By Martin Welz*
First the High Court, then the Supreme Court of Appeal. Now the Constitutional Court, too, is being asked to weigh the serious issues arising from the unfortunate demise of a baboon and a porcupine on an Alicedale farm in 2019. (See earlier BizNews reports.)
Ultimately, it’s all about finding the ideal compromise, the ‘delicate balance’ between often-competing rights: your right to privacy versus your neighbour’s right to freedom of expression; human rights versus animal rights. Who are the true invaders, the farmers or the wild animals they find on their farms? Today, both have rights. Can a fair compromise be reached, a just means be determined for them to co-exist? May the trapping and killing of baboons and porcupines, although permitted by law, equally legitimately be labelled ‘cruel’ and ‘vile’ practices?
Finding and establishing a fair, workable compromise between those with conflicting rights can be dangerous when the conflict has turned nasty, even to the point of becoming a metaphorical war to the death in the veld and in the courts, where the mediator/judge can easily be pictured quietly singing that sad refrain: “Please, please dear Lord, don’t let me be misunderstood!”
Martin Welz picks up the story.
On 31 January, cattle farmer and insurance broker Herman Botha filed an application to the Constitutional Court for leave to appeal against the recent unanimous judgment issued against him – and in favour of animal rights activist Dr Bool Smuts – by five judges of the Supreme Court of Appeal (SCA).
As previously reported in BizNews, the case arose from the death of a baboon and porcupine in a trap on Botha’s farm Varsfontein near Alicedale in October 2019.
In his latest affidavit filed in support of his application for leave to appeal to the ConCourt, Botha states:
“The matter has generated much publicity and, in turn, has generated severe invasions of my privacy. At the centre of the matter is the publication of Facebook posts about me by the first respondent [Dr Smuts].
“Two previous courts have rendered full judgments dealing with the matter, thus allowing this court [the ConCourt] the opportunity properly to act as arbiter of this important dispute. The [Eastern Cape] High Court found in my favour, while the SCA [on appeal] found in Bool Smuts’ favour.
“Even in finding against me, the SCA noted that the case involves ‘the tension between the right to privacy and the right to freedom of expression’ which ‘calls for a delicate [emphasis on delicate – bold letters] balance to be [achieved] between these two important, competing rights’.”
Botha goes on to “respectfully submit” that the SCA then did the balancing job “not just indelicately, but unconstitutionally”, and that the ConCourt “may well find that the SCA erred”.
He then proceeds to summarise his case:
“[Bool Smuts] published a Facebook post [on his Landmark Foundation Facebook page] with photographs depicting animal traps along with a write-up which referenced my name, my ownership of the farm where the photographs were taken, my occupation as an insurance broker, and a Google search location of my home in Port Elizabeth (over 110 km away from the farm), and my business address as an insurance broker.
“The question to be answered is whether the Facebook post is lawful or whether it violates my privacy. That determination ultimately turns on whether my personal information, including about my residential home, is protected by the right to privacy.
“The SCA held it is not protected, on the basis that my right to privacy had been forfeited. This remarkable conclusion was arrived at by finding that there had been public disclosure of my personal information [and that] my home address in Port Elizabeth was in the public domain because I, like all South Africans, have to register my private property in the Deeds Office.” [Inaccurate, See below.]
“[According to] the SCA’s judgment, all in South Africa are now fair game for vilification from those who strongly disagree with them, including by searching for and posting publicly the information about their home address. To find, as the SCA did, that freedom of expression must trump the sanctity of one’s home, is to encourage such attacks,” Botha says in his application for leave to appeal against the SCA judgment. [But see below.]
“The SCA’s decision effectively condones and encourages what has come to be known as ‘doxing’ – cyber-bullying which involves ‘tracking down personal, private or identifying details about someone, like cellphone numbers, email addresses, home addresses and employment details, and circulating this information on the internet with the intent to ‘out’ this person, embarrass them, victimise them and draw criticism towards them. The purpose is usually to ruin the person’s reputation, or worse, cause physical harm in some extreme cases.” Botha adds: “This social media intimidation is so controversial that, abroad, it has generated calls for it to be criminalised.
“I can confirm the enormous personal suffering and harm that the [Facebook] post has caused me and my family. […] Judicial moralising could never, so I am advised, be a basis to justify the violation of my privacy. […] There are wildly different views about culling and dealing with invasive animals, and it is not for the SCA to have come down on one side of the debate without proper evidence or consideration of the issues.
“I was granted and hold a valid permit to hunt, and am entitled by law to capture in cages, inter alia, an unrestricted number of chacma baboons and porcupine. If I am entitled by law to trap, then on what lawful basis can it be right for me to be vilified, including through publication of my home address? The SCA never once weighed this factor in its consideration of the ‘delicate’ balance to be struck between privacy rights and the right to freedom of expression […] Instead, it moralised my right of privacy out of existence.”
All that, yet nowhere in his Facebook posting or his court pleadings did Smuts refer to Botha’s home address. The Google search result he copied and inserted into his Facebook posting – it is also attached to the court pleadings – provided the address and telephone number of Herman Botha Brokers. Ostensibly for the convenience of any potential new client, the site also provides a Google map to the address of Botha’s brokerage. As Smuts stated in his answering affidavit: “A Google search of [Botha’s] name produced his business and contact details – all of this placed in the public domain by him.”
BizNews found that Botha’s business and contact details are widely advertised: no less than 10 commercial websites provide the same address (often with map) and telephone number for Herman Botha Insurance Brokers, Port Elizabeth. They are: brabys.com, port-elizabeth.infoisinfo.co.za, mype.co.za, za.linkedin.com, buype.co.za, tuugo.co.za, ivote.co.za, thinklocal.co.za, africanadvice.com, and sayellow.com.
Only later, from Botha’s evidence in the case, can one deduce that his brokerage business address also happens to be his home address.
In his answering affidavit filed in the original case brought by Botha to silence him, Smuts stated he had established that Botha was the owner of the farm, on which the animals were trapped and killed, from another resident of the district, Professor Alkers. He had also obtained Botha’s telephone number from the professor.
Smuts further stated that Botha confirmed he was the owner of the farm in a subsequent WhatsApp conversation with him, and told him that his trapping the animals was legal since he had a permit to trap and kill them. It was only later in argument in court that it was submitted by his advocate that, in any event, any member of the public can establish the identity of the owner of any piece of land by reference to the national title deeds registry.
The cyclist who photographed the dead trapped animals was one of several cyclists (and hunters) who had been given free access to the farm, and the site of the animal traps.
Ownership of Botha’s residential and/or business address in Port Elizabeth was never the issue in the case. All that was at issue was whether Smuts’ publication of Botha’s business address (which transpired later to also be his residential address) was an infringement of his right to privacy.
Here it is worth recapping some of the SCA judges’ findings:
- “The [Eastern Cape] 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. The purpose of the public debate is to say things that others find different and difficult. Public debate does not require politeness.
- “[The Court] agrees 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 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.”
Should the ConCourt decide to hear the appeal – it must still grant Botha leave to appeal – among the questions it will have to reconsider are: if one’s residential address is private by right, does/can it remain private if it is also the well-advertised address of your business?
Is ‘naming and shaming’ – by exposing trapping that many argue is cruelty to animals, even if it is strictly legal and on a farmer’s private property – a legitimate form of political action and/or social censure? Or is it an unlawful infringement of the perpetrator’s privacy? Should activists enjoy the protection of the law as a worthy manifestation of a vigorous democracy, or are they just troublemakers to be silenced by the courts of law?
If readers respond to such naming and shaming by deciding to stop doing business with the named and shamed (insurance broker Botha says that is one of the damaging outcomes of activist Smuts’ WhatsApp disclosures), is that their right to freedom of choice and political action (as the Supreme Court of Appeal decided), or would that be a reason to declare naming and shaming unlawful?
Taking a case arising from the demise of a baboon and a porcupine all the way to the ConCourt might once have sounded ridiculous, but who would have thought so much hinges on our highest court’s decision?
Dr Bool Smuts has yet to file his answer to Herman Botha’s petition for leave to appeal to the ConCourt.
- 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.
Read also:
- Martin Welz: When taking a stand, politeness be damned
- Martin Welz: Animal rights and human privacy – a riveting mix
- Supreme Court of Appeal finds in favour of animal rights activist Bool Smuts
