“Public debate does not require politeness. The public has the right to know about the activities of [Botha’s] business that directly impact animals.”
By Martin Welz*
Animal rights activist Bool Smuts won an important appeal case before the Supreme Court of Appeal on Monday. The judgment contains a significant restatement of animal rights as recognised in South African law, and re-affirms the right of freedom of speech for activists.
The appeal judgment was written by Appeal Judge R S Mathopo. Judges Zondi, Plasket, Mbatha and Unterhalter concurred with his judgment.
A summary of the evidence: 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 the ride, they traversed the farm Varsfontein belonging to Herman Botha. One of the cyclists, Nicholas Louw, 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 while trapped in the cages. Incensed by what he saw, he took photographs of the cages containing the dead animals and sent them to 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.
Upon receipt of the photographs, Smuts contacted Botha via WhatsApp and Botha confirmed he had a valid permit to hunt, capture and/or kill baboons, porcupines and other vermin. On the 9 October 2019, Smuts posted, on Landmark Leopard’s Facebook pages, pictures of the dead baboon and porcupine trapped on Botha’s farm. Smuts included a picture of Botha holding his six-month-old daughter [which he found on Botha’s Facebook page]. Additionally, he posted a Google search location of Botha’s business, his home address and his telephone numbers. A WhatsApp conversation between Smuts and Botha was also posted in which Botha was asked by Smuts if he had a permit to trap animals, to which he responded in the affirmative.
Smuts captioned his post with the following:
“We spend our efforts trying to promote ecologically acceptable practice on livestock farms to promote ecological integrity and regeneration. 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. The images show a trap to capture baboons (they climb through the drum to get to the oranges – often poisoned – and then cannot get out.) See the porcupine trap too. Utterly unethical, cruel and barbaric.”
The post generated many comments on Facebook, which were mostly critical of Mr Botha.
Botha instituted an urgent application in the Eastern Cape High Court for an interim interdict prohibiting Smuts and his Landmark Leopard Foundation from publishing defamatory statements about him. That court ordered Smuts to remove references to Botha, his business and its location, and the name of the farm from the post. The interim court order was subsequently confirmed on the basis that this was personal information protected by Botha’s right to privacy. That court argued the public interest lay in the topic and not in Botha’s personal information and concluded that Smuts had acted unlawfully in linking Botha to the practice of animal trapping.
Smuts took this judgment on appeal to the Supreme Court of Appeal.
Extracts from Appeal Judge Mathopo’s judgment (with four other judges concurring) delivered on Monday:
In considering the evidence, the appeal judges set out to answer several questions, among them: was it in the public interest that Mr Botha’s personal information was published? Was it in the public interest to know the exact location of Botha’s farm? Was the High Court correct in placing emphasis on Mr Botha’s personal information despite the fact that it was already in the public domain [On Google and Facebook]? Was the publication of Smuts’ Facebook post protected by his right to freedom of expression?
In answer to the latter question, the court quoted the following passage from a Constitutional Court judgment: “[The right to freedom of expression] is implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals in 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.”
The appeal judges found these remarks to be applicable to “activists like Mr Smuts who have views to advance that are relevant to public debate about the treatment of animals. It is also in the public interest that divergent views be aired in public and subjected to scrutiny and debate.”
Further on in the Appeal Court judgment: “The issue relates to the ethics, cruelty and vile treatment of the animals. Apart from the unlawfulness, the public has the right to know about the activities of [Botha’s] business that directly impact animals.
“It is axiomatic that animals are worthy of protection not because of the reflection that this casts on human values but because, as Appeal Judge Cameron has previously held, ‘animals are sentient beings that are capable of suffering and experiencing pain’ and unfortunately ‘humans are capable of inflicting suffering on animals and causing them pain’.
“What Mr Louw, the cyclist, observed on 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 and conservationist. It seems to me clear that Mr Smuts was rightly impelled to action when he noticed the condition of the dead animals.”
Later in the judgment: “The public has the right to be informed about 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.
“I agree with Mr Smuts that it would serve no useful purpose in publishing the photographs [of the trapped animals] without stating where they were taken, by whom the traps were used and naming the farm and identifying the owner.
“The purpose of the public debate is to say things that others find different and difficult. Public debate does not require politeness.
“The High Court approached the matter [incorrectly] by asking whether Mr Smuts could have exercised his right to freedom of expression with greater restraint so as to afford Mr Botha’s right to privacy greater protection. A court should not act as a censor to determine how best persons might speak. In this case, Mr Smuts enjoyed the right to express his views about animal cruelty and attribute to Mr Botha the practice of animal trapping. That information was true, never denied by Mr Botha nor hidden by him. […]
That said, the appeal is upheld with costs including costs of senior counsel. The order of the Cape High Court is set aside. [That] application is dismissed with costs.
- Stellenbosch and Pretoria University educated Martin Welz (76) 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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