Personal electronic data protection : South Africa. Chapter 5

• DOI: 10.10520/EJC74041
• Date: 01 January 2005
• Pages: 73-86
• Author: Leani Marlie Van Schalkwyk
• Published date: 01 January 2005

CHAPTER 5

PERSONAL ELECTRONIC DATA PROTECTION:

SOUTH AFRICA

1. Introduction

Personal data in South Africa is protected through the right to privacy.

The protection of commercial information is not mentioned per se,

but it is submitted that cases may occur when the principles go-

verning privacy may be applied to protect commercial information.

The Electronic Communications and Transactions Act325 is a statu-

tory instrument that makes provision for the protection of personal

electronic data.

The protection of personal data will be considered with reference

to South African common law as well as statutory law.

2. Common Law protection of personal data

South African jurisprudence has experienced little difficulty in recog-

nising the right to privacy as an independent right of personality.

This affirms the fact that personal information is protected.

The court in the locus classicus on this recognition, O’Keeffe v Argus

Printing and Publishing Co Ltd,326 identified the right to privacy as one

of the personality rights relating to dignitas.

In S v A327 the accused was found guilty of crimen iniuria because

they installed a wireless bugging device in the apartment of the

complainant and listened in on his communications. It was held that

an invasion of an individual privacy sets a prima facie impairment

of his dignitas.Acting Judge Botha stated that

[t]here can be no doubt that a person’s right to privacy is

one of those real rights, those rights in rem related to per-

sonality, which every free man is entitled to enjoy.328

Botha AJ also stated that “I have no doubt that the right to privacy is

included in the concept of dignitas…”.329

73

325 Act 25 of 2002.

326 1954 3 SA 244 C.

327 1971 2 SA 293 T.

328 297D.Cf R v Umfaan 1908 T

.S 62:66.

329 297H.