Beware – the constitutional right to privacy is very relevant and ‘pops up'[1] in all sorts of places. At present the issue of surveillance seems to be prevalent.
Evidence in a court case
In a recent Pretoria High Court decision[2], the plaintiff sued for damages incurred as a result of an unsuccessful eye operation. The defendant hired a private investigator to prove that the damages were not as severe as the defendant claimed. The learned judge had, in his words, to deal with the question of whether “programs such as Uyajola 99 and Cheaters, to mention but a few, fall foul of section 14 of the Constitution (the right to privacy) in the effort to uncover the elusive and sometimes illusive truth”.
To assist him, the learned judge had two amici curiae (friends of the court) to help, both of whom are professors of law. The Court found that their incisive input was helpful “to balance the apparent conflict between protecting the right to privacy and the public interest to discover the truth”. Confirming that this is not often an easy task, the judge mentioned that “save for the convergence on that POPIA finds application in this case, the amici are poles apart”.
In the end, the evidence obtained through surveillance was relevant to the case and was admitted into evidence. However, all the information, photos and videos of those who are not the data subject, including that of children, had to be redacted forthwith.
Surveillance by SARS of tobacco product manufacturers
In May last year, the South African Revenue Services (SARS) was interdicted on an interim basis by the Pretoria High Court to prevent it from using CCTV monitoring equipment on certain premises used for the manufacture and storage of tobacco products. The interdict was granted on an interim basis, pending the hearing of the main application, as SARS had persisted with the implementation of this process notwithstanding the pending main application.
SARS contended that the monitoring activities was part of a broader package of initiatives to address illicit trade of tobacco products which in turn results in “rampant” tax evasion in the tobacco industry and to foster tax compliancy. The respondents argued, amongst others that this process is against the rule of law, is ultra vires the Customs Act (a constitutional challenge) and that its implementation would unreasonably, disproportionately and unjustly limit their constitutional rights of privacy, dignity and property and was undue or unlawful interference in their right at common law to conduct their business operations (the infringement challenge).
In respect of the infringement challenge on the right to privacy specifically, SARS contended that although juristic persons possess a right to privacy, this right is attenuated when compared with rights held by natural persons[3], in particular in respect of a closely regulated spaces. “How much privacy can the applicants legitimately expect to have in such a regulated industry?”, they said.
The respondents argued that being search by an official was different to the continuous monitoring and recording for the playback value by customs officials. Further, they argued, there were trade secrets and proprietary information being disclosed. Having decided that the other requirements for interim relief were met, the Court granted the interim interdict against SARS. An appeal by SARS to the SCA on this aspect was not successful.
The draft by-laws from the City of Johannesburg
After a process for public comment which ended in April 2024, the CoJ published its CCTV Camera by-laws. These by-laws provide that: -
- unauthorised use of drone CCTV cameras over any private or public property within the jurisdiction of the City is prohibited;
- the objective of the by-laws is to provide for regulation and registration of privately owned closed-circuit television surveillance cameras installed in public spaces and private property, and whose range and angle of coverage includes public space within the city. This includes city-owned areas as well as community sports grounds and parks, and sidewalk roads and streets to which the public has a right of access, or which is commonly used by the public. If you live in the CoJ, this includes your security camera at your gate which looks onto the street – see chapter 8 of the by-laws (which in all have 11 chapters and 37 sections);
- prior approval of the City is needed to erect such cameras. Clause 15.7 lists the requirements; and
- clause 24 expressly requires that all owners of the CCTV Cameras must comply with POPIA, where applicable. You have been warned.
The Information Regulator
The Information Regulator is empowered to monitor and enforce compliance by public and private bodies with the provisions of POPIA and its counterpart – the Promotion of Access to Information Act, 2000.
Some recent activity in this regard: -
- The urgent application by the Regulator to the High Court to stop the publication of matric results by the DBE, was refused by the High Court in January this year. In a media statement, the Regulator stated that if the DBE is to proceed with the publication of the results in the newspapers, they will still be guilty of non-compliance with the Regulator’s orders. Watch this space!
- The Regulator welcomed the decision by the Minister of Justice to pause the publication of the National Register of Sex Offenders. According to a media statement from the Regulator, the legislation providing for the compilation, maintenance and dissemination of the NRSO itself prohibits the publication of this information, and it was not clear how this publication met the conditions under POPIA.
- Early in March, the Regulator held its annual stakeholder consultative session, which according to the press[4], revealed that: -
3.1 from 1 April 2024, the Regulator had received “an alarming” 2 023 complaints from the public, specifically relating to data security compromises.
3.2 another 1 092 complaints have been lodged against direct marketing, gated complexes and local organisations that have allegedly failed to comply with the requirements of POPIA.
3.3 there is general non-compliance with the provisions of POPIA by the public and private bodies. The private sectors are, apparently, making a concerted effort to comply, while government bodies deal with POPIA compliance as a ‘by the way’ issue and that such compliance is a source of irritation.
[1] Forgive the pun!
[2] De Jager v Netcare case 42041/16 of 17 February 2025
[3] (Gaertner v Min of Finance) 2014 (1) SA 442 (cc) at para 63.
[4] https://www.itweb.co.za/article/inforeg-receives-mounting-data-privacy-complaints/wbrpOqg2oVKMDLZn
