An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
When entering fortress USA, those very grumpy US officials at passport control take your fingerprints as well as a retina scan – and there is absolutely bloody nothing one can do about it, except institute a private travel boycott against the land of the brave and the free. Until two weeks ago one also had to declare one’s HIV positive status and if one was indeed HIV positive one had to apply for special permission to enter the “holy land”, lest one “contaminated” the country.
These over the top security measures, blatant discrimination on the basis of HIV status, and invasion of one’s dignity have always irritated me beyond belief. Who the hell do these Americans think they are? Why, I have wondered, does the South African government not do the same thing with all American visitors and fingerprint and scan them (as Brazil did) to show them a thing or two?
Now I see an upmarket building complex in Cape Town is doing more or less the same thing. The security system at that building requires people visiting The Terraces building in Bree Street to have their fingerprints and photograph taken. An outraged University of Cape Town professor, Mike Morris, lodged a complaint with the owners of the building shortly after he was denied access last week when he refused to subject himself to this indignity.
Describing the security system as an “absolute invasion of people’s privacy”, he also questioned its legality. “I was outraged and refused point blank to have my fingerprints taken, and they denied me access,” he said.
Neil Moller, the manager of the building, defended the system, saying the building was private property and the owner had a right to use the security system to protect tenants. He said codes but not actual fingerprints were saved on the system, and data was kept on the system for only 24 hours.
Reading this news report in the local Visdorpie rag, The Cape Times, I started wondering whether the owners of private property can legally require visitors to subject themselves to such an invasion of their privacy. Private property rights are not as absolute as they once were. These private property rights are now qualified by the rights in the Bill of Rights which limits one’s property rights in many respects. Thus, the “right of admission reserved” signs at clubs, bars and restaurants and holiday resorts do not allow the owners of those establishments to prevent anyone from entering the property on the basis of race, gender or sexual orientation.
I have scanned South African legislation but cannot find any explicit prohibition on private institutions taking and keeping the fingerprints of individuals for security purposes. (If anyone knows of such legislation, please let me know.) However, as the right to privacy and human dignity may also bind private property owners, it may well be argued that such actions contravene the Bill of Rights and are thus unconstitutional.
Yet, despite the fact that my sympathies lie with Prof Morris on this one, I suspect a court will find that the invasion of one’s privacy and dignity in such cases are justifiable. If the fingerprints are indeed only kept as a code and if all information is destroyed after 24 hours, the invasion of an individual’s rights is minimal. On the other hand, there might well be good arguments to justify this invasion; most notably on the basis that it protects the security of residents and of the property.
In such a case the property rights of the owners might justifiably limit the rights to privacy and dignity of the visitors to that property. This is, of course, a matter of degree and will depend on the context. The more invasive the security measures, the more difficult they will be to justify. The more important the property, the easier it will be to justify invasive security measures. I suspect one would be allowed to have far stricter (and thus invasive) security measures at World Cup soccer events or at Parliament or the Union Buildings, than for entering a private apartment complex.
Of course, things will be different if the kind of security measures used at The Terraces (what a pretentious name!) are used to keep out certain groups of people. We know “dress codes” at public establishments are often used to discriminate against black South Africans and that this is clearly discriminatory and in contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). If private buildings use security measures to keep out people “who do not look as if they belong” because of their race, this will clearly contravene PEPUDA and one would be able to go to the Equality Court to challenge such practices.
But in the absence of proof that the relatively minor invasion of privacy is used to discriminate against individuals, I suspect Prof Morris will have to subject himself to fingerprints when he again visits The Terraces or – alternatively – institute a private boycott of that establishment. As we prepare for the World Cup next year, that is probably the reality we will have to learn to live with.
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