Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR 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.” 743. The learned Judge went to on to give examples of what is commonly considered an intrusion of the right to privacy as follows in paragraphs 68 to 69: “(68)….Privacy is an individual condition of life characterised by seclusion from the public and publicity. This implies an absence of acquaintance with the individual or his personal affairs in this state. In Financial Mail (Pty) Ltd v Sage Holdings Ltd ([1993] ZASCA 3; 1993 2 SA 451) it was held that breach of privacy could occur either by way of an unlawful intrusion upon the personal privacy of another, or by way of unlawful disclosure of private facts about a person. The unlawfulness of a (factual) infringement of privacy is adjudged Ain the light of contemporary boni mores and the general sense of justice of the community as perceived by the Court. (69) Examples of wrongful intrusion and disclosure which have been acknowledged at common law are entry into a private residence, the reading of private documents, listening in to private conversations, the shadowing of a person, the disclosure of private facts which have been acquired by a wrongful act of intrusion, and the disclosure of private facts contrary to the existence of a confidential relationship. These examples are all clearly related to either the private sphere, or relations of legal privilege and confidentiality. There is no indication that it may be extended to include the carrying on of business activities.” 744. The learned Judge concluded that the scope of a person’s privacy extends only to those aspects in regard to which a legitimate expectation of privacy can be harbored. In this respect, it was held that a person’s subjective expectation of privacy is subject to the test that the society recognises that expectation to be objectively reasonable. 745. This position was adopted by the Kenyan Courts in Roshanara Ebrahim v Ashleys Kenya Limited & 3 Others, [2016] eKLR , Kenya Legal and Ethical Network on HIV & AIDS (KELIN) & 3 others v Cabinet Secretary Ministry of Health & 4 others, [2016] eKLR, and in Tom Ojienda t/a Tom Ojienda & Associates Advocates v Ethics and Anti-Corruption Commission & 5 others [2016] eKLR. It is notable that section 13 of the South African Interim Constitution which was the basis of the decision in Bernstein vs Bester was similar to Article 31 save for the protection of informational privacy, and stated as follows: “Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.” 746. In Tom Ojienda t/a Tom Ojienda & Associates Advocates vs Ethics and Anti-Corruption Commission & 5 others (supra) it was held as follows in this regard: “77. I also note that a legitimate expectation of privacy has two components; the protection of the individual and the reasonable expectation of privacy. The reasonable expectation of privacy test itself has two compartments. Firstly, there must be at least a subjective expectation of privacy and secondly, the expectation must be recognized as reasonable by the society….. 78. Ackermann J’s reasoning can therefore be summarized as follows; (a) privacy is a subjective expectation of privacy that is reasonable, (b) it is reasonable to expect privacy in the inner sanctum, in the truly personal realm, (c) a protected inner sanctum helps achieve a valuable good-one’s own autonomous identity. It emerges to my mind that, and from the decision in Bernstein vs Bester NO (supra), that privacy is not a value in itself but is valued for instrumental reasons, for the contribution it makes to the project of ‘autonomous identity’. This http://www.kenyalaw.org - Page 121/174