Right to Privacy in South Africa

 

The Constitution of South Africa provides for the Right to Privacy under Section 14 of Chapter 2, which is the Bill of Rights. According to this provision, every person in South Africa has the right to not have their homes or property searched, their possessions seized and also provides for protection from infringement of privacy in their communications. An interesting aspect of the Bill of Rights under the South African Constitution is that these rights bind both the State and even non-state actors including all natural and juristic persons, under Section 8. This automatically casts a duty on all persons, in addition to the State, to respect the rights of the people and ensure that they are not violated. Section 36 of the Constitution however, provides that the rights in the Bill of Rights can be limited by law to a reasonable and justifiable extent.

The scope of the Right to Privacy in South Africa, under Section 8 of the Constitution, with respect to the interplay with the limitation on its application under Section 36 of the Constitution has been explained through various case laws, one of which is discussed hereinbelow.

Investigating Directorate: SEO v. Hyundai Motors (Pty.) Ltd. & Ors., [2000] ZACC 12

This case, decided before the South African Constitutional Court, is an important one in defining the scope of the right to privacy in South Africa. In this case, a search warrant had been issued against the respondents under the National Prosecuting Authority Act, with respect to certain premises. The constitutional validity of certain provisions of this Act, which allowed search warrants to be issued and consequently seizure of property, was challenged before the court. It was contended that these provisions violate the Right to Privacy guaranteed under the South African Constitution.

The court however, held that the provisions of the National Prosecuting Authority Act were consistent with the provisions of the Constitution, as the provisions clearly stated that in issuing warrants for search and seizure proceedings, the provisions of the Constitution must also be kept in mind. A search and seizure warrant could only be issued by a judicial officer after he had concluded the existence of reasonable suspicion of the commission of the offence and that there were reasonable grounds to suspect the connection of the offence committed with the premises against which a warrant was to be issued. Further, an order for seizure could only be issued if the judicial officer considered it appropriate. In this background, the court interpreted the provisions of the law in such a manner that were consistent with the Constitution, as Section 36 of the Constitution of South Africa allows all rights to be limited by law to the extent reasonable and justifiable.

The court, in arriving at its decision, also laid down certain important principles that govern the right to privacy in South Africa. Most importantly, the court stated that the right to privacy for a natural person under the South African Constitution is not limited to one’s home or intimate space. This right extends to personal space anywhere, whether in a social capacity, in a car or in their telephone communications. The expectation of such a right must always be reasonable. For example, a search warrant issued when a judicial officer reasonably suspects any property to be connected with a crime cannot be a violation of the right to privacy.

The court further stated that for juristic persons, such as corporate entities, the right to privacy was available but not to such an extent. The application of the right to privacy would depend upon the circumstances of every case, which is why the National Prosecuting Authority Act gave such discretion to the judicial officer, who was also mandated to carry out such discretionary powers keeping in mind the provisions of the Constitution.

In this manner, the court laid down that the right to privacy is not a boundless right, and can be limited in accordance with the provisions of the Constitution. More importantly, however, the court provided a clear distinction in the right to privacy applicable to natural persona and that for juristic persons. In this manner, the court upheld the Constitutional validity of the provisions of the National Prosecuting Authority Act, which contained provisions of search and seizure.

Conclusion

The Right to Privacy in South Africa has specifically been provided for in the Constitution of South Africa. However, the court in the abovementioned case also clarified that by virtue of Section 26 in the South African Constitution, every right under the Bill of Rights can be restricted so long as it’s reasonable and authorised by law. The court as also, interestingly, expanded the scope of the Right to Privacy to even personal and social privacy, which is not envisaged under the Constitution.

Another interesting aspect of the Bill of Rights under the South African Constitution is that it binds not only the State actors, but the Non-State Actors as well. In this manner, the scope of the Right to Privacy is already greater than that in other countries like USA, UK and India. Thus, it is clear that the Right to Privacy is placed on a much higher pedestal on South Africa, than in other countries.