The tension between the Right to Privacy and the right to Freedom of Expression

 

Section 14 of the 1996 Constitution of the Republic of South Africa provides for an express and justiciable Right to Privacy. Section 16 deals with Freedom of Expression.

A person has the subjective expectation of privacy that society recognizes as objectively reasonable. However, there is a fine balancing act between the Right to Privacy and the right to Freedom of Expression.

The Supreme Court of Appeal (the SCA) dealt with this conflict in Smuts and Another v Botha Smuts and Another v Botha.

Smuts published personal and private details of Botha on a Facebook page regarding certain animal trapping practices employed by Botha. Smuts regarded the practices as unethical and after a WhatsApp engagement with Botha published on Facebook pictures of Botha and personal information relating to Botha and Smuts’ views on these practices.

The SCA had to decide if Botha was entitled to an interdict removing the posts.

In paragraph 8 of the judgement, the Court set out the present state of the Law of Privacy in South Africa.

“The right to privacy is a fundamental right that is protected under the Constitution. It is a right of a person to be free from intrusion or publicity of information or matters of a personal nature. It is central to the protection of human dignity and forms the cornerstone of any democratic society. It supports and buttresses other rights such as freedom of expression, information, and association. It is also about respect; every individual has a desire to keep at least some of his/her information private and away from prying eyes. Another individual or group does not have the right to ignore his wishes or to be disrespectful of his desire for privacy without a solid and reasoned basis”.

In dealing with the conflict between the right to privacy and the right to freedom of expression the Court found that Botha’s subjective expectation of privacy must be approached from a people-centred perspective. It found that the publication of information relating to animal trapping was in the public interest.

The Court held that it had to strike a balance between the right to privacy and the right to freedom of expression. It held that in this matter the right to freedom of expression i.e., the disclosure of unethical animal trapping practices trumps the right to privacy.

The Court concluded:

“In these circumstances, the test is not whether Mr Smuts could have posted more cautiously, the question is whether Mr Botha had any claim to privacy in respect of the information posted. His claim, as I have explained, was weak.”

 

Maintenance orders prescribe after 30 years.

A client asked if she would lose her right to claim maintenance from her ex-husband if she had been battling for years to get him to pay. He is now back on his feet and still refuses to maintain his child. He suggests the maintenance order lapsed after three years under the Prescription Act.

The Supreme Court of Appeal ("SCA") in Simon Roy Arcus v Jill Henree Arcus found that if a consent paper is signed and made a court order, the ex-wife has 30 years to enforce the claim for maintenance.

In this case, in 1993, during divorce proceedings between the parties, a court made a maintenance consent paper a court order. The husband was obliged to pay the wife and their two minor daughters maintenance until the daughters were self-supporting and the wife either remarried or died.

The husband failed to pay the maintenance, and after eighteen years, the wife obtained a writ of execution for the arrear maintenance amounting to R3.5-million.

The husband argued that all maintenance obligations due after three years from the date of the court order lapsed due to prescription.

The Prescription Act distinguishes between a "judgment debt" (that prescribes after 30 years) and "any other debt" (that prescribes after three years). The court found that the maintenance obligations in terms of the consent paper constituted a judgment debt.

The court noted that once a court makes a consent paper a court order, that agreement's status changes to an enforceable court order. Thus, it concluded that the three-year prescription period did not apply to maintenance orders as they were not orders that were still in dispute.

Can a court pierce the veil of a trust when calculating the accrual after a divorce?

 

In the case of MJK v IIK [2022] ZASCA 116, the wife sued for divorce. She sought an order declaring that the assets of three trusts and a CC be considered in determining the value of the accrual in terms of ss 3 and 4 of the Matrimonial Property Act 88 of 1984 (the Act). She contended that the trusts and the CC were her husband's alter ego and that during the marriage, he established the trusts and the CC over which he assumed sole de facto control.

The Act provides that during the marriage, each spouse retains control of their property, builds up their estate, and is responsible for their debts.

On dissolution of the marriage by death or divorce, the parties share equally the assets obtained during the marriage (the accrual). They determine the accrual by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies, and donations. On dissolution of the marriage, the parties divide equally the value of the difference in the accrual of the two estates, taking inflation into account.

The Court disagreed with the wife's suggestion that it should regard the assets of trusts of which the husband was a trustee and the close corporation of which he was a sole member as belonging to the husband to determine the accrual of his estate. It rejected her suggestion that he transferred the assets with the dishonest and fraudulent purpose of frustrating her claim to the accrual of the estate. The High Court disagreed that it should pierce the veneer of all three trusts to determine the accrual of the husband's estate as he used the trusts as his alter ego.

The Court agreed with the husband that estate planners have for years used trusts as a convenient tool for estate planning. His principal objective in creating the trusts was to protect their assets to care for his wife and children, mainly their mentally challenged daughter.

It dismissed the wife's claim for an order that the assets of the trusts and the CC were to be used to calculate the accrual of the husband's estate.