My generation was taught to meet verbal bullying at school with the doggerel, ‘Sticks and stones may break my bones, but words can never hurt me’.
It was rubbish, as we all know that words do hurt – which is why sometimes you threw caution to the winds, accepted that you would get flogged, and punched the bloke.
Verbal bullying is less of a thing these days, as schools are more likely to watch out for it and intervene than was the case when I was a child. Violence is no longer the only way one can gain relief. I think that this is a jolly good thing.
But this does not mean that verbal bullying is no longer a thing. These days verbal bullying has gone mainstream as part of what is called cancel culture. This phenomenon of the electronic age is regarded as an expression of free speech by some and an existential threat to civilization by others.
I think the truth lies somewhere in between. The public shaming of an individual or organisation by a public expression of outrage can constitute an existential threat to democracy or it can amount to an irritating piffle. It all depends on the circumstances.
So, by way of example, I don’t particularly mind if Dr Bool Smuts has a go at me – as he did in the comment section to my recent article on animal welfare law and the Smuts Botha judgment. He has a track record of such behavior so I knew it was likely he would respond as he did before I put pen to paper.
I regard his remarks as mere piffle. Dr Smuts can express outrage and even cross the line that separates opinion from defamation but in my case the old doggerel is true. His words can never hurt me. They may even do the opposite.
But this is not true for everyone. Cancel culture can and does cause harm especially for those whose livelihoods depend on the marketing of a public persona such as is the case with Mr Botha. So, I understand why Mr Botha thought it necessary to take legal action to stop Dr Smuts’s attack on him.
Mr Botha has a young child. His house was under attack by baboons who had ransacked the place on more than one occasion. Yet Dr Smuts was of the view that Mr Botha’s legally authorised response to an actual threat to his property and family was ‘Utterly vile’ and ‘ecologically ruinous’.
No evidence
There is no evidence that the use of live capture traps is any more ecologically ruinous than the use of guard dogs, as is advocated by the Landmark Foundation which Dr Smuts runs. Dogs might drive off predators but they also hunt other wildlife. This is one of the conclusions that Professor Nicoli Nattrass refers to in her research paper Jackal Narratives and Predator Control in the Karoo, South Africa.
The suggestion that the animals were left to die of exposure is likewise a matter of opinion that must be viewed in the light of the uncontested statement that they had been shot shortly after being trapped.
The idea that the use of traps is vile is a matter of opinion rather than law. The fact is that traps are lawful and their use is not cruel if the trap is inspected at least every 24 hours.
That Dr Smuts chose to embellish his opinions with a picture of Mr Botha and his baby daughter as well as details about where he lived and worked added to Mr Botha’s apprehension that he and his family could be harmed. And this apprehension was not unfounded given the hostility Dr Smuts’s opinions elicited and the calls for the public shaming of Mr Botha and the boycotting of his business that followed.
I suggest that Dr Smuts must have been aware this would be the response, given the reports of his behavior in Professor Nattrass’ research paper. That research includes a report of Dr Smuts inciting the boycott of an entire town because one of its businesses offended him.
Put all of this together and I must say that my present insouciance regarding the attack by Dr Smuts on me would disappear rapidly if he were to publish photographs of my family along with details of where I live and work.
It is not surprising therefore that the issue of social media’s ability to cause harm was dealt with in detail in the earlier judgment of the High Court in Botha vs Smuts. This apprehension of harm was after all front and centre to the balancing act that was required in deciding whether to favour Mr Botha’s right to privacy over Dr Smuts’s right to freedom of expression.
Crossed the line
The High Court drew the line at Dr Smuts publishing Mr Botha’s contact details and address as well as publishing photographs of Mr Botha’s children. It held that while Dr Smuts was free to express his outrage, he crossed the line that demarcated Mr Botha’s right to privacy by publishing this personal information as he did.
I think most South Africans would agree with that determination. After all, South Africa is a very dangerous place. We all live in fear of being attacked. Acting in a manner that invites an attack on a person must increase this nascent fear. Embellishing that fear with the person’s address and personal details makes this so much worse.
But that is what the Supreme Court of Appeal did in overturning the judgment of the High Court. This is what the court said:
‘(It) would serve no useful purpose in publishing the photographs without stating where they were taken, by whom the traps were used and naming the farm and identifying its owner. Mr Botha’s claim to privacy is unsustainable. The use of animal traps in the course of commercial farming operation are conducted in public and thus fall outside the realm of protected privacy. What is damning for Mr Botha is that he makes use of animal traps openly where hunters and cyclists have access. I fail to understand how it can be contended that it was unlawful for Mr. Smuts to publicise the fact that the photographs were taken on a farm belonging to Mr. Botha. It is telling that Mr. Botha did not allege that Mr. Smuts’ publication of the fact that the photos were taken on his farm, which publicly linked him to the use of animal traps, damaged his reputation.’
This finding will startle lawyers.
Firstly, it is trite law that you do not have to allege actual harm to obtain an interdict. Proof of a reasonable apprehension of harm is all that our law requires. Indeed, one can say that waiting for the harm to happen defeats the purpose of an interdict.
Right to privacy
Secondly, the constitutional right to privacy extends beyond the protection of personal information under laws such as the Protection of Personal Information Act. It is a right that, like the right to freedom of expression, protects the core value of human dignity on which our constitutional rights are based. It is trite that the exercise of all rights must be judged having regard to this core value and the other values described in section 1 of the Constitution.
Thirdly, while this should not be relevant given that the Constitution protects the rights of everyone including juristic persons, Mr Botha did not trap baboons to protect his commercial enterprise, he did so to protect his home and family.
I am told that Mr Botha is applying for leave to appeal this judgment in the Constitutional Court. I think this is a very good thing. I have in the meantime suspended my own Facebook account. Facebook’s Community Standards promises a safe place that respects the dignity of its members. It is difficult to see how it can do this if a country’s laws constitutionally protect the right to degrade others as a vital element of free speech.
Apart from what I have already said it needs to be recognised that South Africa is a place of diverse cultures beliefs and opinions. The Constitution urges every one of us to try and find unity in that diversity. I suggest that we will only be able to do that if we can find it in ourselves to respect the cultures, beliefs, and thus the opinions of others.
I suggest that this is the essence of ubuntu and civility.
I worry that the SCA judgment encourages incivility rather than promoting ubuntu. It raises the temperature in what is already a dangerous environment. Social discourse should ideally be a safe place. This judgment makes it considerably less so in my opinion.
Wicked playground problems
I worry what the public response will be if people are given carte blanche to attack others personally on social media or in public in the way that Dr Smuts attacked Mr Botha. Back in the day, we dealt with these wicked playground problems with our fists. I did not like that then and I do not like it now. But as the late Murray Hofmeyr said at the height of the state of emergency, you must give people reasonable options if you want them to behave reasonably.
I wonder what options ordinary people like Mr Botha have when attacked in the way he was by the likes of Dr Smuts, outside of descending into the gutter and fighting like with like. I suggest that this can’t be good especially in a country that is meant to put a premium on human dignity in a search for unity in our diversity.
[Image: https://pixabay.com/illustrations/child-suffering-look-help-pity-1154951/]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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