MADLANGA J
[120] I should perhaps make the point that before us we do not have other professions
seeking similar relief on the basis that they too are deserving of special protection. Nor
have the applicants made out such a case. Therefore, we need not consider that aspect.
The first amicus, Media Monitoring Africa Trust, has referred to civil society actors and
children. This is being raised for the first time before this Court.
[121] We do not have the benefit of the views of the High Court on the issue. It is by
no means an issue capable of easy resolution. Take, for example, civil society actors.
While I understand that some of them perform a watchdog function, I do not readily see
the confidentiality of their communications to have as strong a constitutional claim to
special treatment as does that of journalists and practising lawyers. I am not saying they
do not have that claim; it is just not readily apparent to me. But that is only a prima facie
view. Also, how exactly in a judgment like this would we describe “civil society actors”
for Parliament to know what we are talking about? Maybe if we try hard enough, we
can. But must we? I think not. The term is rather nebulous for us to stray into that
terrain as a court of first and last instance on the issue. Also, for reasons similar to those
I expressed in respect of the additional appeal by the third amicus, it is doubtful that this
relief is properly before us. I need say nothing more.
[122] The interception of children’s communications is on a different footing.
Section 28(2) of the Constitution demands the paramountcy of children’s best interests
in all matters affecting them.154 This Court in Centre for Child Law held that the
“analysis of the right to privacy is even more pressing when dealing with children”.155
Is that enough for us to grant the relief sought by the first amicus? Most people have
contact and communicate with children in one form or another. It is likely that a
substantial number of intercepted communications will include communication by or
Section 28(2) of the Constitution provides that “[a] child’s best interests are of paramount importance in every
matter concerning the child”.
154
155
Centre for Child Law v Media 24 Limited [2019] ZACC 46; 2020 (4) SA 319 (CC); 2020 (3) BCLR 245 (CC)
at paras 48-9.
64
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