On 2 April 2020, the Minister of Cooperative Governance and Traditional Affairs published amended regulations in terms of the Disaster Management Act 57 of 2002. The amended regulations insert a new chapter pertaining to contact tracing, and in particular the establishment of the COVID-19 Tracing Database by the National Department of Health (NDoH).
In respect of this provision, the NDoH is required to develop and maintain 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 COVID-19 Tracing Database is to include all information considered necessary for the contact tracing process to be effective, including:
- 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 COVID19;
- 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.
In respect of electronic communications service providers, the amended regulations provide that the Director-General of Health may, in writing and without prior notice to the person concerned, direct an electronic communications service provider to provide the following information for inclusion in the COVID-19 Tracing Database:
- 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.
The amended regulations make clear that nothing in the amended regulations entitle the Director-General of Health or any other person to intercept the contents of any electronic communication.
The amended directions also provide for the appointment of a designated judge, with whom the Director General of Health must file weekly reports setting out the names and details of all persons whose location or movements were obtained in terms of the amended regulations. The designated judge is empowered to make recommendations in order to safeguard to the right to privacy.
Furthermore, the amended directions provide that the information on the COVID-19 tracing database must be de-identified or deleted within six weeks after the national state of disaster has lapsed or been terminated. The Director-General of Health is required to file a report with the designated judge regarding the steps taken in this regard. The designated judge is entitled to give directions as to any further steps to be taken to protect the right to privacy of those persons whose data has been collected.
Any person who fails to comply with their obligations under the regulations related to contact tracing will be guilty of an offence, and liable on conviction to a fine and/or imprisonment of up to six months.
The amended regulations are accessible here.
Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. For any enquiries, please contact us at [email protected].