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252 Chapter 11
If enacted in this form, this legislation is likely to be challenged as an
infringement of the right to privacy. The right to privacy in the South
African Constitution includes protection of ‘informational privacy’, an
individual’s interest in restricting the collection, use and retention of
information about themselves. 5
Such a challenge has been presaged by the case of S and Marper v
United Kingdom, in which the European Court of Human Rights
considered the conformity of a similar DNA database in the United
Kingdom to the European Convention on Human Rights. 6 The Court
found that mere storing of data relating to the private life of an individual
amounted to an interference with the European Convention’s right to
respect for private life, the interference being particularly serious when
that data was an individual’s cellular sample and DNA profile. 7
That, of course, was not the end of the story in the European decision, just
as it would not end the argument if a similar challenge were to be brought under
the South African Constitution. In Europe, the right to privacy is subject to the
limitation that it may be interfered with by a public authority in accordance
with the law and is necessary in a democratic society ... for the prevention of
disorder or crime ...’. 8 Strong arguments can be made for the necessity of the
interference, the flavour of which is given in this extract from the court’s
summary of the UK government’s case:
The interference was necessary and proportionate for the legitimate purpose of
the prevention of disorder or crime and/or the protection of the rights and
freedoms of others. It was of vital importance that law enforcement agencies took
full advantage of available techniques of modern technology and forensic science in
the prevention, investigation and detection of crime for the interests of society
generally. They submitted that the retained material was of inestimable value in the
fight against crime and terrorism and the detection of the guilty and provided
statistics in support of this view. They emphasised that the benefits to the
criminal-justice system were enormous, not only permitting the detection of the
guilty but also eliminating the innocent from inquiries and correcting and
preventing miscarriages of justice. 9
Though these arguments did not persuade the European Court, they had
considerably more success in the United Kingdom courts, persuading the
Administrative Court and majorities of the Court of Appeal and the House of
Lords that the interference with privacy was justifiable. The judgment of
Waller LJ sums up the approach of the UK courts: The interferences with
privacy by the retention of profiles and samples ‘are not great, and such as
they are they are outweighed by the benefits in achieving the aim of
5
Mistry v Interim National Medical and Dental Council of South Africa 1998 4 SA 1127 (CC).
6 S and Marper v United Kingdom (2008) ECHR 1581.
7 Marper (n 6 above) 67.
8
Art 8(2) of the European Convention on Human Rights.
9 Marper (n 6 above) 91.