NM and Others v Smith and Others

The applicants, three HIV‑positive women living in informal settlements near Atteridgeville, participated as volunteers in HIV drug trials conducted at Kalafong Hospital. Complaints arose about adverse effects of the trials, leading to investigations, including the Strauss inquiry. Their names and HIV status appeared in reports prepared for investigative purposes only. In 2002, an authorised biography of Patricia de Lille, written by Charlene Smith and published by New Africa Books, disclosed the applicants’ names and HIV status without their consent. The applicants alleged violations of their rights to privacy, dignity, and psychological integrity and sued the author, subject of the biography, and publisher. The High Court dismissed the claims against Smith and De Lille but held the publisher liable for limited damages and ordered deletion of the names. The applicants sought leave to appeal to the Constitutional Court.

Leave to appeal was granted. The Constitutional Court upheld the appeal in substance, finding that the author and Patricia de Lille were also liable for wrongful publication of private facts infringing the applicants’ privacy and dignity, and set aside the High Court’s contrary findings.

This case is a leading authority on the protection of privacy and dignity in relation to confidential medical information, particularly HIV status, in South Africa. It affirms that disclosure of HIV status attracts strong constitutional protection and clarifies that participation in investigations or limited disclosures does not amount to consent for public dissemination by the media.