Testing The Limits Of The Protection Of Personal Information Act 4 Of 2013 (POPIA)

• Published date: 16 February 2022
• Subject Matter: Privacy, Data Protection, Privacy Protection
• Law Firm: Schoemanlaw Inc.
• Author: Ms Nicolene Schoeman-Louw

The movement towards data protection and data privacy has been topical internationally. For example, in South Africa, POPIA regulates the lawful processing of personal information as the General Data Protection Regulation("GDPR") regulates Europe.

In countries like South Africa, the courts play a pivotal role in developing the practicalities and application of law in a societal context. It is therefore prudent to mention the principle of stare decisis. It is a juridical command to the courts to respect decisions already made in a given area of the law. This means that a decision of the highest court binds the application or interpretation of the lower courts.

The Supreme Court of Appeal, or SCA, is the highest court in South Africa. Only lower than the constitutional court.

As such, the decision of Bool Smuts and Another v Herman Botha (887/20) [2022] ZASCA 3 (handed down 10 January 2022) is noteworthy as the first glimpse of the potential limitations of POPIA.

Facts of the Bool Smuts and Another v Herman Botha

On 23 September 2019, in the early morning hours, a group of cyclists participated in an adventure ride organized by Quantum Adventure. They traversed the farm Varsfontein belonging to the respondent, Mr Herman Botha (Mr Botha). Nicholas Louw, one of the cyclists, noticed two cages on the farm, one containing a dead baboon, the other a dead porcupine. He took photographs of the dead animals' cages and sent them to the first appellant, Mr Smuts, a wildlife conservationist and activist. He is also the founder and executive director of the second appellant, Landmark Leopard and Predator Project-South Africa (Landmark Leopard).

Upon receiving the photographs, Mr Smuts contacted Mr Botha via WhatsApp, and Mr Botha confirmed that he had a valid permit to hunt, capture and kill the baboons, porcupines and other vermin. On 9 October 2019, Mr Smuts posted pictures of the dead baboon and porcupine trapped on the farm owned by Mr Botha on Landmark Leopard's Facebook pages. On his Facebook page, Mr Smuts also included a picture of Mr Botha holding his six-month-old daughter. Additionally, he posted a Google Search Location of Mr Botha's business, his home address, and telephone numbers. A WhatsApp conversation between Mr Smuts and Mr Botha was also posted. In that post, Mr Botha was asked by Mr Smuts if he had a permit to trap animals, to which he responded in the affirmative.

The post generated many comments on Facebook, primarily critical of Mr Botha and the...