NM and Others v Smith and Others (CCT69/05) [2007] ZACC 6 (4 April 2007)

Case CCT 69/05

[2007] ZACC 6

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

JUDGMENT

MADALA J:

Introduction

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:
1. Whether the issues raised in this application are constitutional matters and if so whether it is in the interests of justice to hear them;
2. Whether the disclosure or publication was of private facts;
3. Whether the disclosure was wrongful;
4. Whether the publication was done with knowledge of the wrongfulness of the conduct and with the intention to harm the applicants;
5. Whether the common law of privacy should be developed so as to impose liability on those who negligently publish confidential information;
6. If liability is established, what would be the appropriate quantum of damages?
7. 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;

(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.

The respondents, denying any liability to the applicants, relied on the fact that the applicants’ names had previously been disclosed in the Strauss Report and that the report was not marked “confidential”. The applicants argued that the respondents had made public their names and HIV status. As a response to that the respondents contended that the HIV status of the applicants was not a private fact.

The respondents testified that the applicants and others had agreed at a meeting to present their grievances orally to the Ethics Committee in the presence of the media. The motivation was that having the media present would result in the quick resolution of the problems. The respondents contended that the applicants knew that their grievances were likely to be reported and to reach the public because the grievances had been made in the presence of journalists.

The respondents in their defence stated that the publication of the HIV status of the applicants was already in the public domain when the book was published and that therefore the applicants had no basis for complaining. They had appeared before the various commissions of inquiry including the Strauss inquiry and had brought an application in their own names in the High Court seeking an interdict against the inclusion of their names in the book.

In my view, when they made their application for the interdict in their names, they were not thereby saying their names should be published in a book having a wide circulation throughout South Africa, which would be the position since the second applicant is a national figure. Similarly by attending the various inquiries they were not giving blanket consent to the publication of their status.

Private and confidential medical information contains highly sensitive and personal information about individuals. The personal and intimate nature of an individual’s health information, unlike other forms of documentation, reflects delicate decisions and choices relating to issues pertaining to bodily and psychological integrity and personal autonomy.

Individuals value the privacy of confidential medical information because of the vast number of people who could have access to the information and the potential harmful effects that may result from disclosure. The lack of respect for private medical information and its subsequent disclosure may result in fear jeopardising an individual’s right to make certain fundamental choices that he/she has a right to make. There is therefore a strong privacy interest in maintaining confidentiality.

The disclosure of an individual’s HIV status, particularly within the South African context, deserves protection against indiscriminate disclosure due to the nature and negative social context the disease has as well as the potential intolerance and discrimination that result from its disclosure. The affirmation of secure privacy rights within our Constitution may encourage individuals to seek treatment and divulge information encouraging disclosure of HIV which has previously been hindered by fear of ostracism and stigmatisation. The need for recognised autonomy and respect for private medical information may also result in the improvement of public health policies on HIV/AIDS.

As a result, it is imperative and necessary that all private and confidential medical information should receive protection against unauthorised disclosure. The involved parties should weigh the need for access against the privacy interest in every instance and not only when there is an implication of another fundamental right, in this case the right to freedom of expression.

The assumption that others are allowed access to private medical information once it has left the hands of authorised physicians and other personnel involved in the facilitation of medical care, is fundamentally flawed. It fails to take into account an individual’s desire to control information about him or herself and to keep it confidential from others. It does not follow that an individual automatically consents to or expects the release of information to others outside the administration of health care. As appears from what has gone on before there is nothing on the record to suggest that the applicants’ HIV status had become a matter of public knowledge.

This protection of privacy in my view raises in every individual an expectation that he or she will not be interfered with. Indeed there must be a pressing social need for that expectation to be violated and the person’s rights to privacy interfered with. There was no such compelling public interest in this case.

The High Court held that the first and second respondent were not liable for any damage suffered at the time of publication of the book. I disagree with this finding of the High Court. The first respondent did not sufficiently pursue her efforts to establish if the necessary consents had been obtained, despite having ample time to do so. More importantly she could have used pseudonyms instead of the real names of the applicants. The use of pseudonyms would not have rendered the book less authentic. The same position applies to the second respondent.

I am, therefore, persuaded that the publication by the respondents of the HIV status of the applicants’ constituted a wrongful publication of a private fact and so the applicants’ right to privacy was breached by the respondents. The need for access to medical information must also serve a compelling public interest.

Dignity

It is trite that the actio iniuriarum under the common law protects both dignity and privacy under the concept of dignitas. There is nothing shameful about suffering from HIV/AIDS. HIV is a disease like any other; however the social construction and stigma associated with the disease make fear, ignorance and discrimination the key pillars that continue to hinder progress in its prevention and treatment. These pessimistic perceptions persist to fuel prejudice towards people living with HIV/AIDS. Living with HIV/AIDS should not be viewed as a violation of one’s dignity. Rather, an acceptance that HIV/AIDS should be treated like any other disease would help to destigmatise negative perceptions and pave the right channels to encourage positive change in the lives of those afflicted with HIV/AIDS, as well as in the treatment of the disease. It is, however, an affront to the infected person’s dignity for another person to disclose details about that other person’s HIV status or any other private medical information without his or her consent.

A constant refrain in our Constitution is that our society aims at the restoration of human dignity because of the many years of oppression and disadvantage. While it is not suggested that there is a hierarchy of rights it cannot be gainsaid that dignity occupies a central position. After all, that was the whole aim of the struggle against apartheid – the restoration of human dignity, equality and freedom.

If human dignity is regarded as foundational in our Constitution, a corollary thereto must be that it must be jealously guarded and protected. As this Court held in Dawood and Another v Minister of Home Affairs and Others, Shalabi and Another v Minister of Home Affairs and Others, Thomas and Another v Minister of Home Affairs and Others:

“ The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all, other rights. This Court has already acknowledged the importance of the constitutional value of dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is of central significance in the limitations analysis. Section 10, however, makes it plain that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected.”¹³ (Footnotes omitted.)

In S v Makwanyane and Another this Court observed as follows:

“Respect for the dignity of all human beings is particularly important in South Africa. For apartheid was a denial of a common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. The new Constitution rejects this past and affirms the equal worth of all South Africans. Thus recognition and protection of human dignity is the touchstone of the new political order and is fundamental to the new Constitution.”¹⁴

The applicants contended that the High Court failed to give sufficient weight and importance to the public perception of stigma, degradation and discrimination that often goes with HIV/AIDS. Because of the social difficulties that are attendant upon disclosure of HIV, individuals are not very keen to announce themselves as being HIV positive.

T^{he
indignity experienced by the applicants as a result of the
disclosure of their names, seems to have been treated lightly by
the court a quo}. The case of the applicants was reduced to a malady that had befallen “lesser men or women”. They were regarded as poor, uneducated, coming from an insignificant informal settlement and their plight disclosed in the book was not likely to spread far beyond the community where they resided. There was, in my view, a total disregard for the circumstances of the applicants and the fact that because of their disadvantaged circumstances their case should have been treated with more than ordinary sensitivity.

I therefore conclude that by the disclosure of the applicants’ HIV status the respondents violated the dignity and the psychological integrity of the applicants and that nowhere can it be shown that the disclosure was in the public interest.

The actio iniuriarum and the development of the common law

For the common law action for invasion of privacy based on the actio iniuriarum to succeed, the following must be proved:

(a) Impairment of the applicants’ privacy;

(b) Wrongfulness; and

Negligence is as a rule, therefore, insufficient to render the wrongdoer liable.

The applicants contended that if the invasion of their privacy by the respondents was not intentional, it was negligent. As a result they raised the constitutional issue whether or not the common law of privacy should be developed so as to impose liability on those who negligently publish confidential medical information (in particular a person’s HIV status) by not first obtaining the express informed consent of that person unless the public interest clearly demands otherwise.

Can it be said that the common law deviates in this case from the spirit, purport and objects of the Bill of Rights? It was argued on behalf of the applicants that it does – hence the assertion by the applicants that the common law should have been developed by the Court a quo so as to impose negligence as an element of liability in respect of the actio iniuriarum. I do not subscribe to this view. This, in my view, is not an appropriate case for departing from the age-old approach to the actio iniuriarum. I do not, by any means, wish to be understood to say the common law should or could never be developed in this regard. In the view I take of this matter it is however unnecessary to reach a conclusion on this point.

Animus iniuriandi

I now look a little closer at the conduct of the respondents. That they are good activists in the field of HIV/AIDS admits of no doubt. They also know all that there is to know about the private nature of HIV/AIDS and how sensitively these should be treated, in particular obtaining informed consent before disclosing such facts.

I have no doubt in my mind that t^{he
first and second respondents were aware that they had not obtained
the express informed consent of the applicants to publish
their HIV
status. The first respondent went ahead and published the
information pertaining to the applicants, having made}unsuccessful ^{earlier
attempts} ^{to
find the consents}. The disclosure of the HIV status of the applicants was done in a book which must naturally have taken time to produce. It was not a question of publishing breaking news such as might happen for the purposes of a newspaper.

Both the first and second respondents assumed, without any enquiry and without a factual basis, that the applicants had given Professor Strauss express informed consent to disclose their names and HIV status to the public at large. This clearly cannot be so. The second respondent failed to take sufficient steps to ascertain whether the applicants had in fact given unlimited consent to Professor Strauss because, in her view, there was no onus or duty on her to find out what was contained in the consent forms. The second respondent conceded in evidence that, at the time of publication of the book, she was unaware of any other person outside the University who had been sent a copy of the report. Both respondents assumed, without any enquiry, that the information contained in the Strauss Report was not confidential. They conceded in evidence that they were not aware, at the time of publication of the book, of any other publication in which the applicants’ names and HIV status had been disclosed to the public at large.

The first respondent conceded in evidence that it is important to err on the side of caution and not to disclose private facts about a person if one is unable to obtain the person’s express, informed consent. Yet, she assumed that the applicants had consented to the public disclosure of their names and HIV status because the source of the publication came from a reputable institution. Despite being acutely aware of the option of using pseudonyms in the book, the first respondent deliberately chose to use the applicants’ names in order to give the book “authenticity”. In my view, the public’s interest in authenticity does not outweigh the public’s interest in maintaining the confidentiality of private medical facts as well as the right to privacy and dignity that everybody should enjoy.

The second respondent says there was no onus on her to seek out the applicants before publishing. Once they had repudiated her mandate and the complaint statements they had made to her, as was apparent from the Strauss Report which she read, they had to seek and find her. The applicants were in constant contact with Father Viljoen and therefore the respondents could easily have found them through him. She gave the entire AIDS file to the first applicant and read chapter 10 of the manuscript before publication. She allowed publication because nothing in the Strauss Report suggested that the private facts were confidential. She knew of no one else, outside the University, who had the report when the book was published and admitted that before the book there was no publication of these facts except in the report. She never followed up the blank consents. She accepted that Professor Strauss had the consent to disclose the names and she knew that the first internal report, unlike the Strauss Report did not use actual names and specified that it was confidential.

There are in the case of HIV/AIDS special circumstances which justify the protection of confidentiality bearing in mind that the disclosure of the condition has serious personal and social consequences for the sufferer. For example, such a person stands to be isolated and even rejected by others. In the present case, each of the applicants testified as to the several setbacks which occurred in their lives following the disclosure of their status. The first applicant had her shack burned down by her boyfriend who has since left her and broken off that relationship. The second applicant has withdrawn from society for fear of being ostracised by her family. The third applicant has shied away and has not told members of her family about her condition which depresses her.

Looking at the aforesaid conduct of the respondents and despite their denial of having acted animo iniuriandi and their further contention that they acted reasonably, I am satisfied that the respondents were certainly aware that the applicants had not given their consent or at least foresaw the possibility that the consent had not been given to the disclosure. As seasoned campaigners in the field of HIV/AIDS the respondents knew well of the wrongfulness of their conduct and that the disclosure of private facts was likely to invade the privacy rights of the applicants.

I can come to no other conclusion but that the respondents have not rebutted the presumption that the disclosure of private facts was done with the intention to harm the applicants. Therefore the respondents had the requisite animus iniuriandi. Their position is exacerbated by their attitude that they wanted the book to have authenticity and credibility by publishing the names of the applicants. The defence of the respondents must accordingly fail.

Freedom of expression

It was submitted by the amicus curiae that freedom of expression is critical to an open and democratic society based on freedom and equality and without freedom of expression, openness is severely compromised and endangered. It cannot be gainsaid that freedom of expression lies at the heart of democracy. This Court has recognised in other cases that freedom of expression is one of a “web of mutually supporting rights”.¹⁵

It was suggested by the respondents and the amicus that if the media were to be held liable for negligent disclosure of private facts they would have an additional burden which would frustrate the right of freedom of expression. The amicus contended that it was neither necessary nor desirable for the common law to be developed to include negligence as a ground of fault under the animus iniuriarum. It submitted that such an approach would unjustifiably limit the ambit of the right of freedom of expression and would have a “chilling effect” on the freedom of expression in South Africa.

In particular the amicus was concerned about the effect of holding individual respondents as opposed to media respondents liable on grounds of negligence.

In light of the fact that this judgment is not extending the common law definition of intention to include negligence in relation to the publication of private medical facts, there will be no “chilling effect” on freedom of expression in South Africa and there is no need to pursue this issue any further.

The third respondent’s application for leave to cross-appeal

The third respondent appealed the decision of the court a quo in its finding that it was liable to the applicants. The basis of the appeal was that it was alleged that the third respondent had, in publishing the book, revealed private information which proved a violation of their rights after the publication of the book. The appeal was not pursued with any vigour in this Court. I am of the view, as these issues have been dealt with before, it is not necessary to canvass them here again.

Assessment of quantum of damages

In the light of the aforegoing it now remains for me to deal with the question of quantum of damages.

At the end of the trial, the High Court assessed the damages and awarded an amount of R15 000 to each of the applicants. It will be recalled that the applicants had claimed an amount of R200 000 each in damages and that the respondents had offered the amount of R35 000 to each plaintiff in their settlement offer in terms of Rule 34.

The assessment of damages in any case under the actio iniuriarum can never be an easy exercise. I have not found it any easier. As was correctly observed by Smalberger JA in Van der Berg v Coopers and Lybrand Trust (Pty) Ltd and Others:

“ In the nature of things no two cases are likely to be identical or sufficiently similar so that the award in one can be used as an accurate yardstick in the other. Nor will the simple application of an inflationary factor necessarily lead to an acceptable result. The award in each case must depend upon the facts of the particular case seen against the background of prevailing attitudes in the community. Ultimately a Court must, as best it can, make a realistic assessment of what it considers just and fair in all the circumstances. The result represents little more than an enlightened guess. Care must be taken not to award large sums of damages too readily lest doing so inhibits freedom of speech or encourages intolerance to it and thereby fosters litigation. Having said that does not detract from the fact that a person whose dignity has unlawfully been impugned deserves appropriate financial recompense to assuage his or her wounded feelings.”¹⁶

Although such assessment is peculiarly within the province of the trial court there may be situations where the dictates of justice would be better served by interference by an appellate court with regard to the assessment and award made by the High Court. This is such a case. The assessment of damages will be on a different basis from that of the High Court, taking into account that the High Court’s assessment was not commensurate with the dignity and privacy which was unlawfully violated by the respondents.

I have noted the reasons for the award made before the High Court based on the circumstances of the applicants, among others, that they are illiterate in English, they claimed no understanding of English, that there is no likelihood of any confrontation in the future by anyone in their community for or about their HIV status and their names being in the book. If the applicants were disadvantaged it does not mean that they should not fight for the restoration of their dignity damaged by the disclosure of their names and HIV status.

The applicants contend that the award by the High Court failed to accord sufficient weight to the fact that the rights violated are enshrined in the Bill of Rights and accordingly the award flouted the spirit, purport and objects of the Bill of Rights.¹⁷

In assessing damages courts have in the past considered a range of factors arising from the circumstances and facts of the case: the nature and extent of the invasion or violation of privacy; malice on the part of the respondent; rank or social standing of the parties; the absence or nature of the apology; the nature and extent of the publication; and the general conduct of the respondent. The greater the violation of the privacy, the greater the need to protect the applicants and the greater the award of damages.

The first respondent initially tried to establish whether the necessary consent had been obtained from the applicants and when she failed she went ahead and published the names. Her conduct in simply going ahead and publishing the names of the applicants violated the dignity and privacy of the applicants. It was wrongful in the sense that the first and second respondents went ahead to publish the names and HIV status of the applicants without obtaining their necessary express informed consent.

The respondents argued that it might be that in exceptional cases this Court should grant leave to appeal against the quantum of damages awarded, but that this was not in any way a special case. Accordingly, so it was argued, the award was in line with other awards made by our courts in similar situations. They cited Jansen van Vuuren and Another NNO v Kruger.¹⁸

In the present case, highly personal and confidential material had been placed in the book and without the respondents having obtained the express informed consent of the applicants. The consent which the applicants had given earlier in the Strauss Report had pertained to a report and not to the general publication for public consumption of the facts in a book. This consent was limited to medical records and if any other publication was envisaged the requisite consent had to be obtained for that particular publication.

The respondents clearly violated the dignity and privacy enjoyed by the applicants and are therefore liable to compensate the applicants in damages. Due to the gravity of the violations, I would consider a higher award reasonable in these circumstances.

Accordingly, I consider a fair assessment of the damage suffered by the applicants at R35 000 for each applicant.

Costs

I now come to the question of costs. In this regard we were invited to consider the position on costs of an offer of settlement on a “without prejudice and without admission of liability” basis. Rule 34¹⁹ deals with the contents of the notice of tender and stipulates a period within which an offer of settlement must be accepted. An offer of settlement must be made timeously and should be responded to promptly. It is made with a view of curtailing the possible escalation of costs.

The offer included: (a) a private apology to each applicant; (b) removing/deleting from all unsold copies of the book, reference to the applicants’ names and surnames; (c) payment direct to each plaintiff of R35 000; and (d) payment of the claimants taxed costs as between party and party as of date of the offer of settlement. It will be remembered that initially the High Court had entered judgment against the third defendant only to pay each of the applicants the amount of R15 000 together with costs of suit. The terms of the settlement offer were drawn to the attention of the High Court after the hearing. Having heard argument the High Court revised its costs order by directing that the third respondent would pay the costs of the applicants up to and including 14 April 2005, being the day on which the offer was made and that the applicants in turn must pay the respondents’ costs from 17 April 2005.

The truth of the matter is that an offer of settlement in terms of Rule 34²⁰ does not mean that an applicant should keep the respondent waiting for several days, in this case 10 days while the costs mount. Naturally, a respondent should not decide only on the morning of the trial to make an offer and so hope to avoid liability for costs.²¹

In this case the offer was made just before the commencement of the hearing. The offer, in my view, was good, but the applicants were given little time to consider it before the commencement of the trial.

As I understand the law in regard to offers of settlement, any order as to costs incurred subsequent to an offer is in the court’s discretion. When exercising that discretion, the court will take into consideration all relevant factors and will determine whether the applicants acted reasonably in delaying responding to the offer. The respondents had not entered into any negotiations with the applicants but took the applicants off-guard, so to speak, when they made the offer of settlement on the morning of the hearing.

The High Court exonerated the first and second respondents from liability. I disagree with that finding. The second respondent stated in evidence that she supplied the evidence about the applicants. She gave to the first respondent the Strauss Report and knew or ought to have known that the necessary consents had not been obtained. The first respondent did a half-hearted check but soon became tired of the exercise and so decided to go ahead and produce the book without having obtained the consent of the applicants.

Taking into account all the circumstances of this case and the effort made by the respondents to reach an amicable settlement with the applicants, the huge amount claimed by the applicants clearly evidences a poor assessment of damages by their counsel. I therefore consider it fair that each party should pay its own costs in this Court.

Moseneke DCJ, Mokgoro J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J concur in the judgment of Madala J.

LANGA CJ:

I have had the opportunity of reading the judgments of Madala, Sachs and O’Regan JJ. This case raises very difficult questions of both fact and law which do not permit of easy analysis. Hence, while there is much that I agree with in all the judgments, I have found it necessary to plot my own particular approach to this case.

In brief, I agree that the disclosure of the HIV status of the applicants was wrongful and associate myself with the discussions of the rights to privacy and dignity in both Madala and O’Regan JJ’s judgments and concur in the spirit and tone of Sachs J’s judgment. In particular, I agree that being HIV positive does not in itself impair a person’s dignity and that courts must be careful not to stigmatise the disease. I disagree, however, with Madala J that intention has been established on the facts. I agree with O’Regan J that it is necessary to develop the common law, but I find it necessary to clarify the ambit of that development. I also find that the first and third respondents are media defendants and, contrary to O’Regan J, that they were negligent in this case. Finally, I disagree with Madala J’s approach to Rule 34 and, as a result, his award of costs.

Intention

Madala J holds that the respondents failed to rebut the presumption of intention. Like O’Regan J, I am not convinced that is present. The available facts do not, to my mind, disclose that the respondents subjectively foresaw the possibility of their action causing harm. All the judgments accept,¹ and the record makes it clear that both the first and the second respondents are active “seasoned campaigners” in the field of HIV/AIDS. O’Regan J highlights a number of heartfelt denials of intention by the first respondent² which I find compelling. Although the respondents’ denials are not conclusive, they do mean that we would need a great deal of evidence to find that these activists would intentionally infringe the rights of the very people whom they are committed to protect. That evidence is not present. It could well be that the respondents honestly believed the Strauss Report to be a public document and therefore did not think it necessary to take any further steps to ascertain consent. A reasonable media defendant might have investigated further, but that goes to negligence, which I address later. I therefore hold that the respondents did not act intentionally.

Development of the Common Law

I agree with the reasons expressed by O’Regan J for holding the media to a higher standard than ordinary defendants.³ This Court⁴ and the Supreme Court of Appeal⁵ have held that the media, as a consequence of their power, bear a particular constitutional responsibility to ensure that the vital right of freedom of expression is not used in a manner that improperly infringes on other constitutional rights. It makes sense that media defendants, who are experts in the field and who routinely distribute facts to vast numbers of people, with a particular air of authority and for commercial gain, should be held liable for any disclosures which they should reasonably have foreseen would cause harm. However, to extend that standard to ordinary people, and thus to everyday relationships, would be to extend the law too far into intensely personal space. That is not to say that I approve of negligent disclosures of private facts by individuals, but simply that it is not a matter that is appropriate for the law to regulate. It is therefore constitutionally appropriate that the media should be held to a higher standard than the average person.

I also agree, in general terms, with the nature of the development of the common law suggested by O’Regan J. I wish only to express a minor difference in my understanding of the correct technical construction of that development. As I understand O’Regan J’s judgment, the position for a media defendant is that they can rebut unlawfulness by showing that the publication was reasonable; if they fail on that count, there is a presumption of negligence which they must rebut; and, finally, if they succeed in rebutting negligence, they will still be liable if they acted with intention. To the extent that the first defence of reasonableness extends what is already part of the lawfulness inquiry, I disagree.

Lawfulness is an ex post facto inquiry into whether the action is compatible with the boni mores. It is important that when we determine lawfulness we are not concerned with the facts that were known to the defendant, but with the facts that are now available to the Court. It is also important that we operate on the basis that the act in question was done either negligently or intentionally. To do otherwise would defeat the purpose of the lawfulness inquiry as the boni mores would never condemn a blameless act. In the context of the disclosure of private medical facts this means that the reasonableness of a defendant’s averment that they thought they had consent is irrelevant if the consent was in fact absent. Reasonableness in the lawfulness inquiry will be relevant, for example, where it is unclear whether, objectively and ex post facto, there was consent or not, or where publication might have conformed to public policy despite the absence of consent.

Negligence, on the other hand, relates specifically to the circumstances of the case and its determination is based on the facts known to the defendant at the time. It is at this stage that media defendants can argue, as the respondents do in this case, that it was reasonable to assume that consent was present. This is a separate inquiry that in my view should be kept distinct from the inquiry into wrongfulness. This approach in no way alters the substance of the various tests, but simply re-assigns various questions to what I consider to be their correct position.

Media defendants

The next question is whether the respondents qualify as media defendants. The first and third respondents are professionals involved in the distribution of information for commercial gain. Although they do not meet the traditional image of a media defendant as a newspaper editor, they clearly meet the concept of media defendants which motivate setting higher standards for the media.⁶

The second respondent on the other hand, although she was undoubtedly involved in the process, is not a professional journalist and was more the subject of the book than its creator. While she maintained control over the content of the book, as a layperson that control would relate to the factual correctness of the book rather than the legality of its publication. Although the second respondent would still bear responsibility if she had acted intentionally, I cannot find that she is a media defendant and she therefore avoids liability.

Negligence

The traditional test for negligence is axiomatic but still bears the briefest repetition: negligence is established if a reasonable person in the position of the defendant would have foreseen the harm, the reasonable person would have taken steps to prevent it and the defendant failed to take those steps.⁷ When we are dealing with professionals acting in their professional field, the relevant benchmark is not the ordinary reasonable person but the relevant reasonable professional person.⁸ In this case, we must compare the conduct of the respondents to that of a reasonable journalist and publisher.

The applicant led the evidence of Professor Harber (Harber) as to what is expected of a journalist in the circumstances. Harber made it quite clear that ethical reporting of HIV/AIDS requires that:

“The identity of a person with HIV/AIDS should not be disclosed without the explicit permission of that person and the onus is on the journalist/publisher to ensure that such permission has been granted.”

He also testified that the consent must be informed consent which requires that it is obtained in the individual’s own language and that they are informed of the potential ramifications of publication and the context in which their name would be used. He stressed that a journalist cannot assume that consent has been given. This evidence was not seriously challenged by the respondents.

Both the High Court and O’Regan J largely discount Harber’s evidence as they regard the Strauss Report as a public document. While I agree with the general proposition in O’Regan J’s judgment that journalists should not be forced to verify disclosures made by reputable organisations, that principle does not, to my mind, create any hard-and-fast rules. Whether it is reasonable to rely on another document will depend on the nature of the document, the nature of the institution that produced the document, the importance of the interests involved and the relevant circumstances of the case. It is not, for example, sufficient to rely simply on the absence of a distinct proclamation of confidentiality as automatically justifying reliance on an otherwise untested document.

That this is the appropriate standard appears very clearly from Harber’s evidence. During cross-examination Harber was asked whether, if a commission of enquiry had been established and the report had been given to him, with no reference to its confidentiality or anything to suggest that it were secret, he would publish the report. Harber responded:

“I would say you would say to yourself is there any reason I cannot publish this, is it illegal, are there contents that can cause me problems of defamation or invasion [of] privacy or you would ask yourself a range of questions and if the answers to those were no, then you would publish. . . . You would be very foolish if as a journalist and editor you did not establish first whether for example you were being defamatory and whether or not that was a risk you should and wanted to take.”

The hypothesis was extended to a situation where it was an official report from the Minister to which Harber responded: “I am not sure why that would protect you if you carried defamatory material.”

To my mind these responses make it clear that a journalist cannot rely on governmental or private institutions to publish only information that would be appropriate for a journalist to publish. Journalists have their own standards and bear an independent duty to ensure that they have been met.

The question then is whether the reasonable journalist described above would have foreseen the possibility of the absence of consent under these circumstances. There are a number of important considerations on this score. Firstly, Professor Strauss explains on the second page of his report that “[r]ight at the outset [he] insisted upon each patient . . . giving consent to [him] in writing, the terms of which consent appear in exhibits ‘A-1’ through ‘A-8’”. The importance of this passage, so early in the report, is that it makes clear that the consent has been given with certain “terms” attached to them. Having been alerted to the fact the consent was limited, a reasonable media defendant would have foreseen that the consent would not cover publication outside the report itself. When asked whether she knew the exact terms of the consent in the Strauss Report, the first defendant responded: “Not the exact terms, that is why I contacted the University.” This indicates that Smith herself realised that the reference to terms of consent meant the consent was not unrestricted. Although it is not enough to convince me she acted with intent, it shows very clearly that anybody who read the report would realise the consent given by the applicants was limited. A reasonable journalist would have then made certain that they determined the exact terms of the consent by obtaining the annexures.

The first respondent’s uncertainty is compounded by her concession that the applicants

“were patients who had consistently changed their minds about whether or not they had a problem or did not have a problem, whether or not they felt free to speak out or did not feel free to speak out.”

With that knowledge it should have been even more obvious to her that she should determine with certainty what the applicants’ attitudes were to disclosure in her book and at that time.

The Strauss Report was an internal University report made in response to allegations of irregularities. It was compiled by a lawyer, not a journalist. This point was pertinently made during Ms Smith’s cross-examination, when she was read the following principle of journalistic ethics:

“‘No reporter or photographer should allow publication of material which can put informants at risk of losing their positions, injury or death. In particular, ordinary people are sometimes unaware of the possible consequences of talking to the media. In these cases it is incumbent on the reporter or photographer to establish informed consent by spelling out to the informant what the likely dangers are.’

Are you aware of that principle? – I am aware of this and this is precisely what Professor Strauss should have applied.

COURT: Is he a journalist – No he is not”.

In addition, the Strauss Report was not a public document and was not intended for widespread public consumption. The report was not publicised and as far as the first respondent was aware when the book was published, had not been disclosed to any other reporters. Again, the cross examination is telling:

“When you wrote and published your book you were not aware of a single report anywhere in the media where any of the plaintiffs’ names or faces had been published. Correct? – Correct”.

The report was also not widely distributed. Professor Grove made clear that, outside the University, the report was only sent to Ms de Lille, a Ms Vermaak who assisted during the Strauss inquiry and possibly the Medical Research Council. The first respondent was unaware of this distribution, but admitted that the only effort she made to determine the extent of the distribution were three wholly unproductive phone calls to the Registrar’s office.

The reasonable media defendant would therefore, and keeping in mind the evidence of Harber, not have relied on the Strauss Report as a document that removed their duty to ensure informed consent had been obtained.

The inescapable conclusion is that a reasonable journalist or a reasonable publisher would have foreseen the possibility that there was not consent. Because the possible harm was great, the effort necessary to avoid that harm minimal and the benefit of publishing the names negligible, a reasonable journalist or publisher would have taken steps to avoid that harm. Those steps could have involved, for example, finding the annexures, contacting the applicants directly or using pseudonyms. Whatever course they chose the defendants, to use the words of Sachs J, “should have left no stone unturned in [their] pursuit of verification.” The fact that they left those stones unturned renders them negligent.

A word should be said about the third respondent’s liability. As a publisher it bears a separate responsibility to ensure that everything it publishes is lawful. It cannot abandon that responsibility to those whose work it chooses to disseminate. It is therefore negligent for the same reasons as the first respondent.

Damages

I agree with Madala J’s assessment of damages at R35 000.

Cross-appeal

On my approach it is unnecessary to consider the cross-appeal and I turn to the final issue: the settlement offer in terms of Rule 34.

Rule 34

On the morning of the trial, 14 April 2005, the respondents made an offer without prejudice to the applicants. The offer included payment of R35 000 to each applicant, a private apology and the removal of the applicants’ names from all copies of the book. It did not include an admission of liability. The applicants rejected the offer and were subsequently awarded R15 000 each. The offer was disclosed to the High Court immediately after judgment was given. The High Court held that the applicants’ refusal entitled the respondents to the costs from 17 April 2005 and the majority of this Court has held that each party should pay their own costs in this Court.

The applicants argued that they should not have been mulcted in costs as an offer without prejudice did not sufficiently vindicate their constitutional rights. Only an unconditional offer or an order of court could, according to the applicants, vindicate a constitutional right.

On the other side, the respondents contended that the very basis of civil litigation is that money satisfies rights. To hold otherwise would undermine the very purpose of Rule 34: to avoid unnecessary trials. Defendants who honestly believe they are not liable would have no choice but to continue with an expensive trial or make an unconditional offer.

The decision to award costs following the disclosure of a settlement offer is in the discretion of the Court.⁹ This Court has made it clear that an appellate court should generally only interfere in the exercise of a discretion by a lower court if the discretion is not exercised judicially, or is based on wrong principles or a misapprehension of the facts.¹⁰ The question then is whether the High Court has committed such a misdirection.

While I accept that, as the respondents contend, Rule 34 serves an important purpose and undermining the potential to save costs would remove any impetus to make offers of settlement, different principles apply to cases involving constitutional rights. This case is about the essential constitutional rights of dignity and privacy of some of the most vulnerable people in society. Money may help to alleviate the applicants’ pain, but as has been noted in the context of defamation,

“[t]he true and lasting solace for the person wrongly injured is the vindication by the Court of his or her reputation in the community. The greatest prize is to walk away with head high, knowing that even the traducer has acknowledged the injustice of the slur.”¹¹

No matter the value of the offer, it does not give the acknowledgement of wrong-doing that is often far more valuable than any money could be. Contrary to what the respondents suggest, that is not the case in all civil claims as many civil disputes revolve entirely around money, not principle.

This case is also about broad questions of the responsibilities of journalists and the protection of privacy in the media. These are important and difficult questions and, in my view, the common law presently falls short of the “spirit, purport and objects of the Bill of Rights”¹² and must be transformed. There is a danger that the risk of adverse costs orders, despite ultimate success, might permit rich and powerful defendants to prevent the law from adapting to meet constitutional imperatives by throwing money at plaintiffs who cannot afford to take that chance. It already takes immense courage for ordinary people to take large powerful defendants to court and the additional peril of an adverse costs order will mean even fewer plaintiffs get their day in court. That could easily have happened in this case and the liability of media defendants for disclosing private medical facts would have remained unquestioned. The achievement of our constitutional vision should not be obstructed by the vested interests of those who have the money to protect them.

seriously alters the framework within which that discretion must be exercised. The failure of Schwartzman J to properly consider the impact of the Constitution means that it is appropriate for this Court to interfere with his award of costs. On the peculiar facts of this case, I would alter the award of costs. I would, accordingly, order the first and third respondents to pay all the applicants’ costs in both the High Court and this Court.

O’REGAN J:

I have had the opportunity of reading the judgment prepared in this matter by Madala J. Unfortunately, I cannot concur with it for the reasons set out here.

This litigation arose from the publication of an authorised biography (“the book”) written by Ms Charlene Smith, the first respondent, about Ms Patricia de Lille, the second respondent. The publisher of the book, New Africa Books (Pty) Ltd, is the third respondent. In the book, the three applicants are named as persons who are living with HIV. The applicants did not consent to their names being published in this way. All of this is common cause. The fuller facts appear from the judgment of Madala J and I do not repeat them here save where necessary.
The applicants issued summons in the High Court in Johannesburg alleging that the respondents had acted wrongfully with the intention of injuring the applicants in their rights of personality, particularly their rights to privacy, dignity, psychological integrity and mental and intellectual wellbeing. In the alternative, the applicants alleged that the respondents acted negligently in publishing the names of the applicants with the same consequences. The applicants also alleged, in the alternative, that the first respondent knew or ought reasonably to have known that the applicants had not consented to the publication of their names. After hearing evidence, the court concluded that the applicants had not established the case as pleaded and dismissed their claim.

The case raises complex issues. My primary disagreement with Madala J relates to his finding on the facts (contrary to the finding of the High Court) that the first and second respondents published the names of the applicants having actually known that the applicants had not consented to publication of their names, or alternatively, having foreseen the possibility that they did not consent and in reckless disregard of that possibility. Such a finding results in the conclusion that the respondents did act intentionally, either directly or under the specific form of intention called dolus eventualis. I do not think this case has been made out on the facts. In addition, I should add that the High Court concluded that such a case had not been made out on the facts. Nor do I think that the respondents have failed to dislodge a presumption that they acted either intentionally or, having foreseen the possibility that the applicants may not have consented to the publication of their names, acted recklessly despite that foresight. My conclusion on the facts requires a consideration of the alternate causes of action pleaded by the applicants, in particular, the question whether in our law unreasonable mistake or negligence can found liability for breach of privacy as alleged here. And if it does, whether it has been established on the facts of this case. Before turning to these complex issues, however, it is necessary to discuss briefly the constitutional rights in issue in this case.

The right to privacy

The constitutional basis for the applicants’ claim is the right to privacy protected in section 14 of the Constitution which provides:

“Everyone has the right to privacy, which includes the right not to have —

(a) their person or home searched;

(b) their property searched;

(d) the privacy of their communications infringed.”

The applicants assert that their right to privacy entitles them not to have their private medical information disclosed without their consent to the public. In Bernstein and Others v Bester NO and Others, Ackermann J recognised that privacy is an elusive concept that has been the subject of much debate by scholars.¹ It has troubled lawyers too since at least the end of the nineteenth century.

In a seminal article written by Samuel Warren and Louis Brandeis in 1890 in the Harvard Law Review, in language that resonates today, the authors argued that:

“Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons; and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. . . . Of the desirability – indeed of the necessity – of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.”² (Footnotes omitted.)

The statement by the authors that privacy needs protection seems intuitively to be correct. However, in the context of a Constitution, which values not only privacy, but also freedom of expression, more careful consideration of this apparent intuitive truth needs to be undertaken. The important question to be considered is why we protect the right to privacy in our constitutional order. There are at least two inter-related reasons for this protection.³ The first flows from our constitutional conception of what it means to be a human being; and the second from our constitutional conception of the state.

Underlying our Constitution is a recognition that, although as human beings we live in a community and are in a real sense both constituted by and constitutive of that community, we are nevertheless entitled to a personal sphere from which we may and do exclude that community. In that personal sphere, we establish and foster intimate human relationships⁴ and live our daily lives. This sphere in which to pursue our own ends and interests in our own ways, although often mundane, is intensely important to what makes human life meaningful.

The right to privacy recognises the importance of protecting the sphere of our personal daily lives from the public. In so doing, it highlights the inter-relationship between privacy, liberty and dignity as the key constitutional rights which construct our understanding of what it means to be a human being. All these rights are therefore inter-dependent and mutually reinforcing.⁵ We value privacy for this reason at least – that the constitutional conception of being a human being asserts and seeks to foster the possibility of human beings choosing how to live their lives within the overall framework of a broader community. The protection of this autonomy, which flows from our recognition of individual human worth, presupposes personal space within which to live this life.

This first reason for asserting the value of privacy therefore lies in our constitutional understanding of what it means to be a human being. An implicit part of this aspect of privacy is the right to choose what personal information of ours is released into the public space. The more intimate that information, the more important it is in fostering privacy, dignity and autonomy that an individual makes the primary decision whether to release the information. That decision should not be made by others. This aspect of the right to privacy must be respected by all of us, not only the state. As was pointed out in the minority judgment in S v Manamela and Another (Director-General of Justice Intervening):

“Such an exhortation recognises that the protection of individual rights depends not only on the actions of the State, but on the actions of fellow citizens. The conduct of each individual can and will contribute to a climate in which the rights of others are respected. Our society asserts individual moral agency and it does not flinch from recognising the responsibilities that flow from it.”⁶

The right to privacy is therefore one of those rights which will often bind natural and juristic persons⁷ and individuals need to be furnished with appropriate remedies to protect their right against its invasion by others. The recognition by others of our right to an area of privacy is one of the bases upon which our community itself is built.⁸ The proper protection of a person’s privacy depends in a significant way on its being respected by others.

Secondly, we value privacy as a necessary part of a democratic society and as a constraint on the power of the state. It is not surprising, given our authoritarian past, that the incidents of privacy listed in section 14 of our Constitution⁹ protect individuals from searches of their home, person, property and communications. In authoritarian societies, the state generally does not afford such protection.¹⁰ People and homes are often routinely searched and the possibility of a private space from which the state can be excluded is often denied. The consequence is a denial of liberty and human dignity.¹¹ In democratic societies, this is impermissible.

This is not to say, however, that there are no limits to the inviolability of an individual’s entitlement to privacy. There are times when it will be legitimate for the state to invade private space. For example, violence against women often lurks in the shadows of the home and historically state officials have refused to intervene to protect women on the basis of the inviolability of the home. Such a refusal can no longer be tolerated under our Constitution which asserts that everyone has the right to be free from both public and private violence.¹² The corollary of this right is an obligation borne by the state, and others, to provide protection to those at risk of violence even in traditionally private environments such as the home.¹³ Recognition of legitimate limits on the inviolability of personal space, however, does not mean that the space is not worthy of protection. The Constitution seeks to ensure that rights reinforce one another in a constructive manner in order to promote human rights generally. At times our Constitution recognises that a balance has to be found to provide protection for the different rights.

The breach of privacy relied upon by the applicants in this case is the disclosure of the fact that they are living with HIV. This is private medical information which the applicants may ordinarily choose to keep private. In Bernstein, Ackermann J found that determining whether the right to privacy has been breached requires us to recognise that the concept should be seen as having a core and a periphery. He reasoned:

“Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.”¹⁴

In cases since Bernstein, this Court has sought to locate the particular infringement complained of as either a core or peripheral complaint.¹⁵ In this case, the applicants argue that their private medical information was disclosed without their consent. There can be no doubt that private medical information, of whatever nature, but particularly where it concerns a life-threatening disease, is personal information, which is protected by the right to privacy. Moreover, it is information which the person concerned has the right to decide whether to disclose. If the person does decide to disclose it, he or she is entitled to determine in what circumstances and to whom. These choices are personal choices and must be respected not only by the state but by others. Of course, doctors and other medical personnel may need to know, and at times disclose, the information for privileged reasons, but they are not entitled to disclose it outside of their professional circumstances without consent.¹⁶

In National Media Ltd and Another v Jooste, the Appellate Division held that liability would only arise in respect of disclosure of those private facts when the general sense of justice of the community would expect protection because disclosure would “cause mental distress and injury to anyone possessed of ordinary feelings and intelligence”.¹⁷ It is not necessary for the purposes of this case to consider whether this test is the appropriate test under our Constitution for determining whether a fact is private or not. For it is clear that the publication of otherwise confidential information about a life-threatening illness is likely to cause distress to the person concerned. The question of whether it is only in such circumstances that an action for breach of privacy will lie can therefore be left for another day.

HIV/AIDS and privacy

It is important to add here that HIV/AIDS should not be seen as different from other life-threatening diseases for the purposes of the breach of privacy. It is true that our society stigmatises those living with HIV/AIDS. The result of this stigma is that disclosure causes not only personal pain for those living with HIV/AIDS, but at times a reasonable fear that their lives and safety are at risk because of the attitudes of some in our community towards those living with HIV/AIDS.

It needs to be said clearly that the stigma attached to those living with HIV/AIDS is inconsistent with the constitutional value of human dignity. Disclosing that a person is living with HIV/AIDS cannot therefore be an infringement of dignity on the grounds that members of the community may improperly think less of them because they are suffering from this frightening illness. It does undermine their dignity to the extent that it denies those living with HIV/AIDS the right to determine to whom and when their illness should be disclosed, which is itself an aspect of the right to privacy, as already discussed.

HIV/AIDS therefore is not to be treated specially for the purposes of establishing a breach of privacy. It may well be that the effect of the stigma the illness currently attracts is relevant to the determination of damages appropriate to remedy the wrongful disclosure. This is a matter that for the reasons that follow does not need to be determined in this case.

In dealing with cases concerning people livi

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South Africa: Constitutional Court

NM and Others v Smith and Others (CCT69/05) [2007] ZACC 6 (4 April 2007)