Free State High Court Overturns Defamation Award in HIV Status Disclosure Case, Emphasising Privacy Over Reputation Harm
In a landmark ruling that could shape how courts handle sensitive health information, the Free State High Court in Bloemfontein has decided that revealing someone’s HIV status without permission does not amount to defamation. The case, stemming from a workplace meeting at the National Union of Metalworkers of South Africa (Numsa), highlights the fine line between protecting privacy and claiming damage to one’s good name. Judges stressed that living with HIV should not be seen as shameful, urging society to treat it like any other treatable illness to reduce stigma. This decision overturned an earlier award of R100,000 in damages to the affected woman, known only as K.A.B, but opens the door for her to pursue a separate claim for breach of privacy.
The Incident That Sparked the Legal Battle
The trouble began on 27 February 2021 during a grievance meeting at Numsa’s offices in Bloemfontein. About 14 union members and staff were present to discuss various issues, including confidentiality at work. Andile Wiseman Zitho, a Numsa leader and the second defendant in the case, warned those in the room that what he was about to say might cause a stir.
He then revealed: “You Constance told me that P[…] is HIV positive and I never told anyone.” Here, P[…] referred to K.A.B, a Numsa employee who had confided her HIV-positive status to her friend and colleague, Mamojabeng Constance Molatlhoe, back in 2007. Molatlhoe had shared this with Zitho around 2010, reportedly out of concern for K.A.B’s well-being.
K.A.B had no idea this would come up and had not given permission for her private health details to be shared. The disclosure left her deeply upset—she felt hurt, betrayed, and emotional, leading to a short break in the meeting. Afterwards, Zitho apologised, but the damage was done. K.A.B sought help from a psychologist to deal with the stress, experienced suicidal thoughts, made mistakes at work, and even faced what she described as harsh treatment from Zitho. She remained employed at Numsa but opened a crimen injuria case against him at Park Road police station, with the reference CAS 892/03/2021, which is still pending in the criminal courts.
A colleague, Mathapelo Galada, who was at the meeting, later testified that the revelation shocked everyone and seemed unnecessary. Zitho defended his words by saying he was trying to show how well he could keep secrets, using it as an example of maintaining confidentiality about members’ personal medical information. He claimed K.A.B’s status was already common knowledge among some, though he provided no proof of this at trial and later admitted it might have been a mistake, denying any intent to harm her reputation.
K.A.B’s Initial Victory in the Lower Court
Feeling her dignity had been attacked, K.A.B took Numsa, Zitho, and Molatlhoe to court in 2021, seeking R1,000,000 in damages for defamation. She argued that the statement made her seem like a sick person who could infect others or fail at her job, harming her reputation, body, and dignity—known in legal terms as fama, corpus, and dignitas.
In July 2023, the Free State High Court ruled in her favour. The judge found that Zitho’s words were wrongful and intentional, even if not meant to be malicious. The court noted the public setting of the disclosure and the stigma still linked to HIV, which made the act defamatory. It rejected Zitho’s defence that he could have used a different example to prove his point about keeping secrets.
Drawing from past cases, the court considered factors like the number of people who heard the statement (14), the harm to K.A.B’s feelings, and the lack of an immediate apology. Similar rulings included R110,000 awarded in Dikoko v Mokhatla for deliberate defamation, R35,000 each in NM and Others v Smith for unauthorised HIV status publication in a book, and amounts between R50,000 and R90,000 in Independent Newspaper Holdings Ltd v Suliman. Balancing these, the court awarded K.A.B R100,000, plus interest from the judgment date and legal costs on a party-and-party scale. Numsa was held jointly liable as her employer.
The Appeal: Separating Defamation from Privacy Breach
Numsa and the others appealed, arguing that the lower court had mixed up defamation with a breach of privacy. The appeal was heard on 25 July 2025, and the judgment was delivered electronically on 28 October 2025 by Acting Judge HE De La Rey, with Acting Deputy Judge President JJ Mhlambi and Judge PJ Loubser agreeing.
The full bench clarified that defamation and breach of privacy are two separate legal claims under the common law action called actio iniuriarum, which protects personality rights like dignity and reputation. For defamation, a person must prove wrongful, intentional publication of a statement that harms their reputation. K.A.B’s court papers focused on this, claiming the words defamed her fama, corpus, and dignitas, but did not specifically plead a breach of privacy.
Drawing from the 2007 Constitutional Court case NM and Others v Smith, the judges noted: “There is nothing shameful about suffering from HIV/AIDS. HIV is a disease like any other; however the social construction and stigma associated with the disease make fear, ignorance and discrimination the key pillars that continue to hinder progress in its prevention and treatment.” They added that living with HIV should not be viewed as a violation of one’s dignity, but disclosing it without consent is an affront to that dignity.
However, this makes it a privacy issue, not defamation. Privacy involves the right to keep personal facts secret and control who knows them. The court said K.A.B could have claimed for breach of privacy, but since she did not, her defamation case failed. The judges also pointed out that she did not prove intent to injure (animus iniuriandi), a key part of defamation.
The appeal succeeded, the R100,000 award was set aside, and K.A.B’s claim was dismissed with costs, including counsel’s fees on scale B. The late filing of Numsa’s arguments was forgiven.
Broader Implications for HIV Stigma and Legal Claims
The ruling sends a strong message against stigma. Judge De La Rey echoed earlier views: “In dealing with cases concerning people living with HIV/Aids, courts and lawyers must take care not to develop rules that will strengthen rather than diminish the stigma attached to HIV/Aids.” He hoped that, over time, those with HIV would be seen simply as community members with a treatable disease.
For legal experts, it underlines the need to plead claims correctly—defamation for harm to reputation, privacy breach for unauthorised sharing of personal info. This could affect workplace policies on health data, especially under laws like the Protection of Personal Information Act (Popia), which guards medical details.
While K.A.B lost on defamation, she might still seek justice through a privacy claim or the ongoing criminal case. The decision protects against loose use of defamation labels but keeps strong safeguards for privacy in health matters. For South Africans living with HIV—estimated at over 8 million—this ruling could help shift attitudes, making disclosure less taboo while ensuring consent is key.
