Invasion of privacy: Common law v constitutional delict — does it make a difference?

• Jurisdiction: South Africa
• Author: David McQuoid-Mason
• Published date: 29 May 2019
• Citation: 2000 Acta Juridica 227
• Date: 29 May 2019
• Pages: 227-261

Invasion of privacy: Common law v constitutional delict —

does it make a difference?

2000 Acta Juridica 227

David Mcquoid-Mason *

University of Natal, Durban

I Introduction

The right to privacy has been variously defined as 'the right to be left alone,' 1 'the

right to live one's own life with the minimum degree of interference,' 2 and the right

to decide 'when and under what conditions private facts may be made public.' 3It

includes the right to be free from intrusions and interference by the state and others

in one's personal life as well as unauthorized disclosures of information about one's

private life. 4 However, a person's right to privacy is not unlimited. It has been said,

for instance, that a person's 'inner sanctum' such as his or her family life, sexual

preference and home environment is 'shielded from erosion by conflicting rights of

the community', but as a person 'moves into communal relations and activities such

as business and social interaction, the scope of personalspace shrinks

accordingly'. 5 The right extends to natural and juristic persons. 6

A common law right to privacy under the actio injuriarum has

* B Comm LLB (Natal) LLM (London) PhD (Natal), Professor of Procedural and Clinical Law, University of

Natal, Durban.

2000 Acta Juridica 228

existed for many years, 7but more recently the right has been protected in the

1996 Constitution 8which provides for a general right to privacy that includes the

right of everyone not to have (a) their person or home searched; (b) their property

searched; (c) their possessions seized; or (d) the privacy of their communications

interfered with.' 9 The constitutional right to privacy, however, is not absolute and

may be limited in terms of the limitation clause. 10

The question arises whether there are now two potential delictual actions for

invasion of privacy — a common law action and a constitutional action — or whether

1Per Brandeis Jss, dissenting in Olmstead v United States 277 US 438 478, 48 S Ct 564 (1928).

2 International Commission of Jurists Conclusions of the Nordic Conference on the Right to Privacy (1967)

2 et seq.

3National Media Ltd v Jooste 1996 (3) SA 262 (A) at 271; cf D J McQuoid-Mason 'Privacy' in M

Chaskalson, J Kentridge, J Klaaren, G Marcus, D Spitz and S Woolman (eds) Constitutional Law of South

Africa (1996) 18-1; J Burchell Personality Rights and Freedom of Expression: The Modern Actio

Injuriarum (1998) 365.

4 Chaskalson et al (n3) 18-1; cf D J McQuoid-Mason The Law of Privacy in South Africa (1977) 99. Cf J

Neethling, J M Potgieter and P J Visser Neethling's Law of Personality 4ed (1996) 243 who state that

'privacy can be infringed only by an acquaintance with personal facts by outsiders contrary to the

determination and will of the person whose right is infringed, and such acquaintance can take place in

two ways only, namely through intrusion (or acquaintance with private facts) and disclosure (or

revelation of private facts)'.

5Bernstein v Bester NO 1996 (2) SA 751 (CC) para 67.

6Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 464; Janit v Motor Industries Fund

Administrators (Pty) Ltd 1995 (4) SA 293 (A). The rights of juristic persons are also protected by s 8(4)

of the Constitution of the Republic of South Africa, Act 108 of 1996. In Bernstein v Bester NO Ackermann

J made an obiter dictum observation that the right to privacy did not extend to 'the carrying on of

business activities', but this view does not seem to be correct (cf Hayes v Commissioner for Inland

Revenue 2000 (6) BCLR 596 (Tk) at 613; Burchell (n 3) 388-9). See, however, Deutschmann NO v

Commissioner for SARS 2000 (2) SA 106 (E) at 107, where the court blindly followed Ackermann J's

dictum.

7 McQuoid-Mason (n 4) 86.

8 Constitution of the Republic of South Africa Act 108 of 1996 (hereinafter cited as 'the Constitution').

9 Section 14.

10 Section 36(1); cf Case v Minister of Safety & Security 1996 (3) SA 617 (CC) para 106.

2000 Acta Juridica 227

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the common law action should subsume the constitutional action without creating a

new delict. There has been support for the latter approach 11 for two reasons:

Firstly, because the Constitution, like the common law, operates both vertically

between the state and private individuals and horizontally between private

individuals. 12 And, secondly, because the Constitution will have a direct impact on

the development of the common law because, when interpreting the former, the

courts must promote the spirit, purport or objects of the bill of rights.' 13It has also

been suggested that a subjective right is different from a fundamental right as the

latter is a public law concept primarily aimed at giving the individual rights against

the state, and therefore it would be wrong to speak of a breach of a fundamental

right as giving rise to a 'constitutional tort'. 14

It is intended to discuss the impact of the Constitution on the common law

development of the law of privacy before considering whether a new constitutional

delict of invasion of privacy should be created.

II Common law right to privacy

(1) Essentials for liability

As a general rule at common law in order to prove a claim for invasion of privacy

under the actio injuriarum the plaintiff has to show that there has been an

infringement of the person's right to privacy which was unlawful and intentional, 15

or, in the case of the

2000 Acta Juridica 229

mass media, unlawful and negligent. 16 The elements that have to be alleged and

proved are: (a) an invasion of privacy; (b) wrongfulness; and (c) fault in the form of

intention or animus injuriandi for ordinary individuals, or negligence in the case of

publications by the press.

(a) Invasion of privacy

At common law invasion of privacy is regarded as an aspect of impairment of

dignitas17 which includes 'those rights relating to . . . dignity'. 18 It has been

suggested that invasion of privacy could be accommodated under the broad

definition of 'dignity'. 19However, the fact that the Constitution mentions 'dignity'

and 'privacy' separately, 20 as does the Universal Declaration of Human Rights, 21

seems to indicate that they can be regarded as separate rights 22 — although, as the

Constitutional Court has pointed out, they are linked. 23 Invasions of privacy can be

broadly divided into (i) intrusions and (ii) publications of private facts. 24 Further

11 Cf Burchell (n 3) 118.

12 Cf Burchell (n 3) 93 and 95-102.

13 Section 39(2) of the Constitution.

14 J C van der Walt and J R Midgley Delict: Principles and Cases 2ed (1997) para 5. See also the

discussion below, [27 et seq].

15 Chaskalson et al (n 3) 18-2.

16National Media Ltd v Bogoshi 1998 (4) SA 1196 (SCA) at 1209, where the Supreme Court of Appeal

emphasized the importance of freedom of expression as an essential element of democracy. In the past

strict liability was imposed on the press in defamation cases by the Appellate Division (Pakendorf v De

Flamingh 1982 (3) SA 146 (A)).

17Cf Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 849: 'The actio injuriarum protects a person's

dignitas and dignitas embraces privacy'.

18O'Keeffe v Argus Printing & Publishing Co 1954 (3) SA 244 (E) at 246.

19 Burchell (n 3) 374.

20 Sections 10 (dignity) and 14 (privacy).

21 Articles 1 (dignity) and 12 (privacy).

22 Cf Neethling, Potgieter and Visser (n 4) 242n40: 'Of course, the express constitutional recognition of

the right to privacy . . . independent of the right to dignity . . . finally lays to rest the possible equation

of, and thus confusion between, these two personality rights'.

23National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (6) BCLR 726 (CC) para 28.

24Financial Mail (Pty) Ltd v Sage Holdings Ltd (n 6) at 462.

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