In Bernstein v Bester, the court gave an interpretation of the constitutional right to privacy. The court held that business activities are public affairs that need public scrutiny. This means that the right to privacy applies in the personal or domestic realm. The right to privacy fades away and is subject to greater limitations, the moment people move into public spaces that invoke public interest. This judgment is a significant development in our law since it limits the scope of the right to privacy to private aspects of an individual’s existence. 

Who should care about this judgment and why?

  • Responsible parties and operators because this judgment limits the scope of the right to privacy. Responsible parties can’t rely on the right to privacy to prevent the Information Regulator from investigating them.
  • Businesses and their agents because they can’t rely on the right to privacy to avoid accountability to shareholders, regulators, and the general public.

What could you do about it?

  1. Comply with privacy and data protection laws by joining a programme.
  2. Dive into the detail by reading the full judgment.
  3. Access other relevant judgments by joining a Michalsons programme.

Our insights on the judgment

This judgment preceded data protection laws but clearly defines the scope of the right to privacy. In Financial Mail v Sage Holdings, the court held that juristic persons and corporations enjoy personality rights like natural persons. However, this judgment imposes limits on this right. Your company may enjoy the right to privacy, but you cannot use this right to avoid accountability.

The distinction between the private and public realm has been criticised as being too restrictive. In a subsequent case, Hyundai Motor Distributors (Pty) Ltd v Smit NO, the court held that participating in the public realm shouldn’t mean that people lose their right to privacy. Instead, the court held that people must retain the right to be left alone even in public spaces.

This judgment should be read in the context of how privacy law is addressed in South Africa. Simply, as a balancing exercise. The information regulator has a dual mandate to oversee both POPIA and PAIA because it is understood that while people have the right to privacy, people also have the right to access information about them. This judgment highlights the legal basis of this approach. We need to appreciate the need for having a balance between what may be perceived as private but invoke public interest.

Digest

Bernstein and his colleagues realised that liquidators of a company they had previously audited intended to use an inquiry to gather evidence that would incriminate them in a civil trial. As a result, they no longer wanted to give evidence in this inquiry. Bernstein and his colleagues challenged the constitutionality provisions in the old Companies Act that allowed liquidators to summon and examine anyone in a winding up of a company. These provisions also included a criminal sanction for people who fail to appear before the inquiry.

Bernstein argued that forcing them to appear before the inquiry violated the following constitutional rights:

  • Right to freedom and security.
  • Right to privacy, including the right against arbitrary search and seizure or violation of private communication. 
  • Right to administrative justice
  • Right to a fair trial and fair civil litigation

The court did not agree with Bernstein and his colleagues. It held that appearing before the inquiry to the extent that they are not forced to self-incriminate themselves did not constitute a violation of any of the rights mentioned above. However, when addressing the right to privacy, the court gave an interpretation of the right.

Right to privacy

Bernstein and colleagues argued that being forced to disclose books and documents they wanted to keep confidential was a violation of the right to privacy. The court disagreed with them. Judge Ackerman highlighted the distinction between private life and public affairs that create public interest. He said that the right to privacy exists to protect an individual’s autonomy from the community. The right is therefore individualistic and relates to the most personal aspects of a person’s existence. In contrast, business activities are public affairs that need public scrutiny. Therefore, such public affairs go beyond the scope of the right to privacy. 

Drawing on his understanding of the right to privacy, Judge Ackerman also concluded that handing over books and documents that Bernstein and his colleagues wanted to keep private did not amount to a search and seizure or violation of private communication. The Court held that inquiries organised by company liquidators didn’t violate Bernstein’s fundamental rights including the right to privacy.

Order

The court declared that the provisions of sections 417 and 418 of the Companies Act were not inconsistent with the Constitution of the Republic of South Africa Act, 200 of 1993.

Details of Bernstein v Bester

  • Universal citation: [1996] ZACC 2
  • Also reported at 1996 (4) BCLR 449; 1996 (2) SA 751
  • Full name: Bernstein and Others v Bester NO and Others 

Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Data Protection programme.