De Lille ordered to pay damages
Belinda Beresford
05 April 2007 11:59
The Constitutional Court has ordered Independent Democrats leader Patricia de Lille and journalist Charlene Smith to pay damages to three women whose HIV-positive status they revealed in a book without the women’s consent. The three women, identified as NM, SM and LH, were named as having HIV in Smith’s biography of De Lille, published in March 2002. The women, who live in a township near Pretoria, were not contacted about the publication of their names. After 11 months of deliberation, the Constitutional Court ordered De Lille, Smith and their publisher, New Africa Books, to pay each of the women R35 000 for violating their dignity and psychological integrity.
In a majority ruling, the court said De Lille gave the information about the three applicants to Smith for use in the book, while she “knew or ought to have known that the necessary consents had not been obtained”. Smith, who “did a half-hearted check, but soon became tired of the exercise”, went ahead and produced the book without obtaining consent from the applicants. The court found that De Lille and Smith had failed to make sufficient effort to get the applicants’ consent, and could have used pseudonyms in the book without detracting from its authenticity. Justice Tholie Madala said he had no doubt that Smith and De Lille “were aware that they had not obtained the express, informed consent of the applicants to publish their HIV status … It was not a question of publishing breaking news, such as might happen for the purposes of a newspaper.” Madala also disagreed with the grounds given by the high court in awarding damages of only R15 000 to each woman, to be paid by the publisher alone.
Noting the grounds for the decision, that the applicants did not understand English and that there was no likelihood of their being confronted by their community about their HIV status, he said the lower court appeared to have “treated lightly” the indignity they had suffered. “The case of the applicants was reduced to a malady that had befallen ‘lesser men or women’. “They were regarded as poor, uneducated, coming from an insignificant informal settlement, and their plight disclosed in the book was not likely to spread far beyond the community in which they resided.” The women’s circumstances in fact required greater sensitivity, Madala found. Because of the book, one of the applicants was identified as HIV-positive by her boyfriend, who then left her after first burning down her shack.
Before the high court judgement, damages of R35000 had been offered in settlement, but rejected. The Constitutional Court also ordered that each side pay its own costs up to the end of the first day of the high court hearing, overruling the latter’s order that the applicants pay the respondents’ costs after that date. The grounds were that the women had failed to accept a settlement offer higher than the amount they were awarded. The women contacted De Lille after becoming concerned about the antiretroviral clinical trial they took part in during 1999/2000. De Lille was given a confidential copy of the investigation, which included the women’s names, and passed it on to Smith. The Constitutional Court found that, as the fault had been wilful rather then negligent, there was no need to further develop common law with regard to invasion of privacy and medical facts. Its majority decision would have no “chilling effect” on freedom of expression in South Africa.
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