On 02 April 2020 the Minister of Cooperative Government and Traditional Affairs, Nkosazana Dlamini-Zuma, signed off on a set of Amendments to the lockdown Regulations (which came into effect on 27 March 2020) (“the Amendments”) which seek to introduce various new provisions into the existing lockdown Regulations, and serves to amend and expand various other provisions of the Regulations.
Whilst the majority of the amendments were relatively foreseen, the introduction of Covid-19 Contact Testing and the unilateral dilution of the constitutional right to privacy which it brings is a sobering example of not only the enormous impact of the Covid-19 pandemic on our day to day lives, but the extraordinary lengths to which those in power will go to halt its spread.
The Amendments create a new Chapter 3 entitled “Contact Tracing” which seeks to implement measures for the electronic tracing of individuals who have, or who are suspected of having, been in contact with someone being a confirmed carrier, or suspected carrier, of Covid-19.
Chapter 3 states the following as its main aims:
- The creation of a national Covid-19 database established by the National Department of Health. The database will contain personal information considered necessary for the contact tracing process to be effective, including but not limited to the following:
- the first name and surname, identity or passport numbers, residential address and other address where such person could be located, and cellular phone numbers of all persons who have been tested for Covid-19;
- the Covid-19 test results of all such persons; and
- the details of the known or suspected contacts of any person who tested positive for Covid-19.
- The Director-General: Health may, in writing and without prior notice to the person concerned, direct an electronic communications service provider licensed under the Electronic Communications Act to provide him or her, for inclusion in the COVID-19 Tracing Database, with such information as that electronic communications service provider has available to it regarding:
- the location or movements of any person known or reasonably suspected to have contracted Covid-19; and
- the location or movements of any person known or reasonably suspected to have come into contact, during the period 5 March 2020 to the date on which the national state of disaster has lapsed or has been terminated, with a person known or reasonably suspected to have contracted Covid-19 and the electronic communications service provider must promptly comply with the directive issued.
- The appointment of a Covid-19 Designated Judge who will monitor and provide guidance on the implementation of the Contact Tracing programme to ensure minimal impact on the individual’s right to privacy.
In normal circumstances the effect of the implementation of Contact Tracing, and specifically the broad powers bestowed upon the Director-General: Health relating to the direction(s) mentioned above, would be tantamount to a clear infringement of the right to privacy under section 14 of the Constitution. However, we do not find ourselves in normal circumstances and the executive will likely be able to raise a compelling argument justifying the limitation of the right on various grounds including those set out in section 36 of the Constitution, more colloquially known as the ‘limitations clause’. Not only will the limitation likely be considered lawful because of its temporary nature, but also because of the built-in checks and balances found in the Amendments which strive to limit the possible prejudicial effect on the citizenry.
Additional recognition needs to be given to the steps taken by the executive in attempting to minimise the restrictive effect of Contact Testing and the broad range of powers assigned to the Director-General: Health. The Amendments themselves provide the following:
- That the information gathered and stored in the Covid-19 Tracing Database and any information obtained through this process would be considered confidential.
- That no person may disclose any information contained in the Covid-19 Tracing Database or any information obtained through the working of Chapter 3 unless authorized to do so and unless the disclosure is necessary for the purpose of addressing, preventing or combatting the spread of Covid-19.
- The information to be stored in the Covid-19 Tracing Database may only be obtained in relation to the location or movements of persons during the period 5 March 2020 to the date on which the national state of disaster has lapsed or has been terminated.
- The above information may only be obtained, used or disclosed by authorised persons and may only be obtained, used and disclosed when necessary for the purposes of addressing, preventing or combatting the spread of Covid-19 through the contact tracing process.
- Information other than what is included in the Covid-19 Tracing Database, may only be retained by the Director-General: Health for a period of six weeks after being obtained and shall thereafter be destroyed.
- Chapter 3 prescribes the appointment of a Covid-19 Designated Judge who must regularly be apprised of the information included in the database and who is generally responsible for overseeing ensuring that the Covid-19 Contact Testing is conducted with a minimal impact to the rights of the persons whose information is to be collected.
In conclusion, it is necessary and even proper for a democratic society to question the laws imposed on them by their elected representatives and the extent to which those laws may infringe on the fundamental rights of those who make up that society. It is safe to say that the imposition of Covid-19 Contact Testing almost certainly limits the right to privacy. Whether this limitation can be considered unconstitutional is a question best left to the courts for adjudication, however, given the novel nature of the pandemic and the checks and balances built into Chapter 3 to prevent its abuse, it is highly likely that the contact Testing programme will pass constitutional muster in the event that it is tested.