Farmer who kills ‘vermin’ can be outed on Facebook, appeal court rules

An animal-rights activist who habitually names and shames offenders on Facebook has won the right to keep doing so after being challenged by a farmer who trapped and killed animals he regarded as vermin.

Bool Smuts, of the Landmark Leopard and Predator Project, heard on Monday that the Supreme Court of Appeal had overturned a Port Elizabeth high court judgment in favour of Alicedale farmer Herman Botha.

Botha, also an insurance broker in Gqeberha, won an interdict after Smuts posted photographs taken in September 2019 by a cyclist taking part in a race through the farm. They showed cages containing the bodies of a baboon and a porcupine.

Posting the photos, Smuts said: “While we spend our efforts trying to promote ecologically acceptable practices on livestock farms to promote ecological integrity and regeneration, we are inundated by reports of contrarian practices that are unethical, barbaric and utterly ruinous to biodiversity.

“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 — see the WhatsApp conversation with him attached.

“The images show a trap to capture baboons [they climb through the drum to get access to the oranges — often poisoned — and then cannot get out]. See the porcupine in traps too. Utterly unethical, cruel and barbaric.”

Smuts also posted the farmer's home and business addresses and telephone numbers and judge of appeal Rammaka Mathopo said the post generated comments that were slanderous and insulting about Botha.

“One user suggested that, ‘he should be in that cage’ and another user suggested that Mr Botha should be ‘paid a visit’. One person suggested that Mr Botha’s business should be boycotted and a campaign launched to name and shame him and his insurance brokerage business,” said Mathopo.

Botha obtained an interdict which said Smuts was entitled to publish the photographs and comment on them but the name of the farm and its owner “constituted personal information protected by his right to privacy”, said Mathopo, who was recently promoted to the Constitutional Court.

He and his four colleagues were unanimous in finding that the high court got the balance wrong between Smuts' freedom of expression and Botha's right to privacy.

Mathopo said: “The identity of Mr Botha and his farm are matters that he permitted to be placed in the public domain. So too are his practices of animal trapping; he openly admitted his use of animal traps.

“His discomfort that these practices formed the subject of Mr Smuts’ critical posts did not render the information he had made public, now private. The commercial farming activities of Mr Botha and the practices used by him to carry out these activities carry a very modest expectation of privacy from the perspective of what society would consider reasonable.”

Mathopo said the high court erred in disregarding the content of Smuts’ post and focusing on the response by members of the public.

“This approach has far-reaching implications on activists like Mr Smuts because it stifles the debate and censors activists’ rights to disseminate information to the public,” he said.

“In so doing, it denies citizens the right to receive information and a platform for the exchange of ideas, which is crucial to the development of a democratic culture.

“It cannot be denied that the public has a right to be informed about the animal practices at Mr Botha’s farm. The question to be asked is whether Mr Smuts could use less-restrictive means to achieve the purpose of ‘outing’ Mr Botha’s animal trapping activities without publicising his personal information. I think not.”

“The public interest in the treatment of animals apart from the lawfulness of the trapping must accordingly enjoy protection over his personal information. To give context to this matter, the issue relates to the ethics, cruelty and vile treatment of the animals.

“The constitution recognises that individuals in our society need to be able to hear, form and express opinions freely, on a wide range of topics. Honest information and publication of animal trappings is no exception.

“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.

“What is damning for Mr Botha is that he makes use of animal traps openly where hunters and cyclists have access. I fail to understand how it can be contended that it was unlawful for Mr Smuts to publicise the fact that the photographs were taken on a farm belonging to Mr Botha.”

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