Charles Cilliers
4 minute read
3 Apr 2020
7:02 pm

Lamola appoints Justice Kate O’Regan as dedicated judge for using phone data to fight Covid-19

Charles Cilliers

The justice minister has praised the respected former judge, who will play the important role of safeguarding South Africans' rights.

Kate O'Regan at an inquiry on August 25, 2014 in Khayelitsha, South Africa. The commission, established by Helen Zille two years ago, released its report yesterday. (Photo by Gallo Images / Nardus Engelbrecht)

Justice Minister Ronald Lamola has appointed the sole dedicated judge, Justice Kate O’Regan, who will oversee the tracing and tracking of South Africans using their cellphone geolocation data in the fight against the spread of Covid-19.

O’Regan is a former judge of the Constitutional Court, having served for 15 years from 1994 to 2009. She acted as deputy chief justice in the absence of Justice Dikgang Moseneke during 2008. Since 2010, she served as an ad hoc judge of the Supreme Court of Namibia.

The department of justice and correctional services has explained that she has an important role to play to safeguard the rights of citizens and that the communication data of South Africans will only be used for its intended purpose of fighting the spread of Covid-19.

Communications Minister Stella Ndabeni Abrahams had on Thursday evening explained how government would be using people’s cellphones to track the movements of Covid-19-positive using cellphone technology.

She assured the public this was being done within the law and in partnership with the department of health. She further said this measure would not allow government to indiscriminately intercept telephone conversations of citizens.

Cellphones will be pinged for tracing purposes to see who was around a Covid-19 infected person.

In regulations gazetted on Thursday, the department of health explained the cellphone measure was part of developing and maintaining a national database to “enable the tracing of persons who are known or reasonably suspected to have come into contact with any person known or reasonably suspected to have contracted Covid-19”.

The database will include the name and surname of the person, their ID number, address, cellphone number and outcome of their Covid-19 test, along with location data to support tracing efforts.

The director-general of the department of health now has the power to ask cellphone companies to provide the location and movement of any person known or reasonably suspected to have contracted Covid-19.

Cellphone companies may be asked to provide location data between March 5 and the duration of the state of disaster.

“The 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 combating the spread of Covid-19 through the contact tracing process,” read the gazetted regulations.

The information from cellphone data may be retained by the director-general of health for of six weeks and must be destroyed after that.

“Nothing in this regulation entitles the Director-General: Health or any other person to intercept the contents of any electronic communication.”

Lamola’s office in a statement on Friday said he had needed to pick a judge who has been discharged from active service or is a retired high court judge to be the designated Covid-19 judge.

“The Designated Judge has an important role to play to safeguard the privacy and personal information of persons during this process,” said spokesperson Chrispin Phiri.

“The Director-General of Health must file a weekly report with the Covid-19 Designated Judge setting out the names and details of all persons whose location or movements were so obtained.

“The Covid-19 Designated Judge may also make such recommendations to Cabinet members responsible for Cooperative Governance and Traditional Affairs, Health and Justice and Correctional Services as she deems fit, regarding the amendment or enforcement of this regulation in order to safeguard the right to privacy whilst ensuring the ability of the Department of Health to engage in urgent and effective contact tracing to address, prevent and combat the spread of Covid-19.”

From 2008 to 2012, O’Regan also served as chairperson of the United Nations Internal Justice Council, a body established by the General Assembly to help ensure independence and accountability in the internal system of justice within the United Nations.

Since 2011 she has served as president of the International Monetary Fund Administrative Tribunal and, since 2012, as a member of the World Bank Sanctions Board.

She was the co-chairperson of the Commission of Inquiry into Inefficiencies in Policing in Khayelitsha. She is a visiting professor at the University of Oxford and an honorary professor at the University of Cape Town.

In explaining his choice, Lamola said: “Justice O’Regan is a highly respected former judge of our Constitutional Court and is known for her unwavering commitment to human rights, social justice and the rule of law. I am grateful to Justice O’Regan for availing herself for this role so as to ensure that whilst we fight Covid-19, people’s rights to privacy are not compromised.”

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