Harvey v Niland (5021/2015) [2015] ZAECGHC 149 ; [2015] JOL 34909 ; (2016) ILJ 1112 (HC) (3 December 2015) per Plasket J.

Two individual hunters were members of a close corporation [CC] but became bad friends.  Harvey applied to stop Niland from breaching various fiduciary obligations imposed by law on members of a CC [s 42 of the Close Corporation Act 69 of 1984].  Harvey’s real purpose was to stop Niland from competing unfairly and causing financial damage to the hunting business of which Niland was still a member.  It was accepted for the purpose of the interim interdict proceedings that Harvey had unlawfully and contrary to the provisions of the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act) arranged to hack Niland’s Facebook account.  Evidence was obtained supporting Harvey’s averments. In granting Harvey’s application to prevent Niland from breaching his fiduciary obligations Plasket J admitted the Facebook evidence and stated that

“the ECT Act, by its silence on the issue, allows for the admission of unlawfully obtained evidence subject to its exclusion in the discretion of the court”.

Excerpts [footnotes omitted]

The admissibility of annexure ‘G’

[printout of Facebook communications]

“[38]      At common law, ‘all relevant evidence which was not rendered inadmissible by an exclusionary rule was admissible in a civil court irrespective of how it was obtained’.

That rule is not absolute: it is subject to a discretion to exclude unlawfully obtained evidence.

[39]      Section 14(d) of the Constitution provides that everyone enjoys a fundamental right to privacy which includes the right not to have ‘the privacy of their communications infringed’.  In order to give this right teeth, s 86(1) of the ECT Act provides that,

‘a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence’.

[40]      It has been argued by Mr Smuts that annexure ‘G’ should be struck out because the accessing of Niland’s Facebook communications was an infringement of his fundamental right to privacy and constituted a criminal offence as well.  In other words, annexure ‘G’ is evidence that was unlawfully obtained.

. . . . .

[43]      It was argued by Mr Smuts, however, that the legislation applicable to this case, the ECT Act, is a ‘game-changer’.  I am not persuaded that it is.  It creates, like the legislation in issue in the cases dealt with above, an offence – of accessing data without authority or permission – and it is silent on whether evidence obtained in contravention of s 86(1) is inadmissible.

I am of the view that, far from being a ‘game-changer’, the ECT Act, by its silence on the issue, allows for the admission of unlawfully obtained evidence subject to its exclusion in the discretion of the court. 

I hold, in other words, that the approach followed by Heher J in Protea Technology and Lewis J in Waste Products Utilisation holds good in relation to evidence obtained in contravention of s 86(1) of the ECT Act.

[44]      How then does a court decide whether to exclude unlawfully obtained evidence or to admit it?

. . . . .

[47]     It is clear from the case law that I have considered that in the exercise of the discretion to exclude unlawfully obtained evidence, all relevant factors must be considered.

These include

  • the extent to which, and the manner in which, one party’s right to privacy (or other right) has been infringed,
  • the nature and content of the evidence concerned,
  • whether the party seeking to rely on the unlawfully obtained evidence attempted to obtain it by lawful means and
  • the idea that

‘while the pursuit of truth and the exposure of all that tends to veil it is cardinal in working true justice, the courts cannot countenance and the Constitution does not permit unrestrained reliance on the philosophy that the end justifies the means’.

[48]      I accept for purposes of this matter that, in accessing Niland’s Facebook communications, Harvey acted unlawfully.  I accept too that this act, apart from probably constituting criminal conduct also constituted a violation of Niland’s right to privacy.  That right must, however, be viewed in its proper context.

In Gaertner & others v Minister of Finance & others Madlanga J held:

‘Privacy, like other rights, is not absolute.  As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks.  This diminished personal space does not mean that once people are involved in social interactions or business, they no longer have a right to privacy.  What it means is that the right is attenuated, not obliterated.  And the attenuation is more or less, depending on how far and into what one has strayed from the inner sanctum of the home.’

. . . . .

[52]      Like Heher J in Protea Technology, it seems to me that right-thinking members of society would believe that Niland’s conduct, particularly in the light of his denials and the undertakings that he gave, ought to be exposed and that he ought not to be allowed to hide behind his expectation of privacy: it has only been invoked, it seems to me, because he had something to hide.

[53]      In these circumstances, I am of the view that annexure ‘G’ is admissible and the application to strike it out must fail.”