Bernstein and Others v Bester

This judgment will help you to determine when you are infringing someone’s right to privacy in the workplace. The court explores the scope of the right to privacy.  The closer the action relates to the person’s professional life, the less likely that it is an infringement on their privacy. The court found that lesser court may force an employee to produce documents related to his professional work regardless of whether that person considers those documents to be their personal possessions. And that the court in doing so is not infringing their right to privacy.


This judgment looks at the right to privacy as enshrined in the Constitution and sets out the scope of the right in different contexts.



CHASKALSON P (Mahomed DP, Ackermann J, Didcott J, Kriegler J, Langa J, Madala J, Mokgoro J, Ngoepe AJ, O’Regan J and Sachs J)

Related books

Currie and De Waal

  •  Bill of Rights Handbook 6ed (Juta 2016)


The court confirmed that s417(b) of the Companies Act 61 of 1974 (old Companies Act) was unconstitutional but held that the rest of s417 and s418 are consistent with the Constitution. The applicants challenged the sections on the basis that they infringed on the right to privacy, right to fair trial and the right to equality. Other than s 417(b), the court held that none of these rights had been infringed.

Ackermann J’s reason for stating that the right to privacy is not infringed came down to the circumstances surrounding the alleged infringement. The Appellant claimed that being forced to disclose books and documents in terms of the Companies Act was against his right to privacy (as well as that certain documents seized constituted his private possessions) and therefore infringed his right to privacy.

The court held that since the documents and books were related to his interaction with the business and his work, they were not protected by the right to privacy. The space within which the interaction occurred was too far removed from his personal life to justify the protection of the right to privacy.

Discussion by GilesFiles

The right to privacy

This judgment did not decide anything monumental. The sections of legislation which were declared unconstitutional are part of the old Companies Act which is no longer applicable. It was replaced by the Companies Act 21 of 2008. This judgment is important and impactful because of the court’s interpretation of the right to privacy.

The court followed trends that have occurred in Europe and the US in establishing the varying importance of the right to privacy. This case established the same trend within South Africa and cases that followed this one applied the same concept of privacy to other issues of infringement.

Court summary

The court did not provide a summary so we have provided the headnote instead.

Quotations from judgment

[67] The relevance of such an integrated approach to the interpretation of the right to privacy is that this process of creating context cannot be confined to any one sphere, and specifically not to an abstract individualistic approach. The truism that no right is to be considered absolute implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen.

In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the 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.