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Released on: January 13, 2022

Landmark Foundation case

The Landmark Foundation has won a significant victory for their right to speak out about the
ethical treatment of animals. The conservation and animal welfare organisation defeated an
attempt by an Eastern Cape farmer to stop them publishing his details along with allegations
of the cruel treatment of animals on his property.
Animal welfare activist and Landmark director Bool Smuts in 2019 published on Facebook
photographs of cages containing a dead baboon and dead porcupine on the farm
Varsfontein, owned by Herman Botha. The photos had been taken by a cyclist who stumbled
upon the cages, and said it appeared the animals had died of dehydration.
On the Facebook page, Bool described the scenes in the pictures as “unethical, cruel and
barbaric … utterly vile. Ecologically ruinous.”
Bool also published a picture of Botha with his young daughter, and his home address and
telephone numbers, which he found on the internet.
Botha instituted an urgent application in the Eastern Cape High court to prohibit Smuts and
the foundation from defaming him and publishing private matter about him. The court
upheld the right to publish the photos and make his remarks, but ordered Smuts to remove
the personal information as it infringed Botha’s right to privacy. Smuts had already removed
the picture of the daughter.
Smuts appealed this judgement and on Monday, January 10, the Supreme Court of Appeal
found in his favour. “I agree with Mr Smuts that it would serve no useful purpose in
publishing the photographs without stating where they were taken, by whom the traps
were used and naming the farm and identifying the owner. The purpose of the public
debate is to say things that others find different and difficult. Public debate does not require
politeness,” Judge RS Mathopo wrote. Judges Zondi, Plasket, Mbatha and Unterhalter
concurred.
“If the High Court judgments in the matters stood, we would essentially have been silenced
in our ability to agitate for change in the way we act towards the biological ‘commons’ in
this country. This case assists any advocate for causes who have similarly been silenced by
the powerful from speaking out on ethical issues” Smuts said after the judgement.
He added: “This is a huge victory for so many animals suffering heinous acts by humans. It is
constitutionally a seminal case for activists and sectors way beyond our own.”
The publication of personal details is a sensitive matter, particularly since political bodies
have run into trouble when they published journalists’ details and encouraged their
followers to harass them. This finding confirms that it depends on the details of each case
whether public interest over-rides the rights to privacy.

Media statement

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