Constitutional protection of the right to privacy: The contribution of Chief Justice Langa to the law of search and seizure

• Jurisdiction: South Africa
• Citation: 2015 Acta Juridica 407
• Published date: 15 August 2019
• Date: 15 August 2019
• Pages: 407-429

Constitutional protection of the right to

privacy: The contribution of Chief

Justice Langa to the law of search

and seizure

CHUKS OKPALUBA*

The right to privacy in s 14 of the Constitution includes the right not to have

one’s person or home searched, one’s property searched, one’s possessions

seized, or the privacy of one’s communications infringed. Chief Justice Langa

wrote two landmark judgments of the Constitutional Court concerning

constitutional protection of privacy in the context of search and seizure

operations: Investigating Directorate: Serious Economic Offences v Hyundai Motors

Distributors (Pty) Ltd concerning the constitutional validity of statutory provi-

sions authorising the issue of search warrants to investigate serious crimes, and

Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma and Another v

National Director of Public Prosecutions, concerning the constitutional validity of

applications for search warrants, their terms, and the manner of their execu-

tion. This contribution explains the signif‌icance of these judgments, placing

them in the context of the common law and the Constitution’s protection of

privacy more generally. In the f‌inal analysis, it becomes clear that Chief Justice

Langa’s contributions to this branch of the law were enormous and his

erudition epitomised clarity.

I INTRODUCTION

The Constitution of South Africa places immense value on the rights

pertaining to the security of the human person and human dignity.

1

As a

fundamental personality right deserving of protection as part of human

dignity,

2

the right to privacy is entrenched in the Constitution. In terms of

s 14 of the Constitution, everyone has the right to privacy, including the

right not to have their person or home searched, their property searched,

their possessions seized, or the privacy of their communications infringed.

The right to privacy embraces the right to be free from intrusions and

* Adjunct Professor of Law, University of Fort Hare; LLB LLM (London) PhD (West

Indies).

1

Section 10 of the Constitution of the Republic of South Africa, 1996. See J Neethling, J

Potgieter & PVisser Neethling’s Law of Personality (2005) 191.

2

Gaertner and Others v Minister of Finance and Others 2014 (1) SA442 (CC) para 86; J Burchell

Personality Rights and Freedom of Expression: The Modern Actio Injuriarum (1998); B Markesinis et

al ‘Concerns and ideas about the developing English law of privacy (and how knowledge of

foreign law might be of help)’(2004) 52 American Journal of Comparative Law 133 at 153.

407

2015 Acta Juridica 407

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interference by the state and others in one’s personal sphere.

3

The

protection of privacy is based on the assumption that no one can take it

upon him or herself to gain access to or to put into the public domain

objects, matters or information which the individual reasonably regards as

personal and sacred for his or her private purposes. As far as the individual

is concerned, the object, matter or information in question pertains to

him or her alone, to the exclusion of others and the public as a whole,

hence it should not be a subject of public concern or scrutiny. In other

words, the right protects a condition of life characterised by reasonable

seclusion from the public. The extent of such seclusion is determined by

the individual him or herself, with the implied absence of acquaintance

with the individual or his or her personal affairs in this state.

4

It is well established that statutes authorising warrantless entry into

private homes and the rif‌ling through private possessions is in breach of

the right to privacy.

5

It is thus necessary that the right to privacy with

regard to the homes of individuals and their intimate possessions be

protected. In this context the expectation of privacy is at its greatest and,

at the least, entry and searches conducted there must be authorised by

warrants.

6

Legislation frequently authorises the issue of warrants to enable

the police and other law enforcement agents to enter and search private

property and, if necessary, to seize specif‌ied items or documents. Search

and seizure operations, and the statutes and warrants purportedly autho-

rising them, not infrequently come up for constitutional challenge on the

ground of violation of the fundamental human rights of the individual or

the common-law right to the same effect.

7

The late Chief Justice Langa wrote two seminal judgments of the

Constitutional Court concerning constitutional protection of privacy in

the context of search and seizure operations: Investigating Directorate:

Serious Economic Offences v Hyundai Motors Distributors (Pty) Ltd (Hyundai

Motors)

8

and Thint (Pty) Ltd v National Director of Public Prosecutions and

Others; Zuma and Another v National Director of Public Prosecutionsand Others

3

Gaertner (n 2) para 47.

4

Per Ackermann J in Bernstein and Others v Bester and Others 1996 (2) SA751 (CC) para 68.

See also J Neethling, J Potgieter & PVisser Law of Delict 6 ed (2010) 347.

5

Gaertner (n 2) para 86. Warrantless search and seizure may be justif‌ied in exceptional

circumstances: see eg s 22(b) of the Criminal ProcedureAct 51 of 1977.

6

Gaertner (n 2) para 86; see also Magajane v Chairperson, North West Gambling Board and

Others 2006 (5) SA 250 (CC); Mistry v Interim Medical and Dental Council of SA and Others 1998

(4) SA1127 (CC).

7

Sello v Grobler 2011(1) SACR 310 (SCA) para 8.

8

2001 (1) SA545 (CC).

408 A TRANSFORMATIVE JUSTICE:ESSAYS IN HONOUR OF PIUS LANGA

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