Constitutional Aspects of search and seizure 3.1 Discretion to allow search and seizure
3.6 The Right to Privacy and CompUlsory Disclosure of certain information
The compulsory disclosure of certain information by taxpayers or third parties via for example section 74A of the Income Tax Act, may be attacked on the basis that such compulsory disclosure invades a taxpayer's right to privacy. The constitutionality of 'compulsory disclosure' in enquiry proceedings in terms of other legislation has been considered in some cases.
Thus in the case of Bernstein and Others v Bester and Others42, the applicants as part of their attack on the constitutionality of section 417 and 418 of the Companies Act (enquiry proceedings) submitted that "a witness's privacy is clearly invaded when he is forced to disclose his books and documents that he wants to keep confidential and to reveal information that he wants to keep to himself". In addition, the applicants contend that the
411998 (4)sa 275 (TPD)
421996 (4) BCLR 449 (CC)
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"compulsory production of documents under section 417(3) constitutes a 'seizure' within the meaning of the right not to be subject to the 'seizure of private possessions' in terms of section 13 of the constitution".
The Constitutional court held that, in view of the fact that it was not possible to pronounce on the issue of privacy unless the content of the document or information in respect of which privacy was claimed was disclosed, it would be inadvisable under the circumstance to give a detailed exposition on the constitutional right to privacy at section 417 proceedings. In any event, in the Court's view, this was an exercise which the Supreme Court ought to perform on a case-by-case basis. This conclusion rendered it unnecessary to consider the limits of the constitutional right to privacy, but the Constitutional Court felt it appropriate to venture some observations on the scope of this right.
The scope of the privacy right was closely related to the concept of identity and was not based on a notion of the unencumbered self but on the notion of what was based on a notion of what was necessary to have one's own autonomous identity. No right was absolute. This implied from the outset of interpretation that each right was already limited by every other right accruing to another citizen. In the context of privacy this meant that it was only the inner sanctum of a person, such as his/her family life, sexual preference and home environment which was shielded from erosion by conflicting right of the community.
Privacy was acknowledged in the truly personal realm, but as a person moved into communal relations and activities such as business and social interaction, the scope of personal space shrank accordingly.
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There was no authority for the right to privacy extended beyond the private sphere of an individual's existence. Beyond that the scope of a person's right to privacy extended only to those aspects in regard to which a legitimate expectation of privacy could be harboured.
In each particular situation an assessment had to be made as to whether the public's interest to be left alone by government had to give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement.
The facts operative in the present case concerned neither the invasion of private living space nor any specific protected relationship. The establishment of a company as a vehicle for conducting business on the basis of limited liability was not a private matter.It drew on a legal framework endorsed by the community and operated through the mobilization of funds belonging to members of that community. Any person engaging in these activities should expect that the benefits inherent in this creature of statute would have concomitant responsibility. These included the statutory obligation of proper disclosure and accountability to shareholders. It could not therefore be said that in relation to such information a reasonable expectation would not be recognized by society as objectively reasonable to privacy existed. Such an expectation would be recognized by society as objectively reasonable. The same applied to auditors and the debtors of the company. The conclusion was therefore unavoidable that no threat to Applicants' right to privacy as protected by section 13 of the Constitution had been established.
As regards the challenge based on the right to privacy as it pertained to the seizure of private documents and possessions, the argument could be disposed of in exactly the
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same way as the previous argument. Their compelled production would be justified for the very same reason that the compelled answers to relevant questions would be justified.
The right to privacy therefore does not extend beyond this private sphere of an individual's existence the right to privacy is acknowledge in this truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly and extends only to those aspects to which a legitimate expectation of privacy can be harbored.
President of the Republic of South Africa and Others v South African Rugby Football Union and Other'", in following decision of Ackermann J in Bernstein's case, the Constitutional Court held that similar considerations apply to the provisions of the Commissions Act. It may be that a witness before the commission may be asked questions or produce documents which will limit his or her right to privacy. However, in any particular case, the questions put and the documents sought must be relevant to the scope of the commission's investigation and that investigation must be a matter of public concern.
If the questions asked or documents sought are relevant to such an investigation, then in all probability an invasion of privacy will be permissible. The requirement that the commission be investigating a matter of public concern coupled with the requirement that any questions be relevant to its terms of reference will ensure that witnesses' privacy right will not be improperly infringed.
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Chapter - 4
Courts approach of Search and Seizure