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This paper situates the South African constitutional project in a wider temporal and ideological ... more This paper situates the South African constitutional project in a wider temporal and ideological frame of reference as an anticolonial project and asks what the postcolonial critique of the constitutional project and the postcolonial state can offer to deepen our understanding of contemporary forms of cruelty and injustice in the form of inequality and misrecognition. It identifies the limits of 'Constitutional legalism' and is critical of the 'triumphalist' mode of appreciating the Constitution. Constitutional legalism postulates a text that contains a comprehensive conception of justice that awaits implementation and has settled all relevant questions arising from our colonial past. Instead, the Constitution should be conceived as an 'incompletely theorised agreement' which deferred many questions and which conceals many ongoing disagreements. But this paper also recognises the Constitution and its central propositionshuman rights, the rule of law and popular self-government as genuine anticolonial achievements, which provide framework concepts and institutions for collective action and democratic politics. So the paper is also critical of the 'culturalist' critique that denounces the Constitution as a 'betrayal' that inscribes Eurocentric forms of reason as a permanent obstacle to the attainment of a genuinely postcolonial society. It proposes, as an alternative to both the 'legalist' defence and 'culturalist' critique that the idea of the 'demos' should be restored to its central place in the imaginary of South African constitutionalism. The Constitution can then be reconceived not as the perfect product of a singular moment in South African history but as an ongoing activity requiring dialogue, including inter-generational dialogue, and a democratic framework within which to strive for social change.
Rapid and radical digitalization and the “fourth industrial revolution” are generally associated ... more Rapid and radical digitalization and the “fourth industrial revolution” are generally associated with progress, but also pose significant risks to privacy rights and democracy. This article proposes a public law reading of the South African Constitution to respond to the dangers posed by disruptive technological change, in light of the constitution's rights-orientated and rule-of-law-centred approach to interpreting the right to privacy. It examines the legal resources available in the South African legal system and, specifically, its constitution. The article emphasizes the way South African privacy jurisprudence infuses the right to privacy with the value of dignity, and how this allows an interpretation that sees privacy as a public, as well as private, right. The article concludes that this rights jurisprudence, alongside the constitutional principles of proportionality, subsidiarity and supremacy, has established a working foundation to articulate the right to privacy in a ...
Potchefstroom Electronic Law Journal, Nov 17, 2021
The landscape of the health sector in South Africa as seen from a regulatory perspective is rapid... more 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 several 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.
South African medical journal = Suid-Afrikaanse tydskrif vir geneeskunde, 2020
In response to the COVID-19 pandemic, South Africa (SA) has established a Tracing Database, colle... more In response to the COVID-19 pandemic, South Africa (SA) has established a Tracing Database, collecting both aggregated and individualised mobility and locational data on COVID-19 cases and their contacts. There are compelling public health reasons for this development, since the database has the potential to assist with policy formulation and with contact tracing. While potentially demonstrating the rapid facilitation through technology of an important public service, the Tracing Database does, however, infringe immediately upon constitutional rights to privacy and heightens the implications of ethical choices facing medical professionals. The medical community should be aware of this surveillance innovation and the risks and rewards it raises. To deal with some of these risks, including the potential for temporary rights- infringing measures to become permanent, there are significant safeguards designed into the Tracing Database, including a strict duration requirement and reportin...
We explored some of the questions posed by digitalisation in an accompanying working paper focuse... more We explored some of the questions posed by digitalisation in an accompanying working paper focused on constitutional theory: Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa. In that paper, we asked what legal resources are available in the South African legal system to respond to the risk and benefits posed by digitalisation. We argued that this question would be best answered by developing what we have termed a 'South African public law perspective'. In our view, while any particular legal system may often lag behind, the law constitutes an adaptive resource that can and should respond to disruptive technological change by re-examining existing concepts and creating new, more adequate conceptions. Our public law perspective reframes privacy law as both a private and a public good essential to the functioning of a constitutional democracy in the era of digitalisation. In this working paper, we take the analysis one pra...
The 1996 South African Constitution envisages a significantly expanded role for the judiciary. A ... more The 1996 South African Constitution envisages a significantly expanded role for the judiciary. A change in legal culture, following South Africa's constitutional transition, which is receptive to post-formalist styles of legal reasoning, also tends to expand the reach of the law. This change has implications for the relationship between the judiciary and the elected branches of government, and therefore for separation of powers. This article considers the principle of separation of powers in this context, as a source of both judicial authority and judicial self-restraint. Taking its cue from National Treasury & others v Opposition to Urban Tolling Alliance & others, it argues that the normativity of the principle of separation of powers and the democratic principles that inform the Constitution should frame the court's consideration of the limits of judicial intervention in cases concerning the allocation of public resources, at least in macro-political cases that do not inv...
In this working paper, our focus is on the constitutional debates and case law regarding the righ... more In this working paper, our focus is on the constitutional debates and case law regarding the right to privacy, adopting a method that is largely theoretical. In an accompanying separate working paper, A South African Public Law Perspective on Digitalisation in the Health Sector, we employ the analysis developed here and focus on the specific case of digital technologies in the health sector. The topic and task of these papers lie at the confluence of many areas of contemporary society. To demonstrate and apply the argument of this paper, it would be possible and valuable to extend its analysis into any of numerous spheres of social life, from energy to education to policing to child care. In our accompanying separate paper, we focus on only one policy domain – the health sector. Our aim is to demonstrate our argument about the significance of a public law perspective on the constitutional right to privacy in the age of digitalisation, and attend to several issues raised by digitalis...
At the beginning of July last year, the Gauteng MEC for Community Safety publicly announced the l... more At the beginning of July last year, the Gauteng MEC for Community Safety publicly announced the launch of a six month, high intensity police operation called Operation Iron Fist. This article draws from a media statement delivered by the MEC on 2 February 2007 in which the achievements of Iron Fist between July and December 2006 were discussed. Given that little information on policing strategy is currently provided to the public, the SA Crime Quarterly hopes, by publishing extracts of the MEC’s statement, to assist in documenting and publicising anti-crime efforts and to help hold accountable those in positions of leadership on crime in South Africa.
This paper situates the South African constitutional project in a wider temporal and ideological ... more This paper situates the South African constitutional project in a wider temporal and ideological frame of reference as an anticolonial project and asks what the postcolonial critique of the constitutional project and the postcolonial state can offer to deepen our understanding of contemporary forms of cruelty and injustice in the form of inequality and misrecognition. It identifies the limits of 'Constitutional legalism' and is critical of the 'triumphalist' mode of appreciating the Constitution. Constitutional legalism postulates a text that contains a comprehensive conception of justice that awaits implementation and has settled all relevant questions arising from our colonial past. Instead, the Constitution should be conceived as an 'incompletely theorised agreement' which deferred many questions and which conceals many ongoing disagreements. But this paper also recognises the Constitution and its central propositionshuman rights, the rule of law and popular self-government as genuine anticolonial achievements, which provide framework concepts and institutions for collective action and democratic politics. So the paper is also critical of the 'culturalist' critique that denounces the Constitution as a 'betrayal' that inscribes Eurocentric forms of reason as a permanent obstacle to the attainment of a genuinely postcolonial society. It proposes, as an alternative to both the 'legalist' defence and 'culturalist' critique that the idea of the 'demos' should be restored to its central place in the imaginary of South African constitutionalism. The Constitution can then be reconceived not as the perfect product of a singular moment in South African history but as an ongoing activity requiring dialogue, including inter-generational dialogue, and a democratic framework within which to strive for social change.
Rapid and radical digitalization and the “fourth industrial revolution” are generally associated ... more Rapid and radical digitalization and the “fourth industrial revolution” are generally associated with progress, but also pose significant risks to privacy rights and democracy. This article proposes a public law reading of the South African Constitution to respond to the dangers posed by disruptive technological change, in light of the constitution's rights-orientated and rule-of-law-centred approach to interpreting the right to privacy. It examines the legal resources available in the South African legal system and, specifically, its constitution. The article emphasizes the way South African privacy jurisprudence infuses the right to privacy with the value of dignity, and how this allows an interpretation that sees privacy as a public, as well as private, right. The article concludes that this rights jurisprudence, alongside the constitutional principles of proportionality, subsidiarity and supremacy, has established a working foundation to articulate the right to privacy in a ...
Potchefstroom Electronic Law Journal, Nov 17, 2021
The landscape of the health sector in South Africa as seen from a regulatory perspective is rapid... more 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 several 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.
South African medical journal = Suid-Afrikaanse tydskrif vir geneeskunde, 2020
In response to the COVID-19 pandemic, South Africa (SA) has established a Tracing Database, colle... more In response to the COVID-19 pandemic, South Africa (SA) has established a Tracing Database, collecting both aggregated and individualised mobility and locational data on COVID-19 cases and their contacts. There are compelling public health reasons for this development, since the database has the potential to assist with policy formulation and with contact tracing. While potentially demonstrating the rapid facilitation through technology of an important public service, the Tracing Database does, however, infringe immediately upon constitutional rights to privacy and heightens the implications of ethical choices facing medical professionals. The medical community should be aware of this surveillance innovation and the risks and rewards it raises. To deal with some of these risks, including the potential for temporary rights- infringing measures to become permanent, there are significant safeguards designed into the Tracing Database, including a strict duration requirement and reportin...
We explored some of the questions posed by digitalisation in an accompanying working paper focuse... more We explored some of the questions posed by digitalisation in an accompanying working paper focused on constitutional theory: Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa. In that paper, we asked what legal resources are available in the South African legal system to respond to the risk and benefits posed by digitalisation. We argued that this question would be best answered by developing what we have termed a 'South African public law perspective'. In our view, while any particular legal system may often lag behind, the law constitutes an adaptive resource that can and should respond to disruptive technological change by re-examining existing concepts and creating new, more adequate conceptions. Our public law perspective reframes privacy law as both a private and a public good essential to the functioning of a constitutional democracy in the era of digitalisation. In this working paper, we take the analysis one pra...
The 1996 South African Constitution envisages a significantly expanded role for the judiciary. A ... more The 1996 South African Constitution envisages a significantly expanded role for the judiciary. A change in legal culture, following South Africa's constitutional transition, which is receptive to post-formalist styles of legal reasoning, also tends to expand the reach of the law. This change has implications for the relationship between the judiciary and the elected branches of government, and therefore for separation of powers. This article considers the principle of separation of powers in this context, as a source of both judicial authority and judicial self-restraint. Taking its cue from National Treasury & others v Opposition to Urban Tolling Alliance & others, it argues that the normativity of the principle of separation of powers and the democratic principles that inform the Constitution should frame the court's consideration of the limits of judicial intervention in cases concerning the allocation of public resources, at least in macro-political cases that do not inv...
In this working paper, our focus is on the constitutional debates and case law regarding the righ... more In this working paper, our focus is on the constitutional debates and case law regarding the right to privacy, adopting a method that is largely theoretical. In an accompanying separate working paper, A South African Public Law Perspective on Digitalisation in the Health Sector, we employ the analysis developed here and focus on the specific case of digital technologies in the health sector. The topic and task of these papers lie at the confluence of many areas of contemporary society. To demonstrate and apply the argument of this paper, it would be possible and valuable to extend its analysis into any of numerous spheres of social life, from energy to education to policing to child care. In our accompanying separate paper, we focus on only one policy domain – the health sector. Our aim is to demonstrate our argument about the significance of a public law perspective on the constitutional right to privacy in the age of digitalisation, and attend to several issues raised by digitalis...
At the beginning of July last year, the Gauteng MEC for Community Safety publicly announced the l... more At the beginning of July last year, the Gauteng MEC for Community Safety publicly announced the launch of a six month, high intensity police operation called Operation Iron Fist. This article draws from a media statement delivered by the MEC on 2 February 2007 in which the achievements of Iron Fist between July and December 2006 were discussed. Given that little information on policing strategy is currently provided to the public, the SA Crime Quarterly hopes, by publishing extracts of the MEC’s statement, to assist in documenting and publicising anti-crime efforts and to help hold accountable those in positions of leadership on crime in South Africa.
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Papers by Firoz Cachalia