Digitalisation in the Health Sector: A South African Public Law Perspective

Abstract

The landscape of the health sector in South Africa as seen from a regulatory perspective is rapidly changing under the disruptive impact of digitalisation. Drawing on a paradigm of "strong rights" protection, particularly a robust privacy law fit for the digital age and sourced in the nation's Constitution, the operationalisation and application of health privacy regulation in post-apartheid society is briefly described. The note then enumerates and assesses a number of specific digital health technologies currently in use in interventions in South Africa. To do so, we adopt the international World Health Organisation (WHO) classification of digital health interventions. We also cover the recent South African response to the COVID-19 pandemic, noting the establishment in South Africa of the COVID-19 Tracing Database and subsequent technological interventions aimed at enhancing contact tracing and other responses to the pandemic. The establishment of the initial database was a development at the interface of the law enforcement and health sectors, which raised concerns regarding its risks to privacy, but it also raised hopes regarding its potential rewards in protecting public health.

On the Technopolitics and Metrics of the Right to Information

“…The right to privacy had a previous life in apartheid. Legally speaking, South Africa had a common law tradition of a right to privacy to draw upon when its constitutional right to privacy was introduced (Cachalia and Klaaren 2022). Perhaps not surprisingly this non-constitutional right to privacy extended to and was used by corporations.…”