by Chris Watters
Coming from the culture we do, where we lived with, and many by and large accepted the validity of, an all-seeing, all-knowing, ‘big brother' government, South Africans appear to have a schizophrenic attitude towards privacy rights. The high point of our demand for privacy probably occurs when we get those mid-dinner time phone calls from someone trying to sell us a free-ish holiday in Mauritius or those unsolicited text messages advertising some never to be repeated deal of a lifetime (at least not until the next day). It's probably only at that point that some will get steamed and wonder where these agencies got our details from. On the other hand, as part of our break from our twisted past, section 14 of the Bill of Rights has enshrined the right of "everyone" to privacy. And the Promotion of Access to Information Act [‘PAIA'] is tasked with finding a happy median between the demand for transparent governance and that right to privacy.
So it came with some surprise (or perhaps not) to see Home Affairs and the SA Banking Risk Information Centre applauding each other for the ‘strategic partnership' they had concluded recently. The stated aim of this partnership is to allow SA's banks to conduct online fingerprint verification of bank clients. This will be done by Home Affairs giving the banks "real time access" to Home Affairs' HANIS database of our fingerprints. Not the fingerprints of some criminal scum-bucket from some far flung failed state who is visiting South Africa, it is noted - because the fingerprints of casual visitors, irrespective of who they are or where they are from, do not get captured on the Home Affairs' database.
And the problem? Well, for starters, our fingerprints qualify as our "personal information" in terms of section 1 of PAIA. And section 34(1) of PAIA requires a public body to refuse any request for the disclosure of personal information "if its disclosure would involve the unreasonable disclosure of personal information." But if the public body's information officer is contemplating the request, he or she is required to notify the third party "to whom ... the record [sought] relates...". And time frames are set out to allow for this and for appeals to take place if the third party objects to the intended disclosure.
So Home Affairs cannot lawfully allow the banks - or anyone for that matter - ‘real time access' to our fingerprints. Its not the Department's information to disclose as and when it suits them or the banks!
But, and here is where our ‘big brother' past creeps in, one can almost immediately hear the cry from Home Affairs or the banks of ‘what is objectionable about this unless we are guilty of something'and ‘what do we have to hide?'
The answer was set out very succinctly in a recent judgment of the Pretoria High Court by Bertelsmann J in Makhanya v Vodacom Service Provider [2010 (3) SA 79 GNP] where, citing authority in the US Supreme Court, he described the right to privacy as "the right to be let alone - the most comprehensive of rights and the right most valued by civilized men."
But, of course, we do not need to look to US authority to object to the banks fishing about our records at Home Affairs. The answer lies ultimately here at our back door - the Bill of Rights and PAIA say that such a disclosure would be unlawful. In PAIA, Parliament has set out a procedure to be followed if Home Affairs wants our permission to make these disclosures. The inquiry may have an entirely legitimate function and purpose and we may well have no objection. But PAIA requires that we should be asked first. And section 7 of the Bill of Rights demands that the state must "respect, protect, promote and fulfil the rights in the Bill of Rights" - not ignore them whenever it is deemed convenient or ‘reasonable' by some unknown bureaucrat. And apparently implied in this ‘strategic partnership' is that all such requests received from the banks, will be deemed reasonable - as least as far as their joint media release is concerned.
Ultimately, it boils down to whether or not, in implementing this strategic partnership, the banks and Home Affairs have any regard for our dignity, do they really respect their clients?
Chris Watters
http://www.polity.org.za/print-version/the-dearth-of-privacy-rights-home-affairs-and-the-banks-2010-06-07
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