Volume: Volume 27 - 2023

Article type: Refereed article

Author/s: Siphethile Phiri

The Bill of Rights in chapter 2 of the Constitution of the Republic of South Africa of 1996 (the Constitution) guarantees everyone a number of fundamental rights and freedoms, inter alia the right to privacy and the right of access to information, as envisaged in sections 14 and 32, respectively. The right to privacy and the right of access to information are the obverse and reverse sides of the same coin that the courts often deliberate on. The Promotion of Access to Information Act 2 of 2000 (PAIA) was promulgated in terms of section 32(2) of the Constitution. In Tiso Blackstar Group (Pty) Ltd and Others (the applicants) v Steinhoff International Holdings N.V. (the respondent) (18706/2019) [2022] ZAWCHC 265 (10 May 2022) (Tiso), the applicants approached the Western Cape High Court Division in terms of the Constitution and PAIA to enforce the right of access to information against the respondent’s right to privacy on the alleged ground of legal privilege. This article examines the manner in which the court addressed the question of the fulfilment of the applicants’ right of access to information as per the Constitution and the provisions of PAIA vis-à-vis the protection of the right to privacy of the respondent company as guaranteed by the Constitution. This article demonstrates that the courts do not hesitate to limit the right to privacy where the statutory requirements justifying the limitation and the burden of proof lie on the party alleging the existence of the right.

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