Politician and Independent Democrats leader Patricia de Lille and journalist and rape activist Charlene Smith faced the Constitutional Court this week in a legal battle that could have important implications for the right of privacy.
The case is the final episode in a protracted struggle over De Lille’s biography, penned by Smith, which revealed the HIV-positive status of three women without their consent.
The women, who can only be identified by the initials SN, NM and LH, sued De Lille, Smith and the publisher, New Africa Books, after initial requests for the removal of their identities from the book were rejected.
In court papers SN, NM and LH again asked for an apology, the deletion of their names and R200 000 each in damages for the invasion of their privacy and the stress they suffered. The women say they are scared of the repercussions of their HIV-status becoming known in their community.
A bitter encounter between the two parties in the Johannesburg High Court last year resulted in New Africa Books being ordered to pay damages of R15 000 to each defendant. The case against De Lille and Smith was dismissed.
However, the damages awarded could be dwarfed by the costs that the complainants were ordered to pay, after it emerged that a higher settlement offer had been made on the first day of the trial but rejected.
The Aids Law Project, acting on behalf of the complainants, estimates that total costs are currently running into hundreds of thousands of rand.
The settlement offer was for R35 000 per woman, erasure of their names from the book and an apology — but ”without prejudice”. The complainants’ senior counsel, advocate Danny Berger, told the Constitutional Court on Tuesday this week that the qualified apology, which admitted no wrongdoing, meant that there was no acceptance that the women’s constitutional rights to privacy had been breached.
Berger was asking for leave to appeal against Mr Justice Schwartzman’s judgements in the Johannesburg High Court. The Supreme Court of Appeal in Bloemfontein has already refused to hear an appeal.
The appearance before the Constitutional Court results from the contention that the common law on privacy fails to take into account consitutional guarantees of human dignity. Berger asked the Constitutional Court to develop the common law so that people could be liable for breaching privacy, even if there was no malice or direct intent to do so. He also argued that the high court’s decisions failed fully to take into account constitutional guarantees of dignity and privacy.
Counsel for the three defendants, advocate John Campbell, said that a mistake had been made and that De Lille and Smith had honestly believed that consent had been given. None of the defendants would knowingly have breached the complainants’ privacy. He also argued that whether the common law was extended or not would make no difference to the outcome of the case.
The saga began in 1999 when De Lille was alerted to allegations of wrongdoing in an antiretroviral clinical trial run by the University of Pretoria. She raised legal and ethical concerns with the university and, as a result, was sent a copy of an independent investigation into the trial.
The report included the full names of SN, NM and LH. De Lille later passed the document to her biographer, Smith, who assumed that the women had agreed to their names and HIV-status being used because she saw consent forms listed as annexures. However, the consent forms themselves were not attached to De Lille’s copy of the report, and neither she nor Smith was aware that the forms did not give blanket consent for the women’s details to be made public — their details could only be used for the investigator’s report.
Smith’s attempts to get copies of the consent forms and other annexures were unsuccessful, and she did not contact the women themselves.
The Constitutional Court reserved judgement.