Legal Articles

On the 26^th of March, the South African Government released a Gazette which published its intention to introduce contact tracing as part of the strategy to effectively manage the spread of COVID-19.

However, the burning question on every South African citizen’s lips is “how does this affect my right to privacy?”

Contact Tracing in South Africa and COVID-19

The idea of contact tracing is to use location-based services to locate individuals who have recently been in contact with confirmed COVID-19 patients in order to control and mitigate the spread of the virus.

The original order aimed to force telecommunications providers to hand over access to their customer’s data to the South African Government, but this directive was instantly frowned upon by residents, citizens and activists alike.

As a result, amendments were made within a week of the Gazette being published and the minister of communications and digital technologies acknowledged the public’s concern about the Government spying on them before stating that “this is not spying on anyone.”

Amended Regulations for Contact Tracing in South Africa

So, what does this all mean? How will contact tracing be executed and how will South African’s preserve their right to privacy?

The amendments made to initial directive resulted in a much more elaborate procedure for location tracking, which allows the Department of Health (DoH) to maintain a COVID-19 database of individuals who are infected or reasonably suspected of being infected.

In such a case, the Government may order cell phone companies to release location data for the above-mentioned database, providing information about COVID-19 carriers or people who have been in close proximity to them. This information will then be collected and stored in the dedicated COVID-19 database.

It’s important to note that the DoH may only request information between the 5^th of March 2020 and when the state of disaster draws to a close and may use this information strictly for the purpose of managing the spread of the Coronavirus.

In other words, the DoH and all other departments are not permitted to intercept any other communications content.

Protection of Personal Information Act Postponed

What Data will be Accessed?

The following information will be collected and stored in the dedicated COVID-19 database, and will only be requested for individuals who are confirmed as positive, or suspected to be positive, based on reasonable criteria:

• Name
• Surname
• Identity or passport number
• Residential address
• Any other address where the individual could be located
• Cell phone numbers of all persons who have been tested for COVID-19 as well as their test results
• Details of their known and suspected contacts

Only the director general of the Department of Health may issue a request for the above-mentioned information.

These requests will be made on an individual basis which circumvents the possibility of the Government getting direct access to everyone’s data all at once, with no limitations as to how the data will be used.

Furthermore, the data may only be kept for 6 weeks after the state of disaster has come to an end. The information will then be de-identified and used for research purposes and all individuals will be notified that their data had been accessed.

In order to safeguard the right to privacy, the highly respected retired judge, Kate O’Regan has been appointed as the dedicated COVID-19 judge, who will oversee the implementation of this process, ensuring that no major contravention of the constitution takes place.

Honourable Kate served as deputy Chief of Justice of South Africa in 2008 and was a judge of the Constitutional Court of South Africa between 1994 and 2009.

Van Deventer & Van Deventer Incorporated – Attorneys in South Africa

There has been major concern displayed by the public with regard to the protection of their personal information and how contact tracing will affect their right to privacy.

If you would like more information regarding contact tracing, or to know more about your rights during a national disaster, please contact our attorneys in Cape Town and Johannesburg.