O’REGAN J and SACHS J sentenced in terms of a duly enacted criminal prohibition.34 The right to privacy 34 As Ackermann J held for the majority in Bernstein id at para 53: “Witnesses who ignore subpoenas or who refuse to answer questions put to them may be subjected to the sanction of imprisonment. That is true of all persons who contravene legislation that has been lawfully passed. The execution of the sanction implicates the physical integrity of the person who is imprisoned for the breach of the law. Section 11(1), which pointedly refers to detention without trial, does not include within its scope imprisonment consequent upon the sentence of a court. Legislation invariably makes provision for sanctions, including the possibility of imprisonment, and it could never have been the intention of the framers of the Constitution to require all laws which contain such a sanction to meet the test of necessity prescribed by section 33(1) for any limitation of a section 11(1) right.” See the different approach taken to section 12 of the 1996 Constitution in De Lange v Smuts NO and Others 1998(3) SA 785 (CC); 1998 (7) BCLR 779 (CC) at paras 15ff. 47