NM First Applicant SM Second Applicant LH Third Applicant
versus CHARLENE SMITH First Respondent PATRICIA DE LILLE Second Respondent NEW AFRICA BOOKS (PTY) LTD Third Respondent together with THE FREEDOM OF EXPRESSION INSTITUTE Amicus Curiae
Heard on : 9 May 2006 Decided on : 4 April 2007
In March 2002 a biography of Ms Patricia de Lille entitled “Patricia de Lille” and authored by Ms Charlene Smith was published by New Africa Books (Pty) Ltd. The names of three women who are HIV positive were disclosed. They alleged that their names had been published in the book without their prior consent having been obtained. The three women claimed that their rights to privacy, dignity and psychological integrity had been violated. A sequel to that publication was an action for damages in the Johannesburg High Court. The High Court dismissed with costs the action against Ms Smith and Ms de Lille.1
This is an application for leave to appeal against the judgment and order of Schwartzman J in the High Court which was handed down on 13 May 2005 and an amended costs order handed down on 19 May 2005. The High Court made the following order:
“1. The Plaintiffs claims against the First and Second Defendant are dismissed with costs;
2. The Third Defendant is ordered to pay each of the Plaintiffs an amount of R15 000;
3.1 The Third Defendant is, at its cost, directed to delete, from all copies of the book “Patricia de Lille” in its possession, the reference at page 170 and 171 to the Plaintiffs names;
3.2 Until such deletion is made, the Third Defendant shall not sell any further copies of the book;
3.3 To ensure that this part of the court’s order has been carried out, the Plaintiffs attorney shall, at any time after 30 June 2005, have the right on 72 hours notice to inspect all copies of the book in the Third Defendant’s possession;
4. The Third Defendant is to pay the Plaintiffs costs;
5. The court file is to be handed to the Registrar of this court, who shall keep it in a safe place and who shall not, without an order from a Judge in Chambers, disclose any part of its content that discloses the name, identity or HIV status of the Plaintiffs.”
The three women did not seek to appeal against that part of the judgment in terms of which the third respondent was found liable to compensate the applicants for damages suffered by them from the end of April 20022 to the date of judgment. Nor did they seek leave to appeal against that portion of the order that the respondents remove the names of the applicants from all unsold copies of the book.
Parties The first to third applicants are NM, SM and LH respectively. They are unemployed, adult women who live in informal settlements in and around Atteridgeville, Pretoria. Their identities are undisclosed as they are HIV positive and wish to prevent further publication of their identities and HIV status.
The first respondent is Charlene Smith, a journalist and author of the authorised biography of the second respondent. The second respondent, Patricia de Lille, is a Member of Parliament. The third respondent is the publisher of the book.
In time, the Freedom of Expression Institute (FXI) sought to join the fray and applied to be admitted as an amicus curiae. This Court granted the application. We are indebted to counsel for the FXI for well-prepared submissions and argument.
Factual background In August 1999, Dr Marietta Botes, head of the Immunology Clinic in the Medical Faculty of the University of Pretoria (the University), recruited volunteers to participate in clinical trials, known as the FTC 302 trials, directed at determining the efficiency of a combination of drugs that could decrease a patient’s HIV level. The volunteers, including the applicants, were required to sign a consent form indicating that they had been informed of the nature, benefits, side effects and the risks of the clinical trials. The trials were conducted at the Kalafong Hospital, Pretoria and ended in 2001.
Soon after the start of the clinical trials, concerns were raised by the participants, including the applicants, regarding illnesses and fatalities on the trials. The gravity of the complaints was noted. On 5 April 2000, the Minister of Health made a statement to Parliament regarding the effects of the drugs and called for a report from the Medicines Control Council, which found that a causal association between the drugs and the deaths was probable. As a consequence the Medicines Control Council halted any further recruitment of study projects while full reports were being compiled on all the serious adverse effects, including the deaths.
Some of the volunteers, in particular the applicants, complained specifically to Father Johan Viljoen, a former priest employed at the centre attached to the Kalafong Hospital while at a support group meeting for people with HIV/AIDS. Father Viljoen was concerned about the fact that so many of the volunteers were getting sick as a result of taking the drugs. He approached the second respondent for assistance with a complaint in March/April 2000. The second respondent was a Member of Parliament known for her stand in relation to the rights of people living with HIV/AIDS. The second respondent flew from Cape Town to meet with the applicants and to see whether a solution could not be found regarding the complaints raised by them.
On 28 March 2000, the second respondent met with members of the support group. The participants complained that, amongst others, the consent form was never properly explained to them and that Dr Botes was unsympathetic to complaints about the side effects of the drugs, which she attributed to the disease and not to the drugs themselves.
The second respondent and Father Viljoen investigated the complaints and took statements from, among others, the three applicants. A meeting with the Ethics Committee took place on 10 April 2000 in a lecture hall at the Pretoria Academic Hospital. Present at the meeting were Professor Falkson (head of the University Ethics Committee), members of the Ethics Committee, Dr Botes, the second respondent, Miss Vivienne Vermaak (a freelance journalist), other journalists and the South African Broadcasting Corporation. Even though there are disputes of fact regarding these meetings nothing turns on them.
Another meeting took place on 27 April 2000 in a small house in Atteridgeville Pretoria, which the second respondent also attended as well as 10 members of the support group. Statements were taken by Father Viljoen in English at that meeting. The first and second applicants admitted signing these statements.
On 3 May 2000 the second respondent sent copies of these statements to the Ethics Committee. On 4 May 2000 copies of the statements were also sent to the South African Human Rights Commission. As a result of that the Pretoria Academic Hospital decided to set up an internal investigation to look into the complaints. Dr Freislich was appointed to conduct the investigation. His report was submitted to the Ethics Committee and to Professor Grove (the Registrar of the University) during July 2000. This report, according to the applicants, was sent to the second respondent on 12 October 2000.3 The second respondent read the report and was aware of the applicants’ complaints included and expressed in the report. This report was allegedly filed with other AIDS-related documents in her AIDS file.
During August 2000 the University requested another external enquiry into the matter to complement the report of Dr Freislich. It appointed Professor SA Strauss to enquire into the allegations made in the statements. The second respondent was not invited to this enquiry, but the applicants and a number of other trialists were present. At the enquiry, the three applicants repudiated their statements made at the meeting in Atteridgeville on 27 April 2000 as incorrect. In his report, delivered on 30 May 2001, Professor Strauss exonerated the University and the Medical Faculty, stipulating there was no substance in the statements and no evidence of any improper conduct on the part of Dr Botes. Professor Grove also sent the Strauss Report to the second respondent, but without the annexures attached.4 The second respondent read the report and filed it with other AIDS related documents, and did nothing further regarding the matter. A copy of the report was also sent to Ms Vermaak, the journalist present at the meeting held at the University. A Martin Welz, also a journalist and editor of “Noseweek”, obtained a copy.
In the period September to November 2001 Ms Charlene Smith (the first respondent) was commissioned by the publisher to write a biography of Ms de Lille. The book was to include a chapter on Ms de Lille’s work in campaigning for the rights of those living with HIV/AIDS. During the trial, Ms Smith stated that although she had the Strauss Report, she did not have the annexures to it which contained the terms of the consent forms signed by the applicants. The consent forms did not permit full public disclosure of the identity of the three applicants and the fact that they are living with HIV/AIDS, but only permitted limited disclosure for the purposes of the University’s investigation. She stated that there was nothing in the report nor in the covering letter sent to Ms de Lille that suggested the report was confidential and pointed to the fact that the report had been circulated to two journalists. She confirmed in evidence that she knew that the annexures contained the terms of the consents of the three applicants. She also acknowledged that she knew that media ethics would require her ordinarily not to disclose a person’s HIV/AIDS status without his/her consent. She also stated that she had tried to obtain the annexures to the report from Professor Grove, but that he did not return her calls and she gave up trying to obtain the annexures. She also stated that though she originally made attempts to meet the three women, she did not succeed in these attempts either.
As stated before, the book was published in March 2002. The second respondent confirmed in evidence that the book is truly an authorised biography of herself. Some 5000 copies of the book were printed. The book was distributed to various bookshops during March 2002. Dr Botes bought a copy and after having read the relevant chapters, informed the applicants that their names and HIV status had been disclosed. The applicants denied consenting to the publication of their names and HIV status in the book.
The applicants were then referred to the University of Pretoria Law Clinic to obtain advice as to what they should do. On the advice from the Law Clinic, they sought to interdict publication of the book in the Pretoria High Court. The respondents opposed the application. The application was ultimately withdrawn, and the respondents did not press for a costs order.
On 26 July 2002, the applicants sent a letter to the respondents’ attorneys requesting the removal of their names from the book. The first and the second respondents replied to the letter stipulating that they did not regard themselves accountable to the applicants and if action was to be taken against them, it would be defended.5 The third respondent did not reply to the applicants’ request.
Approximately six months after the application for the interdict, the applicants sued the respondents for damages. They claimed: (a) a private apology from the respondents; (b) the removal or excision of their names from all unsold copies of the book; (c) payment by the respondents of the sum of R200 000 to each of the applicants, and (d) costs of suit. A pre-trial conference was held on 4 February 2005, but it appears that nothing was resolved there. The trial commenced before the High Court. The applicants applied for and obtained an order to prevent the disclosure of their identities. Judgment was given on 13 May 2005.6 The applicants appealed to the High Court for leave to appeal to the Supreme Court of Appeal.
On 22 August 2005, the High Court refused leave to appeal to the Supreme Court of Appeal. On 29 November 2005, the Supreme Court of Appeal dismissed with costs an application for leave to appeal without giving reasons.
Issues The following issues, amongst others, seem to arise from the dispute between the parties: Whether the issues raised in this application are constitutional matters and if so whether it is in the interests of justice to hear them;
Whether the disclosure or publication was of private facts;
Whether the disclosure was wrongful;
Whether the publication was done with knowledge of the wrongfulness of the conduct and with the intention to harm the applicants;
Whether the common law of privacy should be developed so as to impose liability on those who negligently publish confidential information;
If liability is established, what would be the appropriate quantum of damages?
What effect an offer of settlement which was made by the respondents in terms of Rule 34(1) should have on the costs order.
These are considered in the judgment. Litigation History
In the High Court In their summons in the High Court the applicants claimed damages based on the actio iniuriarum against the respondents jointly and severally for a violation by the respondents of their rights to privacy, dignity and psychological integrity arising from the publication in the book of their names and HIV status without their express authority and consent.7
In their plea and in the trial the respondents admitted publication of the names and HIV status of the applicants but denied that the publication was intentional or negligent. More specifically, they pleaded that the HIV status of the applicants was not a private fact at the time of the publication of the book. Furthermore, the respondents pleaded that the publication of the HIV status of the applicants was not unlawful because earlier the applicants had given their consent to their names being included in the Strauss Report which was undertaken at the instance of the University.
In the alternative the respondents pleaded that it was reasonable for any reader of the Strauss Report to assume that the necessary consent had been obtained since nothing in the report indicated that it was confidential. There was accordingly no malice on the part of the respondents in publishing the names of the applicants and their HIV status. The publication of the names would give authenticity to the book.
On the first day of the trial, but before the commencement of the proceedings, the respondents delivered an offer made without prejudice and without acceptance of liability to the applicants in terms of Rule 34(1) and (5).8 The terms of the offer were that:
(a) The respondents would pay R35 000 to each of the applicants;
(b) The respondents would make a private apology to each applicant;
(c) The respondents would pay the costs of suit;
(d) The names of the applicants would be deleted from all unsold copies of the book.
The applicants did not accept the offer within the time stipulated in the rules and so the trial proceeded as scheduled and lasted for some 10 days. Judgment followed shortly thereafter, and the matter was decided partly in favour of the applicants and partly in favour of the respondents. It is against that judgment that the applicants now approach this Court on appeal, an earlier appeal to the Supreme Court of Appeal having been dismissed without reasons being furnished.
In this Court In this Court the applicants complained that the High Court had failed to protect their rights to privacy, dignity and psychological integrity. While these rights are claimed by the applicants under the actio iniuriarum, they are also protected under the Constitution.9 In this case the applicants could not have instituted a constitutional claim directly because of the reasoning of this Court in Fose v Minister of Safety and Security.10
While the claim falls to be dealt with under the actio iniuriarum the precepts of the Constitution must inform the application of the common law.
Is this a constitutional issue? The applicants approached this Court with the view to vindicate their constitutional rights to privacy, dignity and psychological integrity which, they allege, have been violated by the respondents. Their claim is, however, based on the actio iniuriarum and, therefore, falls to be determined in terms of the actio iniuriarum.
It is important to recognise that even if a case does raise a constitutional matter, the assessment of whether the case should be heard by this Court rests instead on the additional requirement that access to this Court must be in the interests of justice and not every matter will raise a constitutional issue worthy of attention.
The dispute before us is clearly worthy of constitutional adjudication and it is in the interests of justice that the matter be heard by this Court since it involves a nuanced and sensitive approach to balancing the interests of the media, in advocating freedom of expression, privacy and dignity of the applicants irrespective of whether it is based on the constitutional law or the common law. This Court is in any event mandated to develop and interpret the common law if necessary.
Privacy The academic literature on privacy demonstrates the considerable controversy over the definitional nature and the scope of the right. However, it appears common cause in many jurisdictions that the nature and the scope of the right envisage a concept of the right to be left alone.
Privacy encompasses the right of a person to live his or her life as he or she pleases. In Bernstein and Others v Bester NNO and Others this Court stated:
“A very high level of protection is given to the individual’s intimate personal sphere of life and the maintenance of its basic preconditions and there is a final untouchable sphere of human freedom that is beyond interference from any public authority. So much so that, in regard to this most intimate core of privacy, no justifiable limitation thereof can take place. But this most intimate core is narrowly construed. This inviolable core is left behind once an individual enters into relationships with persons outside this closest intimate sphere; the individual’s activities then acquire a social dimension and the right of privacy in this context becomes subject to limitation.”11 (Footnotes omitted.)
Were these private facts and were they wrongfully published? Private facts have been defined as those matters the disclosure of which will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence in the same circumstances and in respect of which there is a will to keep them private.12
The applicants contended that as a result of the disclosure of their names and HIV status to the public the respondents had wrongfully and intentionally or negligently violated their rights of personality, more particularly their right to privacy, dignity and psychological integrity. They therefore averred that they had suffered damages.