News and Views


Since the Protection of Personal Information Act No. 4 of 2013 (“POPIA”) came into effect, the courts have been seemingly reluctant to rely on POPIA in their judgments pertaining to privacy and data protection. Nevertheless, there are a number of judgements which deal with the right to privacy; a right which is entrenched in the Constitution of the Republic of South Africa, and, as POPIA gives effect to the Constitutional right to privacy, these judgments may be an indication of how POPIA’s principles will be interpreted by South African courts. This article explores two such judgements and the key takeaways therefrom.  

Bool Smuts and Another v Herman Botha 2022 (2) SA 425 (SCA) 

In September 2019, a group of cyclists participating in an adventure ride traversed a farm owned by one Mr. Botha. During the ride, they discovered cages containing a dead baboon and porcupine, leading to allegations of unethical animal trapping practices. One of the cyclists took photos and shared them with Mr. Smuts, a wildlife conservationist and activist. Mr. Smuts posted the photos on Landmark Leopard’s Facebook page in a post criticizing the alleged unethical practices of Mr. Botha, along with a picture of Mr. Botha holding his six-month old daughter, a Google Search Location of Mr. Botha’s business, his home address and his telephone numbers. A WhatsApp conversation between Mr. Smuts and Mr. Botha was also posted in which Mr. Smuts asked Mr. Botha if he had a permit to trap animals, to which he responded in the affirmative.  

Mr. Botha sought an interim interdict against the disclosure of his personal information, which was granted. The high court held that while Mr. Smuts had the right to comment on the photos, revealing Mr. Botha’s identity and farm name invaded his privacy. The court emphasized the public interest in the topic but found Mr. Botha’s personal information is protected by his Constitutional right to privacy. Mr. Smuts appealed the judgement. 

The appeal focused on the balance between the right to privacy and freedom of expression. The appeal court argued that the identity of Mr. Botha and his farm are matters that he permitted to be placed in the public domain, emphasizing the public interest in exposing alleged animal trapping cruelty. It criticized the high court’s decision, stating that it stifled debate, interfered with freedom of expression, and failed to recognize the public interest in disclosing Mr. Botha’s activities. 

The judgment concluded that Mr. Smuts had the right to expose the alleged animal trapping practices, and that Mr. Botha’s weak right to privacy did not justify the interdict. The court set aside the high court’s order and upheld Mr. Smuts’ appeal. 

The key takeaway from this case is that when a person has posted their personal information in the public domain, they cannot have a legitimate expectation of privacy regarding that personal information or that the publication of their personal information should be prohibited.  

Discovery Ltd and Others v Liberty Group Ltd [2020] 2 All SA 819 (GJ) 

This case arose as a result of Liberty Group Ltd offering rewards to its customers by paying them a Wellness Bonus for having a good Discovery Vitality status. In response, Discovery Ltd sought an interdict against Liberty Group Ltd, alleging trade mark infringement and unlawful competition due to Liberty’s use of the Discovery Vitality Programme in connection with the latter’s insurance offerings. Discovery Ltd claimed that Liberty Group Ltd unlawfully linked its insurance plans to the Vitality Programme, thereby infringing Discovery’s trade marks and engaging in unfair competition. For the purposes of this article, I will only deal with the use of personal information, i.e., a member’s Vitality status by Liberty. 

The court found that a client’s Vitality status is the member’s personal information and that it does not form part of Discovery’s confidential proprietary information. Accordingly, a member is free to make the personal information public and to voluntarily disclose their Vitality status to third parties (including competitors of Discovery such as Liberty).  

The key takeaway from this judgement is that personal information belongs to the person to whom it relates (i.e., the data subject) and that such personal information may be treated as property by the data subject, which gives such person the right to monetise their personal information, if they so choose. 

We hope to see POPIA being invoked by our courts in future judgements so as to address the various areas of uncertainty that exist and in order to assist in ensuring compliance by those who are required to implement it. 

Mercia Fynn

Head: Commercial Department

Tel +27 11 324 3033

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