in paragraph 28:

“It is submitted that the Respondents’ intention is to defame and slander
my good name and reputation, further to harm my business and place
me and my family in direct danger.” (Emphasis added.)

In paragraph 29, as if what he had already said in all the above paragraphs to which I
have referred was not enough to show that his case was that of defamation, Mr Botha
said:

“The Respondent(s) have turned to social media with the primary aim
to slander my good name, and reputation and defame me. The
comments made on Facebook have been made to cause, and have in fact
caused, severe prejudice to me as many of the comments made on the
original post call for the boycotting of my insurance broking business
and my cattle-farming business.” (Emphasis added.)

[287] In paragraph 32 of the founding affidavit, Mr Botha also said:

“It is my further submission that this matter should be heard as one of
urgency. The publications are thus defamatory and untrue and m ust be
removed, failing which I will suffer irreparable harm and ultimately
this will affect my business and potentially the safety of me and my
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family. If the situation continues unabated, there is no telling what the
Respondent(s) may publish. Furthermore, the Respondent(s) have been
requested to remove the post, to no avail.” (Emphasis added.)

[288] In a reply posted by Mr Botha’s attorney to Facebook in response to the
respondents’ publication relating to Mr Botha, Mr Botha’s attorney also referred to the
published statements being “blatantly false, defamatory and made by a clearly
uninformed, individual”.

Mr Botha’s Counsel’s certificate of urgency
[289] In the certificate of urgency signed by Mr Botha’s Counsel, it was also made
clear that Mr Botha’s case was one of defamation and no mention was made of any
alleged infringement of Mr Botha’s right to privacy. Thus, in paragraph 8 of the
certificate, it was stated:

“The Applicant attempted contacting the First Respondent
telephonically on 9 October 2019 in order to provide him with the
hunting permit and, in light of the permit, to request him to remove the
defamatory post from the Second Respondent’s Facebook page, to no
avail.” (Emphasis added.)

[290] In paragraph 9 of the certificate Mr Botha’s Counsel stated in part:

“The Respondent(s) have kept the account and the post alive . . . clearly
having no regard to, inter alia, the reputational damage caused. In
addition to reputational damage caused, the Respondent(s) have caused
a security risk by posting photographs of the Applicant and his
daughter, providing the name and location of his farm, and by attaching
a Google Search result depicting his home and business address.”

[291] Just above paragraphs 11 -21, the certificate reflects the headin g as:

“THE DEFAMATORY PUBLICATIONS”
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In paragraph 15 of the certificate it is stated that the respondents have not responded to
any of the replies submitted by the public, the majority of which “are similarly
derogatory and defamatory ”.

[292] In paragraph 17 o f the certificate it is stated that the comments were per se
defamatory and intended to undermine the applicant’s “reputation, status and good
name, cause harm to his business and possibly endanger him and his family” . In
paragraph 18 of the certificate o f urgency Mr Botha’s Counsel said:

“It is submitted that the Respondents’ intention is to defame and slander
the Applicant’s good name and reputation. It also has the potential to
cause physical harm to the Applicant and his family.”
(Emphasis added.)

[293] In the light of all the above there can be no doubt that Mr Botha’s cause of action
in the founding affidavit was defamation and there was simply no cause of action based
on an alleged infringement of Mr Botha’s right to privacy.

Respondents’ opposing af fidavit
[294] In his opposing affidavit Mr Smuts pointed out that the comments he made fell
within the bounds of his constitutionally-entrenched right to freedom of expression. He
also contended that his comments amounted to fair comment based on facts that wer e
true and that related to matters in the public interest. Mr Smuts also stated in
paragraph 10.13.1 of the respondents’ opposing affidavit that none of the information
published by the respondents on the Facebook page was private, much less confidential.
He further stated that, except for Mr Botha’s picture with his minor daughter, the
information that the respondents published was material that was in the public domain
as it had been placed there by Mr Botha himself. He then said that his “posting of t he
photographs and comments on 9 October 2019 [was] on those grounds, lawful”.

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[295] Mr Botha’s reply to that statement appears at paragraph 10.2 and he does not
deny that statement. Instead he says:

“Whilst certain information he chose to reveal in his Facebook post was
already in the public domain, the only manner in which he was able to
obtain the said information was after he obtained my farm name from
Mr Louw and thereafter obtained my personal details and telephone
number from a farmer in the area who knows me, Prof Alkers.”

[296] In paragraph 10.3 of his replying affidavit Mr Botha said:

“In any event, that certain of the information was in the public domain
does not give the First nor the Second Respondents the authority to
publish a defamatory post on Facebook including my personal
information that places the safety of me and my family at risk and
infringes my constitutional rights.”

[297] I wish to highlight the point that, since Mr Botha does not deny that except for
his photo with his minor daughter whic h the respondents withdrew from Facebook
within a few hours after it was published, the information that the respondents published
concerning Mr Botha was information that was in the public domain, having been
placed in the public domain by Mr Botha himsel f.

[298] The significance of the fact that Mr Botha does not deny this assertion of fact by
the respondents is that, even if Mr Botha were entitled to rely on an alleged infringement
of his right to privacy, the respondents have put up a valid defence to a clai m that by
publishing the information they did concerning him, they infringed his right to privacy.
This is so because, if you repeat, publicly, information about somebody that is already
in the public domain, you cannot be said to infringe his right to privacy. This is why,
in relation to this aspect, Mr Both a relies on defamation rather than the right to privacy.
He knows that there can be no violation of the right to privacy but that repeating
defamatory material that is already in the public domain is no defence to a defamation
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claim. Accordingly, even on the merits of the claim of the alleged infringement of the
right to privacy, I would still have dismissed Mr Botha’s appeal.

[299] In paragraph 62 of his opposing affidavit, Mr Smuts said:

“As regards the relief sought in paragraphs 2.1.2 thereof, the applicant
seeks an order:
62.1 restraining the respondents from
62.1.1 making any further social media posts or other
publications of any nature whatsoever;
62.1.2 disclosing any information and / or posts of, including
but not limited to, a defamatory nature reg arding the
applicant / his business / his far m in any manner
whatsoever, and
62.2 directing the respondents to treat all communications
associated with this matter [in] confidentiality.”

[300] I draw special attention to the reference i n the above paragraph to prayer 2.1.2
of the applicant’s notice of motion because the first judgment relies on that prayer to
make the proposition that by implication the applicant relied on an infringement of his
right to privacy.

[301] In paragraph 63 of his opposing affidav it, Mr Sm uts responds to prayer 2.1.2 of
the notice of motion. In paragraph 63 Mr Smuts says about prayer 2.1.2 of the notice
of motion:

“I say the following in this regard:
63.1 As I have explained, I have removed the post that I made on
9 October 2019 in its entirety.
63.2 In any event, the relief framed in paragraph 2.1.2 of the notice
of motion is overbroad in that:
63.2.1 First, it extends beyond defamatory matter and
confidential information and seeks to interdict me from
‘disclosing any information’ concerning the applicant.
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I am advised that there is no basis in law for such an
order.
63.2.2. Second, and in any event, no case is made out for the
protection of confidential information.
63.2.3 Third, there is no basis for the order sought in the
concluding (and altogether vague) part of paragraph
2.1.2 of the Notice of Motion i.e. that I be ordered to
treat all communication associated with this matter as
confidential.” (Emphasis added.)

[302] In the first judgment reliance is placed upon what Mr Smuts said in
paragraph 10.1.1 of his opposing affidavit in regard to paragraph 2.1.2 of the notice of
motion to suggest that Mr Smuts would not be prejudiced if the Court were to adjudicate
the matter on the basis that the respondents’ conduct constituted an infringeme nt of
Mr Botha’s right to privacy because in that paragraph Mr Smuts put up his defence to a
case of an alleged infringement of Mr Botha’s right to privacy.

[303] In paragraph 10.13.1 Mr Smuts effectively said that none of the information he
published concerning the applicant was private, much less confidential. Mr Smuts then
said in the next sentence in paragraph 10.13.1:

“On the contrary, with the exception of the photographs taken by
Mr Louw, the published information had previously been placed in the
public domain by the applicant himself. This includes the applicant’s
WhatsApp profile picture which the applicant had himself selected for
use on social media and which was, as a result, available to anyone who
had the applicant’s cellphone number, or who was otherwise in contact
with the applicant by cellphone.”

[304] Mr Botha responds to paragraph 10.13.1 in paragraph 10 but he does not create
a genuine dispute with Mr Smuts’ version as set out above that, except for the
photographs taken by Mr Louw, all the information that the respondents published about
Mr Botha had previously been placed in the public domain by Mr Botha himself. If he
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does create a genuine dispute of fact, then the matter had to be decided on Mr Smuts’
version as the applicant did not request that the matter be referred to oral evidence.

[305] Reliance on prayer 2.1.2 of the notice of motion to suggest that Mr Botha
impliedly relied on an alleged infringement of his right to privacy falls to be rejected
because a notice of motion is not a founding affidavit. In any event, in paragraph 63.2.2
of his opposing affidavit Mr Smuts took the point in relation to paragraph 2.1.2 of the
notice of motion that, “ in any event, no case is made out for the protection of
confidential information ”. This point tak en by Mr Smuts must be upheld because
indeed, no case was made out in the founding affidavit for the protection of confidential
information.

Mr Botha’s replying affidavit
[306] Quite early in his replying affidavit Mr Botha made it clear in paragraph 6.1 that
in bringing his application, he sought “to interdict the First and Second Respondents
from defaming [him] and linking [him] personally to the photographs taken by
Mr Louw”. This was Mr Botha’s purpose in bringing the application in the High Court.
Therefore, his case was based on defamation. In paragraph 8.3 of his replying affidavit
Mr Botha says “neither the First nor Second Respondent have (sic) any authority to
publish a defamatory post on Facebook that places the safety of me and my family at
risk nor would same be the appropriate action to take”. In paragraph 10.3 of his replying
affidavit Mr Botha says:

“In any event, that certain of the information was in the public domain
does not give the First nor Second Respondents the authority to publish
a defamatory post on Facebook including my personal information that
places the safety of me and my family a t risk and infringes my
constitutional rights.”

[307] In any event, as will be shown below, it seems to me that Mr Botha never saw
his case in the High Court papers as based on an infringement of his right to privacy.
He saw his case throughout as one of defamation.
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[308] Before I refer to what Mr Botha says in paragraph 11.4 of his replying affidavit,
for context I need to repeat what the respondents said in paragraph 10.13.7. In
responding to the applicant’s case as set out in the founding affidavit in the High Court,
the first respondent said in paragraph 10.13.7:

“As regards the comments that I posted – relating to animal cruelty and
damage to biodiversity – I aver that:
10.13.7.1 I was entitled to post these in the exercise of my
constitutionally-guaranteed right to freedom of
expression (section 16 of the Constitution).
10.13.7.2 In any event, my comments amounted to fair comment
based on the facts that are true and that relate to matters
of public interest.
10.13.7.3 My posting of the photographs and commentary was,
on these grounds, lawful.”

[309] In response to paragraph 10.13.7 of the respondents’ answering affidavit, the
applicant did no more than mentio n his right to privacy. He said in paragraph 11.4 of
his replying affidavit:

“I respectfully submit that the First Respondent’s right to freedom of
expression cannot outweigh our right to privacy nor our right to not be
placed in potential physical and / or economic harm.”

This is the only part of the applicant’s replying affidavit in which the applicant mentions
the right to privacy.

[310] I draw attention to the fact that in paragraph 11.4 what the applicant did was that
he was responding to paragraph 10.13 .7 of the respondents’ opposing affidavit and
simply said that the constitutionally -guaranteed rights on which the respondents relied
could not “outweigh” his and his family’s right to privacy. The applicant could only
say this if he had relied on the inf ringement of his right to privacy in his founding
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affidavit but the truth of the matter is that he had not relied upon such a right in the
founding affidavit.

[311] In my view, the applicant cannot, on the basis of paragraph 11.4 of his replying
affidavit, be said to have asserted an infringement of his right to privacy. On this basis
alone, this application should be dismissed. However, even if it can be said that in
paragraph 11.4 the applicant did allege an infringement of his right to privacy, the
question has arisen whether he is entitled to seek leave to appeal on the basis of a case
which he did not include in his founding affidavit but raised for the first time in his
replying affidavit. That is the issue with which I deal below.

[312] There is also a sugge stion made in the first judgment that prayer 2.1.2 of the
notice of motion implied an infringement of his right to privacy. Prayer 2.1.2 of the
notice of motion reads:

“[T]hat the Respondents be ordered to refrain from making any further
social media pos ts, or other publications of any nature whatsoever,
including both verbal and written, disclosing any information and/or
confidential information and/or posts of, including but not limited to, a
defamatory nature regarding the Applicant / his business / his farm in
any manner whatsoever and treat all communication associated with
this matter as confidential.” (Emphasis added.)

[313] Firstly, the reliance on a notice of motion to determine what an applicant’s cause
of action is, is completely misplaced because an applicant does not disclose his or her
cause of action or case in the notice of motion. He or she must state his or her case in
the founding affidavit and then state in the notice of motion what relief he or she seeks
in relation to the cause of action or case made out in the founding affidavit.

[314] Any suggestion that an applicant who does not make out his or her case in his or
her founding affidavit may do so in the notice of motion is, in m y view, foreign to our
law. I know of no rule which says that an applicant’s cause of action may be set out in
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his or her notice of motion. It is the relief that an applicant is required to set out in his
or her notice of motion and such relief must be based on a cause of action to be fo und
in the applicant’s founding affidavit. This Court, as the apex Court, should not create
such a precedent. This Court should uphold a well -established rule of practice that an
applicant must stand or fall by the case in his or her founding affidavit.

[315] Recently, in Regenesys 166 this Court had to correct inaccurate statements of law
in two of its previous judgments. This Court should be careful not to unnecessarily and
unjustifiably deviate from a well -established approach and precedent which may lead
to it having to correct itself again in the future. There is no justification for this Court
to bend over backwards to accommodate Mr Botha in respect of a case he never
included in his founding affidavit but mentioned for the first time in his replying
affidavit. Furthermore, Mr Botha has not offered any explanation as to why he did not
include his complaint about an alleged infringement of his right to privacy in his
founding affidavit in the High Court.

[316] There is also a suggestion in the first judgment th at Mr Botha made out his case
of an alleged infringement of his right to privacy in the replying affidavit. This
suggestion is erroneous once it is accepted that Mr Botha did not base his case in his
founding affidavit on an alleged infringement of his ri ght to privacy, because an
applicant has no right to make his case in his replying affidavit. When an applicant
seeks to make his case in reply, there is no obligation on the part of an innocent
respondent to bring an application to strike out. A respond ent is entitled to stand on the
rule of practice that an applicant may not make out his case in reply. A respondent in
such a case – being an innocent party – cannot be penalised to accommodate a party
that is in breach of this well-known rule of practice, particularly where the applicant has
proffered no explanation as to why he or she did not state his or her entire case in the
founding affidavit and who has not sought any indulgence from the Court for acting in
breach of this well-established rule of pr actice.

166 Regenesys Management (Pty) Ltd t/a Regenesys v Ilunga [2024] ZACC 8; 2024 (7) BCLR 901 (CC); (2024)
45 ILJ 1723 (CC).
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[317] The first judgment relies on the use of words such as “c onfidential” to suggest
that Mr Botha meant that the publication of the information infringed his right to
privacy. Confidentiality does not necessarily relate to the right to privacy. Info rmation
may be confidential without having anything to do w ith the right to privacy and
Mr Botha did not say anything to the effect that the confidentiality to which he was
referring was based on the right to privacy.

[318] The first judgment confuses the rule of practice that in motion proceedings
parties stand or fall by their papers which is discussed in the cases referred to above
with the rule that, subject to certain exceptions, a party may not raise a point of law in
argument that was not foreshadowed in the papers. The first mentioned rule of practice
is discussed in cases such as the ones to which I have referred above whereas the second
mentioned rule is discussed in cases such as Barkhuizen 167 and Bel Porto.168 These are
two different rules but the first judgment proceeds as if it is one and the same rule.
Accordingly, the first judgment’s reliance on Barkhuizen and Bel Porto is misplaced.

[319] The first judgment also relies on Smith169 but that reliance is also misplaced
because Smith did not deal with the qu estion of whether, where an applicant does not
rely on a certain cause of action in his or her founding affidavit but includes that cause
of action in the replying affidavit, the court may adjudicate the case on the basis of the
cause of action that is not in the founding affidavit but is in the replying affidavit. Smith
was about ratification. In Smith a Mr Watson instituted proceedings against a Mr Smith.

[320] In instituting those proceedings Mr Watson alleged in his founding affidavit that
he was duly authorised to act on behalf of the town council of K wanonqubela.170 In
other words, Mr Watson’s case as set out in the founding affidavit included that he was

167 Barkhuizen above n 26.
168 Bel Porto above n 162.
169 Smith above n 33.
170 See para 5 of Harms JA’s judgment.
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acting as an agent of the town council. He was not acting on his own behalf or in his
own interest. However, Mr Watson did not prove his authority at that stage by annexing
a resolution of the town council to his founding affidavit. In his answering affidav it
Mr Smith, a s the respondent, challenged Mr Watson’s authority to institute those
proceedings on behalf of the town council.

[321] When Mr Watson filed his replying affidavit, he at tached a resolution of the
town council ratifying his conduct in instituting t he proceedings. Smith was not a case
of an applicant seeking to make a case in a replying affidavit which he did not make in
his founding affidavit. He had alleged in his founding affidavit that he had authority
but Mr Smith wanted proof of that authorit y. Mr Watson then supplied in his replying
affidavit a resolution ratifying his decision to institute the proceedings. In law
ratification has the effect that the person was authorised from the beginning even though
that authorisation is given after the fact. This is so because ratification is authorisation
with retrospective effect.

[322] The f irst judgment relies upon Harms JA’s statement in paragraph 15 of his
judgment in Smith that the rule against new matter in reply is not absolute and should
be applied with a fair measure of common sense to justify its proposition that this case
may be adjudicated on the basis of a cause of action contained in a replying affidavit
but not in a founding affidavit. In my view, in Smith Harms JA was not referring to a
case where an applicant includes in the replying affidavit a cause of action that was not
included in the founding affidavit. He was referring to a case where an applicant
included a new matter in a replying affidavit that supports a cause of action that is in
the founding affidavit but which should have been included in the founding affidavit
but was not. In my view a reading of the passage in Juta171 to which Harms JA refers
in paragraph 15 supports this interpretation.


171 Juta & Co Ltd above n 36.
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[323] The second judgment refers to the publication of the Facebook post of Mr Botha
which elicited threats to his security and that of his family at their family home and a
threat of commercial harm to his insurance and farming businesses through a possible
boycott campaign. The second judgment t hen states that, although these threats were
relied upon in the founding affidavit, they were not pertinently pleaded as violation of
Mr Botha’s right to privacy. The second judgment then says: “ [h]owever, the facts
relevant to these threats were fully canvassed in the papers”. As I understand the second
judgment, it seeks to justify allowing the adjudication of the case on the basis of the
right to privacy that was only raised for the first time in the replying affidavit on the
basis that “the facts rele vant to these threats were fully canvassed in [the applicant’s]
papers”.

[324] I am unable to agree with the second judgment that, if the facts relating to the
threats were set out in the founding affidavit to pursue case A, for example an interdict
against the threats of physical harm, the applicant could in his replying affidavit change
his cause of action and seek to rely on an alleged infringement of his right to privacy.
It is not enough for an applicant in motion proceedings to set out in his founding
affidavit only the facts, without stating which of his right or rights has or have been
infringed, on the basis that he will let the respondent file his or her answering affidavit,
without knowing what conclusions he asks the Court to draw on those facts and he then
comes up with those conclusions in his replying affidavit when the respondent has no
opportunity to respond. That is an unacceptable way of pleading. An applicant must
make out his or her case fully in the founding affidavit, including disclosing the
conclusions of fact and of law that he or she will be asking the Court to make in order
to grant the relief he or she seeks.

[325] A good example would be this: A sues B for damages arising out of certain
statements made by B to and about A in the presence of other people. One could rely
on the fact that those statements that were made constituted an insult and claim damages
for insult. On the same facts, A can sue B for defamation. This cannot be allowed
because certain defences may be raised against defamation but not against a claim based
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on insult and certain defences that are available against an action for defamation are not
available in a claim based on insult. As a result of this, if in the founding affidavit or
the particulars of claim, it is cl ear that the claim is based on insult, the respondent or
defendant will raise in his or her answering affidavit or plea a defence that is available
against a claim based on insult and will not raise a defence relating to defamation. If,
therefore, the pla intiff or applicant is later allowed to pursue a case of defamation on
the same papers or pleadings as they originally were, the respondent or defendant will
not have been given an opportunity to answer the defamation case. That will be a
violation of sec tion 34 of the Constitution. The second judgment allows this to happen.

[326] An applicant who seeks to draw certain legal conclusions from facts set out in
his founding affidavit must draw those conclusions in the founding affidavit so that the
respondent can deal with them in the answering affidavit and, where appropriate, deny
that such conclusions can be drawn from those facts or so that the respondent may place
before the court other evidence which may show such conclusions to be unjustified. An
applicant cannot set out facts in his founding affidavit and not say that, based on those
facts, his right to privacy was infringed but, once the respondents have filed their
answering affidavit, say in his replying affidavit: “ By the way, those facts I set out in
my founding affidavit mean that my right to privacy was infringed.” The second
judgment’s approach amounts to saying that this would be permissible. I say that it is
not permissible. An applicant must put his full case in the founding affidavit, includi ng
what rights he contends have been infringed.

[327] In Genesis 172 this Court approved a passage from Minister of Land Affairs and
Agriculture 173 which provides, in my view, an analogy to this situation. In that passage
the Supreme Court of Appeal correctly said:

“. . . . [T]he case argued before this court was not properly made out in
answering affidavits deposed to by Andreas. The case that was made

172 Genesis above n 160 at para 171.
173 Minister of Land Affairs and Agriculture v D & F Wevell Trust [2007] ZASCA 153; 2008 (2) SA 184 (SCA).
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out, was conclusively refuted in the replying affidavits as I pointed out
in paras [18] to [20] above. It is no t proper for a party in motion
proceedings to base an argument on passages in documents which have
been annexed to the papers when the conclusions sought to be drawn
from such passages have not been canvassed in the affidavits. The
reason is manifest – the other party may well be prejudiced because
evidence may have been available to it to refute the new case on the
facts. The position is worse where the arguments are advanced for the
first time on appeal. In motion proceedings, the affidavits constitute
both the pleadings and the evidence: Transnet Ltd v Rubenstein, and
the issues and averments in support of the parties’ cases should appear
clearly therefrom. A party cannot be expected to trawl through lengthy
annexures to the opponent’s affidavit and to speculate on the possible
relevance of facts therein contained. Trial by ambush cannot be
permitted.” (Emphasis added.)

[328] This passage says that a party cannot attach an annexure to an affidavit without
saying in the affidavit what point he or she see ks to make with that annexure. In the
same vein, a party cannot just set out facts in the founding affidavit without saying
which of his rights has been infringed. Obviously, an applicant cannot set out facts in
the founding affidavit and say a certain o f his right was infringed and then come later
in the replying affidavit and say on the basis of those facts a completely different right
was infringed.

[329] The second judgment states that the respondents will not be prejudiced if the
Court dealt with the matter on the basis that Mr Botha’s case was one of an infringement
of the right to privacy even though in the founding affidavit Mr Botha may have referred
only to threats of physical harm to him and his family. The second judgment says in
effect that it is difficult to think what the respondents would have said in their answering
affidavit if Mr Botha had stated in his founding affidavit that the threats violated his
right to privacy. What the second judgment means in this regard is that the respondents
would not have had anything to say in their defence in response to such a claim and
that, therefore, that justifies the adjudication of the case on the basis of a cause of action
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that Mr Botha did not include in his founding affidavit but only included in his replying
affidavit. Indeed, the second judgment says that there will be no prejudice to the
respondents. I do not agree. The respondents are prejudiced because the dispute gets
adjudicated on the basis of a cause of action in respect of which they have not been
heard as they are entitled to in terms of section 34 of the Constitution.

[330] In any event the second judgment effectively relies on the so-called no difference
rule which was abolished in this country even before the advent of democracy. The
no difference rule refers to a situation where a functionary who is obliged to comply
with the audi alteram partem rule before making a decision that may adversely affect
someone else decides to make that decision without giving such person an opportun ity
to be heard because he (i.e. the decision maker) believes that there is nothing that the
person concerned may say which would make a difference in terms of the decision that
should be taken. The second judgment effectively says the respondent would have had
no answer to the privacy claim even if they had been afforded an opportunity to deal
with a case based on an infringement of the right to privacy.

[331] In Zenzile174 the Appellate Division said:

“It is trite, furthermore, that the fact that an errant employee may have
little or nothing to urge in his own defence is a factor alien to the inquiry
whether he is entitled to a prior hearing. Wade Administrative Law 6 ed
puts the matter thus at 533-4:
‘Procedural objections are often raised by
unmeritorious parties. Judges may then be tempted to
refuse relief on the ground that a fair hearing could have
made no difference to the result. But in principle it is
vital that the procedure and the merits should be kept
strictly apart, since otherwise the me rits may be
prejudged unfairly.’

174 Administrator, Tra nsvaal v Zenzile 1991 (1) SA 21 (A); (1991) 12 ILJ 259 (A).
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The learned author goes on to cite the well-known dictum of Megarry J
in John v Rees 1970 Ch 345 at 402:
‘As everybody who has anything to do with the law well
knows, the path of the law is strewn with examples of
open and shut cases which, somehow, were not; of
unanswerable charges which, in the event, were
completely answered; of inexplicable conduct which
was fully explained; of fixed and unalterable
determinations that, by discussion, suffered a
change.’”175

See also the Labour Appeal Court’s judgments in Karras176 and JDG Trading .177

[332] Therefore, when the respondents complain that this matter should not be
adjudicated on the basis of the alleged infringement of Mr Botha’s right to privacy
because they were not given an opportunity to be heard by way of dealing with that
claim on affidavit, it is no answer for the second judgment to say to them: I think you
are not prejudiced because I do not think that, if you were given an opportunity to file
an affidavit to deal with the alleged infringement of the right to privacy, you would have
said anything that would have made a difference in the outcome!

[333] In the light of all the above, there is no justification not to enforce in this case
the approach of our courts – which has been in existence for well over a century – that
in motion proceedings an applicant must make out his or her case in his or her founding
affidavit and may not seek to make a new case in the replying affidavit. There is no
justification on the papers or in law for not holding the applicant to the case he sought
to make out in his founding affidavit. The applicant must suffer the same consequences
that every applicant suffers when they seek to make out their case in a replying affidavit
and thus deny the respondents the opportunity to refute such a case by way of affidavits.

175 Id at 273.
176 Karras t/a Floraline v SA Scooter and Transport Allied Workers Union (2000) 21 ILJ 2612 (LAC) at para 34.
177 JDG Trading (Pty) Ltd t/a Price ‘n Pride v Brunsdon (2000) 21 ILJ 501 (LAC) at para 59.
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Conclusion
[334] In my view, the conclusion that the alleged infringement of Mr Botha’s right to
privacy was not part of his case as set out in his founding affidavit in the High Court is
inescapable. For that reason, the applicant was not entitled to purs ue that case before
the Supreme Court of Appeal nor is he entitled to pursue that case before us. As the
alleged infringement of his right to privacy was the only issue that Mr Botha wanted to
pursue on appeal in this Court if leave to appeal was granted, the applicant has no
prospects of success on appeal. In the circumstances there are no other facts or factors
which render it in the public interest to grant the applicant leave to a ppeal. In the
circumstances, leave to appeal should be refused with costs.

[335] I would, accordingly, refuse leave to appeal with costs .



For the Applicant:



For the First and Second Respondents:


For the Amicus Curiae:
M du Plessis SC and T Palmer instructed
by Lawrence Masiza Vorster
Incorporated

M Blumberg SC and M Adhikari
instructed by BDLS Attorneys

C Steinberg SC instructed by Webber
Wentzel