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121 S. African L.J. 519 (2004)
The Protection of the Right to Privacy against Fixation of Private Facts

handle is hein.journals/soaf121 and id is 529 raw text is: NOTES 519 THE PROTECTION OF THE RIGHT TO PRIVACY AGAINST FIXATION OF PRIVATE FACTS J NEETHLING Professor of Private Law, University of South Africa, Pretoria INTRODUCTION It is trite that the right to privacy is recognized as an independent right of personality in South African common law (see e g National Media Ltd vJooste 1996 (3) SA 262 (A) at 271B-272A;Jansen van Vuuren v Kruger 1993 (4) SA 842 (A) at 849E-G; Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 (2) SA 451 (A) at 462E-463B;Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 (4) SA 293 (A) at 303B-3041;Bernstein v Bester 1996 (2) SA 751 (CC) paras 68-70; see also J Neethling Persoonlikheidsreg 4 ed (1998) 265-8; J Neethling, J M Potgieter & P J Visser Law of Delict 4 ed (2002) 354). It has also been entrenched as a fundamental right in the Bill of Rights (s 14 of the Con- stitution of the Republic of South Africa, Act 106 of 1996; see also David McQuoid-Mason 'Invasion of privacy: Common law v constitutional delict - does it make a difference?' 2000 Acta juridica 227ff, Jonathan Burchell Personality Rights and Freedom of Expression: The Modern Actio Iniuriarum (1998) 371ff). Privacy can be described as an individual condition of life characterized by seclusion from the public and publicity. This condition embraces all those personal facts that the person concerned has determined to be excluded from the knowledge of outsiders and that he wishes to be kept private (see Neeth- ling op cit 39-40; National Media Ltd vJooste (supra) at 271C;Jooste v National Media Ltd 1994 (2) SA 634 (C) at 645E; Universiteit van Pretoria v Tommie Meyer Films (Edms) Bpk 1977 (4) SA 376 (T) at 384H; Swanepoel v Minister van Veiligheid en Sekuriteit 1999 (4) SA 549 (T) at 553H; compare also Motor Industry Fund Administrators (Pty) Ltd v janit 1994 (3) SA 56 (W) at 601; Financial Mail (Pty) Ltd v Sage Holdings Ltd (supra) at 462E; Bernstein v Bester (supra) para 68). Since the individual himself determines the scope of his interest in privacy, this power or competence of self-determination is con- sidered to be the essence of the individual's interest in privacy, and therefore also of his right to privacy (see Neethling op cit 39). In National Media Ltd v Jooste (supra) at 271G-272A Harms JA explained it thus: 'A right to privacy encompasses the competence to determine the destiny of private facts... The individual concerned is entitled to dictate the ambit of disclosure, for example to a circle of friends, a professional adviser or the public ... He may prescribe the purpose and method of the disclosure ... Similarly, I am of the view that a person is entitled to decide when and under what conditions private facts may be made public. A contrary view will place undue constraints upon the individual's so-called absolute rights of personality. . It will also mean that rights of personality are of a lower order than real or personal rights. These can be limited conditionally or unconditionally and irrespective of motive.' The above description of privacy implies an absence of acquaintance with the individual or his personal affairs in his state of seclusion. Accordingly, privacy can only be infringed by the unauthorized acquaintance by an

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