Botha v Smuts and Another [2024] ZACC 22

Case Name: Botha v Smuts and Another [2024] ZACC 22 

Botha v Smuts and Another (CCT 40/22) [2024] ZACC 22; 2024 (12) BCLR 1477 (CC); 2025 (1) SA 581 (CC) (9 October 2024)

Court: Constitutional Court of South Africa

Date of Decision: 9 October 2024

Bench: Zondo CJ, Chaskalson AJ, Dodson AJ, Kollapen J, Mhlantla J, Rogers J, Schippers AJ and Tshiqi J

Judgments: Kollapen J (majority); Chaskalson AJ (concurring); Rogers J and Schippers AJ (dissenting in part); Zondo CJ (dissenting)

Abbreviations

• CC — Constitutional Court of South Africa
• FB — Facebook
• NPC — Non-Profit Company
• NGO — Non-Governmental Organisation
• PI — Personal Information
• POPIA — Protection of Personal Information Act 4 of 2013
• SCA — Supreme Court of Appeal
• SA — South African

Introduction

Botha is the first judgment of the Constitutional Court to address the scope of the right to privacy under section 14 of the Constitution in the context of social media publication. The case determines whether a person who voluntarily places personal information in the public domain retains any constitutional privacy protection when that information is re-published by a third party for an unrelated purpose. In resolving this question, the Court navigates the tension between the right to privacy and freedom of expression under section 16, clarifies the dual expectations test from Bernstein, and introduces a purpose-of-disclosure principle that reshapes South African informational privacy law.

Facts of the Case

The applicant, Mr Botha, is an insurance broker residing and conducting business in Gqeberha (Port Elizabeth). He also owns a commercial farm, Varsfontein, situated in Alicedale in the Eastern Cape Province. On 23 September 2019, Mr Nicolaas Louw participated in an authorised adventure cycle ride across Varsfontein, where he photographed a dead baboon and porcupine in cage traps. He shared the photographs with Mr Smuts, executive director of the Landmark Leopard and Predator Project – South Africa, a wildlife conservation NGO. Mr Smuts identified Mr Botha through his neighbour and a Google search, which returned the name and address of Mr Botha’s insurance brokerage — an address that was also Mr Botha’s home, though Mr Smuts was unaware of this.

After Mr Botha declined engagement and blocked Mr Smuts on WhatsApp, Mr Smuts published a post on Landmark’s Facebook page on 9 October 2019. The post included, among other things, photographs of the trapped animals, a screenshot of Mr Botha’s brokerage address, and a WhatsApp exchange confirming the existence of permits. Within 24 hours, over 200 responses had been posted, most hostile to Mr Botha, including one suggesting someone “drop him a visit.” Mr Botha sought urgent interdictory relief in the High Court, Eastern Cape Local Division, initially for defamation; his replying affidavit raised the right to privacy for the first time. The High Court confirmed a modified rule nisi, ordering deletion of references to Mr Botha’s name, address, and brokerage. The SCA reversed this order entirely, holding that all published information was in the public domain and attracted no privacy protection. Mr Botha sought leave to appeal to the Constitutional Court.

Legal Issues

The Constitutional Court was called upon to determine the following questions of law:

1. Whether Mr Botha’s claim, raised expressly only in his replying affidavit, was properly before the Court.
2. Whether a person retains a reasonable expectation of privacy in personal information voluntarily placed in the public domain.
3. Whether Mr Botha held a privacy right in respect of his ownership of Varsfontein and the trapping activities conducted there.
4. Whether Mr Botha held a privacy right in his insurance brokerage address, and whether that expectation extended to the address in its capacity as his residential address.
5. Whether any established privacy right outweighed the respondents’ right to freedom of expression under section 16 of the Constitution.

Arguments Presented

Applicant’s Arguments

Mr Botha submitted that voluntary public disclosure does not extinguish informational self-determination. A person retains a privacy right against the re-publication of disclosed information for a purpose wholly unrelated to the original disclosure. The public debate on animal trapping, he argued, could have proceeded without disclosing his personal identity and address. The post, evaluated as a whole, constituted digital vigilantism exposing him and his family to physical harm.

Respondents’ Arguments

The respondents submitted that Mr Botha’s ownership of Varsfontein was a matter of public record and that his brokerage address had been published by Mr Botha himself across ten commercial websites. This information lacked the intimate character necessary to attract privacy protection under Bernstein, and the SCA had correctly held that its public-domain status extinguished any privacy expectation. The respondents further relied on their constitutionally protected right to freedom of expression in a matter of legitimate public concern.

Amicus Curiae

The Campaign for Free Expression NPC urged the Court to provide guidance on the intersection between the constitutional right to privacy and POPIA, which would govern similar disputes in future.

Court’s Reasoning and Analysis

Kollapen J, writing for the majority (Dodson AJ, Mhlantla J and Tshiqi J concurring), reaffirmed the Bernstein dual expectations test — requiring both a subjective expectation of privacy and an objectively reasonable one — as the governing framework. He applied this test by disaggregating the published information into its component parts rather than evaluating the post holistically. On the pleadings, the majority held that while privacy was not directly invoked in the founding affidavit, the factual averments and notice of motion sufficiently foreshadowed the privacy case, and the respondents had been neither prejudiced nor denied an opportunity to address it.

On the farm and trapping activities, no subjective privacy expectation existed: the farm was a commercial enterprise to which the public had been granted lawful access, and animal trapping conducted without restriction was not a private fact. Meaningful public discourse on trapping required identifying the person responsible. On the brokerage address, a majority of six held that Mr Botha had no reasonable expectation of privacy: he had published it across ten commercial websites to attract clients. On the home address, five justices held that the physical coincidence of the brokerage and residential address did not deprive the latter of its private character — Mr Botha had never indicated that his business address was also his home. Re-publication of the address in a post concerning animal trapping — entirely unrelated to the insurance business — exceeded the scope of the consent implied by commercial publication.

Balancing under section 36 of the Constitution, the majority found that the home address added no meaningful value to the public debate on trapping, and the privacy right prevailed. Chaskalson AJ concurred in the outcome but on a narrower basis: the only permissible privacy case on the founding papers was the right to be free from unwanted intrusion at the family home. He emphasised the ongoing and interactive nature of an FB post — not an instantaneous act but a continuous publication. He held that the respondents’ insistence on reinstatement, with knowledge that the address was Mr Botha’s home and that the post had already generated threatening responses, made the ongoing publication unlawful.

Rogers J (Schippers AJ concurring) agreed with the majority’s general approach but dissented on the home address, holding that Mr Smuts had published only what Mr Botha himself had published: the brokerage address, without knowing or representing it as a residential address. There was no evidence of anyone having visited or protested at the address. The appeal, in Rogers J’s view, should have been dismissed in its entirety. Zondo CJ dissented, holding that leave should be refused. Mr Botha’s founding affidavit was framed unmistakably in defamation; the privacy claim raised in reply was an entirely new cause of action. Allowing a litigant to reconstruct his case in this manner, without exceptional circumstances, violated the foundational rule of motion proceedings and the respondents’ right to a fair hearing under section 34 of the Constitution.

Judgment and Ratio Decidendi

The Court upheld the appeal in part by a majority of five. The SCA’s order was set aside and replaced with an order directing the respondents to delete the annexure containing Mr Botha’s address from Landmark’s FB page, to refrain from further publication of his address, and to ensure prompt deletion of third-party posts referencing it. The right to publish information about the farm, the trapping activities, and the brokerage itself was confirmed. Each party bore its own costs throughout.

The ratio decidendi of the majority is this: voluntary disclosure of personal information for a specific, limited purpose does not, by itself, extinguish constitutional privacy protection. A person retains a reasonable expectation of privacy against the re-publication of that information for a purpose inconsistent with and unrelated to the original disclosure. Where the information constitutes a home address, and its inclusion adds no material value to the exercise of freedom of expression, the right to privacy prevails in the constitutional balancing exercise under section 36.

Critical Analysis

Significance of the Decision

Botha, as Boonzaier notes, is the Constitutional Court’s most comprehensive statement of the principles governing civil privacy claims, and it will become practically very important. It confirms that public-domain status does not extinguish all privacy interests, establishes a standalone public interest defence as the governing justification mechanism, and gives the family home heightened constitutional protection. It also brings South African civil privacy law into closer alignment with Anglo-American law, particularly the English tort of misuse of private information.

The Public Interest Defence

By adopting a standalone public interest defence rather than transposing defamation’s specific defences to privacy, Botha takes a step defamation law has deliberately refused. Boonzaier notes that loose balancing tests produce unpredictable outcomes: American writers have condemned them as licensing “naked creative choices,” and Ackermann J had specifically warned in Bernstein against assimilating the actio iniuriarum justification enquiry to constitutional-style balancing. Boonzaier further identifies what he terms “common-law avoidance”: the word “delict” appears nowhere in the judgment, and the Court instead imports constitutional norms into a space already occupied by the common law.

The Purpose-of-Disclosure Principle

The most controversial holding is that Mr Botha retained a privacy right in his home address despite publishing it globally on ten commercial websites, because Mr Smuts re-published it for an unrelated purpose. Boonzaier describes this as going further than any prior authority, creating a “strong principle, surely too strong.” In almost any case, a plaintiff can plausibly claim that the defendant’s purpose diverged from the original; unless moderated, the principle “would vastly extend privacy protections and pose severe risks to free speech.” That Chaskalson AJ declined to endorse this reasoning, reaching the same outcome on the narrower ground of ongoing unlawful intrusion, further limits its precedential force.

Implications

The bright-line protection of the family home commands broad approval and creates valuable structural alignment between constitutional privacy and POPIA’s purpose-limitation provisions under sections 13 and 15. However, the majority’s disaggregation methodology leaves an aggregation gap: a defendant who assembles multiple individually non-private facts into a harmful profile may escape liability if no single item crosses the privacy threshold. This is the terrain where future courts — and, if necessary, the legislature — will need to act.

Conclusion

Botha advances South African privacy law meaningfully in the digital age. Its protection of the family home and its alignment of constitutional privacy with POPIA’s purpose-limitation framework are lasting contributions. However, the purpose-of-disclosure principle, unless moderated, risks expanding liability well beyond what the facts required and chilling freedom of expression online. The Court’s preference for open-ended balancing over rule-based defences, and its failure to engage with the actio iniuriarum, leave foundational questions for future courts to resolve.

Bibliography

Case law

Bernstein v Bester NNO [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC)

Botha v Smuts and Another (CCT 40/22) [2024] ZACC 22; 2024 (12) BCLR 1477 (CC); 2025 (1) SA 581 (CC) (9 October 2024)

Journal Article

Leo Boonzaier, “Privacy, Public Interest, and the Purpose of the Internet” (2025) 142 SALJ 528

Legislation

The Constitution of the Republic of South Africa, 1996

Protection of Personal Information Act 4 of 2013