NM and Others v Smith and Others (CCT69/05) [2007] ZACC 6; 2007 (5) SA 250 (CC); 2007 (7) BCLR 751 (CC) (4 April 2007)

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[2007] ZACC 6
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NM and Others v Smith and Others (CCT69/05) [2007] ZACC 6; 2007 (5) SA 250 (CC); 2007 (7) BCLR 751 (CC) (4 April 2007)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT
69/05
[2007]
ZACC 6
NM First Applicant
SM Second Applicant
LH Third Applicant
versus
CHARLENE SMITH First
Respondent
PATRICIA DE
LILLE Second Respondent
NEW AFRICA BOOKS (PTY)
LTD Third Respondent
together with
THE
FREEDOM OF EXPRESSION INSTITUTE Amicus Curiae
Heard on : 9 May 2006
Decided on : 4 April
2007
JUDGMENT
MADALA J:
Introduction
In March 2002
a biography of Ms Patricia de Lille entitled “
Patricia de
Lille
” and authored by Ms Charlene Smith was published by New
Africa Books (Pty) Ltd. The names of three women who are HIV
positive
were disclosed. They alleged that their names had been
published in the book without their prior consent having been
obtained.
The three women claimed that their rights to privacy,
dignity and psychological integrity had been violated. A sequel to
that
publication was an action for damages in the Johannesburg High
Court. The High Court dismissed with costs the action against Ms
Smith and Ms de Lille.
1
This is an
application for leave to appeal against the judgment and order of
Schwartzman J in the High Court which was handed
down on 13 May
2005 and an amended costs order handed down on 19 May 2005. The
High Court made the following order:
“
1. The Plaintiffs claims
against the First and Second Defendant are dismissed with costs;
2. The Third Defendant is
ordered to pay each of the Plaintiffs an amount of R15 000;
3.1 The Third Defendant is, at
its cost, directed to delete, from all copies of the book
“Patricia
de Lille”
in its possession, the reference at page 170 and 171
to the Plaintiffs names;
3.2 Until such deletion is
made, the Third Defendant shall not sell any further copies of the
book;
3.3 To ensure that this part of
the court’s order has been carried out, the Plaintiffs attorney
shall, at any time after 30 June
2005, have the right on 72 hours
notice to inspect all copies of the book in the Third Defendant’s
possession;
4. The Third Defendant is to
pay the Plaintiffs costs;
5. The court file is to be
handed to the Registrar of this court, who shall keep it in a safe
place and who shall not, without an
order from a Judge in Chambers,
disclose any part of its content that discloses the name, identity
or HIV status of the Plaintiffs.”
The
three women did not seek to appeal against that part of the
judgment in terms of which the third respondent was found liable
to
compensate the applicants for damages suffered by them from the end
of April 2002
2
to the date of judgment. Nor did they seek leave to appeal against
that portion of the order that the respondents remove the
names of
the applicants from all unsold copies of the book.
Parties
The
first to third applicants are NM, SM and LH respectively. They are
unemployed, adult women who live in informal settlements
in and
around Atteridgeville, Pretoria. Their identities are undisclosed
as they are HIV positive and wish to prevent further
publication of
their identities and HIV status.
The
first respondent is Charlene Smith, a journalist and author of the
authorised biography of the second respondent. The second
respondent, Patricia de Lille, is a Member of Parliament. The
third respondent is the publisher of the book.
In
time, the Freedom of Expression Institute (FXI) sought to join the
fray and applied to be admitted as an amicus curiae. This
Court
granted the application. We are indebted to counsel for the FXI
for well-prepared submissions and argument.
Factual
background
In
August 1999, Dr Marietta Botes, head of the Immunology Clinic in
the Medical Faculty of the University of Pretoria (the University),
recruited volunteers to participate in clinical trials, known as
the FTC 302 trials, directed at determining the efficiency of
a
combination of drugs that could decrease a patient’s HIV level.
The volunteers, including the applicants, were required
to sign a
consent form indicating that they had been informed of the nature,
benefits, side effects and the risks of the clinical
trials. The
trials were conducted at the Kalafong Hospital, Pretoria and ended
in 2001.
Soon
after the start of the clinical trials, concerns were raised by the
participants, including the applicants, regarding illnesses
and
fatalities on the trials. The gravity of the complaints was noted.
On 5 April 2000, the Minister of Health made a statement
to
Parliament regarding the effects of the drugs and called for a
report from the Medicines Control Council, which found that
a
causal association between the drugs and the deaths was probable.
As a consequence the Medicines Control Council halted any
further
recruitment of study projects while full reports were being
compiled on all the serious adverse effects, including the
deaths.
Some
of the volunteers, in particular the applicants, complained
specifically to Father Johan Viljoen, a former priest employed
at
the centre attached to the Kalafong Hospital while at a support
group meeting for people with HIV/AIDS. Father Viljoen was
concerned about the fact that so many of the volunteers were
getting sick as a result of taking the drugs. He approached the
second respondent for assistance with a complaint in March/April
2000. The second respondent was a Member of Parliament known
for
her stand in relation to the rights of people living with HIV/AIDS.
The second respondent flew from Cape Town to meet with
the
applicants and to see whether a solution could not be found
regarding the complaints raised by them.
On
28 March 2000, the second respondent met with members of the
support group. The participants complained that, amongst others,
the consent form was never properly explained to them and that Dr
Botes was unsympathetic to complaints about the side effects
of the
drugs, which she attributed to the disease and not to the drugs
themselves.
The
second respondent and Father Viljoen investigated the complaints
and took statements from, among others, the three applicants.
A
meeting with the Ethics Committee took place on 10 April 2000 in a
lecture hall at the Pretoria Academic Hospital. Present
at the
meeting were Professor Falkson (head of the University Ethics
Committee), members of the Ethics Committee, Dr Botes, the
second
respondent, Miss Vivienne Vermaak (a freelance journalist), other
journalists and the South African Broadcasting Corporation.
Even
though there are disputes of fact regarding these meetings nothing
turns on them.
Another
meeting took place on 27 April 2000 in a small house in
Atteridgeville Pretoria, which the second respondent also attended
as well as 10 members of the support group. Statements were taken
by Father Viljoen in English at that meeting. The first and
second
applicants admitted signing these statements.
On
3 May 2000 the second respondent sent copies of these statements to
the Ethics Committee. On 4 May 2000 copies of the statements
were
also sent to the South African Human Rights Commission. As a
result of that the Pretoria Academic Hospital decided to set
up an
internal investigation to look into the complaints. Dr Freislich
was appointed to conduct the investigation. His report
was
submitted to the Ethics Committee and to Professor Grove (the
Registrar of the University) during July 2000. This report,
according to the applicants, was sent to the second respondent on
12 October 2000.
3
The second respondent read the report and was aware of the
applicants’ complaints included and expressed in the report.

This report was allegedly filed with other AIDS-related documents
in her AIDS file.
During
August 2000 the University requested another external enquiry into
the matter to complement the report of Dr Freislich.
It appointed
Professor SA Strauss to enquire into the allegations made in the
statements. The second respondent was not invited
to this enquiry,
but the applicants and a number of other trialists were present.
At the enquiry, the three applicants repudiated
their statements
made at the meeting in Atteridgeville on 27 April 2000 as
incorrect. In his report, delivered on 30 May 2001,
Professor
Strauss exonerated the University and the Medical Faculty,
stipulating there was no substance in the statements and
no
evidence of any improper conduct on the part of Dr Botes.
Professor Grove also sent the Strauss Report to the second
respondent,
but without the annexures attached.
4
The second respondent read the report and filed it with other AIDS
related documents, and did nothing further regarding the
matter. A
copy of the report was also sent to Ms Vermaak, the journalist
present at the meeting held at the University. A Martin
Welz, also
a journalist and editor of “Noseweek”, obtained a copy.
In
the period September to November 2001 Ms Charlene Smith (the first
respondent) was commissioned by the publisher to write a
biography
of Ms de Lille. The book was to include a chapter on Ms de Lille’s
work in campaigning for the rights of those living
with HIV/AIDS.
During the trial, Ms Smith stated that although she had the Strauss
Report, she did not have the annexures to
it which contained the
terms of the consent forms signed by the applicants. The consent
forms did not permit full public disclosure
of the identity of the
three applicants and the fact that they are living with HIV/AIDS,
but only permitted limited disclosure
for the purposes of the
University’s investigation. She stated that there was nothing in
the report nor in the covering letter
sent to Ms de Lille that
suggested the report was confidential and pointed to the fact that
the report had been circulated to
two journalists. She confirmed
in evidence that she knew that the annexures contained the terms of
the consents of the three
applicants. She also acknowledged that
she knew that media ethics would require her ordinarily not to
disclose a person’s
HIV/AIDS status without his/her consent. She
also stated that she had tried to obtain the annexures to the
report from Professor
Grove, but that he did not return her calls
and she gave up trying to obtain the annexures. She also stated
that though she originally
made attempts to meet the three women,
she did not succeed in these attempts either.
As
stated before, the book was published in March 2002. The second
respondent confirmed in evidence that the book is truly an
authorised biography of herself. Some 5000 copies of the book were
printed. The book was distributed to various bookshops during
March 2002. Dr Botes bought a copy and after having read the
relevant chapters, informed the applicants that their names and
HIV
status had been disclosed. The applicants denied consenting to the
publication of their names and HIV status in the book.
The
applicants were then referred to the University of Pretoria Law
Clinic to obtain advice as to what they should do. On the
advice
from the Law Clinic, they sought to interdict publication of the
book in the Pretoria High Court. The respondents opposed
the
application. The application was ultimately withdrawn, and the
respondents did not press for a costs order.
On
26 July 2002, the applicants sent a letter to the respondents’
attorneys requesting the removal of their names from the book.
The
first and the second respondents replied to the letter stipulating
that they did not regard themselves accountable to the
applicants
and if action was to be taken against them, it would be defended.
5
The third respondent did not reply to the applicants’ request.
Approximately
six months after the application for the interdict, the applicants
sued the respondents for damages. They claimed:
(a) a private
apology from the respondents; (b) the removal or excision of their
names from all unsold copies of the book; (c)
payment by the
respondents of the sum of R200 000 to each of the applicants, and
(d) costs of suit.
A pre-trial conference
was held on 4 February 2005, but it appears that nothing was
resolved there. The trial commenced before
the High Court. The
applicants applied for and obtained an order to prevent the
disclosure of their identities. Judgment was
given on 13 May
2005.
6
The applicants appealed to the High Court for leave to appeal to
the Supreme Court of Appeal.
On
22 August 2005, the High Court refused leave to appeal to the
Supreme Court of Appeal. On 29 November 2005, the Supreme Court
of
Appeal dismissed with costs an application for leave to appeal
without giving reasons.
Issues
The following
issues, amongst others, seem to arise from the dispute between the
parties:
Whether the
issues raised in this application are constitutional matters and
if so whether it is in the interests of justice
to hear them;
Whether the
disclosure or publication was of private facts;
Whether the
disclosure was wrongful;
Whether the
publication was done with knowledge of the wrongfulness of the
conduct and with the intention to harm the applicants;
Whether the
common law of privacy should be developed so as to impose
liability on those who negligently publish confidential
information;
If liability
is established, what would be the appropriate quantum of damages?
What effect
an offer of settlement which was made by the respondents in terms
of Rule 34(1) should have on the costs order.
These are
considered in the judgment.
Litigation
History
In the High
Court
In
their summons in the High Court the applicants claimed damages
based on the
actio iniuriarum
against the respondents jointly and severally for a violation by
the respondents of their rights to privacy, dignity and
psychological
integrity arising from the publication in the book of
their names and HIV status without their express authority and
consent.
7
In
their plea and in the trial the respondents admitted publication of
the names and HIV status of the applicants but denied that
the
publication was intentional or negligent. More specifically, they
pleaded that the HIV status of the applicants was not
a private
fact at the time of the publication of the book. Furthermore, the
respondents pleaded that the publication of the
HIV status of the
applicants was not unlawful because earlier the applicants had
given their consent to their names being included
in the Strauss
Report which was undertaken at the instance of the University.
In
the alternative the respondents pleaded that it was reasonable for
any reader of the Strauss Report to assume that the necessary
consent had been obtained since nothing in the report indicated
that it was confidential. There was accordingly no malice on
the
part of the respondents in publishing the names of the applicants
and their HIV status. The publication of the names would
give
authenticity to the book.
On
the first day of the trial, but before the commencement of the
proceedings, the respondents delivered an offer made without
prejudice and without acceptance of liability to the applicants in
terms of Rule 34(1) and (5).
8
The terms of the offer were that:
(a) The respondents would pay R35 000 to each of the applicants;
(b) The respondents
would make a private apology to each applicant;
(c) The respondents
would pay the costs of suit;
(d) The names of the applicants would be deleted from all unsold
copies of the book.
The
applicants did not accept the offer within the time stipulated in
the rules and so the trial proceeded as scheduled and lasted
for
some 10 days. Judgment followed shortly thereafter, and the matter
was decided partly in favour of the applicants and partly
in favour
of the respondents. It is against that judgment that the
applicants now approach this Court on appeal, an earlier
appeal to
the Supreme Court of Appeal having been dismissed without reasons
being furnished.
In this Court
In
this Court the applicants complained that the High Court had failed
to protect their rights to privacy, dignity and psychological
integrity. While these rights are claimed by the applicants under
the
actio iniuriarum
,
they are also protected under the Constitution.
9
In this case the applicants could not have instituted a
constitutional claim directly because of the reasoning of this
Court
in
Fose v Minister of Safety
and Security.
10
While
the claim falls to be dealt with under the
actio
iniuriarum
the precepts of the
Constitution must inform the application of the common law.
Is this a
constitutional issue?
The
applicants approached this Court with the view to vindicate their
constitutional rights to privacy, dignity and psychological
integrity which, they allege, have been violated by the
respondents. Their claim is, however, based on the
actio
iniuriarum
and, therefore, falls
to be determined in terms of the
actio
iniuriarum.
It
is important to recognise that even if a case does raise a
constitutional matter, the assessment of whether the case should
be
heard by this Court rests instead on the additional requirement
that access to this Court must be in the interests of justice
and
not every matter will raise a constitutional issue worthy of
attention.
The
dispute before us is clearly worthy of constitutional adjudication
and it is in the interests of justice that the matter be
heard by
this Court since it involves a nuanced and sensitive approach to
balancing the interests of the media, in advocating
freedom of
expression, privacy and dignity of the applicants irrespective of
whether it is based on the constitutional law or
the common law.
This Court is in any event mandated to develop and interpret the
common law if necessary.
Privacy
The academic
literature on privacy demonstrates the considerable controversy
over the definitional nature and the scope of the
right. However,
it appears common cause in many jurisdictions that the nature and
the scope of the right envisage a concept
of the right to be left
alone.
Privacy
encompasses the right of a person to live his or her life as he or
she pleases. In
Bernstein and Others v Bester NNO and Others
this Court stated:
“
A very high level of
protection is given to the individual’s intimate personal sphere
of life and the maintenance of its basic
preconditions and there is
a final untouchable sphere of human freedom that is beyond
interference from any public authority.
So much so that, in regard
to this most intimate core of privacy, no justifiable limitation
thereof can take place. But this most
intimate core is narrowly
construed. This inviolable core is left behind once an individual
enters into relationships with persons
outside this closest intimate
sphere; the individual’s activities then acquire a social
dimension and the right of privacy in
this context becomes subject
to limitation.”
11
(Footnotes omitted.)
Were these
private facts and were they wrongfully published?
Private facts
have been defined as those matters the disclosure of which will
cause mental distress and injury to anyone possessed
of ordinary
feelings and intelligence in the same circumstances and in respect
of which there is a will to keep them private.
12
The
applicants contended that as a result of the disclosure of their
names and HIV status to the public the respondents had wrongfully
and intentionally or negligently violated their rights of
personality, more particularly their right to privacy, dignity and
psychological integrity. They therefore averred that they had
suffered damages.
The
respondents, denying any liability to the applicants, relied on the
fact that the applicants’ names had previously been
disclosed in
the Strauss Report and that the report was not marked
“confidential”. The applicants argued that the respondents
had
made public their names and HIV status. As a response to that the
respondents contended that the HIV status of the applicants
was not
a private fact.
The
respondents testified that the applicants and others had agreed at
a meeting to present their grievances orally to the Ethics
Committee in the presence of the media. The motivation was that
having the media present would result in the quick resolution
of
the problems.
The respondents contended that
the applicants knew that their grievances were likely to be
reported and to reach the public because
the grievances had been
made in the presence of journalists.
The
respondents in their defence stated that the publication of the HIV
status of the applicants was already in the public domain
when the
book was published and that therefore the applicants had no basis
for complaining. They had appeared before the various
commissions
of inquiry including the Strauss inquiry and had brought an
application in their own names in the High Court seeking
an
interdict against the inclusion of their names in the book.
In
my view, when they made their application for the interdict in
their names, they were not thereby saying their names should
be
published in a book having a wide circulation throughout South
Africa, which would be the position since the second applicant
is a
national figure. Similarly by attending the various inquiries they
were not giving blanket consent to the publication of
their status.
Private
and confidential medical information contains highly sensitive and
personal information about individuals. The personal
and intimate
nature of an individual’s health information, unlike other forms
of documentation, reflects delicate decisions
and choices relating
to issues pertaining to bodily and psychological integrity and
personal autonomy.
Individuals
value the privacy of confidential medical information because of
the vast number of people who could have access to
the information
and the potential harmful effects that may result from disclosure.
The lack of respect for private medical information
and its
subsequent disclosure may result in fear jeopardising an
individual’s right to make certain fundamental choices that
he/she has a right to make. There is therefore a strong privacy
interest in maintaining confidentiality.
The
disclosure of an individual’s HIV status, particularly within the
South African context, deserves protection against indiscriminate
disclosure due to the nature and negative social context the
disease has as well as the potential intolerance and discrimination
that result from its disclosure. The affirmation of secure privacy
rights within our Constitution may encourage individuals
to seek
treatment and divulge information encouraging disclosure of HIV
which has previously been hindered by fear of ostracism
and
stigmatisation. The need for recognised autonomy and respect for
private medical information may also result in the improvement
of
public health policies on HIV/AIDS
.
As
a result, it is imperative and necessary that all private and
confidential medical information should receive protection against
unauthorised disclosure. The involved parties should weigh the
need for access against the privacy interest in every instance
and
not only when there is an implication of another fundamental right,
in this case the right to freedom of expression.
The assumption
that others are allowed access to private medical information once
it has left the hands of authorised physicians
and other personnel
involved in the facilitation of medical care, is fundamentally
flawed. It fails to take into account an
individual’s desire to
control information about him or herself and to keep it
confidential from others. It does not follow
that an individual
automatically consents to or expects the release of information to
others outside the administration of health
care. As appears from
what has gone on before there is nothing on the record to suggest
that the applicants’ HIV status had
become a matter of public
knowledge.
This
protection of privacy in my view raises in every individual an
expectation that he or she will not be interfered with. Indeed
there must be a pressing social need for that expectation to be
violated and the person’s rights to privacy interfered with.

There was no such compelling public interest in this case.
The
High Court held that the first and second respondent were not
liable for any damage suffered at the time of publication of
the
book. I disagree with this finding of the High Court. The first
respondent did not sufficiently pursue her efforts to establish
if
the necessary consents had been obtained, despite having ample time
to do so. More importantly she could have used pseudonyms
instead
of the real names of the applicants. The use of pseudonyms would
not have rendered the book less authentic. The same
position
applies to the second respondent.
I
am, therefore, persuaded that the publication by the respondents of
the HIV status of the applicants’ constituted a wrongful
publication of a private fact and so the applicants’ right to
privacy was breached by the respondents. The need for access
to
medical information must also serve a compelling public interest.
Dignity
It
is trite that the
actio iniuriarum
under the common law protects both
dignity and privacy under the concept of dignitas. There is
nothing shameful about suffering
from HIV/AIDS. HIV is a disease
like any other; however the social construction and stigma
associated with the disease make
fear, ignorance and discrimination
the key pillars that continue to hinder progress in its prevention
and treatment. These pessimistic
perceptions persist to fuel
prejudice towards people living with HIV/AIDS. Living with
HIV/AIDS should not be viewed as a violation
of one’s dignity.
Rather, an acceptance that HIV/AIDS should be treated like any
other disease would help to destigmatise
negative perceptions and
pave the right channels to encourage positive change in the lives
of those afflicted with HIV/AIDS,
as well as in the treatment of
the disease. It is, however, an affront to the infected person’s
dignity for another person
to disclose details about that other
person’s HIV status or any other private medical information
without his or her consent.
A
constant refrain in our Constitution is that our society aims at
the restoration of human dignity because of the many years
of
oppression and disadvantage. While it is not suggested that there
is a hierarchy of rights it cannot be gainsaid that dignity
occupies a central position. After all, that was the whole aim of
the struggle against apartheid – the restoration of human
dignity, equality and freedom.
If
human dignity is regarded as foundational in our Constitution, a
corollary thereto must be that it must be jealously guarded
and
protected. As this Court held in
Dawood
and Another v Minister of Home Affairs and Others, Shalabi and
Another v Minister of Home Affairs and Others, Thomas and
Another v
Minister of Home Affairs and Others
:
“
The value of dignity in our
Constitutional framework cannot therefore be doubted. The
Constitution asserts dignity to contradict
our past in which human
dignity for black South Africans was routinely and cruelly denied.
It asserts it too to inform the future,
to invest in our democracy
respect for the intrinsic worth of all human beings. Human dignity
therefore informs constitutional
adjudication and interpretation at
a range of levels. It is a value that informs the interpretation of
many, possibly all, other
rights. This Court has already
acknowledged the importance of the constitutional value of dignity
in interpreting rights such
as the right to equality, the right not
to be punished in a cruel, inhuman or degrading way, and the right
to life. Human dignity
is also a constitutional value that is of
central significance in the limitations analysis. Section 10,
however, makes it plain
that dignity is not only a
value
fundamental to our Constitution, it is a justiciable and
enforceable
right
that must be respected and protected.”
13
(Footnotes omitted.)
In
S v Makwanyane and Another
this
Court observed as follows:
“
Respect for the dignity of
all human beings is particularly important in South Africa. For
apartheid was a denial of a common humanity.
Black people were
refused respect and dignity and thereby the dignity of all South
Africans was diminished. The new Constitution
rejects this past and
affirms the equal worth of all South Africans. Thus recognition and
protection of human dignity is the touchstone
of the new political
order and is fundamental to the new Constitution.”
14
The
applicants contended that the High Court failed to give sufficient
weight and importance to the public perception of stigma,
degradation and discrimination that often goes with HIV/AIDS.
Because of the social difficulties that are attendant upon
disclosure
of HIV, individuals are not very keen to announce
themselves as being HIV positive.
T
he
indignity experienced by the applicants as a result of the
disclosure of their names, seems to have been treated lightly by
the court a quo
.
The case of the applicants was reduced to a malady that had
befallen “lesser men or women”. They were regarded as poor,
uneducated, coming from an insignificant informal settlement and
their plight disclosed in the book was not likely to spread
far
beyond the community where they resided. There was, in my view, a
total disregard for the circumstances of the applicants
and the
fact that because of their disadvantaged circumstances their case
should have been treated with more than ordinary sensitivity.
I
therefore conclude that by the disclosure of the applicants’ HIV
status the respondents violated the dignity and the psychological
integrity of the applicants and that nowhere can it be shown that
the disclosure was in the public interest.
The
actio
iniuriarum
and the development of the common law
For
the common law action for invasion of privacy based on the
actio
iniuriarum
to succeed, the
following must be proved:
(a) Impairment of the applicants’ privacy;
(b) Wrongfulness; and
(c) Intention
(
animus iniuriandi).
Negligence is as a
rule, therefore, insufficient to render the wrongdoer liable.
The
applicants contended that if the invasion of their privacy by the
respondents was not intentional, it was negligent. As a
result
they raised the constitutional issue whether or not the common law
of privacy should be developed so as to impose liability
on those
who negligently publish confidential medical information (in
particular a person’s HIV status) by not first
obtaining
the express informed consent of that person unless the public
interest clearly demands otherwise.
Can
it be said that the common law deviates in this case from the
spirit, purport and objects of the Bill of Rights? It was argued
on behalf of the applicants that it does – hence the assertion by
the applicants that the common law should have been developed
by
the Court a quo so as to impose negligence as an element of
liability in respect of the
actio
iniuriarum
. I do not subscribe to
this view. This, in my view, is not an appropriate case for
departing from the age-old approach to the
actio
iniuriarum
. I do not, by any
means, wish to be understood to say the common law should or could
never be developed in this regard. In
the view I take of this
matter it is however unnecessary to reach a conclusion on this
point.
Animus iniuriandi
I
now look a little closer at the conduct of the respondents. That
they are good activists in the field of HIV/AIDS admits of
no
doubt. They also know all that there is to know about the private
nature of HIV/AIDS and how sensitively these should be
treated, in
particular obtaining informed consent before disclosing such facts.
I
have no doubt in my mind that t
he
first and second respondents were aware that they had not obtained
the express informed consent of the applicants to publish
their HIV
status. The first respondent went ahead and published the
information pertaining to the applicants, having made
unsuccessful
earlier
attempts
to
find the consents
.
The disclosure of the HIV status of the applicants was done in a
book which must naturally have taken time to produce. It
was not a
question of publishing breaking news such as might happen for the
purposes of a newspaper.
Both
the first and second respondents assumed, without any enquiry and
without a factual basis, that the applicants had given
Professor
Strauss express informed consent to disclose their names and HIV
status to the public at large. This clearly cannot
be so. The
second respondent failed to take sufficient steps to ascertain
whether the applicants had in fact given unlimited
consent to
Professor Strauss because, in her view, there was no onus or duty
on her to find out what was contained in the consent
forms. The
second respondent conceded in evidence that, at the time of
publication of the book, she was unaware of any other
person
outside the University who had been sent a copy of the report.
Both respondents assumed, without any enquiry, that the
information
contained in the Strauss Report was not confidential. They
conceded in evidence that they were not aware, at the
time of
publication of the book, of any other publication in which the
applicants’ names and HIV status had been disclosed
to the public
at large.
The
first respondent conceded in evidence that it is important to err
on the side of caution and not to disclose private facts
about a
person if one is unable to obtain the person’s express, informed
consent. Yet, she assumed that the applicants had
consented to the
public disclosure of their names and HIV status because the source
of the publication came from a reputable
institution. Despite
being acutely aware of the option of using pseudonyms in the book,
the first respondent deliberately chose
to use the applicants’
names in order to give the book “authenticity”. In my view,
the public’s interest in authenticity
does not outweigh the
public’s interest in maintaining the confidentiality of private
medical facts as well as the right to
privacy and dignity that
everybody should enjoy.
The
second respondent says there was no onus on her to seek out the
applicants before publishing. Once they had repudiated her
mandate
and the complaint statements they had made to her, as was apparent
from the Strauss Report which she read, they had to
seek and find
her. The applicants were in constant contact with Father Viljoen
and therefore the respondents could easily have
found them through
him. She gave the entire AIDS file to the first applicant and read
chapter 10 of the manuscript before publication.
She allowed
publication because nothing in the Strauss Report suggested that
the private facts were confidential. She knew
of no one else,
outside the University, who had the report when the book was
published and admitted that before the book there
was no
publication of these facts except in the report. She never
followed up the blank consents. She accepted that Professor
Strauss had the consent to disclose the names and she knew that the
first internal report, unlike the Strauss Report did not
use actual
names and specified that it was confidential.
There
are in the case of HIV/AIDS special circumstances which justify the
protection of confidentiality bearing in mind that the
disclosure
of the condition has serious personal and social consequences for
the sufferer. For example, such a person stands
to be isolated and
even rejected by others. In the present case, each of the
applicants testified as to the several setbacks
which occurred in
their lives following the disclosure of their status. The first
applicant had her shack burned down by her
boyfriend who has since
left her and broken off that relationship. The second applicant
has withdrawn from society for fear
of being ostracised by her
family. The third applicant has shied away and has not told
members of her family about her condition
which depresses her.
Looking
at the aforesaid conduct of the respondents and despite their
denial of having acted
animo
iniuriandi
and their further
contention that they acted reasonably, I am satisfied that the
respondents were certainly aware that the applicants
had not given
their consent or at least foresaw the possibility that the consent
had not been given to the disclosure. As seasoned
campaigners in
the field of HIV/AIDS the respondents knew well of the wrongfulness
of their conduct and that the disclosure of
private facts was
likely to invade the privacy rights of the applicants.
I
can come to no other conclusion but that the
respondents
have not rebutted the presumption that the disclosure of private
facts was done with the intention to harm the applicants.

Therefore the respondents had the requisite
animus iniuriandi
.
Their position is exacerbated by their attitude that they wanted
the book to have authenticity and credibility by publishing
the
names of the applicants. The defence of the respondents must
accordingly fail.
Freedom of
expression
It
was submitted by the amicus curiae that freedom of expression is
critical to an open and democratic society based on freedom
and
equality and without freedom of expression, openness is severely
compromised and endangered. It cannot be gainsaid that
freedom of
expression lies at the heart of democracy. This Court has
recognised in other cases that freedom of expression is
one of a
“web of mutually supporting rights”.
15
It
was suggested by the respondents and the amicus that if the media
were to be held liable for negligent disclosure of private
facts
they would have an additional burden which would frustrate the
right of freedom of expression. The amicus contended that
it was
neither necessary nor desirable for the common law to be developed
to include negligence as a ground of fault under the
animus
iniuriarum
. It submitted that
such an approach would unjustifiably limit the ambit of the right
of freedom of expression and would have
a “chilling effect” on
the freedom of expression in South Africa.
In
particular the amicus was concerned about the effect of holding
individual respondents as opposed to media respondents liable
on
grounds of negligence.
In
light of the fact that this judgment is not extending the common
law definition of intention to include negligence in relation
to
the publication of private medical facts, there will be no
“chilling effect” on freedom of expression in South Africa
and
there is no need to pursue this issue any further.
The third
respondent’s application for leave to cross-appeal
The
third respondent appealed the decision of the court a quo in its
finding that it was liable to the applicants. The basis
of the
appeal was that it was alleged that the third respondent had, in
publishing the book, revealed private information which
proved a
violation of their rights after the publication of the book. The
appeal was not pursued with any vigour in this Court.
I am of the
view, as these issues have been dealt with before, it is not
necessary to canvass them here again.
Assessment of
quantum of damages
In
the light of the aforegoing it now remains for me to deal with the
question of quantum of damages.
At the end of
the trial, the High Court assessed the damages and awarded an
amount of R15 000 to each of the applicants. It will
be recalled
that the applicants had claimed an amount of R200 000 each in
damages and that the respondents had offered the amount
of R35 000
to each plaintiff in their settlement offer in terms of Rule 34.
The
assessment of damages in any case under the
actio
iniuriarum
can never be an easy
exercise. I have not found it any easier. As was correctly
observed by Smalberger JA in
Van
der Berg v Coopers and Lybrand Trust (Pty) Ltd and Others
:
“
In the nature of things no
two cases are likely to be identical or sufficiently similar so that
the award in one can be used as
an accurate yardstick in the other.
Nor will the simple application of an inflationary factor
necessarily lead to an acceptable
result. The award in each case
must depend upon the facts of the particular case seen against the
background of prevailing attitudes
in the community. Ultimately a
Court must, as best it can, make a realistic assessment of what it
considers just and fair in all
the circumstances. The result
represents little more than an enlightened guess. Care must be
taken not to award large sums of
damages too readily lest doing so
inhibits freedom of speech or encourages intolerance to it and
thereby fosters litigation. Having
said that does not detract from
the fact that a person whose dignity has unlawfully been impugned
deserves appropriate financial
recompense to assuage his or her
wounded feelings.”
16
Although
such assessment is peculiarly within the province of the trial
court there may be situations where the dictates of justice
would
be better served by interference by an appellate court with regard
to the assessment and award made by the High Court.
This is such a
case. The assessment of damages will be on a different basis from
that of the High Court, taking into account
that the High Court’s
assessment was not commensurate with the dignity and privacy which
was unlawfully violated by the respondents.
I
have noted the reasons for the award made before the High Court
based on the circumstances of the applicants, among others,
that
they are illiterate in English, they claimed no understanding of
English, that there is no likelihood of any confrontation
in the
future by anyone in their community for or about their HIV status
and their names being in the book. If the applicants
were
disadvantaged it does not mean that they should not fight for the
restoration of their dignity damaged by the disclosure
of their
names and HIV status.
The
applicants contend that the award by the High Court failed to
accord sufficient weight to the fact that the rights violated
are
enshrined in the Bill of Rights and accordingly the award flouted
the spirit, purport and objects of the Bill of Rights.
17
In
assessing damages courts have in the past considered a range of
factors arising from the circumstances and facts of the case:
the
nature and extent of the invasion or violation of privacy; malice
on the part of the respondent; rank or social standing
of the
parties; the absence or nature of the apology; the nature and
extent of the publication; and the general conduct of the
respondent. The greater the violation of the privacy, the greater
the need to protect the applicants and the greater the award
of
damages.
The
first respondent initially tried to establish whether the necessary
consent had been obtained from the applicants and when
she failed
she went ahead and published the names. Her conduct in simply
going ahead and publishing the names of the applicants
violated the
dignity and privacy of the applicants. It was wrongful in the
sense that the first and second respondents went
ahead to publish
the names and HIV status of the applicants without obtaining their
necessary express informed consent.
The
respondents argued that it might be that in exceptional cases this
Court should grant leave to appeal against the quantum
of damages
awarded, but that this was not in any way a special case.
Accordingly, so it was argued, the award was in line with
other
awards made by our courts in similar situations. They cited
Jansen
van Vuuren and Another NNO v Kruger
.
18
In
the present case, highly personal and confidential material had
been placed in the book and without the respondents having
obtained
the express informed consent of the applicants. The consent which
the applicants had given earlier in the Strauss Report
had
pertained to a report and not to the general publication for public
consumption of the facts in a book. This consent was
limited to
medical records and if any other publication was envisaged the
requisite consent had to be obtained for that particular
publication.
The
respondents clearly violated the dignity and privacy enjoyed by the
applicants and are therefore liable to compensate the
applicants in
damages. Due to the gravity of the violations, I would consider a
higher award reasonable in these circumstances.
Accordingly,
I consider a fair assessment of the damage suffered by the
applicants at R35 000 for each applicant.
Costs
I
now come to the question of costs. In this regard we were invited
to consider the position on costs of an offer of settlement
on a
“without prejudice and without
admission
of liability” basis. Rule 34
19
deals with the contents of the notice of tender and stipulates a
period within which an offer of settlement must be accepted.
An
offer of settlement must be made timeously and should be responded
to promptly. It is made with a view of curtailing the
possible
escalation of costs.
The
offer included: (a) a private apology to each applicant; (b)
removing/deleting from all unsold copies of the book, reference
to
the applicants’ names and surnames; (c) payment direct to each
plaintiff of R35 000; and (d) payment of the claimants taxed
costs
as between party and party as of date of the offer of settlement.
It will be remembered that initially the High Court
had entered
judgment against the third defendant only to pay each of the
applicants the amount of R15 000 together with costs
of suit. The
terms of the settlement offer were drawn to the attention of the
High Court after the hearing. Having heard argument
the High Court
revised its costs order by directing that the third respondent
would pay the costs of the applicants up to and
including 14 April
2005, being the day on which the offer was made and that the
applicants in turn must pay the respondents’
costs from 17 April
2005.
The
truth of the matter is that an offer of settlement in terms of Rule
34
20
does not mean that an applicant should keep the respondent waiting
for several days, in this case 10 days while the costs mount.

Naturally, a respondent should not decide only on the morning of
the trial to make an offer and so hope to avoid liability for
costs.
21
In
this case the offer was made just before the commencement of the
hearing. The offer, in my view, was good, but the applicants
were
given little time to consider it before the commencement of the
trial.
As
I understand the law in regard to offers of settlement, any order
as to costs incurred subsequent to an offer is in the court’s
discretion. When exercising that discretion, the court will take
into consideration all relevant factors and will determine
whether
the applicants acted reasonably in delaying responding to the
offer. The respondents had not entered into any negotiations
with
the applicants but took the applicants off-guard, so to speak, when
they made the offer of settlement on the morning of
the hearing.
The
High Court exonerated the first and second respondents from
liability. I disagree with that finding. The second respondent
stated in evidence that she supplied the evidence about the
applicants. She gave to the first respondent the Strauss Report
and knew or ought to have known that the necessary consents had not
been obtained. The first respondent did a half-hearted check
but
soon became tired of the exercise and so decided to go ahead and
produce the book without having obtained the consent of
the
applicants.
Taking
into account all the circumstances of this case and the effort made
by the respondents to reach an amicable settlement
with the
applicants, the huge amount claimed by the applicants clearly
evidences a poor assessment of damages by their counsel.
I
therefore consider it fair that each party should pay its own costs
in this Court.
Order
In
the circumstances I make the following order:
1. The application for leave to appeal is granted;
2. The order in the court a quo
is set aside;
3. The following order is made:
The respondents shall pay to each applicant the sum of R35 000
inclusive of the amount of damages awarded against the third
defendant in the High Court as compensation for damage jointly and
severally;
The respondents shall pay costs of the respondents up to the first
day of trial;
The third respondent’s application for leave to appeal is
dismissed with costs;
The names of the applicants shall be deleted from all unsold
copies of the book “
Patricia de Lille
” by Charlene
Smith;
In this Court each party shall pay its own costs, including the
costs in the High Court.
Moseneke DCJ, Mokgoro J, Nkabinde J, Skweyiya J, Yacoob J and Van
der Westhuizen J concur in the judgment of Madala J.
LANGA CJ:
I have had the
opportunity of reading the judgments of Madala, Sachs and O’Regan
JJ. This case raises very difficult questions
of both fact and law
which do not permit of easy analysis. Hence, while there is much
that I agree with in all the judgments,
I have found it necessary
to plot my own particular approach to this case.
In brief, I
agree that the disclosure of the HIV status of the applicants was
wrongful and associate myself with the discussions
of the rights to
privacy and dignity in both Madala and O’Regan JJ’s judgments
and concur in the spirit and tone of Sachs
J’s judgment. In
particular, I agree that being HIV positive does not in itself
impair a person’s dignity and that courts
must be careful not to
stigmatise the disease. I disagree, however, with Madala J that
intention has been established on the
facts. I agree with O’Regan
J that it is necessary to develop the common law, but I find it
necessary to clarify the ambit
of that development. I also find
that the first and third respondents are media defendants and,
contrary to O’Regan J, that
they were negligent in this case.
Finally, I disagree with Madala J’s approach to Rule 34 and, as a
result, his award of costs.
Intention
Madala J holds
that the respondents failed to rebut the presumption of intention.
Like O’Regan J, I am not convinced that
is present. The
available facts do not, to my mind, disclose that the respondents
subjectively foresaw the possibility of their
action causing harm.
All the judgments accept,
1
and the record makes it clear that both the first and the second
respondents are active “seasoned campaigners” in the field
of
HIV/AIDS. O’Regan J highlights a number of heartfelt denials of
intention by the first respondent
2
which I find compelling. Although the respondents’ denials are
not conclusive, they do mean that we would need a great deal
of
evidence to find that these activists would intentionally infringe
the rights of the very people whom they are committed to
protect.
That evidence is not present. It could well be that the
respondents honestly believed the Strauss Report to be a public
document and therefore did not think it necessary to take any
further steps to ascertain consent. A reasonable media defendant
might have investigated further, but that goes to negligence, which
I address later. I therefore hold that the respondents did
not act
intentionally.
Development of
the Common Law
I agree with the reasons expressed by O’Regan J for holding the
media to a higher standard than ordinary defendants.
3
This Court
4
and the Supreme Court of Appeal
5
have held that the media, as a consequence of their power, bear a
particular constitutional responsibility to ensure that the
vital
right of freedom of expression is not used in a manner that
improperly infringes on other constitutional rights. It makes
sense that media defendants, who are experts in the field and who
routinely distribute facts to vast numbers of people, with
a
particular air of authority and for commercial gain, should be held
liable for any disclosures which they should reasonably
have
foreseen would cause harm. However, to extend that standard to
ordinary people, and thus to everyday relationships, would
be to
extend the law too far into intensely personal space. That is not
to say that I approve of negligent disclosures of private
facts by
individuals, but simply that it is not a matter that is appropriate
for the law to regulate. It is therefore constitutionally
appropriate that the media should be held to a higher standard than
the average person.
I also agree,
in general terms, with the nature of the development of the common
law suggested by O’Regan J. I wish only to
express a minor
difference in my understanding of the correct technical
construction of that development. As I understand O’Regan
J’s
judgment, the position for a media defendant is that they can rebut
unlawfulness by showing that the publication was reasonable;
if
they fail on that count, there is a presumption of negligence whi
ch
they must rebut; and, finally, if they succeed in rebutting
negligence, they will still be liable if they acted with intention.
To the extent that the first defence of reasonableness extends
what is already part of the lawfulness inquiry, I di
sagree.
Lawfulness is
an ex post facto inquiry into whether the action is compatible with
the
boni mores
. It is important that when we determine
lawfulness we are not concerned with the facts that were known to
the defendant, but
with the facts that are now available to the
Court. It is also important that we operate on the basis that the
act in question
was done either negligently or intentionally. To
do otherwise would defeat the purpose of the lawfulness inquiry as
the
boni mores
would never condemn a blameless act. In the
context of the disclosure of private medical facts this means that
the reasonableness
of a defendant’s averment that they thought
they had consent is irrelevant if the consent was in fact absent.
Reasonableness
in the lawfulness inquiry will be relevant, for
example, where it is unclear whether, objectively and ex post
facto, there was
consent or not, or where publication might have
conformed to public policy despite the absence of consent.
Negligence, on
the other hand, relates specifically to the circumstances of the
case and its determination is based on the facts
known to the
defendant at the time. It is at this stage that media defendants
can argue, as the respondents do in this case,
that it was
reasonable to assume that consent was present. This is a separate
inquiry that in my view should be kept distinct
from the inquiry
into wrongfulness. This approach in no way alters the substance of
the various tests, but simply re-assigns
various questions to what
I consider to be their correct position.
Media defendants
The next
question is whether the respondents qualify as media defendants.
The first and third respondents are professionals involved
in the
distribution of information for commercial gain. Although they do
not meet the traditional image of a media defendant
as a newspaper
editor, they clearly meet the concept of media defendants which
motivate setting higher standards for the media.
6
The second
respondent on the other hand, although she was undoubtedly involved
in the process, is not a professional journalist
and was more the
subject of the book than its creator. While she maintained control
over the content of the book, as a layperson
that control would
relate to the factual correctness of the book rather than the
legality of its publication. Although the second
respondent would
still bear responsibility if she had acted intentionally, I cannot
find that she is a media defendant and she
therefore avoids
liability.
Negligence
The
traditional test for negligence is axiomatic but still bears the
briefest repetition: negligence is established if a reasonable
person in the position of the defendant would have foreseen the
harm, the reasonable person would have taken steps to prevent
it
and the defendant failed to take those steps.
7
When we are dealing with professionals acting in their
professional field, the relevant benchmark is not the ordinary
reasonable
person but the relevant reasonable professional person.
8
In this case, we must compare the conduct of the respondents to
that of a reasonable journalist and publisher.
The applicant
led the evidence of Professor Harber (Harber) as to what is
expected of a journalist in the circumstances. Harber
made it
quite clear that ethical reporting of HIV/AIDS requires that:
“
The identity of a person
with HIV/AIDS should not be disclosed without the explicit
permission of that person and the onus is on
the
journalist/publisher to ensure that such permission has been
granted.”
He also testified
that the consent must be informed consent which requires that it is
obtained in the individual’s own language
and that they are
informed of the potential ramifications of publication and the
context in which their name would be used. He
stressed that a
journalist cannot assume that consent has been given. This evidence
was not seriously challenged by the respondents.
Both the High
Court and O’Regan J largely discount Harber’s evidence as they
regard the Strauss Report as a public document.
While I agree with
the general proposition in O’Regan J’s judgment that
journalists should not be forced to verify disclosures
made by
reputable organisations, that principle does not, to my mind,
create any hard-and-fast rules. Whether it is reasonable
to rely
on another document will depend on the nature of the document, the
nature of the institution that produced the document,
the
importance of the interests involved and the relevant circumstances
of the case. It is not, for example, sufficient to rely
simply on
the absence of a distinct proclamation of confidentiality as
automatically justifying reliance on an otherwise untested
document.
That this is
the appropriate standard appears very clearly from Harber’s
evidence. During cross-examination Harber was asked
whether, if a
commission of enquiry had been established and the report had been
given to him, with no reference to its confidentiality
or anything
to suggest that it were secret, he would publish the report.
Harber responded:
“
I would say you would say to
yourself is there any reason I cannot publish this, is it illegal,
are there contents that can cause
me problems of defamation or
invasion [of] privacy or you would ask yourself a range of questions
and if the answers to those were
no, then you would publish. . . .
You would be very foolish if as a journalist and editor you did not
establish first whether
for example you were being defamatory and
whether or not that was a risk you should and wanted to take.”
The hypothesis was
extended to a situation where it was an official report from the
Minister to which Harber responded: “I am
not sure why that would
protect you if you carried defamatory material.”
To my mind
these responses make it clear that a journalist cannot rely on
governmental or private institutions to publish only
information
that would be appropriate for a journalist to publish. Journalists
have their own standards and bear an independent
duty to ensure
that they have been met.
The question
then is whether the reasonable journalist described above would
have foreseen the possibility of the absence of consent
under these
circumstances. There are a number of important considerations on
this score. Firstly, Professor Strauss explains
on the second page
of his report that “[r]ight at the outset [he] insisted upon each
patient . . . giving consent to [him]
in writing, the terms of
which consent appear in exhibits ‘A-1’ through ‘A-8’”.
The importance of this passage, so
early in the report, is that it
makes clear that the consent has been given with certain “terms”
attached to them. Having
been alerted to the fact the consent was
limited, a reasonable media defendant would have foreseen that the
consent would not
cover publication outside the report itself.
When asked whether she knew the exact terms of the consent in the
Strauss Report,
the first defendant responded: “Not the exact
terms, that is why I contacted the University.” This indicates
that Smith
herself realised that the reference to terms of consent
meant the consent was not unrestricted. Although it is not enough
to
convince me she acted with intent, it shows very clearly that
anybody who read the report would realise the consent given by the
applicants was limited. A reasonable journalist would have then
made certain that they determined the exact terms of the consent
by
obtaining the annexures.
The first
respondent’s uncertainty is compounded by her concession that the
applicants
“
were patients who had
consistently changed their minds about whether or not they had a
problem or did not have a problem, whether
or not they felt free to
speak out or did not feel free to speak out.”
With that knowledge
it should have been even more obvious to her that she should
determine with certainty what the applicants’
attitudes were to
disclosure in her book and at that time.
The Strauss
Report was an internal University report made in response to
allegations of irregularities. It was compiled by a
lawyer, not a
journalist. This point was pertinently made during Ms Smith’s
cross-examination, when she was read the following
principle of
journalistic ethics:
“‘
No reporter or
photographer should allow publication of material which can put
informants at risk of losing their positions, injury
or death. In
particular, ordinary people are sometimes unaware of the possible
consequences of talking to the media. In these
cases it is
incumbent on the reporter or photographer to establish informed
consent by spelling out to the informant what the likely
dangers
are.’
Are you aware of that
principle? – I am aware of this and this is precisely what
Professor Strauss should have applied.
COURT
: Is he a
journalist – No he is not”.
In addition,
the Strauss Report was not a public document and was not intended
for widespread public consumption. The report
was not publicised
and as far as the first respondent was aware when the book was
published, had not been disclosed to any other
reporters. Again,
the cross examination is telling:
“
When you wrote and published
your book you were not aware of a single report anywhere in the
media where any of the plaintiffs’
names or faces had been
published. Correct? – Correct”.
The report was
also not widely distributed. Professor Grove made clear that,
outside the University, the report was only sent
to Ms de Lille, a
Ms Vermaak who assisted during the Strauss inquiry and possibly the
Medical Research Council. The first respondent
was unaware of this
distribution, but admitted that the only effort she made to
determine the extent of the distribution were
three wholly
unproductive phone calls to the Registrar’s office.
The reasonable
media defendant would therefore, and keeping in mind the evidence
of Harber, not have relied on the Strauss Report
as a document that
removed their duty to ensure informed consent had been obtained.
The
inescapable conclusion is that a reasonable journalist or a
reasonable publisher would have foreseen the possibility that
there
was not consent. Because the possible harm was great, the effort
necessary to avoid that harm minimal and the benefit
of publishing
the names negligible, a reasonable journalist or publisher would
have taken steps to avoid that harm. Those steps
could have
involved, for example, finding the annexures, contacting the
applicants directly or using pseudonyms. Whatever course
they
chose the defendants, to use the words of Sachs J, “should have
left no stone unturned in [their] pursuit of verification.”
The
fact that they left those stones unturned renders them negligent.
A word should
be said about the third respondent’s liability. As a publisher
it bears a separate responsibility to ensure that
everything it
publishes is lawful. It cannot abandon that responsibility to
those whose work it chooses to disseminate. It
is therefore
negligent for the same reasons as the first respondent.
Damages
I agree with
Madala J’s assessment of damages at R35 000.
Cross-appeal
On my approach
it is unnecessary to consider the cross-appeal and I turn to the
final issue: the settlement offer in terms of
Rule 34.
Rule 34
On the morning
of the trial, 14 April 2005, the respondents made an offer without
prejudice to the applicants. The offer included
payment of R35 000
to each applicant, a private apology and the removal of the
applicants’ names from all copies of the book.
It did not
include an admission of liability. The applicants rejected the
offer and were subsequently awarded R15 000 each.
The offer was
disclosed to the High Court immediately after judgment was given.
The High Court held that the applicants’
refusal entitled the
respondents to the costs from 17 April 2005 and the majority of
this Court has held that each party should
pay their own costs in
this Court.
The applicants
argued that they should not have been mulcted in costs as an offer
without prejudice did not sufficiently vindicate
their
constitutional rights. Only an unconditional offer or an order of
court could, according to the applicants, vindicate
a
constitutional right.
On the other
side, the respondents contended that the very basis of civil
litigation is that money satisfies rights. To hold
otherwise would
undermine the very purpose of Rule 34: to avoid unnecessary trials.
Defendants who honestly believe they are
not liable would have no
choice but to continue with an expensive trial or make an
unconditional offer.
The decision
to award costs following the disclosure of a settlement offer is in
the discretion of the Court.
9
This Court has made it clear that an appellate court should
generally only interfere in the exercise of a discretion by a lower
court if the discretion is not exercised judicially, or is based on
wrong principles or a misapprehension of the facts.
10
The question then is whether the High Court has committed such a
misdirection.
While I accept
that, as the respondents contend, Rule 34 serves an important
purpose and undermining the potential to save costs
would remove
any impetus to make offers of settlement, different principles
apply to cases involving constitutional rights.
This case is about
the essential constitutional rights of dignity and privacy of some
of the most vulnerable people in society.
Money may help to
alleviate the applicants’ pain, but as has been noted in the
context of defamation,
“
[t]he true and lasting
solace for the person wrongly injured is the vindication by the
Court of his or her reputation in the community.
The greatest prize
is to walk away with head high, knowing that even the traducer has
acknowledged the injustice of the slur.”
11
No matter the value
of the offer, it does not give the acknowledgement of wrong-doing
that is often far more valuable than any money
could be. Contrary
to what the respondents suggest, that is not the case in all civil
claims as many civil disputes revolve entirely
around money, not
principle.
This case is
also about broad questions of the responsibilities of journalists
and the protection of privacy in the media. These
are important
and difficult questions and, in my view, the common law presently
falls short of the “spirit, purport and objects
of the Bill of
Rights”
12
and must be transformed. There is a danger that the risk of
adverse costs orders, despite ultimate success, might permit rich
and powerful defendants to prevent the law from adapting to meet
constitutional imperatives by throwing money at plaintiffs who
cannot afford to take that chance. It already takes immense
courage for ordinary people to take large powerful defendants to
court and the additional peril of an adverse costs order will mean
even fewer plaintiffs get their day in court. That could
easily
have happened in this case and the liability of media defendants
for disclosing private medical facts would have remained
unquestioned. The achievement of our constitutional vision should
not be obstructed by the vested interests of those who have
the
money to protect them.
The above reasoning does not
dictate that a costs order will never be appropriate when a
constitutional right is involved; the
award of costs remains a
matter of discretion. It does mean that the involvement of a
constitutional right
seriously alters the framework
within which that discretion must be exercised. The failure of
Schwartzman J to properly consider
the impact of the Constitution
means that it is appropriate for this Court to interfere with his
award of costs. On the peculiar
facts of this case, I would alter
the award of costs. I would, accordingly, order the first and third
respondents to pay all the
applicants’ costs in both the High
Court and this Court.
O’REGAN J:
I have had the
opportunity of reading the judgment prepared in this matter by
Madala J. Unfortunately, I cannot concur with it
for the reasons
set out here.
This
litigation arose from the publication of an authorised biography
(“the book”) written by Ms Charlene Smith, the first
respondent, about Ms Patricia de Lille, the second respondent. The
publisher of the book, New Africa Books (Pty) Ltd, is the
third
respondent. In the book, the three applicants are named as persons
who are living with HIV. The applicants did not consent
to their
names being published in this way. All of this is common cause.
The fuller facts appear from the judgment of Madala
J and I do not
repeat them here save where necessary.
The applicants
issued summons in the High Court in Johannesburg alleging that the
respondents had acted wrongfully with the intention
of injuring the
applicants in their rights of personality, particularly their
rights to privacy, dignity, psychological integrity
and mental and
intellectual wellbeing. In the alternative, the applicants alleged
that the respondents acted negligently in
publishing the names of
the applicants with the same consequences. The applicants also
alleged, in the alternative, that the
first respondent knew or
ought reasonably to have known that the applicants had not
consented to the publication of their names.
After hearing
evidence, the court concluded that the applicants had not
established the case as pleaded and dismissed their
claim.
The case
raises complex issues. My primary disagreement with Madala J
relates to his finding on the facts (contrary to the finding
of the
High Court) that the first and second respondents published the
names of the applicants having actually known that the
applicants
had not consented to publication of their names, or alternatively,
having foreseen the possibility that they did not
consent and in
reckless disregard of that possibility. Such a finding results in
the conclusion that the respondents did act
intentionally, either
directly or under the specific form of intention called
dolus
eventualis.
I do not think this case has been made out on the
facts. In addition, I should add that the High Court concluded
that such
a case had not been made out on the facts. Nor do I
think that the respondents have failed to dislodge a presumption
that they
acted either intentionally or, having foreseen the
possibility that the applicants may not have consented to the
publication
of their names, acted recklessly despite that
foresight. My conclusion on the facts requires a consideration of
the alternate
causes of action pleaded by the applicants, in
particular, the question whether in our law unreasonable mistake or
negligence
can found liability for breach of privacy as alleged
here. And if it does, whether it has been established on the facts
of this
case. Before turning to these complex issues, however, it
is necessary to discuss briefly the constitutional rights in issue

in this case.
The right to
privacy
The
constitutional basis for the applicants’ claim is the right to
privacy protected in section 14 of the Constitution which
provides:
“
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.”
The applicants
assert that their right to privacy entitles them not to have their
private medical information disclosed without
their consent to the
public. In
Bernstein and Others v Bester NO and Others,
Ackermann J recognised that privacy is an elusive concept that
has been the subject of much debate by scholars.
1
It has troubled lawyers too since at least the end of the
nineteenth century.
In a seminal
article written by Samuel Warren and Louis Brandeis in 1890 in the
Harvard Law Review, in language that resonates
today, the authors
argued that:
“
Instantaneous photographs
and newspaper enterprise have invaded the sacred precincts of
private and domestic life; and numerous
mechanical devices threaten
to make good the prediction that ‘what is whispered in the closet
shall be proclaimed from the house-tops.’
For years there has
been a feeling that the law must afford some remedy for the
unauthorized circulation of portraits of private
persons; and the
evil of the invasion of privacy by the newspapers, long keenly felt,
has been but recently discussed by an able
writer. . . . Of the
desirability – indeed of the necessity â€“ of some such
protection, there can, it is believed, be no
doubt. The press is
overstepping in every direction the obvious bounds of propriety and
of decency. Gossip is no longer the resource
of the idle and of the
vicious, but has become a trade, which is pursued with industry as
well as effrontery.”
2
(Footnotes omitted.)
The statement
by the authors that privacy needs protection seems intuitively to
be correct. However, in the context of a Constitution,
which
values not only privacy, but also freedom of expression, more
careful consideration of this apparent intuitive truth needs
to be
undertaken. The important question to be considered is why we
protect the right to privacy in our constitutional order.
There
are at least two inter-related reasons for this protection.
3
The first flows from our constitutional conception of what it
means to be a human being; and the second from our constitutional
conception of the state.
Underlying our
Constitution is a recognition that, although as human beings we
live in a community and are in a real sense both
constituted by and
constitutive of that community, we are nevertheless entitled to a
personal sphere from which we may and do
exclude that community.
In that personal sphere, we establish and foster intimate human
relationships
4
and live our daily lives. This sphere in which to pursue our own
ends and interests in our own ways, although often mundane,
is
intensely important to what makes human life meaningful.
The right to
privacy recognises the importance of protecting the sphere of our
personal daily lives from the public. In so doing,
it highlights
the inter-relationship between privacy, liberty and dignity as the
key constitutional rights which construct our
understanding of what
it means to be a human being. All these rights are therefore
inter-dependent and mutually reinforcing.
5
We value privacy for this reason at least – that the
constitutional conception of being a human being asserts and seeks

to foster the possibility of human beings choosing how to live
their lives within the overall framework of a broader community.

The protection of this autonomy, which flows from our recognition
of individual human worth, presupposes personal space within
which
to live this life.
This first
reason for asserting the value of privacy therefore lies in our
constitutional understanding of what it means to be
a human being.
An implicit part of this aspect of privacy is the right to choose
what personal information of ours is released
into the public
space. The more intimate that information, the more important it
is in fostering privacy, dignity and autonomy
that an individual
makes the primary decision whether to release the information.
That decision should not be made by others.
This aspect of the
right to privacy must be respected by all of us, not only the
state. As was pointed out in the minority
judgment in
S v
Manamela and Another (Director-General of Justice Intervening)
:
“
Such an exhortation
recognises that the protection of individual rights depends not only
on the actions of the State, but on the
actions of fellow citizens.
The conduct of each individual can and will contribute to a climate
in which the rights of others
are respected. Our society asserts
individual moral agency and it does not flinch from recognising the
responsibilities that flow
from it.”
6
The right to
privacy is therefore one of those rights which will often bind
natural and juristic persons
7
and individuals need to be furnished with appropriate remedies to
protect their right against its invasion by others. The recognition
by others of our right to an area of privacy is one of the bases
upon which our community itself is built.
8
The proper protection of a person’s privacy depends in a
significant way on its being respected by others.
Secondly, we
value privacy as a necessary part of a democratic society and as a
constraint on the power of the state. It is not
surprising, given
our authoritarian past, that the incidents of privacy listed in
section 14 of our Constitution
9
protect individuals from searches of their home, person, property
and communications. In authoritarian societies, the state
generally does not afford such protection.
10
People and homes are often routinely searched and the possibility
of a private space from which the state can be excluded is
often
denied. The consequence is a denial of liberty and human dignity.
11
In democratic societies, this is impermissible.
This is not to
say, however, that there are no limits to the inviolability of an
individual’s entitlement to privacy. There
are times when it
will be legitimate for the state to invade private space. For
example, violence against women often lurks
in the shadows of the
home and historically state officials have refused to intervene to
protect women on the basis of the inviolability
of the home. Such
a refusal can no longer be tolerated under our Constitution which
asserts that everyone has the right to be
free from both public and
private violence.
12
The corollary of this right is an obligation borne by the state,
and others, to provide protection to those at risk of violence
even
in traditionally private environments such as the home.
13
Recognition of legitimate limits on the inviolability of personal
space, however, does not mean that the space is not worthy
of
protection. The Constitution seeks to ensure that rights reinforce
one another in a constructive manner in order to promote
human
rights generally. At times our Constitution recognises that a
balance has to be found to provide protection for the different
rights.
The breach of
privacy relied upon by the applicants in this case is the
disclosure of the fact that they are living with HIV.
This is
private medical information which the applicants may ordinarily
choose to keep private. In
Bernstein
, Ackermann J found
that determining whether the right to privacy has been breached
requires us to recognise that the concept
should be seen as having
a core and a periphery. He reasoned:
“
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.”
14
In cases since
Bernstein,
this Court has sought to locate the particular
infringement complained of as either a core or peripheral
complaint.
15
In this case, the applicants argue that their private medical
information was disclosed without their consent. There can be
no
doubt that private medical information, of whatever nature, but
particularly where it concerns a life-threatening disease,
is
personal information, which is protected by the right to privacy.
Moreover, it is information which the person concerned
has the
right to decide whether to disclose. If the person does decide to
disclose it, he or she is entitled to determine in
what
circumstances and to whom. These choices are personal choices and
must be respected not only by the state but by others.
Of course,
doctors and other medical personnel may need to know, and at times
disclose, the information for privileged reasons,
but they are not
entitled to disclose it outside of their professional circumstances
without consent.
16
In
National
Media Ltd and Another v Jooste
, the Appellate Division held
that liability would only arise in respect of disclosure of those
private facts when the general
sense of justice of the community
would expect protection because disclosure would “cause mental
distress and injury to anyone
possessed of ordinary feelings and
intelligence”.
17
It is not necessary for the purposes of this case to consider
whether this test is the appropriate test under our Constitution
for determining whether a fact is private or not. For it is clear
that the publication of otherwise confidential information
about a
life-threatening illness is likely to cause distress to the person
concerned. The question of whether it is only in
such
circumstances that an action for breach of privacy will lie can
therefore be left for another day.
HIV/AIDS and
privacy
It is
important to add here that HIV/AIDS should not be seen as different
from other life-threatening diseases for the purposes
of the breach
of privacy. It is true that our society stigmatises those living
with HIV/AIDS. The result of this stigma is
that disclosure causes
not only personal pain for those living with HIV/AIDS, but at times
a reasonable fear that their lives
and safety are at risk because
of the attitudes of some in our community towards those living with
HIV/AIDS.
It needs to be
said clearly that the stigma attached to those living with HIV/AIDS
is inconsistent with the constitutional value
of human dignity.
Disclosing that a person is living with HIV/AIDS cannot therefore
be an infringement of dignity on the grounds
that members of the
community may improperly think less of them because they are
suffering from this frightening illness. It
does undermine their
dignity to the extent that it denies those living with HIV/AIDS the
right to determine to whom and when
their illness should be
disclosed, which is itself an aspect of the right to privacy, as
already discussed.
HIV/AIDS
therefore is not to be treated specially for the purposes of
establishing a breach of privacy. It may well be that the
effect
of the stigma the illness currently attracts is relevant to the
determination of damages appropriate to remedy the wrongful
disclosure. This is a matter that for the reasons that follow does
not need to be determined in this case.
In dealing
with cases concerning people living with HIV/AIDS, courts and
lawyers must take care not to develop rules that will
strengthen
rather than diminish the stigma attached to HIV/AIDS. In time, we
should hope that those living with HIV/AIDS should
be seen merely
as members of our community who have a disease for which treatment
exists. Nothing in our law or legal system
should undermine the
achievement of that state of affairs.
Was the
applicants’ HIV status a private fact?
The
respondents sought to raise, as a defence, the fact that before the
book was published it was already no longer a private
fact that the
applicants were living with HIV. In this regard, they relied, in
particular, on the fact that the applicants had,
as three of a
group of people undergoing treatment as part of a medical trial
staged by the University of Pretoria, agreed to
meet to present
their grievances orally to the University Ethics Committee. The
meeting was held in April 2000, and the media
were invited and
attended. However, the April meeting did not deal with the
grievances of the applicants and others because
the person chairing
the meeting ruled that formal written complaints concerning the
trials should be lodged and that the grievances
should not be aired
at the meeting. There is a dispute of fact on the record as to
whether the applicants in fact attended either
of these meetings
but the High Court held that nothing turned on this dispute. What
is clear, however, is that no actual disclosure
took place at the
meeting in April 2000.
The
respondents argue that if the applicants attended the meeting in
March 2000, where it was decided that the Ethics Committee
should
be approached in public to raise grievances about the conduct of
the clinical trial, at that stage the applicants indicated
an
intention no longer to keep their HIV status confidential.
Accordingly, the respondents argue that the subsequent publication
of the applicants’ status in the book did not breach their
privacy. This argument cannot be accepted. I agree that nothing
turns on whether or not the applicants did in fact attend the
meetings of March and April. What is clear is that, as a matter
of
fact, the outcome of those meetings was not such as to render the
applicants’ HIV status a matter of public record. As
a matter of
fact, their status remained private after that meeting. Whatever
the intention of the applicants may have been,
the fact of their
HIV status did not become public knowledge. In reaching this
conclusion, it should be emphasised that a court
should not lightly
conclude that what is a private fact has been rendered a public
fact simply because a small number of people
may have come to know
of it. The question will be one of fact, in particular, whether
the fact has been disclosed to such an
extent that, viewed
objectively, it can no longer genuinely be considered to be
private. In this case, I conclude that the respondents
published
private medical information of the applicants without their
consent.
Privacy and
freedom of expression
In
understanding the scope of privacy, it is important to recognise
that, at times, the right to privacy might suggest that certain
facts should not be published while at the same time the right to
freedom of expression might suggest that those same facts should
be
able to be published. As this Court has held, freedom of
expression is an important right in a democracy.
18
It is important because it enables the free and open exchange of
ideas
19
that is the anchor of any modern democracy as Brandeis J noted in
his powerful concurrence in the early case of
Whitney v
California −
“
Those who won our
independence believed that the final end of the state was to make
men free to develop their faculties, and that
in its government the
deliberative forces should prevail over the arbitrary. They valued
liberty both as an end and as a means.
They believed liberty to be
the secret of happiness and courage to be the secret of liberty.
They believed that freedom to think
as you will and to speak as you
think are means indispensable to the discovery and spread of
political truth; that without free
speech and assembly discussion
would be futile; that with them, discussion affords ordinarily
adequate protection against the dissemination
of noxious doctrine;
that the greatest menace to freedom is an inert people; that public
discussion is a political duty; and that
this should be a
fundamental principle of the American government. They recognised
the risks to which all human institutions are
subject. But they
knew that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous
to discourage thought, hope
and imagination; that fear breeds repression; that repression breeds
hate; that hate menaces stable
government; that the path of safety
lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that
the fitting remedy for evil counsels is
good ones. Believing in the power of reason as applied through
public discussion, they
eschewed silence coerced by law – the
argument of force in its worst form. Recognising the occasional
tyrannies of governing
majorities, they amended the Constitution so
that free speech and assembly should be guaranteed.”
20
(Footnote omitted.)
Freedom of
expression is important because it is an indispensable element of a
democratic society. But it is indispensable not
only because it
makes democracy possible, but also because of its importance to the
development of individuals, for it enables
them to form and share
opinions and thus enhances human dignity and autonomy. Recognising
the role of freedom of expression
in asserting the moral autonomy
of individuals demonstrates the close links between freedom of
expression and other constitutional
rights such as human dignity,
privacy and freedom. Underlying all these constitutional rights is
the constitutional celebration
of the possibility of morally
autonomous human beings independently able to form opinions and act
on them. As Scanlon described
in his seminal essay on freedom of
expression, an autonomous person –
“
. . . cannot accept without
independent consideration the judgment of others as to what he
should believe or what he should do.
He may rely on the judgment of
others, but when he does so he must be prepared to advance
independent reasons for thinking their
judgment likely to be
correct, and to weigh the evidential value of their opinion against
contrary evidence.”
21
Our
Constitution seeks to assert and promote the autonomy of
individuals in the sense contemplated by Scanlon. Freedom of
expression
is key to this purpose. It does not mean however that
freedom of expression is without limit. This Court has already
held that
there are legitimate limits on freedom of expression.
22
At times, the limit on freedom of expression will arise from the
need to protect another constitutional right, such as the right
to
privacy.
Seeking the
appropriate balance between privacy and expression requires the
legal rules which provide for redress for breaches
of privacy to be
developed in a manner that recognises both the importance of
privacy and the importance of freedom of expression.
The basis for
a claim for breach of privacy in our common law is the
actio
injuriarum
. It is that remedy which primarily must contain
rules to regulate the relationship between the right to privacy and
the right
to freedom of expression.
In developing
and applying the rules of the
actio injuriarum
, both the
right to privacy and freedom of expression need to be borne in
mind. In determining appropriate limits on freedom
of expression,
ethical rules developed by journalists themselves will be of
importance. In this case, a leading South African
journalist,
Professor Anton Harber, gave evidence at the trial concerning the
accepted practice for journalists wishing to publish
the identity
of a person living with HIV/AIDS. It will be useful to describe
his evidence briefly.
Professor
Harber identified four principles guiding journalists in their
work: the obligation to tell the truth; the obligation
to remain
independent; the obligation to minimise harm; and the
accountability of journalists to explain and defend their work.
In
regard to HIV/AIDS, the summary of his evidence stated that because
people with HIV/AIDS often face stigmatisation and persecution,
the
identity of a person should not be disclosed without their explicit
permission. He helpfully placed in evidence a series
of codes of
ethics, some from South African media organisations and some from
abroad, setting out the ethical responsibilities
of journalists.
Codes of media ethics will often be useful in considering the
question of how privacy and freedom of expression
should be
balanced in our law. Most of the codes of conduct on the record
emphasise the importance of privacy, but also recognise
the
possibility of overriding privacy in the public interest or where
there is informed consent.
23
He did not give evidence on the question that arises in this case
− the responsibility of journalists when faced with a publication
from a reputable source that discloses the identities of people
living with HIV/AIDS.
I turn now to
consider that question in the context of the
actio injuriarum,
bearing in mind the aforegoing discussion of the constitutional
rights at issue in this case.
The
actio
injuriarum
The right to
privacy finds protection in the law of delict and, specifically, in
the
actio injuriarum.
This cause of action, recognised
since the classical Roman period,
24
protects a range of personality rights under the Latin terms
corpus
,
fama
and
dignitas
– which can
loosely be translated respectively, as physical and mental
integrity, good name and dignity understood in a broad
sense.
25
Privacy has been protected under the rubric of
dignitas
.
26
The elements of the
actio injuriarum
are the intentional
and wrongful infringement of a person’s
dignitas
,
fama
or
corpus
.
27
The most
common use of the
actio injuriarum
in our law is in relation
to defamation. Special rules have developed in defamation,
particularly in relation to which party
bears the onus of
establishing or disproving the facts relevant to the different
elements of the delict. So, in defamation,
it is clear that if a
plaintiff establishes the publication of a defamatory statement,
that will constitute prima facie proof
of the wrongfulness of the
publication and prima facie proof that the defendant intended to
defame the plaintiff. The defendant
will then bear a legal burden
to disestablish either wrongfulness or intention in order to avoid
liability.
28
It is not
clear whether those rules relating to onus apply also to the use of
the
actio injuriarum
in relation to the right to privacy.
29
There does not seem to be any reason why, as a matter of
principle, proof of the publication of a private fact in breach of
a plaintiff’s right to privacy should not give rise to
presumptions both of wrongfulness and intention which the defendant
must rebut. Both defences will ordinarily fall within the peculiar
knowledge of the defendant. However, it is not necessary
on the
view I take of the facts of this case to resolve that question now.
As it concerns the common law, it would be desirable
for the
Supreme Court of Appeal to resolve this question.
It is not
necessary to decide the question on the burden of proof in relation
to wrongfulness for the following reason. The respondents
did not
seek to raise, as a defence, that the publication was not wrongful.
The main defences to wrongfulness in these circumstances
would be
that the publication was in the public interest or that express
informed consent had been rightly given. Both these
defences to
wrongfulness are recognised in the codes of ethics referred to by
Professor Harber.
30
The respondents did not assert that publication of the names in
this case, the applicants who are private citizens, was in the
public interest. Nor did they allege that the applicants had given
them express informed consent to publish their names. Their
defence was firstly that the HIV status of the applicants was no
longer a private fact. I have dealt with that argument above.

Secondly, they argued that even if the applicants’ status was
still a private fact, that they did not know this and had

mistakenly thought that it was no longer a private fact. This
second defence goes to the
animus injuriandi
. If the
respondents genuinely considered the applicants to have consented
to the publication of their HIV status, they did not
act
intentionally in disclosing that status.
Did the
respondents have
animus injuriandi
?
The next
question that arises is whether the respondents did act
animo
injuriandi
in publishing the information about the applicants.
It should be stated at the outset that it is necessary in our law
for plaintiffs
to aver that the infringement of privacy was
animo
injuriandi.
31
And there is at least some authority to suggest that where the
publication of a private fact is established a presumption that
the
publication was intentional will arise.
32
I deal with the facts of this case on the assumption that the
respondents needed to rebut a presumption that they acted
intentionally,
and as will appear below, I conclude that on the
evidence they have in fact established that they did not act
intentionally.
Nothing turns therefore, for the purposes of my
judgment, on where the onus lies in relation to intention.
The question
that arises is whether the defendants have rebutted the fact that
the publication of a private fact was intentional.
Because Madala
J reaches a different conclusion to me on the same record, I
consider it necessary to spend some time recounting
the evidence
given by the first and second respondents in this regard. Ms
Smith, the first respondent, who is the author of
the book, gave
evidence that she was approached by the publisher and asked to do
the book. Having agreed to do so, she met Ms
de Lille about whom
the book was to be written and sketched the chapter outlines. It
was agreed at an early stage that one of
the chapters in the book
would discuss the work Ms de Lille had done in respect of HIV/AIDS.
According to
Ms Smith, Ms de Lille made all her files available to Ms Smith for
the purposes of the book. In these files was
a document called the
Strauss Report which had been sent to Ms de Lille by the University
of Pretoria. This was the report of
an independent commission of
enquiry established by the University of Pretoria and chaired by
Professor Strauss to investigate
the complaints about the medical
trial in which the applicants participated. In the report, the
names of the applicants are
given and it is stated that they are
living with HIV and are three of those participating in the trial
under investigation.
It is the fact
that this report included the names of the applicants without any
express indication that their names were to be
kept confidential,
either in the text of the report, or in the covering letter under
which it was sent to Ms de Lille, which
Ms Smith relies upon as the
grounds for her belief that the applicants had consented to the
publication of their HIV status in
the book. However, when
Professor Strauss interviewed the three applicants he obtained a
consent form in limited terms. That
consent form authorised
disclosure of their HIV status only to a limited number of people
including Ms de Lille. Ms Smith therefore
was mistaken in this
regard.
Ms Smith gave
evidence that she was not aware of the terms of the limited consent
given to Professor Strauss. The introductory
section of the report
states that the applicants’ names were published in terms of
consent forms received from them, copies
of which are annexed to
the Report, but the copy of the report sent to Ms de Lille did not
contain copies of the annexures.
Nor did the text of the report
indicate that the consent given was qualified in any way.
During
cross-examination, Ms Smith was asked whether she had tried to
obtain copies of the missing annexures. She stated that
she had
sought to obtain copies of the annexures to the Strauss Report. To
do so, she contacted the University of Pretoria on
three different
occasions and sought to speak to the Registrar. She left messages
which were not returned. She also phoned
the doctor in charge of
the medical trial without success. She also phoned Professor
Strauss but he did not return her calls
either. It is to these
steps that Madala J adverts in support of his conclusion that Ms
Smith subjectively contemplated the
possibility that the applicants
had in fact not consented to their names being published, and that
that was the reason she was
seeking to obtain the annexures to the
report. This conclusion, however, does not in my view accord
either with this aspect
of Ms Smith’s evidence or with her
evidence as a whole.
When tested as
to whether she made the attempts to obtain copies of the annexures,
she observed that she was interested not only
in the consent forms
given to Professor Strauss but to the original consent forms for
the medical trials, as well as the other
annexures for the sake of
completeness. This interest in the medical trials and the basis
upon which they were conducted rings
true in the light of the
interest Ms de Lille had in those trials. Her interest in the
annexures seems quite explicable in the
light of this interest and
it also explains why, when after many attempts they were not
forthcoming, she did not consider it
necessary to pursue them. On
her evidence as a whole, it is hard to conclude that if Ms Smith
wanted the annexures to establish
whether in fact the applicants
had consented to the publication of their names that she would have
given up before obtaining
them, or otherwise establishing whether
the applicants had consented, or not, as I shall explain.
When asked why
she assumed that Professor Strauss would have obtained consents
from the applicants before publishing their names,
she responded
emphatically as follows:
“
To me it would be
unbelievable if a legal person had spoken to HIV positive people and
had written a report with those people and
reporting on his
discussions with those people and had failed to obtain consent to
use their names, to me that would have been
an unbelievable
situation in South Africa today.”
Ms Smith
pointed to three facts which grounded her belief that Professor
Strauss had obtained general consents from the applicants
for the
publication of their names. The first was that Professor Strauss
conducted a commission of inquiry enquiry which, according
to Ms
Smith, at least one journalist was permitted to attend. Secondly,
that a copy of the Strauss Report was sent not only
to Ms de Lille
but also, according to Ms Smith, to other journalists. Thirdly,
when it was sent to Ms de Lille there was nothing
said expressly
about the limited consent given by the applicants. As Ms Smith
reasoned in evidence:
“
I used their names because
they are mentioned in the Strauss Report. The Strauss Report came
from an eminent institution, conducted
by an eminent individual and
I would have imagined that someone of the eminence of Professor
Strauss if the names of those people
were meant to be confidential,
if they had asked him for their names to remain confidential, he
either would not have used their
names, he would have referred to
them as Ms M, or Mr X or whatever, or would have referred to them by
alternative names. But he
was quite explicit in using their full
names and he also gave no confidentiality or circulation disclosures
on the report, in fact
basically he should not have used the names
if they were not meant to be used.”
Moreover, Ms
Smith also made it clear that she is a journalist of many years’
standing who writes on issues relating to HIV/AIDS
and that if it
had entered her mind that the applicants had not consented to the
disclosure of their HIV status, she would not
have published their
names. Under cross-examination, her evidence on this point was as
follows:
“
In twenty years of reporting
on HIV I have never, ever seen the need to publish the name of
anyone who did not want their name to
be used. I would not start
now. I know the names of famous people who are HIV infected and I
do not reveal it. Why should I?
I know the names of poor people
[with HIV] and I do not reveal it. Why should I? Why should an
exception have been made in twenty
years, why would I have risked
ruining a very good reputation by either foolishly or maliciously,
as you imply, publishing the
names of people? I did not publish
their names. The first publication came from Professor Strauss and
Pretoria University. I
as a journalist was relying on information
that came from a credible source. . . . I had no reason to believe
that Pretoria University
had not cared about these people”.
Throughout her
evidence, therefore, the persistent theme is that given her
understanding of HIV/AIDS, it was impossible to believe
that
Professor Strauss would have published his report without full
consent from the applicants, or without clearly setting out
the
limited nature of the consent. Ms Smith emphasises that there was
little for her to gain and much for her to lose, particularly
her
reputation as a journalist and human rights activist in the
industry, by publishing the names knowing that the applicants
had
not consented or recklessly disregarding whether they had consented
or not.
Her version is
consistent with the text of the book as published. In the chapter
concerned, Ms Smith recounts the story of the
clinical trial. She
then points to the fact that details of the applicants’
complaints were originally published in the
New York Review of
Books
, though under pseudonyms. She then points to the fact
that pseudonyms were not subsequently used in the Strauss Report
but that
the real names were given and she uses the real names.
The chapter itself therefore suggests that she thought that after
the
New York Review of Books
article had been published, the
applicants had consented to the publication of their names by
Professor Strauss and that that
consent was a general consent on
which she could rely.
Ms de Lille’s
evidence was far briefer. She authorised the writing of the
biography, worked closely with Ms Smith in both its
conception and
execution, and read the final version of each chapter before it was
published. Her liability as a person who
participated in
disseminating private information therefore arises from her having
participated actively in the process of publication.
She had a
veto over the writing process and chose not to exercise it.
As far as the
issue of whether the publication of the names and status of the
applicants was intentional or not, she simply repeated
that the
issue of whether the applicants had consented to their HIV status
being disclosed had never been an issue. Once she
saw the Strauss
Report, she assumed that they had consented to the publication and
the matter never came up for discussion between
her and Ms Smith.
This approach is consistent with the conclusion that neither the
first nor the second respondent had formed
animus injuriandi
.
It is also consistent with the fact that neither of them ever
contemplated that the applicants had not given full consent to
disclose to Professor Strauss. In my view, this is the inescapable
conclusion of fact to be drawn from the record.
It is
important to emphasise that this is the conclusion which the High
Court reached after the trial. An appellate court should
be slow
to interfere with the conclusion of a trial court on the facts
unless the record clearly suggests that the trial court
erred.
Nothing on this record is suggestive of such error. It is also
relevant, in my view, that by and large the applicants
did not
argue that
animus injuriandi
had been established on the
record, either directly or in the form of
dolus eventualis
,
and they did not argue on the basis that the respondents had
unsuccessfully rebutted a presumption that they had acted
animo
injuriandi
. Instead, the main argument on behalf of the
applicants was that the common law of delict needed to be developed
to impose liability
for the negligent publication of private
information in the breach of the constitutional right to privacy.
For all these reasons,
I cannot agree with the conclusion of the
majority that it has been established that the respondents acted
animo injuriandi
in this case. I now turn to the
applicants’ argument that the law of delict needed to be
developed in this case.
The development
of the common law
On the
existing common law, a conclusion that the respondents did not act
animo injuriandi
would be the end of the matter, but the
applicants pleaded and argued that the common law should be
developed. On their pleadings
and in argument before us they
argued that the constitutional right of privacy requires more
protection than the
actio injuriarum
currently provides. In
particular, they argued that the intention requirement of the
actio
injuriarum
should be developed to include not only actual
intention, but also negligence. This would mean that a person who
negligently
discloses a private fact about another will be liable
in delict. In the alternative, they argued, somewhat more
narrowly, that
a defendant who wishes to rebut a presumption of
intention may not simply show that he or she made a mistake, but
must also show
that the mistake was reasonable on the facts of the
case.
In this
regard, the suggested development of the common law has some
similarities to the manner in which the liability of the
media
33
in the law of defamation, also based on the
actio injuriarum
,
has developed in recent years. One of the difficulties in this
case is the extent to which developments in the
actio injuriarum
in relation to defamation are or should be mirrored in the
actio
injuriarum
in relation to privacy. Once again, this is a
matter which ideally should be first considered by the Supreme
Court of Appeal.
Unfortunately, given that the matter has now
arisen for decision in this case, that is not possible. I should
note here that
the Supreme Court of Appeal refused leave to appeal
in this matter.
The relevant
developments in the law of defamation are as follows. In
Pakendorf
en Andere v De Flamingh,
the Appellate Division held that the
media would be held strictly liable for the wrongful publication of
defamatory material.
34
However, in
National Media Ltd and Others v Bogoshi,
the
Supreme Court of Appeal held that a defence by the press of
reasonable publication of false defamatory allegations exists
in
our law.
35
In the same case, the Court overturned the decision in
Pakendorf
,
holding that it was wrong.
However, the
Court at the same time held that the press could not rebut the
presumption of intention that arises upon proof of
publication of
defamatory material by simply showing the absence of knowledge of
unlawfulness (more simply understood as subjective
mistake). The
press would in addition have to establish the absence of
negligence.
36
In so doing, the Court established that a media defendant could
not avoid liability for defamation unless it could show that
it had
not acted negligently. This was a new development in the
actio
injuriarum
. In his judgment on behalf of a unanimous court,
Hefer JA held that there are important reasons for distinguishing
the media
from ordinary citizens in relation to intention in the
context of defamation. He relied on reasoning adopted by the High
Court
of Australia in the following terms:
“
As the High Court of
Australia pointed out . . . the law of defamation did not, in its
initial stages, deal with publications to
tens of thousands, or
more, of readers, listeners or viewers, but with publication to
individuals or a small group of persons.
The Court proceeded to
state that ‘the damage that can be done when there are thousands
of recipients of a communication is
obviously greater than when
there are only a few recipients and for this reason held that it is
not inconsistent with the implied
freedom of communication of the
Australian Constitution to place an additional burden upon the media
in order to escape liability
for defamation . . . . Taking into
account what I said earlier about the credibility which the media
enjoys amongst large sections
of the community, such an additional
burden is entirely reasonable.”
37
The rules as
developed in
Bogoshi
were unsuccessfully challenged on
constitutional grounds before this Court in
Khumalo.
38
This Court held that the rules as established in
Bogoshi
were not inconsistent with the Constitution.
The applicants
argued both in the High Court and on appeal that the
actio
injuriarum
in respect of a breach of privacy should be
developed to found liability in circumstances where the breach of
privacy occurs
negligently. In this regard, it should be borne in
mind that the High Court dealt with the case on the basis that the
principles
set out in
Bogoshi
and as considered in
Khumalo
and Others v Holomisa
and also in
Mthembi-Mahanyele v Mail &
Guardian Ltd and Another
apply.
39
The court assumed therefore that the respondents would be liable
if they could not establish that the publication of the names
of
the applicants in the book was reasonable or that the respondents
had not acted negligently in publishing the names.
The law, as
developed in
Bogoshi
and
Khumalo,
is not
automatically applicable in this case. First, this case deals with
an infringement of the right to privacy, and not to
damage to the
reputation of the applicants. In argument before us, counsel for
the applicants expressly disavowed any suggestion
that the
publication of the applicants’ HIV status was defamatory of them
and it is clear from the pleadings that this was
never the argument
of the applicants. While it may be that the
actio injuriarum
in respect of privacy should be developed in the same way as the
law of defamation, this is not a matter that has yet been addressed
by the Supreme Court of Appeal or by this Court.
40
Secondly, it
is not immediately clear that the respondents in this case
constitute media defendants as contemplated by the
Bogoshi
judgment. Media defendants in that case clearly involved
print, broadcast and electronic media.
41
In this case, we are dealing with an author, a person who has
consented to be the subject of an authorised biography and a book
publisher. Such people do not, on its ordinary meaning, fall
within “the media”.
42
This is a matter to which I return in a moment.
For the
purposes of this case, I accept that the legal principles developed
in
Bogoshi
should apply not only in the law of defamation
but also to the infringement of privacy rights by the media. I
take this view
for the following reasons. First, the reason in
Bogoshi
and other cases
43
given for distinguishing between the media and other citizens in
respect of their liability for defamation lies in the power
that
the media have to cause harm by publication of defamatory material.
It is this potential harm to which Warren and Brandeis
refer in
the quotation included earlier in this judgment.
44
Modern electronic, print and broadcast media are immensely, and
indeed, increasingly powerful. Publications often reach hundreds
of thousands of readers, viewers and listeners. It is accordingly
appropriate, given the scale of damage to an individual that
can be
caused by such widespread publication, to confer special
obligations upon the media in respect of publication. In so
doing,
we recognise that the media are not only bearers of rights under
our constitutional order, but also bearers of obligations.
45
The nature of
obligations imposed however is merely a requirement that the media
establish that the publication is reasonable
in the circumstances
or that it is not negligent. Such obligations require the media to
consider the constitutional rights at
play and be persuaded that
publication is nevertheless appropriate. The effect on the media,
therefore, is to require them to
act in an objectively appropriate
fashion. In determining whether they have so acted, a court will
bear in mind the particular
constraints under which the media
operate and will not impose a counsel of perfection in
circumstances where it would not be
realistic. The effect of such
a rule would be to require editors and journalists to act with due
care and respect for the right
to privacy, prior to publishing
material that infringes that right. It will require them to ask
the question: is the publication
of this information, although it
is private information, nevertheless reasonable in the
circumstances?
Such an
obligation will provide some real protection for important
constitutional rights. Accordingly, I conclude that it is
appropriate to require the media when publishing private facts
without consent to establish either that the publication is

reasonable in the circumstances, in which case they will rebut
wrongfulness, or that they have not acted negligently in the
circumstances
in which instance they will need to rebut the
requirement of intention.
This
conclusion is not the end of the matter for the present case. The
next question that arises is whether the respondents in
this case
constitute “the media”. There are important reasons for
differentiating between ordinary citizens not engaged
as part of
their business or profession in the dissemination of information
and those citizens and institutions that are so engaged.
It is
appropriate to impose additional obligations on those who
disseminate information for professional and commercial purposes
while not imposing such obligations on those who do not.
Professional
and commercial purveyors of information are well placed to ensure
that appropriate systems prevent the unreasonable
disclosure of
private facts and the negligent disclosure of those facts. This is
not the case for ordinary citizens. Moreover,
generally,
disclosure by ordinary citizens will not be as widespread as
disclosure by those involved in the professional or commercial
dissemination of information. This is not to say that at times
targeted disclosure of information, albeit to a small community,
may nevertheless be very harmful. Once again, this is an issue
which does not arise on the facts of this case and does not require
further consideration here.
The
respondents here were not acting as ordinary private citizens.
They were engaged in the publication of a book. The first
respondent is an author and a journalist who is fully aware of the
ordinary constraints upon the publication of private information.

The third respondent is a book publisher, engaged therefore in
disseminating information for commercial reasons. It seems to
me,
to be appropriate to include both the first and third respondents
within the concept of the media for the purposes of the
expanded
principles for liability under the
actio injuriarium
described above. But not the second respondent, who is neither an
author nor publisher. As will become clear, nothing ultimately
hangs on the conclusion that the first and third respondents do
fall within “the media” while the second respondent does
not.
I should emphasise that there are sound reasons why publication of
private information through the process of written or
verbal
comment in a private setting should not be subjected to the same
test for liability.
Did the
respondents act negligently?
The next
question that arises, therefore, is whether it has been established
on the facts of this case that the first and third
respondents
acted negligently. The evidence of the first and second
respondents, described in some detail above, makes plain
the
following. The first respondent based her use of the names of the
applicants when disclosing their status on the fact that
their
names and status had been disclosed in the Strauss Report. She
viewed the Strauss Report as being the report of an eminent
lawyer
versed in the principles of the Constitution on behalf of a leading
university. She assumed that neither Professor Strauss
nor the
University would have disclosed the names of the applicants as
people living with HIV without their consent. There was
nothing in
the report, or in the letter under cover of which the Report was
sent, to suggest that there was any reason to doubt
that the
applicants had consented to the publication of their names. She
points to the fact that ordinarily, where confidentiality
is
claimed for information, the disseminator of information claims
that confidentiality clearly on the face of the report containing
it, or within the text itself, close to where the information
appears. This was not the case in relation to the publication
of
the names of the applicants.
Accordingly,
it appears from the evidence that the respondents simply did not
entertain the possibility that either the University
of Pretoria or
Professor Strauss would have sent a report to a Member of
Parliament in circumstances where the consent given
was only of a
limited variety in a publication that did not draw attention to
that fact.
The question
that arises is whether in republishing the names of the applicants,
the first and third respondents acted negligently.
I cannot find
that they did. To hold that in the circumstances as outlined above
they were under a further duty to contact
either the University or
the applicants to ensure that they had in fact consented to
publication of their names would impose
a significant burden on
freedom of expression. The result of such a finding would be that
where personal private facts have
been published already by a
reputable organisation, another organisation may not rely on that
publication as having been done
lawfully and without infringement
of privacy. Not one of the codes of conduct placed before the
Court by Professor Harber suggested
that this should be the case.
The emphasis in the codes is on the need for journalists at first
instance either to obtain an
informed consent or, alternatively,
not to disclose the identity of a person unless there is a clear
public interest in so doing.
46
They do not answer the question of what the responsibility of a
journalist is when a reputable source has already published
the
information. In this case, the first respondent assumed that the
reputable source had applied the accepted principle that
the names
should not be disclosed without proper consent. She thus assumed
that there had been consent.
To hold the
first and third respondents liable, one would either have to find
that wherever a reputable source has published identities,
secondary publication may not take place without the existence of
informed consent having been independently verified, so that
in
each case, the subsequent publisher would have to re-ascertain the
facts. In my view, this would result in unacceptable burdens
being
imposed on the dissemination of information and have a
significantly deleterious effect on freedom of speech.
Journalists
must be entitled to publish information provided to them by
reliable sources without rechecking in each case whether
the
publication was lawful, unless there is some material basis upon
which to conclude that there is a risk that the original
publication was not lawful. If there is a reasonable basis for
suspecting that the publication of private information was without
consent, a journalist will, of course, bear an obligation to check.
If there are no grounds for such suspicion, it cannot be
said that
a journalist acts negligently in not checking.
Of course, if
it turns out subsequently that the original publication was without
consent and the disclosure was made wrongfully,
the source of the
harm will be the original publisher. The cause of action in such
circumstances therefore lies against the
original publisher of the
private information, not all subsequent publishers. Those who have
been harmed by the publication
must therefore have a remedy –
damages against the first publisher. In this case, neither
Professor Strauss nor the University
were cited as respondents in
this case and nothing further can be said on that score.
In my view, I
conclude that, even on the assumption that it is appropriate that
the
actio injuriarum
be developed to found liability against
defendants such as the first and third respondents in circumstances
where they publish
private facts negligently, the applicants have
not established that the respondents should be liable for the
disclosure of their
names and HIV status in the book.
The third
respondent’s appeal
One of the
final issues to be considered in this case relates to the third
respondent’s appeal. The High Court found that the
third
respondent’s failure to have the book withdrawn and the names of
the applicants deleted from it, once it discovered that
the
applicants had not consented to publication, rendered it liable to
the applicants in respect of that failure. The third
respondent
seeks leave to appeal against that decision. The grounds for that
appeal are, in effect, two-fold: first, counsel
for the third
respondent argues that because the applicants withdrew their
initial application it was entitled to consider the
matter to have
been resolved and no further action was required by it; and
secondly, that the issue of the failure to withdraw
books was never
pleaded. The second ground can be dealt with quickly. Although it
may be that the pleadings did not specifically
raise this issue,
the issue was fully traversed in the evidence. The third
respondent could have chosen to lead evidence to
deal with the
issue but chose not to, although both the first and second
respondents were asked questions in relation to it.
It is clear
from the evidence, that it was not an issue in the case, and I
agree with the High Court that the third respondent
cannot avoid
this liability on the basis of an express averment in the pleadings
relating to it.
On the first
issue, the question of the effect of the withdrawal of the original
proceedings, it is undeniable that the third
respondent was
notified of the fact that the applicants did not consent to the
publication of their names and HIV status. Nothing
occurred in the
process of withdrawal of the proceedings which contradicted that
fact. The simple fact that the applicants had
not consented to the
publication of their names should have alerted the third respondent
to the wrongfulness of the publication
in the book. The continued
failure by the third respondent to take steps to prevent further
wrongful publication is not explained
anywhere on the record. The
only possible conclusion is that the third respondent’s conduct
in persisting with the publication
of private facts was at that
stage
animo injuriandi
. In the circumstances, the third
respondent’s appeal must fail.
A further
issue needs to be mentioned: the applicants did not seek to argue
that the first and second respondents carried any
separate
actionable responsibility for the manner in which they responded
once it came to their attention that the applicants
had not in fact
consented to the disclosure of their HIV status by Professor
Strauss or the University of Pretoria. The facts
of what
transpired can be told quickly.
Ms de Lille
was initially sent a letter of demand by the applicants’ former
attorneys requesting that she arrange for copies
of the book to be
withdrawn from bookshops. She was made aware of this letter though
the first respondent was not aware of it.
The response of Ms de
Lille’s attorneys, apparently with her approval, was that Ms de
Lille “was not accountable in respect
of your clients’ concerns
in the above matter.”
One of the
reasons Ms de Lille gives for the writing of this letter was that
the request to remove books from the shelves should
have been
directed to the third respondent and not her. It may be that, in
the first instance, as the publisher of the book,
it is the third
respondent who could have taken steps to remove the book from
bookshops and have the names of the applicants
deleted. But on her
version, Ms de Lille concedes that she made no attempt to contact
the publishers or request them to have
the books withdrawn. Her
response in this regard can only be described as lamentable.
Similarly, the
first respondent, although she was not aware of the original letter
of demand, was aware of the initial aborted
proceedings brought by
the applicants to have the books removed from the shelves until the
names of the applicants were deleted
from them. In this regard, in
her evidence she stated that she took no steps to have the books
withdrawn from the shelves because
it was a matter for the
publisher and not the author.
There can be
no doubt that both the first and second respondents were correct in
assuming that the responsibility for the removal
of the books lay
primarily with the publisher. But one is left with the concern
that the actions they took when faced with the
fact that the
applicants did not consent to the publication of their names and
status falls short of what is desirable of those
engaged in the
dissemination of information. Nothing more need be said on this
score, given that the applicants did not seek
to establish any
separate liability in this regard. Moreover, it is clear that as
the third respondent must pay the damages
that the applicants
suffered in this regard, any liability that the first and second
respondents might have borne would have
been shared jointly and
severally with the third respondent.
One last thing
needs to be said. It is clear from the record that throughout the
relevant events, the applicants have been vulnerable
and at risk.
But the record leaves some uncomfortable questions unanswered. The
applicants are women living in poverty with
HIV in a sprawling
township in Gauteng. When the clinical trial commenced at the
University of Pretoria, they were living with
HIV and had no
possibility of obtaining medication for their illness outside of
the context of the clinical trial, given that
the public health
sector did not commence with a treatment programme for HIV/AIDS
until several years later. Their participation
in that programme
initially caused them anxiety and dissatisfaction. The second
respondent came to meet them when news of their
anxieties
concerning the clinical trial reached her. Inevitably, as a
high-profile politician, the attention she focussed on
the clinical
trial was distressing to those engaged in it professionally.
Some time
after they had made their initial complaints about the trial, the
three applicants dropped their complaints. Nowhere
on the record
is the explanation for this about-turn provided. It may be
explained, as the High Court suggests, that after initial
difficulties with the medication, their health improved and their
anxieties subsided. We do not know and cannot tell. The

independent enquiry into the medical trial by Professor Strauss at
the instigation of the University of Pretoria vindicated the
trial.
The applicants’ attention to the publication of their names in
the book was drawn by one of the medical doctors involved
in the
trial who also advised them to contact lawyers at the University
Legal Aid Clinic.
This case
reminds one of the profound vulnerability of those in the situation
of the three applicants in many respects but not
least in relation
to their ability to gain
access both to medical care and
legal advice. Without suggesting the contrary has occurred, the
facts of this case serve as a reminder
of the need to ensure that
medical care and legal advice be tendered to those who are as
vulnerable as the applicants, in the best
interests of those to whom
it is provided, and with scrupulous attention to the demands of
professional ethics at all times.
For the
reasons given above, I would dismiss both the appeal of the first
to third applicants and the third respondent. I would
make no
order as to costs.
SACHS J:
In many
industrialised states privacy law has been advancing by leaps and
bounds. The rich and famous seek legally to restrain
the voracious
mass media that swallow up and regurgitate trivial and hurtful
information about their private lives.
1
In our country privacy
law has been invoked in quite a different context. It is to
provide balm for the traumatised dignity of
people living in the
harshest of social conditions and afflicted with the most serious
of ailments. It is in this human rights
context that the competing
interests at stake in the present matter must be dealt with.
In a fittingly accessible
manner, Madala J has indicated how in the particular circumstances
of this case competing needs with
respect to human dignity, on the
one hand, and freedom of expression, on the other, should be
reconciled.
2
I support his reasons and conclusions, and wish to add the
following observations.
In
Bogoshi
3
the SCA developed in a way that was sensitive to contemporary
concerns and realities, a well-weighted means of balancing respect
for individual personality rights with concern for freedom of the
press. Though the case related to the law of defamation, the
principles developed in it are eminently transportable
to
the law of privacy. The SCA ensured the continued protection of
individual rights of reputation by re-affirming the traditional
common law principle that once the injurious statement was proved,
intent to injure would be presumed, and a defendant would
escape
liability only by establishing truth and public benefit. But to
pre-empt the undue chilling effect of huge potential
claims for
damages following on honest error, it added that even if aspects of
a publication turned out to be untrue, a showing
that the media
concerned had taken reasonable steps to ensure the veracity of the
relevant information would establish a good
defence to the
unlawfulness of the publication. What mattered was the
reasonableness of the publication in the circumstances.
4
The
Bogoshi
approach has two principal virtues. Firstly, it seeks to
harmonise as much as possible respect for human dignity and freedom

of the press, rather than to rank them in terms of precedence. The
emphasis is placed on context, balance and proportionality,
and not
on formal and arid classifications accompanied by mantras that
favour either human dignity or press freedom. The more
private the
matter, the greater the call for caution on the part of the media,
while conversely, the more profound the public
interest, the more
heavily will it weigh in the scales. Secondly, by stressing the
need for the media to take reasonable steps
to verify the
information to be published, it introduces objective standards that
can be determined in advance by the profession
and then evaluated
on a case-by-case basis by the courts. The result is the creation
of clearly identifiable and operational
norms, and the fostering in
the media of a culture of care and responsibility.
5
I feel that
both of these elements are relevant as to how the tension between
privacy rights and press freedom should be handled
in the present
matter. There is nothing to suggest that Ms Smith, an experienced
journalist, was unaware of the norms of her
profession, and there
is no reason to doubt the genuineness of her belief (in fact
erroneous) that the applicants had indeed
placed their medical
status in the public domain. Nevertheless, given the extreme
sensitivity of the information involved, she
should have left no
stone unturned in her pursuit of verification. Of even greater
importance, if the slightest doubt existed,
there was no need to
publish the actual names of the applicants.
There might be
some cases where the need for verisimilitude, a sense of actuality,
may be overwhelming. Indeed, in the case of
film stars, models and
titled personalities, it is precisely their celebrity that
establishes their newsworthiness. This case
is not one of those.
We are not dealing with famous people who simultaneously crave and
decry extreme public attention. We
are concerned with people whose
lives are dominated by anxiety and who are only slowly beginning to
break through intense barriers
of community prejudice. Hardly a
day goes by without one reading in one publication or another the
name of someone living with
HIV, where an asterisk is attached to
indicate that the name is not real.
In the present
matter the publishing of the actual names of the applicants could
have added only minimally to the vibrancy and
texture of the story,
if at all. At the same time it was devastating to the applicants.
When the expressive interests are balanced
against the privacy
interests, the scales come down with a clang on the side of
privacy. In the result, the steps taken by Ms
Smith, Ms de Lille
and the publishers to avoid unwitting damage through unauthorised
disclosure of private medical facts, did
not meet the standard of
reasonableness.
Ms Smith and
Ms de Lille both have an honourable history of raising public
awareness of the need to deal sympathetically and efficaciously
with the pandemic. The fact that persons with their record are
being called to account for failure to ensure that highly sensitive
private medical facts about identified individuals were not
inappropriately revealed, serves to underline the need to hold

firmly to stringent standards of respect for privacy in this area.
These are standards that the profession has set for itself,
and
that the law demands of all.
From a legal
point of view, then, the moral of the story is that unless
overwhelming public interest points the other way, publishers
should refrain from circulating information identifying the HIV
status of named individuals, unless they have the clearest possible
proof of consent to publication having been given, or that the
information is in the broad public domain.
At its heart
this case was never about money. It was about defining appropriate
journalistic and publishing standards in a murky
and undeveloped
area of our law. In this context it is a matter of regret that
parties that shared a deep concern about the
need to develop a
humane and sympathetic approach to people living with HIV, found
themselves increasingly at loggerheads. The
trial was acrimonious
and argument in our Court at times became strident. Yet the law
has been clarified in ways that hopefully
will be helpful to all
concerned. Forensic closure has finally been achieved. It is to
be hoped that in an appropriate spirit
of healing, the offer of a
private apology made at an earlier stage by Ms Smith, Ms de Lille
and the publishers, will now be
generously renewed by them, and
generously accepted by the applicants.
For the Applicant: Advocate DI Berger SC and Advocate PL Mokoena
instructed by the AIDS Law Project.
For the Respondent: Advocate JWG Campbell SC and Advocate S
Budlender
instructed by Webber Wentzel Bowens.
For the Amicus Curiae: Advocate GJ Marcus SC, Advocate AD Stein and
Advocate N Rajab - Budlender
instructed by
the Freedom of Expression Institute.
1
The
matter is reported as
NM
and Others v Smith and Others
[2005] 3 All SA 457
(W).
2
The
relevance of this date will become apparent later in the judgment.
3
From
the High Court judgment it is clear that Professor Grove undertook
to keep the second respondent informed.
4
According
to para 24.3 of the High Court judgment the Strauss Report
identifies 49 exhibits. Eight of the exhibits are the consents
furnished to Dr Strauss, seven exhibits set out the terms of the
informed consents, another eight contained copies of statements
that
the second respondent sent to the Ethics Committee.
5
On
21 August 2002, the respondents’ attorneys sent a letter stating:
“
We act for and on behalf of Ms Charlene Smith and Ms
Patricia de Lille. Our clients are not accountable in respect of
your clients’
concerns in the above matter. Accordingly we have
been instructed to advise you that any action contemplated against
them will
be defended.”
6
See
above n 1.
7
See
para 19.
8
Rule
34 of the Rules of Court states:
“
(1) In any action in which a sum of money is
claimed, either alone or with any other relief, the defendant may at
any time unconditionally
or without prejudice make a written offer
to settle the plaintiff’s claim. Such offer shall be signed
either by the defendant
himself or by his attorney if the latter has
been authorised thereto in writing.
. . . .
(5) Notice of any offer or tender in terms of this rule
shall be given to all parties to the action and shall state—
(a) whether the same is unconditional or without
prejudice as an offer of settlement;
(b) whether it is accompanied by an offer to pay all or
only part of the costs of the party to whom the offer or tender is
made,
and further that it shall be subject to such conditions as may
be stated therein;
(c) whether the offer or tender is made by way of
settlement of both claim and costs or of the claim only;
(d) whether the defendant disclaims liability for the
payment of costs or for part thereof, in which case the reasons for
such disclaimer
shall be given, and the action may then be set down
on the question of costs alone.”
9
Section
14 of the Constitution states:
“
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.”
10
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at paras 17-19.
11
[1996] ZACC 2
;
1996
(2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 77.
12
National
Media Ltd and Another v Jooste
[1996] ZASCA 24
;
1996 (3) SA 262
(A);
[1996] 2 All SA 510
(A).
13
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 35.
14
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 329C.
15
See
S
v Mamabolo (E TV and Others Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5) BCLR 449
(CC
);
Islamic Unity Convention and Others v Independent Broadcasting
Authority and Others
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC);
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC
);
Laugh it Off Promotions CC v SAB International (Finance) BV t/a
SabMark International (Freedom of Expression Institute as Amicus
Curiae)
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC).
16
[2000] ZASCA 77
;
2001
(2) SA 242
(SCA) at para 48.
17
Section
39(2) of the Constitution states:
“
When interpreting any legislation, and when
developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of
Rights.”
18
[1993] ZASCA 145
;
1993
(4) SA 842
(A).
19
See
above n 8.
20
See
above n 8.
21
See
Omega
Africa Plastics (Pty) Ltd v Swisstool Manufacturing Co (Pty) Ltd
1978 (4) SA 675
(A) at 678H.
1
Madala
J at para 64; O’Regan J at para at 164 and Sachs J at para 210.
2
O’Regan
J at paras 162-164.
3
O’Regan
J at para 178.
4
Khumalo
v Holomisa
[2002] ZACC 12
;
2002 (5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at paras 22-24;
South
African Broadcasting Corporation v National Director of Public
Prosecutions and Others
[2006] ZACC 15
;
2007
(2) BCLR 167
(CC)
at
para 24.
5
National
Media Ltd v Bogoshi
1998 (4) SA 1196
(SCA) at 1214F-I.
6
See
above at para 94.
7
For
the classic statement of negligence, see
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E.
8
See,
for example,
Van
Wyk v Lewis
1924
AD 438
at 444 cited with approval in
Durr
v ABSA Bank Ltd and Another
1997 (3) SA 448
(SCA)
at
460H-461I.
9
Rule
34(12).
10
Giddey
NO v JC Barnard and Partners
[2006] ZACC 13
;
2007 (2) BCLR 125
(CC) at para 23 and
SABC
above
n at para 41.
11
Dikoko
v Mokhatla
2006
(6) SA 235
(CC);
2007 (1) BCLR 1
(CC) at para 109 (Sachs J).
12
Section
39(2) of the Constitution.
1
[1996] ZACC 2
;
1996
(2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 65.
2
“
The
Right to Privacy” (1890) 4
Harvard
Law Review
at 195-196.
3
The
literature on the philosophical and jurisprudential nature of
privacy as a human right is vast. See for example Henry (ed)
International
Privacy, Publicity and Personality Laws
(Butterworths,
Durban 2001); DeCew
In
Pursuit of Privacy: Law, Ethics and the Rise of Technology
(Cornell
University, New York 1997); Rosen
The
Unwanted Gaze: The Destruction of Privacy in America
(First
Vintage Books, New York 2001); Markesinis (ed)
Protecting
Privacy: The Clifford Chance Lectures
4
ed (Oxford University Press, Oxford 1999); Colvin (ed)
Developing
Key Privacy Rights
(Hart Publishing, Oxford 2002); and Post “The Social Foundations
of Privacy: Community and Self in the Common Law Tort” (1989)
77
California
Law Review
at 957-1010.
4
See
the statement by Ackermann J in
National
Coalition for Gay and Lesbian Equality v Minister of Justice
1999
(1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 32: “Privacy
recognises that we all have a right to a sphere of personal intimacy
and autonomy which allows us to
establish and nurture human
relationships without interference from the outside community.”
5
See,
for a discussion of the relationship between privacy and dignity,
S
v Jordan and Others (Sex Workers Education and Advocacy Task Force
and Others as
Amici
Curiae
)
[2002] ZACC 22
;
2002 (6) SA 642
(CC);
2002 (11) BCLR 1117
(CC) at para 81, where, in
a minority judgment, the following comments were made: “. . . the
constitutional commitment to dignity
invests a significant value in
the inviolability and worth of the human body. The right to
privacy, therefore, serves to protect
and foster that dignity.”
(Per O’Regan J and Sachs J). The judgment held that a criminal
prohibition on prostitution did invade
privacy. See also the
judgment of Langa DP in
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd and Others: In re Hyundai Motor Distributors
(Pty) Ltd and
Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 18, where he
reasoned as follows:
“
. . . privacy is a right which becomes more intense
the closer it moves to the personal sphere of the life of human
beings, and
less intense as it moves away from that core. This
understanding of the right flows . . . from the value placed on
human dignity
by the Constitution.”
6
[2000] ZACC 5
;
2000
(3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 100 (per O’Regan J
and Cameron AJ). The judgment continues by quoting from Honoré
Responsibility
and Fault
(Hart, Oxford 1999) at 125. A portion of that quote reads as
follows: “At the same time, it [asserting the possibility of moral
agency] makes possible a sense of personal character and identity
that is valuable for its own sake”.
7
See
section 8(2) of the Constitution which provides that: “A provision
of the Bill of Rights binds a natural or a juristic person
if, and
to the extent that, it is applicable, taking into account the nature
of the right and the nature of any duty imposed by
the right.”
8
See
Post above n 3 at 964-965.
9
See
para 126 above.
10
See
the discussion by Sachs J in
Mistry
v Interim National Medical and Dental Council of South Africa and
Others
1998 (4) SA 1127
(CC) at para 25
[1998] ZACC 10
; ;
1998 (7) BCLR 880
(CC) at para 18.
11
See
Rosen above n 3 at 12:
“
Freedom is impossible in a society that refuses to
respect the fact that ‘we act different in private than in
public’, Kundera
argues, a reality that he calls ‘the very
ground of the life of the individual’. By requiring citizens to
live in glass houses
without curtains, totalitarian societies deny
their status as individuals, and ‘this transformation of a man
from subject to
object is experienced as shame.”
12
Section
12(1)(c) of the Constitution states: “Everyone has the right to
freedom and security of the person, which includes the
right to be
free from all forms of violence from either public or private
sources.” See also
S
v Baloyi (Minister of Justice and Another Intervening)
[1999] ZACC 19
;
2000
(2) SA 425
(CC);
2000 (1) BCLR 86
(CC) at para 18 where Sachs J
reasoned as follows:
“
The involvement of the courts in this realm
[domestic violence] represents an extension of the law into an area
where lawlessness
has long been sustained by interlaced notions of
patriarchy and domestic privacy. It encourages recourse to law for
spouses who
might otherwise suffer mutely because of unwillingness
to invoke more drastic criminal proceedings.”
See also
Omar v Government of Republic of South
Africa and Others (Commission for Gender Equality
Amicus Curiae
)
[2005] ZACC 17
;
2006 (2) SA 289
(CC);
2006 (2) BCLR 253
(CC);
2006 (2) SACR 359
(CC) at para 18.
13
See
Baloyi
above n at para 11-13. See also
Omar
above n at para 17.
14
Bernstein
above
n at para 67.
15
See
for example
Jordan
above
n at para 80;
Hyundai
above
n at para 15-16
;
Mistry
above n at para 23;
Magajane
v
Chairperson North West Gambling Board and Others
[2006] ZACC 8
;
2006
(5) SA 250
(CC);
2006 (2) SACR 447
(CC) at para 42.
16
As
our common law recognises, see
Jansen
van Vuuren and Another NNO v Kruger
[1993] ZASCA 145
;
1993 (4) SA 842
(A).
17
[1996] ZASCA 24
;
1996
(3) SA 262
(A) at 270I-J
[1996] ZASCA 24
; ;
[1996] 2 All SA 510
(A) at 515E-F, citing
with approval “Privacy”
American
Jurisprudence
2d at para 40.
18
See
South
African National Defence Union v Minister of Defence and Another
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) at para 7;
S
v Mamabolo
(E
TV and Others Intervening)
[2001] ZACC 17
;
2001
(3) SA 409
(CC);
2001 (5) BCLR 449
(CC);
2001 (11) SACR 686
(CC) at
para 37;
Khumalo
and Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 21.
19
See
for example
Mamabolo
above
n at para 37.
20
[1927] USSC 131
;
274
US 357
, 375-376 (1927).
21
Scanlon
“A Theory of Freedom of Expression” (1972) 1
Philosophy
and Public Affairs
204
at 216.
22
See
for example
Mamabolo
above n ;
Khumalo
above n .
23
The
Star’s
Code of Ethics for example provides as follows: “
The
Star
respects the individual’s right to privacy, except where it
conflicts clearly with the public interest”; the Ethical
Guidelines
in Reporting on HIV and AIDS for the South African Media
prepared by
Journ-AIDS
provide: “The HIV status of an individual is private unless
indicated otherwise”; the
Mail
and Guardian
Media’s Professional Code provides: “No reporter or photographer
should allow publication of material which can put informants
at
risk of losing their positions, injury or death. In particular,
ordinary people are sometimes unaware of the possible consequences
of talking to the media.  In these cases, it is incumbent on
the reporter or photographer to establish informed consent by
spelling out to the informants what the likely dangers are”; and
the Code of Ethics of the Broadcasting Complaints Commission
of
South Africa (BCCSA) provides that: “The electronic media shall
exercise exceptional care and consideration in matters involving
the
private lives and dignity of individuals, bearing in mind that the
right to privacy and dignity may be overridden by a legitimate
public interest.”
24
See
the full discussion in Neethling et al
Neethling’s
Law of Personality
(Butterworths, Durban 1996) 47-50.
25
The
precise meaning of
dignitas
has given rise to some comment. See
O’Keeffe
v Argus Printing and Publishing Company Ltd and Another
1954
(3) SA 244
(C) at 247E-248H
and
commentary in Neethling above n at 56.
26
Neethling
et al
Law
of Delict
4 ed (Butterworths, Durban 2001) 354. See also
Bernstein
above n at para 68 (and authorities cited therein) and
O’Keeffe
above
n at 249.
27
Voet
Commentary
on the Pandects
47
10 1. See also Innes CJ in
R
v Umfaan
1908 TS 62
at 66:
“
[An
injuria
is] a wrongful act designedly
done in contempt of another, which infringes his dignity, his person
or his reputation. If we look
at the essentials of
injuria
we find . . . that they are three. The act complained of must be
wrongful; it must be intentional; and it must violate one or
other
of those real rights, those rights
in rem
, related to
personality, which every free man is entitled to enjoy.”
28
See
discussion in Neethling above n at 153-155 and 178-182.
29
In
Jansen
van Vuuren
above
n at 849C the Appellate Division held that a plaintiff must aver
that the defendant acted
animo
injuriandi
.
It did not discuss the incidence of the burden of proof in relation
to that averment. On the other hand in
Kidson
and Others v SA Associated Newspapers Ltd
1957 (3) SA 461
(W) at 468E-F the court held that once it was
established that the publication of information was intentional in
itself, the existence
of
animus
injuriandi
to
cause the damage that followed must be presumed.
30
See
para 149 above.
31
See
Jansen
van Vuuren
above
n .
32
See
Kidson
above
n at 468E-F.
33
The
media is defined as the owner, printer and editor of a newspaper in
Pakendorf
en Andere v De Flamingh
1982 (3) SA 146
(A) at 154 and following pages. See also
Suid-Afrikaanse
Uitsaai Korporasie v O’Malley
1977
(3) SA 394
(A) at 407D-G; but see dictum in
National
Media Ltd and Others v Bogoshi
1998
(4) SA 1196
(SCA) at 1202E-F
[1998] ZASCA 94
; ;
1999 (1) BCLR 1
(SCA) at 4D-E,
doubting whether printers should be included in this list.
34
Pakendorf
above n at 157E-F.
35
Bogoshi
above n at 1212G.
36
Id
at 1214C-F.
37
Id
at 1214G-I.
38
Above
n .
39
See
NM
and Others v Smith and Others
[2005]
3 All SA 457
(W) at para 36; see also
Bogoshi
above
n ;
Khumalo
above
n ;
Mthembi-Mahanyele
v Mail & Guardian Ltd and Another
2004 (6) SA 329
;
2004 (11) BCLR 1182
(SCA).
40
Some
inconclusive comments in this regard were made in this Court’s
judgment in
Khumalo
above
n at para 27.
41
See
Bogoshi
above
n , involving a newspaper editor and publisher. See also
Khumalo
above n at para 22.
42
See
n above setting out the definition of the media.
43
See
Bogoshi
above
n at 1214E-I;
Khumalo
above n at para 24;
Mthembi-Mahanyele
above n at paras 41-42.
44
See
para 128 above.
45
Khumalo
above n at para 22.
46
See
para 149 above.
1
See
for example
Von
Hannover
v Germany
[2004] ECHR 294
;
(2005) 40 EHRR 1
(Princess Caroline of Monaco);
Associated
Newspapers Ltd v HRH Prince of Wales
[2006] EWCA Civ 1776
;
Douglas
v Hello! Ltd (No 6)
[2006] QB 125 (Michael Douglas and Catherine Zeta-Jones);
Campbell
v MGN Ltd
[2004] UKHL 22
(Noami Campbell).
2
The
dispute arose out of the publication by the respondents of the fact
that the three applicants, who were mentioned by name, were
living
with HIV, in the mistaken belief that the three had placed their HIV
status in the public domain. The facts are fully dealt
with in the
judgments of Madala J and O’Regan J.
3
National
Media Ltd and Others v Bogoshi
[1998] ZASCA 94
;
1998 (4) SA 1196
(SCA);
[1998] 4 All SA 347
(SCA);
1999 (1) BCLR 1
(SCA).
4
Id
at 1212A-B, G-I.
5
In
this case evidence of the standards of reasonable reporting that
media professionals set for themselves was given by Professor
Anton
Harber. He states that since legal control over the media is prone
to stifle its freedom of expression unduly, most democracies
have
opted for as much self-regulation as possible. It is a pervasive
principle of journalistic practice that the identity of
a person
with HIV should not be disclosed without the explicit permission of
that person. The onus is on the journalist or publisher
to ensure
that such permission has been granted. A journalist cannot merely
assume that consent to publication has been given.
Especially in
our society, where many people are naïve and ignorant and
therefore fail to appreciate the power of the media,
journalists
should take extra care when publishing personal information.
Accordingly, the clear default position pertaining to
the naming of
people living with HIV is that a journalist should not name
individuals in publications without informed consent,
or, arguably,
may only do so if there is an overwhelming public interest in
publication without prior authorisation.
It was not for Professor Harber himself to determine
whether, as a matter of law, Ms Smith and the publishers had taken
reasonable
steps to ensure that the names and status of the
applicants were in the public domain. It was, however, helpful to
be informed
as to what the professional norms and standards were in
relation to the publication of a person’s HIV status.