THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 887/2020

In the matter between:

BOOL SMUTS
FIRST APPELLANT

LANDMARK LEOPARD AND PREDATOR
PROJECT – SOUTH AFRICA

SECOND APPELLANT

and

HERMAN BOTHA                                                                                RESPONDENT

Neutral Citation:
Bool Smuts and Another v Herman Botha (887/20) [2022]
ZASCA 3 (10 January 2022)
Coram:
ZONDI, MATHOPO, PLASKET and MBATHA JJA and
UNTERHALTER AJA
Heard:
23 November 2021
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to be 15h00 on 10
January 2022.

Summary: Right to privacy – the right to freedom of expression – public disclosure
of personal information by owner – whether such personal information protected by
right to privacy – personal information ceases to be private once released to public
domain by owner – appeal upheld.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: The Eastern Cape Division of the High Court, Port Elizabeth
(Roberson J sitting as court of first instance):
The appeal is upheld with costs including costs of senior counsel.
The order of the Eastern Cape Division of the High Court, Port Elizabeth is
set aside and replaced with the following:
‘(a) The rule nisi is discharged with costs.
(b) The application is dismissed with costs.’

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Mathopo JA (Zondi JA, Plasket JA, Mbatha JA and Unterhalter AJA
concurring):
[1] On the 23 September 2019, in the early hours of the morning, a group of
cyclists were participating in an adventure ride organised by Quantum Adventure.
During their ride, they traversed the farm Varsfontein belonging to the respondent,
Mr Herman Botha (Mr Botha). Nicholas Louw, one of the cyclists noticed two cages
on the farm, one containing a dead baboon, the other a dead porcupine. According
to his observations, the cages were positioned where there was no shade and water.
There were some oranges near the baboon. He formed the view that the animals
had died as a result of dehydration whilst trapped in the cages. Incensed by what he
saw, he took photographs of the cages containing the dead animals and sent them
to the first appellant, Mr Smuts, a wildlife conservationist and activist who for the
past 17 years has been a leader in efforts to promote the conservation of indigenous
wildlife in South Africa, particularly in the Eastern, Western and Northern Provinces.

He is also the founder and executive director of the second appellant, Landmark
Leopard and Predator Project–South Africa (Landmark Leopard).

[2] Upon receipt of the photographs, Mr Smuts contacted Mr Botha via
WhatsApp and Mr Botha confirmed that he had a valid permit to hunt, capture and/or
kill the baboons, porcupines and other vermin. On the 9 October 2019, Mr Smuts
posted, on Landmark Leopard’s Facebook pages, pictures of the dead baboon and
porcupine trapped on the farm owned by Mr Botha. On his Facebook page, Mr
Smuts also included a picture of Mr Botha holding his six-month old daughter.
Additionally, he posted a Google Search Location of Mr Botha’s business, his home
address and his telephone numbers. A WhatsApp conversation between Mr Smuts
and Mr Botha was also posted. In that post, Mr Botha was asked by Mr Smuts if he
had a permit to trap animals to which he responded in the affirmative. Mr Smuts
captioned the post with the following commentary:
‘While we spend our efforts trying to promote ecologically acceptable practices on livestock
farms to promote ecological integrity and regeneration, we are inundated by reports of
contrarian practices that are unethical, barbaric and utterly ruinous to biodiversity.
These images are from a farm near Alicedale in the Eastern Cape owned by Mr Herman
Botha of Port Elizabeth, who is involved in the insurance industry. The farm is Varsfontein.
This is utterly vile. It is ecologically ruinous. Mr Botha claims to have permits to do this – see
the Whatsapp conversation with him attached.
The images show a trap to capture baboons (they climb through the drum to get access to
the oranges – often poisoned – and then cannot get out). See the porcupine in traps too.
Utterly unethical, cruel and barbaric.’

[3] The post generated many comments on Facebook, which were mostly critical
of Mr Botha and the particular practice of trapping animals. People who viewed the
post in turn posted slanderous and insulting comments about Mr Botha and his
practice. One user suggested that, ‘he should be in that cage’ and another user
suggested that Mr Botha should be ‘paid a visit’. One person suggested that Mr
Botha’s business should be boycotted and a campaign launched to name and
shame him and his insurance brokerage business.

[4] Unhappy with the posts and the publicity it generated, Mr Botha instituted an
urgent application in the High Court of the Eastern Cape Division, Port Elizabeth (the
high court) for an interim interdict prohibiting Mr Smuts and Landmark Leopard from
publishing defamatory statements about him. Mullins AJ granted a rule nisi, in terms
of which Mr Smuts and Landmark Leopard were ordered to remove the photographs
of Mr Botha and certain portions of the Facebook that made reference to Mr Botha,
his business, its location and the name of the farm. Mr Smuts and Landmark
Leopard were also prohibited from making further posts making reference to Mr
Botha, his family and his business. The photograph of Mr Botha and his daughter
was removed by Mr Smuts before the interim order was granted.

[5] On the return date, the rule nisi was confirmed by Roberson J. The high court
held that although Mr Smuts and Landmark Leopard were entitled to publish the
photographs and to comment on them, they were not entitled to publish the fact that
the photographs were taken on a farm belonging to Mr Botha. The high court
reasoned that the name of the farm and Mr Botha’s identity, as owner of it,
constituted personal information protected by his right to privacy. It held that Mr
Botha established a clear right to an interdict, and his right to privacy was infringed
by the publication of his personal information on Facebook. It adopted an approach
that the public interest lay in the topic and not in Mr Botha’s personal information. As
a result, the high court concluded that Mr Smuts and Landmark Leopard had acted
unlawfully in linking Mr Botha to the practice of animal trapping. This appeal is with
the leave of the high court.

[6] The question to be answered is whether the publication of Mr Botha’s
personal information such as Mr Botha's identity and his business and home
address enjoys the protection of the right to privacy. This issue raises a number of
interconnected questions. First, whether it is in the public interests that the personal
information of Mr Botha be published. Second, whether Mr Smuts could inform the
public about the activities on Mr Botha’s farm without disclosing his personal
information. In other words, was it in the public interest to know the exact location of
Mr Botha’s farm? Third, was the high court correct in placing emphasis on Mr
Botha’s personal information despite the fact that this was already in the public
domain.

[7] At the centre of this appeal is whether the publication of the Facebook posts
by Mr Smuts is protected by the right to freedom of expression. In essence, what is
implicated in this appeal is the tension between the right to privacy and the right to
freedom of expression. This calls for a delicate balance to be drawn between these
two important, competing rights.

[8] The right to privacy is a fundamental right that is protected under the
Constitution. It is a right of a person to be free from intrusion or publicity of
information or matters of a personal nature. It is central to the protection of human
dignity, and forms the cornerstone of any democratic society. It supports and
buttresses other rights such as freedom of expression, information and association.
It is also about respect; every individual has a desire to keep at least some of his/her
information private and away from prying eyes. Another individual or group does not
have the right to ignore his wishes or to be disrespectful of his desire for privacy
without a solid and reasoned basis.

[9] In Bernstein v Bester NO1,  Ackermann J, writing for the majority, provided a
rich account of the right to privacy. Although the judgment interpreted the right to
privacy in the interim Constitution, its interpretation remains of durable value to an
understanding of the right to privacy in s14 of the Constitution. Ackermann J put the
matter this way: the scope of a person’s privacy extends ‘to those aspects in regard
to which a legitimate expectation of privacy can be harboured’ A legitimate
expectation of privacy has two component parts: ‘a subjective expectation of
privacy…that society has recognized…as objectively reasonable’.2 This rather
abstract formulation is made more concrete by the adoption of  the concept of a
continuum of privacy interests.3 The right to privacy is most powerfully engaged
where the inner sanctum of a person’s life is protected from intrusion. But as a

1 Bernstein v Bester NO 1996 (2) SA 751 (CC).
2 At para 75.
3 A phrase coined by Sachs J in Ministry v Interim National Medical and Dental Council of South
Africa 1998 (4) SA 1127 (CC) at para 27.

person moves into the world of communal, business and social interaction, the
scope for the exercise of the right diminishes.4

[10] Privacy enables individuals to create barriers and boundaries to protect
themselves from unwarranted interference in their lives. It helps to establish
boundaries to limit who has access to their space, possessions, as well as their
commercial and other information. It affords persons the ability to assert their rights
in the face of significant imbalances. It is an essential way to protect individuals and
society against arbitrary and unjustified use of power by reducing what can be
known about, and done to them. The right to privacy is not sacrosanct, it must be
balanced with the rights of other citizens.

[11] In South African National Defence Union v Minister of Defence and Another,
the Constitutional Court stated that:
‘Freedom of expression lies at the heart of a democracy. It is valuable for many reasons,
including its instrumental function as a guarantor of democracy, its implicit recognition and
protection of the moral agency of individuals in our society and its facilitation of the search
for truth by individuals and society generally. The Constitution recognises that individuals in
our society need to be able to hear, form and express opinions and views freely on a wide
range of matters.’ 5

[12] There is an illuminating discussion on the meaning of freedom of expression
by Kriegler J in S v Mamabolo, where he said the following:
‘Freedom of expression, especially when gauged in conjunction with its accompanying
fundamental freedoms, is of the utmost importance in the kind of open and democratic
society the Constitution has set as our aspirational norm.’6

[13] In Khumalo v Holomisa, the Constitutional Court, discussing the link between
the right to freedom and human dignity, held that:
‘Freedom of expression is integral to a democratic society for many reasons. It is
constitutive of the dignity and autonomy of human beings. Moreover, without it, the ability of

4 Bernstein at para 67.
5 South African National Defence Union v Minister of Defence 1999 (6) BCLR 615 (CC); 1999 (4) SA
469 (CC) para 7.
6 S v Mamabolo 2001 (5) BCLR 449 (CC); 2001 (3) SA 409 (CC) para 37.

citizens to make responsible political decisions and to participate effectively in public life
would be stifled.’7

[14] Although this case dealt with the rights of the media to disseminate
information and ideas, the remarks of the court apply with equal force in respect of
activists like Mr Smuts who have views to advance that are relevant to public debate
about the treatment of animals. I hasten to say it is in the public interest that
divergent views be aired in public and subjected to scrutiny and debate. Mr Smuts,
in his defence, stated that his intention in publishing the post was not to defame or
otherwise harm Mr Botha but rather, to publicise or ‘out’ his animal trapping
practices so as to stimulate the debate on this thorny and controversial issue.

[15] Mr Smuts contended that the comments made on his Facebook post
constitute protected or fair comment. The comments sought to expose the use of
animal traps which, in the opinion of Mr Smuts, are cruel, barbaric, vile and utterly
ruinous to biodiversity. The argument advanced on behalf of Mr Smuts is that even if
his views are extreme or prejudicial, the opinion he holds is one which a fair person
might honestly hold. To buttress his case, he relied on the judgement of the
Constitutional Court in Islamic Unity Convention v Independent Broadcasting
Authority,8 where the court, quoted with approval the European Court of Human
Right, which stated that the public interest in free speech applies ‘not only to
“information” or “ideas” that are favourably received or regarded as inoffensive or as
a matter of indifference, but also to those that offend, shock or disturb…Such are the
demands of that pluralism, tolerance and broadmindedness without which there is
no “democratic society”’.

[16] Mr Botha contended that Mr Smuts’ Facebook post infringed on his right to
privacy as it disclosed his identity, family, home address and his business address.
He further contended that the Facebook post is inflammatory to the extent that it
makes reference to practices that are unethical, barbaric and utterly ruinous to
biodiversity. He submitted that the posts suggest that Mr Botha only purports to have

7 Khumalo v Holomisa 2002 (8) BCLR 771 (CC); 2002 (5) SA 401 (CC) para 20.
8 Islamic Unity Convention v Independent Broadcasting Authority 2002 (2) SA 294 (CC); 2002 (2)
BCLR 433 (CC) para 26.

a permit whereas in truth and fact, he is acting unlawfully. According to Mr Botha,
these comments were intended to undermine his reputation, status, good name,
cause harm to his business and endanger his family.

[17] Mr Botha conceded that, although freedom of expression is an important
fundamental right, he is entitled to the protection of his personality right to privacy
under circumstances where the offensive publication is defamatory of, and
concerning him. It was further submitted that references in the posts that are said to
be unethical, barbaric and utterly ruinous to biodiversity is a reference to his
conduct. This, he argued, does not constitute an opinion and could not have been
understood by a reasonable reader to be a mere opinion. He urged upon us to
accept that the post exceeded what could reasonably have been expected under the
circumstances and thus breached his rights to privacy.

[18] In support of his case, Mr Botha relied on the remarks made by Neethling et
al regarding personality rights, where the authors said the following:
‘Privacy is an individual condition of life characterized by seclusion from the public and
publicity. This condition embraces all those personal facts which the person concerned has
himself determined to be excluded from the knowledge of outsiders and in respect of which
he has the will that they be kept in private.’ 9

[19] The issue resolves itself thus, following the formulation of the right to privacy
in Bernstein v Bester NO: can it be said that Mr Botha has the subjective expectation
of privacy that society recognises as objectively reasonable. Objectively speaking,
the answer is in the negative. Violations of privacy are fact specific. The right to
privacy must be approached from a people-centred perspective. It is abundantly
clear, as correctly found by the high court, that society cannot countenance the use
of traps which exposes the animals to cruelty and vile treatment. Doubtless Mr Botha
considered that there were particulars of the posts that offended his expectation of
privacy. But would society concur that his expectation is objectively reasonable?
And, more particularly do the posts reference the truly personal realm of Mr Botha’s
life, where the expectation of privacy is more likely to be considered reasonable?

9 J Neethling, J M Potgieter & A Roos Neethling on Personality Right. (2019) at 45.

[20] Where does the personal information concerning Mr Botha lie on the
continuum of private interests? In this case, the identity of Mr Botha and his farm are
matters that he permitted to be placed in the public domain. So too are his practices
of animal trapping; he openly admitted his use of animal traps. No effort was made
by him to keep this information or his activities private. His discomfort that these
practices formed the subject of Mr Smuts’ critical posts did not render the
information he had made public, now private. The commercial farming activities of
Mr Botha and the practices used by him to carry out these activities carry a very
modest expectation of privacy from the perspective of what society would consider
reasonable.

[21] The high court accepted that the use of animal traps is a matter of public
interest and that voices of activists like Mr Smuts must be heard and engaged.
Nonetheless, it found that there was no compelling public interest in the disclosure of
Mr Botha’s personal information.  In my view, the high court erred in three respects.
Firstly, it disregarded the content of Mr Smuts’ post and focused on the response by
members of the public. This approach, has far-reaching implications on activists like
Mr Smuts because it stifles the debate and censors the activists’ rights to
disseminate information to the public. In so doing, it denies citizens the right to
receive information and a platform for the exchange of ideas, which is crucial to the
development of a democratic culture. Secondly, it interferes with the right of freedom
of expression and activism and fails to strike a proper balance between personal
information and the right to privacy. Thirdly, it failed to recognise that publicising the
truth about Mr Botha’s animal trapping activities, to which the public have access
and interest, does not trump his right of privacy.

[22] The effect of limitation which the high court imposed in this case is
substantial, affecting as it does, the right of activists such as Mr Smuts and that of
the public to receive information, views and opinions. It cannot be denied that the
public has a right to be informed about the animal practices at Mr Botha’s farm. The
question to be asked is whether Mr Smuts could use less restrictive means to
achieve the purpose of ‘outing’ Mr Botha’s animal trapping activities without
publicising his personal information. I think not. It is clear that the inroads postulated

by Mr Botha on Mr Smuts’ right to freedom of expression are by far too extensive
and outweighed by the public interest in the matter. It can scarcely lie in the mouth of
Mr Botha that the publication of his personal information should be protected when
he has posted such information in the public domain.

[23] Mr Botha’s reliance on Neethling’s article is misplaced. For the test of privacy
to succeed, the facts must be excluded from the knowledge of outsiders, such
information must be private and having been kept from outsiders by the individual
concerned (in this case Mr Botha). The right to privacy is most simply the right of a
person to be left alone, to be free from unwarranted publicity and to live without
unwarranted interference by the public in matters with which the public is not
necessarily concerned. However, in this case, the identity of Mr Botha and his farm
are matters that he has placed in the public domain. So too are his practices of
animal trapping; he openly admitted to the use of animal trappings. As a commercial
farmer dealing with animal trappings, Mr Botha has put all his personal information in
the public domain. No effort has been made by him to keep this information or
activities private. The public interests in the treatment of animals apart from the
lawfulness of the trapping must accordingly enjoy protection over his personal
information. To give context to this matter, the issue relates to the ethics, cruelty and
vile treatment of the animals. Apart from the unlawfulness, the public has a right to
know about the activities of his business that directly impact animals.

[24] It is axiomatic that animals are worthy of protection not because of the
reflection that this has on human values but because, as Cameron JA held in
National Council of Societies for the Prevention of Cruelty to Animal v Openshaw,10
‘animals are sentient beings that are capable of suffering and of experiencing pain’
and unfortunately, ‘humans are capable of inflicting suffering on animals and causing
them pain’. What Mr Louw, the cyclist, observed at Mr Botha’s farm must have left
him with a sense of revulsion hence he took it upon himself to take the photographs
of the dead animals and send them to Mr Smuts for his intervention as an activist

10 National Council of Societies for the Prevention of Cruelty to Animal v Openshaw [2008] ZASCA
78; [2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) para 38.

and conservationist. It seems to me clear that Mr Smuts was rightly impelled to
action when he noticed the condition of the dead animals.

[25] In my view, the right to freedom of expression in s 16 of the Bill of Rights
protects every citizen to express himself or herself and to receive information and
ideas. The same right is accorded to activists to disseminate information to the
public. The Constitution recognises that individuals in our society need to be able to
hear, form and express opinions freely, on a wide range of topics. Honest
information and publication of animal trappings is no exception. Mr Smuts had a right
to expose what he considered to be the cruel and inhumane treatment of animals at
Mr Botha’s farm. This was a fair comment and the public interests is best served by
publicising the truth rather than oppressing it. The public has a right to be informed
of the humane or inhumane treatment of animals at Mr Botha’s farm. Members of
the public have the freedom to decide which commercial enterprise they support and
which they do not. That freedom of choice can only be exercised if activities
happening at Mr Botha’s farm are laid bare for the public.

[26] I agree with Mr Smuts that it would serve no useful purpose in publishing the
photographs without stating where they were taken, by whom the traps were used
and naming the farm and identifying its owner. Mr Botha’s claim to privacy is
unsustainable. The use of animal traps in the course of commercial farming
operation are conducted in public and thus fall outside the realm of protected
privacy. What is damning for Mr Botha is that he makes use of animal traps openly
where hunters and cyclists have access. I fail to understand how it can be
contended that it was unlawful for Mr Smuts to publicise the fact that the
photographs were taken on a farm belonging to Mr Botha. It is telling that Mr Botha
did not allege that Mr Smuts’ publication of the fact that the photos were taken on his
farm, which publicly linked him to the use of animal traps, damaged his reputation.

[27] A further difficulty facing Mr Botha is that the information published by Mr
Smuts can easily be found in the Deeds Office as well as on Google. This is not
information which Mr Botha can legitimately exclude from the public. The fact that he
disclosed his personal information strips him of the right to claim privacy in respect

of that information. In Bernstein v Bester,11 the Constitutional Court said the
following:
‘The scope of privacy has been closely related to the concept of identity and it has been
stated that “rights, like the right to privacy, are not based on a notion of the unencumbered
self, but on the notion of what is necessary to have one’s own autonomous identity”.
. . .
The truism that no right is to be considered absolute, implies that from the outset of
interpretation each right is always already limited by every other right accruing to another
citizen. In the context of privacy this would mean that it is only the inner sanctum of a
person, such as his/her family life, sexual preference and home environment, which is
shielded from erosion by conflicting rights of the community. This implies that community
rights and the rights of fellow members place a corresponding obligation on a citizen,
thereby shaping the abstract notion of individualism towards identifying a concrete member
of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves
into communal relations and activities such as business and social interaction, the scope of
personal space shrinks accordingly.’12

[28] It is conceptually flawed that such information can remain private when it has
been made public by Mr Botha himself. The fact that he is a commercial farmer who
uses animal traps is not a matter that he should keep private at all. There is no
suggestion in the posts that Mr Botha is acting unlawfully. What the posts asserted is
that he is acting unethically and thus the public have a right to know of such
practices. The purpose of the public debate is to say things that others find different
and difficult. Public debate does not require politeness. What Mr Botha seeks to do
is to unjustifiably limit Mr Smuts’ right to freedom of expression and his entitlement to
make a fair comment on the facts that are true and related to matters of public
interests.

[29] The high court, in recognising Mr Smuts’ right to freedom of expression, erred
in two respects. First, it considered Mr Botha to have a right to privacy of
comparable importance. That is not so because the information was in the public
domain, and Mr Botha consequently had a weak right to privacy in respect of that
information. Second, the high court approached the matter by asking whether Mr

11 Bernstein and Others v Bester NO and Others 1996 (4) BCLR 449 (CC); 1996 (2) SA 751 (CC).
12 Ibid paras 65 & 67.

Smuts could have exercised his right to freedom of expression with greater restraint
so as to afford Mr Botha’s right to privacy greater protection. That is not the correct
way to look at the matter. A court should not act as a censor to determine how best
persons might speak. In this case, Mr Smuts enjoyed the right to air his views as to
animal cruelty and attribute to Mr Botha the practice of trapping. After all, that
information was true, never denied by Mr Botha, nor hidden by him. In these
circumstances, the test is not whether Mr Smuts could have posted more cautiously,
the question is whether Mr Botha had any claim to privacy in respect of the
information posted. His claim, as I have explained, was weak.

[30] The contention by Mr Botha that the Facebook post suggested that Mr Botha
acted unlawfully when he trapped the baboons and porcupine in cages and that he
allegedly poisoned the captured animals has no merit. The Facebook post merely
states that Mr Botha claims to have a permit. Nowhere in the post is it suggested
that he is acting unlawfully. In the answering affidavit, Mr Smuts stated that he was
not concerned with the legality of Mr Botha’s actions, but rather their ethics. A
reading of the post indicates clearly that reference to poisoned oranges is not a
reference to how Mr Botha entrapped animals but to how animals are lured and
trapped in the cages in general.

[31] In sum, Mr Botha’s personal information was in the public domain before Mr
Smuts published the posts. His ownership of the farm Varsfontein was a matter of
public record in the Deeds Registry, his name and occupation as an insurance
broker, along with his Port Elizabeth address had been published on the internet by
Mr Botha himself thus, his right to privacy was not infringed. Essentially what Mr
Smuts did was to give further publicity to information about Mr Botha that was
already in the public domain. That said, there was no basis for the interdict against
Mr Smuts. The appeal must be upheld.

[32] In the result, the following order is made:
The appeal is upheld with costs including costs of senior counsel.
The order of the Eastern Cape Division of the High Court, Port Elizabeth is
set aside and replaced with the following:
‘(a) The rule nisi is discharged with costs.

(b) The application is dismissed with costs.’

________________________
R S Mathopo
Judge of Appeal

APPEARANCES:

For appellant:
Matthew Blumberg SC (with him Mushahida Adhikari)
Instructed by:
BDLS Attorneys Inc., Port Elizabeth

Honey Attorneys, Bloemfontein

For respondent:
Albert Beyleveld SC (with him David Bands)

Instructed by:
Lawrence Masiza Vorster Inc., Port Elizabeth

Symington De Kok Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

10 January 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Bool Smuts and Another v Herman Botha (887/20) [2021] ZASCA 3 (10 January 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with costs, an appeal
against a decision of the Eastern Cape Division of the High Court, Grahamstown (the high court).
The issue before the SCA was whether the publication of the Facebook posts by Mr Smuts is protected
by the right to freedom of expression.
On 23 September 2019, a group of cyclists were participating in an adventure ride organised by
Quantum Adventure. During their ride, they traversed Farm Varsfontein belonging to the respondent,
Mr Herman Botha (Mr Botha). Nicholas Louw, one of the cyclists noticed two cages on the farm, one
containing a dead baboon, the other a dead porcupine. According to his observations, the cages were
positioned where there was no shade and water and there were some oranges near the baboon. He
formed the view that the animals had died as a result of dehydration whilst trapped in the cages.
Incensed by what he saw, he took photographs of the cages containing the dead animals and sent them
to the first appellant, Mr Smuts, a wildlife conservationist and founder and executive director of the
second appellant, Landmark Leopard and Predator Project–South Africa (Landmark Leopard).
Upon receipt of the photos, Mr Smuts contacted Mr Botha via WhatsApp and Mr Botha confirmed that
he had a valid permit to hunt, capture and/or kill the baboons, porcupines and other vermin. On 9
October 2019, Mr Smuts posted, on Landmark Leopard’s Facebook pages, pictures of a dead baboon
and porcupine trapped on the farm owned by Mr Botha. In the Facebook page, Mr Smuts also included
a picture of Mr Botha’s six-month old daughter. Additionally, he posted a Google Search Location of Mr
Botha’s business, his home address and his telephone numbers. A WhatsApp conversation between
Mr Smuts and Mr Botha was also posted. In that post, Mr Botha was asked by Mr Smuts if he had a
permit to trap animals to which he responded in the affirmative. The post was accompanied by a caption,
part of which read as follows: ‘[t]his is utterly vile. It is ecologically ruinous. Mr Botha claims to have
permits to do this – see the Whatsapp conversation with him attached’. Mr Botha contended that Mr
Smuts’ Facebook post infringed on his right to privacy as it included his identity, family, home address
and his business address. He further contended that the Facebook post is inflammatory to the extent
that it makes reference to practices that are unethical, barbaric and utterly ruinous to biodiversity.
The SCA held that Mr Smuts was right to expose what he considered to be the cruel and inhumane
treatment of animals at Mr Botha’s farm. It held further that Mr Botha’s post constituted a fair comment.
Furthermore, the SCA held that the public has a right to be informed of the humane or inhumane
treatment of animals at Mr Botha’s farm. Members of the public have the freedom to decide which
commercial enterprise they support and which they do not. That freedom of choice can only be
exercised if activities happening at Mr Botha’s farm are laid bare for the public. It would serve no useful

purpose in publishing the photographs without stating where they were taken, by whom the traps were
used and naming the farm and identifying its owner.
~~~~ends~~~~