O’REGAN J and SACHS J
[76]
In our view, the other area where the rights of the sex worker appear to have been limited
by section 20(1)(aA), is in respect of her right of personal privacy. The concept of privacy has
been much debated in recent times.35 In Bernstein,36 Ackermann J held that the right to privacy
in the interim Constitution must be understood as recognising a continuum of privacy rights
which may be regarded as starting with a wholly inviolable inner self, moving to a relatively
impervious sanctum of the home and personal life, and ending in a public realm where privacy
would only remotely be implicated, if at all.
“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
35
See Edward Shils’ analysis of the term “privacy” quoted in A L Allen Uneasy Access: Privacy for Women
in a Free Society (Roman and Littlefield: New Jersey, 1988) at 5-6: “Numerous meanings crowd in the
mind that tries to analyze privacy: the privacy of private property; privacy as a proprietary interest in name
and image; privacy as the keeping of one’s affairs to oneself; the privacy of the internal affairs of a
voluntary association or of a business; privacy as the physical absence of others who are unqualified by
kinship, affection or other attributes to be present; respect for privacy as the respect for the desire of another
person not to disclose or to have disclosed information about what he is doing or has done; the privacy of
sexual and familial affairs; the desire for privacy as desire not to be observed by another person or persons;
the privacy of the private citizen as opposed to the public official; and these are only a few.” Allen points
out that the concept of privacy is uniquely elastic, and offers her own definition as being based on the law
providing restricted access to individuals, to their mental states and to information about them.
36
Bernstein above n 33. See too Mistry v Interim Medical and Dental Council of South Africa and Others
1998 (4) SA 1127 (CC) at para 27; 1998 (7) BCLR 880 (CC) at para 20.
48
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