[117]The emerging jurisprudence of this Court is fully consistent with such an affirmative approach. In Bernstein and Others v Bester and Others NNO Ackermann J pointed out that the scope of privacy had been closely related to the concept of identity and that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s autonomous identity … In the context of privacy this means that it is … the inner sanctum of the person such as his/her family life, sexual preference and home environment which is shielded from erosion by conflicting rights of the community.”[1] Viewed this way autonomy must mean far more than the right to occupy an envelope of space in which a socially detached individual can act freely from interference by the state. What is crucial is the nature of the activity, not its site. While recognising the unique worth of each person,[2] the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves.
- ↑ 1996 (4) BCLR 449 (CC); 1996 (2) SA 751 (CC) at paras 65 and 67 quoting Forst at n 90. The learned judge went on to observe that:
“[T]his 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 … the scope of personal space shrinks accordingly.”
It should be noted that personal space is not equated with physical space, although there can be a relation between the two. See Mistry above n 14 at para 21.
- ↑ Prinsloo v Van der Linde and Another 1997 (6) BCLR 759 (CC); 1997 (3) SA 1012 (CC) at para 31.
