A farmer lost his legal bid not to have social media posts of dead animals on his farm removed. Picture: file
A farmer lost his legal bid not to have social media posts of dead animals on his farm removed. Picture: file

Farmer loses bid to gag social media posts of dead baboon, porcupine in cages

By Zelda Venter Time of article published Jan 12, 2022

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Pretoria - A farmer who complained after a wildlife conservationist posted pictures on social media sent to him of a dead baboon and porcupine in cages on the farmer’s premises, has lost his legal bid not to have this information published.

Eastern Cape farmer and insurance broker Herman Botha was livid after conservationist Bool Smuts posted pictures of the dead animals on Facebook. Also included were Botha’s details, such as where he lived.

Botha turned to the Grahamstown High Court and obtained an interdict against Botha from publishing his details online. While Botha did remove some of the details, he did not take the interdict against him lightly.

He turned to the Supreme Court of Appeal, where five judges ruled in his favour and ordered that the interdict had to be lifted.

The judges reasoned that while the right to privacy was important, there were occasions that the public interest prevailed. The court said that, besides, a lot of Botha’s personal information, such as that he owned the farm, were in any event out there of his own accord.

Botha’s unhappiness followed an incident in September 2019, in the early hours of the morning, when a group of cyclists were participating in an adventure trip.

During their ride they cycled past the farm Varsfontein, belonging to Botha, when one of the cyclists noticed two cages on the farm, one containing a dead baboon, and the other a dead porcupine.

According to the cyclist the cages were in the sun, there was no water, and 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.

He sent the pictures to Smuts, who is also the founder and executive director of the organisation Landmark Leopard and Predator Project – South Africa.

Smuts contacted Botha via WhatsApp and Botha confirmed that he had a valid permit to hunt, capture and/or kill the baboons, porcupines and other vermin.

Smuts then posted, on Landmark Leopard’s Facebook pages, pictures of the dead baboon and the porcupine trapped on the farm, and included a picture of Botha holding his six-month-old daughter.

Additionally, he posted a Google Search Location of Botha’s business, his home address and his telephone numbers.

As a caption to the pictures, Smuts, among others, called Botha’s conduct “unethical”, “cruel” and “barbaric.”

The post generated many comments on Facebook, which were mostly insulting of Botha and the particular practice of trapping animals.

Unhappy with the posts and the publicity it generated, Botha successfully obtained an interdict prohibiting Smuts from publishing “defamatory” statements about him and from posting pictures of him and his family and stating where they lived.

In granting the interdict, the high court reasoned that the name of the farm and Botha’s identity, as owner of it, constituted personal information protected by his right to privacy.

The high court accepted that the use of animal traps was a matter of public interest and that voices of activists like Smuts must be heard and engaged.

Nonetheless, it found that there was no compelling public interest in the disclosure of Botha’s personal information.

On appeal, Judge Steven Mathopo said the high court erred in issuing the interdict. His reasons included that the court failed to recognise that publicising the truth about Botha’s animal trapping activities, to which the public have access, and interest, does not trump his right to privacy.

The judge said it would serve no useful purpose in publishing the pictures without stating where they were taken, by whom the traps were used, and naming the farm and identifying its owner.

The judge said Botha’s personal information was in the public domain before Smuts published the posts.

His ownership of the farm Varsfontein was a matter of public record in the Deeds Registry, and it is known that he is an insurance broker.

Pretoria News

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