Our Constitution limits individual rights when they impinge on the common good; think mandatory Covid vaccination. Yet, what does that have to do with the sudden untimely death of trapped wild animals cited by lawyer/journalist Martin Welz? Everything, a reading of this erudite report on a fascinating court case reveals. Here, the competing rights are privacy versus freedom of expression, those of animals, and the public interest. Don’t be fooled into thinking privacy is automatically outweighed by the latter clutch of rights. So far, the courts have supported the animal-trapping farmer’s privacy, but it’s an open question as to whether a full bench of the Appeal Court will rule the visual and anecdotal social media portrayal as fair comment, essentially true and in the public interest. The way the dead baboon and porcupine suddenly died doesn’t entirely line up with what happened … perhaps an indication as to which way this might go. It could even set the bar higher for responsible social media sharing. – Chris Bateman
Appeal judges deliberate on the untimely death of a baboon and a porcupine
By Martin Welz*
Last week, a full bench of five judges of the South African Appeal Court in Bloemfontein assembled to hear an appeal arising from the untimely death of a baboon and a porcupine.
While it might at first glance sound ridiculous, it transpires there are various issues at stake that the appeal judges considered sufficiently serious to be worthy of their attention.
The case involves animal rights (a relatively new field in our law), the right to privacy and the potentially conflicting right of freedom of speech (both guaranteed by the Constitution) and, finally, recognition of the role of activists in a democracy.
In particular it raises important questions concerning the information that conservationists and activists may lawfully publish in relation to the use of a controversial farming method on a commercial farm; in this case, animal traps.
The appellant, Bool Smuts (pictured above) is a medical doctor turned wildlife conservationist and activist. He is the founder and executive director of the Landmark Foundation, an NGO focused on human-wildlife conflict.
Opposing the appeal is Herman Botha, an insurance broker and commercial cattle farmer. He is the owner of Varsfontein, a commercial cattle farm located in the Alicedale district of the Eastern Cape.
The story begins on 1 October 2019, when one Nicolaas Louw, in the course of an adventure cycle ride that traversed Herman Botha’s farm, Varsfontein, came upon a baboon and a porcupine in cage traps on the farm. Both were dead. Shocked and outraged, he stopped and took photographs of the scene.
A day or two later, Louw sent his photographs and a map depicting the name and location of the farm to Dr Smuts for some action to be taken, as he knew Smuts by reputation as a wildlife conservationist and activist.
In addition to his medical qualifications, Smuts has a BSc in biological anthropology and a master’s degree in environmental management. He has managed wildlife conservation projects for the past 17 years.
Having established via Google that Botha was the owner of the farm, Smuts contacted him and asked whether he wished to comment on the photographs. He did not. “Unproductive exchanges” followed between them.
On 9 October 2019, Smuts posted the trap photographs and his comments on the Landmark Foundation’s ‘Leopard and Predator Project’ Facebook page.
In his post he noted: “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.”
Smuts had established Bothas’s occupation, address and telephone number from the latter’s own posting on the Internet.
He continued: “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 a trap too. Utterly unethical, cruel and barbaric.”
A heated debate followed on Facebook in which many people participated. Most comments were antagonistic towards Botha and his use of animal traps – some strongly so. Two would, just days later, be quoted in court papers: in one, a certain Jordan Brust suggests: “Someone pay him a visit”, while in another (author not named) it is suggested: “It is high time that the produce from farmers like this should be boycotted. How do we find out where his produce goes? … These unethical farmers absolutely need to feel it in their pocket …”.
Next day, on 10 December, Botha launched an urgent application in the Eastern Cape high court in Gqeberha (Port Elizabeth) asking the court to order Smuts to immediately remove any reference to his name, his insurance business and its location, and the name of his farm from his Facebook posting and any further postings on the subject.
In his responding affidavit, Smuts stated that his Facebook comments reflected his genuinely held views on the practice of animal trapping. They were protected by his right to freedom of expression in terms of the Bill of Rights, and by his entitlement to make ‘fair comment’ on facts that were true and that related to matters of public interest. He added that his comments were not directed at whether or not the respondent’s use of traps was lawful – he said he had a permit – but rather whether such cruelty was ethical.
The reports of six independent conservation experts accompanied Smuts’s answering papers. All of them endorsed and motivated the view expressed by him. The reaction baboons to entrapment and separation from their families was demonstrably similar to what a humans experience under similar circumstances.
Botha did not dispute Smuts’s status and credentials as a bona fide wildlife conservationist and activist, or the testimony of his six expert witnesses, dismissing them as irrelevant to his case.
In his interdict application Botha ultimately did not argue his case on his claim to have been defamed by the publication of Smuts’ views on Facebook. Instead, he argued that, by identifying him by name, address and occupation, Smuts and the Landmark Foundation had published his personal information and so infringed his right to privacy.
He made no apology for trapping and killing baboons and porcupines. In his replying affidavit he stated that he has, and exercises the right, to trap “an unlimited amount of wild animals such as baboons throughout the year and at any time of day”.
Perhaps in mitigation, Botha did also file an affidavit by one Lance Henegan, 65, who stated that he had been hunting on Varsfontein on the day of the cycle ride in which Louw had participated. Henegan offered the assurance that – contrary to Louw’s impression that the baboon and porcupine encountered in the traps “had most likely suffered a drawn-out and cruel death” – the animals had “only been in the cages, at worst, a matter of a few hours” before Henegan, in passing, shot them.
Within 24 hours, Botha had been granted such an interim order. A return date for further evidence and argument was set and, in June 2020, Judge Roberson made the order final, in Botha’s favour. He ruled that while Smuts and the Landmark Foundation were entitled to publish the photographs of the dead trapped animals and to comment on them, they were not entitled to identify the farm, its owner and his occupation as this was deemed to be ‘personal information’ protected by Botha’s constitutional right to privacy.
Ironically, Botha’s replying affidavit is by default a public document, as is the judgment of the Eastern Cape High Court. Both are therefore legally reportable.
Smuts and the Landmark Foundation were granted leave to appeal to the Supreme Court of Appeal in Bloemfontein. The appeal was finally argued before a full bench of five Appeal Court judges on Tuesday, 23 November. The fact that the appeal was heard by five appeal judges – Judges D H Zondi, David Unterhalter, Yvonne Mbatha, Clive Plasket and Rammaka Mathopo is an indication that the issues at stake are taken seriously.
The appeal case turns on the lawfulness – or otherwise – of that Facebook post.
Advocate Matthew Blumberg SC, for Smuts the appellant, submitted in his heads of argument that the Eastern Cape court erred in granting a final interdict. Judge Roberson had “misapprehended” the nature and extent of the right to privacy in section 14 of the Bill of Rights, which, Smuts’ counsel argued, “affords no entitlement to a commercial farm-owner to have his use of a highly controversial farming method (animal-trapping) kept hidden from the public eye – and certainly not on the facts of this case, where the respondent makes use of animal traps openly and admittedly.
“Moreover,” he said, “the interdict constitutes an unwarranted suppression of free speech. Its effect is to censor facts that the public has an interest in finding out. This is contrary to the right to freedom of expression in section 16 of the Bill of Rights (which protects both the right to impart information, and the right to receive it.”
Against the right to privacy had to be weighed:
- Freedom of expression and the importance of robust public debate in a participatory democracy;
- the public interest in the humane treatment of animals and matters impacting on the environment;
- the acknowledged societal role of activists and public interest groups; and
- the public right to be informed and the general public interest in publicising the truth rather than suppressing it.
In his opposing argument, Advocate Albert Beyleveld SC, appearing for Botha, noted that the Constitutional Court has previously referenced a resolution of the Consultative Assembly of the Council of Europe which reads: “The right to privacy consists essentially in the right to live one’s life with a minimum of interference. It concerns private, family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorised publication of private photographs.”
To be condoned as fair comment, he said, the Appellant (Smuts) would have to have proved that his Facebook post complained of was (1) a fair comment (2) based on facts that are “essentially true” and (3) which are in the public interest.
His Facebook post, Botha’s counsel submitted, would not have been understood as a mere opinion. It had not only “exceeded the bounds of normal limits” by suggesting that Botha had acted in a cruel, unethical and barbaric manner, it had also suggested that his “vile” conduct had been unlawful: the clear impression was created that he had no legal permit to [trap the animals] and that he had poisoned them. This, he argued, not only constituted defamation but was also an infringement of Botha’s right to privacy.
That the post was published by “a bona fide conservationist and activist in the pursuit of a legitimate activist agenda (the prevention of animal suffering and damage to biodiversity)” was irrelevant to Botha’s case, his counsel argued.
Judgement in the appeal will be given on a date still to be determined.
Not strictly relevant to the appeal case, but noteworthy nevertheless, Advocate Matthew Blumberg SC makes the following observation: “One gains the impression that the [East Cape] court adjudged the lawfulness of the appellant’s [Facebook] post not on the basis of its content, but on the basis of the comments posted by members of the public in response. This was, with respect, incorrect: First, it would be perverse to attribute responsibility for how the public responds when finding out that a commercial farm owner makes use of animal traps, to the activist who disclosed the fact, rather than to the farm owner who uses the traps. This would indeed have a chilling effect on freedom of speech and activism.
Second, if the farm owner wished to avoid attracting public opprobrium, the appropriate route would be to cease using animal traps, not to suppress the publication of the truth.
- Stellenbosch and Pretoria University educated Martin Welz has dedicated his life to exposing malfeasance and abuse by the rich and powerful, occasionally ending up in court as a result of his disclosures. After decades of producing award-winning exposé‘s for major newspapers, Welz founded Noseweek in June 1993.
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