Patricia De Lille might have approved

The Constitutional Court judgment in the case of NM and Others vs Smith and Others, which was handed down last week, must have been quite a disappointment for Patricia de Lille and Charlene Smith. The Court found that the two had breached the privacy rights of three HIV positive woman by referring to them by name in De Lille’s biography and ordered payment of R35 000 to each.

But as battle-hardened human rights warriors, the two might have approved of some of the ringing language used by the Constitutional Court – especially in the minority judgment of Justice Kate O’Regan.

It is interesting that the Justice Tole Madala (for the majority) declined the invitation to develop the common law on privacy (based on the actio iniuriarum), despite an invitation to do so. It was argued that in a case like this the right to privacy and dignity on the one hand, had to be balanced against the right to freedom of the press on the other.

The majority’s hesitance to revisit the common law can be read with its statement that the Constitutional Court does not have to hear every case in which a constitutional matter is raised, but only when it is in the interest of justice, and/or (?) when the constitutional issue is “worthy of attention”. I wonder whether this signals a retreat for the majority away from a vigorous engagement with the common law.

Perhaps they fear that more and more lawyers are taking cases to the Constitutional Court based on arguments on the development of the common law and that this might create too much uncertainty in the law or will flood the Court with too many cases.

In her minority decision Justice O’Regan argued for a a development of the common law to bring it in line with the law on defamation. In the process, she reminded me again why she is one of my favourite judges on the Court. She discussed the right to privacy and argued for a conception of privacy based on, what seems to my generous interpretation, a very Amartya Sen (pictured) inspired vision of rights.

As I understand it, such a view of rights rejects the notion that human beings are free-floating, atomistic beings, claiming their rights against the state as if they are not constrained by social and economic realities and their own cultural and religious views.

We only have rights in relation to others in society and we are much constrained by our circumstances and by the power relations in society. Rights only mean something if they increase one’s capability to decide for oneself who you are and how you want to live your life. Rights are about providing the space for individuals to make defining choices, but also acknowledges that we are constrained to do so. She writes:

We value privacy for this reason at least – that the constitutional conception of being a human being asserts and seeks to foster the possibility of human beings choosing how to live their lives within the overall framework of a broader community. The protection of this autonomy, which flows from our recognition of individual human worth, presupposes personal space within which to live this life.

She also seems less afraid to use the Constitution and the values enshrined in it to revisit the long held principles of the common law. Pity the majority was less bold.