Given the rapid spread of  COVID-19 infections around the world and in our country, the South African government has had to act quickly to pass regulations under the Disaster Management Act, to regulate aspects of our lives as we fight the pandemic.

One of the more interesting of the regulations now passed deals with “track and tracing”, which is essentially the ability of the government to compel the mobile phone operators to share location data of those who have COVID-19 so that their contacts can be traced and tested.

Of course any form of surveillance of our personal data should raise constitutional eyebrows, and location information is no different.  But given the importance of contact tracing to arrest the spread of the disease, and thus ultimately save lives, is this kind of law permissible during the pandemic?  More specifically, what safeguards are necessary for such a law to pass constitutional muster?

Lavanya Pillay, an associate who works with me, and I grappled with this issue in a recent article in Daily Maverick – here.

I reproduce the article below: we ultimately conclude that the regulations are in may respects a fairly  good attempt to balance privacy and the compelling government objective involved – they contain 9 essential safeguards to minimise the privacy invasion, including post-surveillance notification (which amaBhungane argued so vociferously for in the recent RICA constitutional challenge: read more about that in my blog on the Pretoria High Court’s decision here.  The Constitutional Court’s decision is eagerly awaited).  And Justice Kate O’Regan – retired Constitutional Court judge and one of our constitutional rock stars – has been appointed as the “designated COVID-19 judge” to oversee the implementation of the regulations in so far as the right to privacy is concerned – a bold and important appointment.

The article follows below:

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