Troubleshooter: Can a security guard search me?

I would like to inquire whether security guards at a business, university or a gated suburb have the right to insist on searching your vehicle.

Don't we as individuals have a right to privacy? The amazing thing is these security guards let you into an office or suburb without searching your vehicle - so criminals have the opportunity to take in weapons or explosives.

However, when you leave, the guards want to search the boot of your car! They never search the inside of your car or any of your belongings! How does this deter crime? Are we supposed to meekly submit to this charade and is it legal for a company or university to merely put up a sign informing visitors that their vehicles will be searched? As a criminologist I can confirm that a recent national victimisation survey in South Africa found only a marginal difference in theft and robbery incidents between suburbs with security patrols and boom gates and those suburbs with no security controls. - Concerned Citizen

Nick Altini, director in the competition and regulatory practice group at business law firm Cliffe Dekker Hofmeyr, responds:

The reader is correct in saying that all individuals have a right to privacy. This is one of the rights enshrined in the constitution, and it extends to legal persons (like companies and universities) as well.

What must be kept in mind, though, is that all rights in the bill of rights found in the constitution are subject to limitation. An aspect of limitation is a recognition that there might be competing fundamental rights enjoyed by other parties that demand the limitation of what many (mistakenly) take to be an entirely inalienable right in law.

Universities, companies and the residents of gated communities enjoy a variety of competing rights that might impact upon a visitor's right to privacy. One such right is the right of access to information.

In essence, when security checkpoints require the production of certain personal information (such as the visitor's name or contact number) and/or wish to search a vehicle entering or exiting a place, this is an exercise of, among other things, the right to have access to information.

Security checks are also used to protect the right to set reasonable conditions for entry to property that is not public property (in the sense that any person has a right to enter the property without permission) in an endeavour to ensure the safety and integrity of property and persons on the premises.

It does not seem unreasonable for a body to sanction random or mandatory searches of cars if it legitimately fears that thefts take place (or may take place) on its premises and that items stolen might be removed from the premises by motor vehicle. These searches may act as a deterrent to crime or even as a crime detection mechanism.

Interestingly, there is a draft law called the Protection of Personal Information Bill that, when it becomes law, will regulate requests for personal information.

Generally, the bill does not suggest that personal information of the type contemplated by the reader cannot be requested.

Instead, the bill regulates the request for and "processing" of that information, recognising that the individual's right to privacy competes with the rights of others to have access to information.

The bill is a complex draft law but, in essence, we can take from it for the purposes of answering this question, that a request for personal information will be permissible if it is rationally connected to a legitimate objective on the part of the requester and does not go further than is necessary to achieve the objective.

With all of that said, it seems that a request to search the car boot of someone leaving a property could not, in the ordinary course of events, constitute an actual limitation of any person's right to privacy, particularly if the search constitutes no more than a brief inspection of a car boot to ascertain that it does not contain any obviously stolen goods.

This is a legitimate endeavour, and it is difficult to see how such a search would cause genuine outrage, indignation, shock or embarrassment on the part of the reasonable person, whatever the accompanying irritation factor might be.

The likely behaviour of the "reasonable person" is surely the test a court might apply in determining whether an infringement of a right to privacy has taken place.

WHAT ABOUT ALL THAT JUNK MAIL?

The article "New laws set out to cook spam" (Money, August 8) made me wonder if this law will have any force regarding the huge amounts of unsolicited junk mail stuffed into our letter boxes almost daily? - FG Donnelly

Nick Altini responds:

The reader may be pleased to know that paper from unsolicited commercial communications - in other words, junk mail - is the subject of regulation under certain provisions of the Consumer Protection Act of 2008.

This act is due to come into force on October 24 2010 (although this date might be pushed out for up to six months).

Junk mail left in letter boxes is a form of "direct marketing".

In terms of the Consumer Protection Act, any natural person (a living, identifiable individual, and certain other legal personae who qualify as consumers for the purposes of the act) has the right to:

ýRefuse to accept direct marketing approaches;

ýRequire the direct marketer to desist; and:

ýPre-emptively block direct marketing.

Although the regulations under the CPA have not yet been promulgated, there has been an indication from the drafters of the regulations that if a consumer has informed, in writing, a direct marketer that he or she does not wish to receive direct marketing messages, no person may place or attach any such material in or on or near the letter box, receptacle or on the premises of the consumer.

The phrase "no junk mail" or any translation thereof in an official language of South Africa will probably suffice.