Contents

1. Summary
   1. Facts
   2. Holding
2. Comment
3. Further resources
4. The Decision

Summary

The case Botha v Smuts concerned a Facebook post about animal trapping on Mr. Botha's farm. The Constitutional Court balanced Mr. Botha's right to privacy (especially regarding his home address) against the respondents' freedom of expression. While finding no reasonable expectation of privacy for public business details, the court upheld the appeal in part, ordering the removal of Mr. Botha's address from the post.

Facts

Mr. Smuts, on behalf of the Landmark Leopard and Predator Project, published a Facebook post that included information linking Mr. Botha, his businesses, and his family to animal trapping activities on his farm.

The post condemned Mr. Botha's trapping as "unethical", "barbaric", and "environmentally damaging" and was accompanied by photographs of animal traps.

Mr. Botha asserted that this post was defamatory, intended to harm his reputation and business, and endangered him and his family.

Crucially for the privacy aspect, Mr. Botha also argued that the post published his confidential information, thereby infringing his right to privacy and exposing him and his family to risk. He contended that even though he had published some business details online for attracting clients, this did not extend to re-publication on a broad platform like Facebook, linking him to animal trapping.

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Link to the Original Ruling the subject of the Constitutional Reference | Herman Botha v Bool Smuts and Anor (2832/2019) [2020] ZAECPEHC 19

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Before the Constitutional Court, Mr. Botha, for the first time, disputed that the photographs were lawfully obtained and published, arguing that the permission given to cyclists to traverse his farm did not constitute a waiver of his right to privacy regarding the trapping activities. He also emphasised the personal risk to his family and the potential ruin of his insurance brokerage due to the linkage in the post.

The respondents, Mr. Smuts and the Landmark Leopard and Predator Project, responded by:

• Disputing that the post was defamatory, arguing it was fair comment based on true facts and matters of public interest.
• Denying that the published information was private, stating that most of it was sourced from public sources where Mr. Botha had placed it himself, including his insurance brokerage details and the registration of his farm ownership at the Deeds Registry.
• Relying on their right to freedom of expression to publish the post in the public interest. They argued that they had a right to share honest information about animal trapping, including the personal information of those involved, as the public had a right to receive such information.
• Contending that Mr. Botha did not have a reasonable expectation of privacy regarding information already in the public domain.