Judgment No. SC 47/18
Civil Appeal No. SC 695/15
citizen. In the context of privacy this would mean that it is only the inner sanctum of a
person, such as his/her family life, sexual preference and home environment, which is
shielded from erosion by conflicting rights of the community. This implies that community
rights and the rights of fellow members place a corresponding obligation on a citizen,
thereby shaping the abstract notion of individualism towards identifying a concrete
member of civil society. Privacy is acknowledged in the truly personal realm, but as a
person moves into communal relations and activities such as business and social
interaction, the scope of personal space shrinks accordingly.”
This constitutes confirmation that the right to privacy can be limited by other rights
that accrue to other citizens and that as an individual engages with the community in business or
other social interactions, the scope of such right becomes limited. Whilst this principle is accepted,
the appellants contend that the subpoena issued by the first respondent was too wide in its scope
such that it cannot be accepted as fair and justifiable in a democratic society. It allows the first
respondent to have access to its competitor’s information which information has not been shown
to be necessary for the advancement of its cause. In fact, no attempt has been made to justify its
wide ambit. The only issue upon which the first respondent relies is that the second appellant is its
competitor in the provision of cellular services and it wishes to find evidence that it was being
treated differently by the second respondent. It has not justified the intrusion in respect of the
period from 1998 to 2009.
The
lack of particularity
and
specificity of the subpoena
opens
avenues
for an
unwarranted invasion of the first appellant’s privacy. The first respondent in its heads of argument
cites the English case of Home
Office v Marman
[1982]
1 All ER 532, 540 where the following
view was expressed:
“Discovery constitutes a very serious invasion of the privacy and confidentiality of a
litigant’s affairs. It forms part of English legal procedure because the public interest in
securing that justice is done between parties is considered to outweigh the private and
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