Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another

• Jurisdiction: South Africa
• Citation: 1993 (2) SA 451 (A)

Financial Mail (Pty) Ltd and Others v Sage Holdings Ltd and Another
1993 (2) SA 451 (A)

1993 (2) SA p451

Citation	1993 (2) SA 451 (A)
Court	Appellate Division
Judge	Corbett CJ, Van Heerden JA, Kumleben JA, Goldstone JA and Howie AJA
Heard	August 24, 1992
Judgment	February 18, 1993

Flynote : Sleutelwoorde F

Delict — Unlawful interference with personality rights — Right to privacy — Whether corporation having such right — As matter of policy G Courts tending to equate respective positions of natural and artificial (or legal) persons where possible and appropriate — Such possible in sphere of defamation since corporation has reputation in respect of business and other activities which may be damaged by defamatory statements — Similarly, corporation theoretically entitled to protection from invasion of right to privacy.

H Delict — Right to privacy — Invasion of — Taking two forms: (1) unlawful intrusion on personal privacy; (2) unlawful publication of private facts — Not all intrusions or publications unlawful — In demarcating boundary between lawfulness and unlawfulness, Court to judge particular facts of case in light of contemporary boni mores and general I sense of justice of community as perceived by Court — Decision on unlawfulness often involves weighing up of competing interests.

Delict — Right to privacy — Invasion of — Publication of information obtained by means of unlawful intrusion upon privacy — Generally, publication of any such information unlawful — Possible exception to J general rule being where nature of information such that there

1993 (2) SA p452

A are overriding grounds in favour of public being informed thereof — Court would then conclude that publication to be permitted despite source of information or manner in which obtained — Case where, despite information being obtained by unlawful intrusion of privacy, overriding considerations B of public interest permitting publication would be rara avis — Public interest in favour of publication required to be very cogent indeed.

Headnote : Kopnota

As a matter of general policy the Courts have, in the sphere of personality rights, tended to equate the respective positions of natural and artificial (or legal) persons where it is possible and appropriate for C this to be done. This is possible in the sphere of defamation for, although a corporation has 'no feelings to outrage or offend', it has a reputation (or fama) in respect of the business or other activities in which it is engaged which may be damaged by defamatory statements, and it is only proper that it should be afforded the usual legal process of vindicating that reputation. Similarly, a corporation is theoretically entitled to protection from invasion of its right to privacy and its right to identity.

The invasion of the right to privacy may take two forms: (i) an unlawful D intrusion upon the personal privacy of another and (ii) the unlawful publication of private facts about a person. Not all such intrusions or publications are unlawful, and in demarcating the boundary between lawfulness and unlawfulness in this field the Court must have regard to the particular facts of the case and judge them in the light of contemporary boni mores and the general sense of justice of the community as perceived by the Court. A decision on the issue of unlawfulness will often involve a consideration and a weighing of competing interests. In a E case of the publication in the press of private facts about a person, for example, the person's interest in preventing the public disclosure of such facts must be weighed against the interest of the public, if any, to be informed about such facts.

Where the information sought to be published was obtained by means of an unlawful intrusion upon privacy then, generally, any publication of such information would be unlawful. There might well be exceptions to the F aforesaid general proposition: if in the case of information obtained by means of an unlawful intrusion the nature of the information is such that there are overriding grounds in favour of the public being informed thereof, the Court would conclude that publication of that information should be permitted, despite its source or the manner in which it was obtained. In this regard it is important to note that (a) there is a wide difference between what is interesting to the public and what it is in the public interest to make known; (b) the media have a private interest of G their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; and they are peculiarly vulnerable to the error of confusing the public interest with their own interest; and (c) there is a public interest of a high order in preserving confidentiality in regard to private affairs and in discouraging the leaking of private and confidential information, unlawfully obtained, to the media and others.

The respondents, a public company quoted on the Johannesburg Stock Exchange and its chairman, had obtained an interdict preventing the H appellants from publishing in the Financial Mail, a weekly financial magazine, an article which the respondents alleged was based on information obtained unlawfully and which was defamatory of the respondents. Among the issues dealt with in the proposed article were the relationship between the first respondent and the Allied Group Ltd (in which the first respondent held a 'strategic investment') and the disposal of a business venture in the United States of America in which the first I respondent was engaged. It was common cause that those parts of the article were based in part on (1) information derived from a memorandum marked 'strictly private and confidential', critical of the relationship between the Allied Group and the first respondent, which had been prepared by a group within Allied but rejected by its executive committee and in respect of which permission to disclose it to third parties had never been given; and (2) tape recordings of telephone conversations between one of the first respondent's directors and various third parties, obtained by means of an unauthorised eavesdropping device (the appellants had not been J party to the unauthorised eavesdrop

1993 (2) SA p453

A ping). One of the issues in the appeal against the grant of the interdict was whether the use by the appellants of information derived from the tape recordings and the Allied document ('the confidential sources') in an article published in the Financial Mail would have been unlawful.

Held, as to the tape recordings, that the fact that the information in question had been obtained by means of an unlawful intrusion upon privacy was a factor of major significance. B

Held, further, assuming in favour of the appellants that in a case where the information sought to be published had been obtained by means of an unlawful intrusion there might nevertheless still be overriding considerations of public interest which would permit of its publication, that it appeared that such a case would be a rara avis and that the public interest in favour of publication would have to be very cogent indeed.

Held, further, that this was not the case in this instance: the information in question related to sensitive and confidential information C concerning the first respondent's internal affairs and delicate business negotiations being conducted by it and no good reason had been advanced by the appellants as to why the public should be informed about it or why indeed the appellants should have been permitted to use that information as a springboard for what was generally a fairly hostile article concerning the first respondent and its financial affairs.

Held, further, that the Allied document appeared to stand on the same D footing as the tape recordings: it was a confidential internal document belonging to Allied, it dealt with confidential and sensitive issues concerning the relationship between Allied and the first respondent and, since permission had never been given for the document to be disclosed to third parties, the appellants' possession thereof was unlawful.

Held, further, that there was no overriding consideration of public interest justifying publication.

E Held, accordingly, that publication by the appellants of those parts of the article derived from the tape recordings and the Allied document would have infringed the first respondent's right to privacy.

The decision in Sage Holdings Ltd and Another v Financial Mail (Pty) Ltd and Others 1991 (2) SA 117 (W) confirmed, but on different grounds. F

Case Information

Appeal from a decision in the Witwatersrand Local Division (Joffe J) reported at 1991 (2) SA 117. The facts appear from the judgment of Corbett CJ.

R D Levin SC (with him G J Marcus) for the appellants referred to the following authorities: Heilbron v Blignaut 1931 WLD 167 at 169; Buthelezi v Poorter and Others 1974 (4) SA 831 (W) at 836E-F; Setlogelo v Setlogelo G 1914 AD 221; Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H-635C; Van der Merwe v Fourie 1946 TPD 389 at 392; Buitendach v West Rand Proprietary Mines 1925 TPD 886 at 906; Joubert (ed) The Law of South Africa vol 11 para 319; Palko v Connecticut 302 US 319; Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of H South West Africa 1987 (1) SA 614 (SWA) at 623G-H; Publications Control Board v William Heinemann Ltd 1965 (4) SA 137 (A) at 160E-J; R v Roux 1936 AD 271 at 281 and 293; S v Turrell 1973 (1) SA 248 (C) at 256G-H; S v Evans 1982 (4) SA 346 (C) at 351C-D; Zillie v Johnson 1984 (2) SA 186 (W) at 196A-D; Fraser v Evans [1969] 1 All ER 8 (CA) at 10G-H, 12D-F; Hubbard v Vosper [1972] 1 All ER 1023 (CA); Dun & Bradstreet (Pty) Ltd v SA I Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968...