Privacy v Freedom of Expression – in the South African bushveld

30 October 2025 by Rosalind English

Botha v Smuts and another [2024] ZACC 22

I recently came across this judgement by the South African Constitutional Court. As a “Saffa” myself, I rejoice in the case’s title, pairing the name of the penultimate prime minister of the old apartheid South Africa (Botha), and the name (Smuts) of a much earlier Prime Minister of the Union of South Africa from 1919 to 1948.

But this case concerned two ordinary people, an insurance broker and an environmental activist, locking horns over their respective rights to privacy and freedom of expression under the South African Bill of Rights. The Constitutional Court judgment – running into nearly 100 pages in the Butterworths Human Rights Cases – is an interesting example of “salami slicing”, where the court takes apart a protected right and determines which bits of it can be upheld in the circumstances, and which can be set aside. It is also a fascinating insight into how information on social media platforms involves constant “re-publication”, and what that means for privacy and free speech rights. And finally, the judicial reflections on publication of someone’s personal address in the days of WFH show how far we have changed as a society since the pandemic.

The facts can be set out briefly.

Background facts and law

The applicant, Mr Botha, is an insurance broker who resides and conducts business in Gqeberha. He is also the owner of the farm Varsfontein situated in Alicedale in the Eastern Cape Province, a hundred kilometers away from his home.

The first respondent, Mr Smuts, is a wildlife conservationist, farmer, researcher and activist. The second respondent (amicus) is the Landmark Leopard and Predator Project – South Africa, a conservation non-governmental organisation focusing on human wildlife conflict management and leopard and carnivore conservation. It was founded by Mr Smuts who is its executive director.

A member of a group of cyclists who participated in an organised adventure ride that traversed Mr Botha’s farm (legally) encountered a dead baboon and porcupine in cage traps. The animals appeared to him to have been exposed to suffering and distress. Outraged by what he saw, the cyclist photographed the dead animals in the cages with the intention of sharing the photographs with an organisation capable of taking action. He shared them with Mr Smuts on 1 October 2019.

He also sent Mr Smuts a detailed map depicting the location of Mr Botha’s farm on which he indicated the place on the farm where the photographs were taken.

Mr Smuts published a post on the second respondent’s Facebook page which included, amongst others,

(a) a photograph of a baboon trapped in a cage;
(b) a photograph of a porcupine trapped in a cage;
(c ) a Google search location of Mr Botha’s insurance brokerage address (which turned out also to be Mr Botha’s residential address) and telephone number.

Litigation history

Mr Botha initiated urgent legal proceedings against the respondents to remove the post. The High Court granted urgent relief in the form of a rule nisi with an interim interdict ordering Mr Smuts to delete the post and refrain from posting further with reference to Mr Botha, his family, his addresses and his insurance brokerage.

The relief that Mr Botha sought was initially based on defamation. Mr Smuts relied on his right to freedom of expression to publish the post and disputed that the post was defamatory, arguing that it constituted fair comment based on facts that were true and on matters of public interest. In addition, he denied that what was published constituted private information, saying that he sourced most of it from public sources where it had been placed by Mr Botha himself.

The High Court accepted that animal trapping raised strong and diverse public views and that despite being legal, such practices were open to criticism. The Court noted the ongoing debate on animal rights and the importance of breathing life into public conversation to minimise animal suffering. It also recognised the central role that voices like those of Mr Smuts might play in advancing the debate.

But that court concluded in the end that Mr Botha’s privacy rights prevailed over the respondent’s right to freedom of expression. The High Court judgment was reversed by the Supreme Court of Appeal which found that section 16 of the Constitution gave activists the right to share information with the public if such dissemination was in the public interest, weighing the right to privacy against freedom of expression, and that the respondent could not have used less intrusive measures to “name and shame” Mr Botha. Mr Botha did not have, in their view, a subjective expectation of privacy in respect of the information about his ownership of the farm which was registered at the Deeds registry. Details of his insurance brokerage information and address were also publicly available.

Arguments before the Constitutional Court

Mr Botha contended that the matter engaged that Court’s constitutional jurisdiction to the extent that it involved the relationship between the right to privacy and the right to freedom of expression. In particular, he argued that the issue in dispute related to the expectation of privacy and whether and under what circumstances it can be forfeited. He submitted that he could never have reasonably expected that any person would link him to the lawful trapping on the farm and that he had every right to believe that private facts would remain private, even if cyclists traversed the farm and saw evidence of such trapping.

The respondents maintained that the right to privacy was not truly implicated given that the information was in the public domain, diminishing any privacy interest. They endorsed the Supreme Court of Appeal’s finding that a commercial farm carries very little expectation of privacy in relation to the practice of animal trapping.

The Constitutional Court ruled in favour of Botha, holding that the publication of his residential address on social media constituted an unjustifiable violation of his right to privacy. In the majority view, public availability such information does not entirely remove an individual’s expectation of privacy.

Reasoning behind the Court’s decision

In his ruling, Kollapen J observed that this matter was of appreciable significance to that section of the public that engages with the access and dissemination of information in any online context.

“Today, that broader public is growing in its engagement with online platforms. In an ever-evolving digital age, this Court must address this issue as technology and its use develop in order to provide relevant direction on the lawful use of publicly available information and certainty on the expectation of privacy in those circumstances.” [para 38]

The two operative rights in question were the right to privacy and the right to freedom of expression. Though not central to the determination of this matter, section 24 of the Constitution – the right to a healthy environment – was also implicated. As such, the Court considered it insofar as the right to freedom of expression is used to draw attention to the issues concerning animal practices which relate to our right to a healthy environment.

I have written on the nascent concept of animal welfare playing a part in the interpretation of “other interests” in Article 9 of European Convention of Human Rights in the Strasbourg Court’s decision to uphold the Belgian ban on non-stun slaughter here. See also Anna Sargeant and Julia Hartley’s reflections on this subject in a more recent post here.

Kollapen J recalled the South African case of National Society for the Prevention of Cruelty to Animals[2016] ZACC 46 where this Court explained the connection between animal welfare and the protection of the environment:

“Animal welfare is connected with the constitutional right to have the ‘environment protected . . . through legislative and other means’. This integrative approach correctly links the suffering of individual animals to conservation, and illustrates the extent to which showing respect and concern for individual animals reinforces broader environmental protection efforts. Animal welfare and animal conservation together reflect two intertwined values.” [para 89]

The judge acknowledged that Mr Smuts’ stance was that the information published, while personal, was not private in that it related to neutral, objective information and lacked any quality of being intimate and sensitive. Smuts further argued that what was published was not untrue and that the activity of trapping was something that Mr Botha accepted and defended as part of his commercial farming operations. There could therefore be no basis to suppress this information or treat it as secret and it formed both what Mr Smuts was entitled in law to share with the public and what the public in turn was entitled in law to receive as information relevant to and linked to the photographs and the post.

” It would be artificial [submitted the respondent] to engage in open and transparent public debate on a specific incident and form of trapping captured by photographs and a descriptive post without describing the location of the activity or person responsible for it. The essence of public debate is full disclosure which provides an opportunity to persuade others and a forum for different views to be aired. Conducting such a debate under conditions of anonymity undermines the transparency and newsworthiness of the dialogue.” [para 125]

Despite all of the above, the Court concluded that Botha’s privacy rights prevailed over Smuts’ freedom of expression. Chaskalson AJ eflected that privacy rights in the modern world go far beyond what was contemplated in the days of Brandeis and Warren when they first developed the jurisprudence on privacy, over a century ago, as “the right to be left alone”. We now live in a 21st century world “of online cyberbullying, privately owned and freely accessible search engines, and digital surveillance by private corporations of movements, purchasing patterns, internet browsing preferences and the like. In our 21st century world the right to privacy would be eviscerated if it did not also protect against unwanted and unwarranted intrusion by private parties.” [para 202].

Comment

This case sets an important precedent for handling tensions between privacy rights and free expression in the digital age, especially regarding the posting of personal data from public records to social media platforms with a much wider audience. As Chaskalson AJ observed,

“Publication on social media is frequently not a unidirectional process in the way that publication in print or broadcast media has historically been. Publication on social media is often designed to initiate or to engage in a process where participants on a social media platform respond to the posts that have preceded their posts. In this way, social media platforms can facilitate the active exchange of views and information in a way that print media publications could never do.” [para 191]

Now, a person can retain a reasonable expectation of privacy even if some of their details are available in the public domain.