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Relevant bibliographies by topics / Customary law – South Africa

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Academic literature on the topic 'Customary law – South Africa'

Author: Grafiati

Published: 4 June 2021

Last updated: 7 February 2022

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Journal articles on the topic "Customary law – South Africa"

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M Maithufi (In Memory) and CA Maimela. "Teaching the “Other Law” in a South African University: Some Problems Encountered and Possible Solutions." Obiter 41, no. 1 (2020): 1–9. http://dx.doi.org/10.17159/obiter.v41i1.10545.

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African customary law is a legal system that is recognised in South Africa and forms part of the law of the indigenous people of South Africa. Due to colonialism and apartheid, this legal system was rejected and underdeveloped in favour of common law. The supremacy of the Constitution and its recognition of African customary law as an independent legal system, separate from the common law, aimed to correct past injustices that flowed from the underdevelopment of this important legal system. Whether the Constitution and higher learning institutions have attained the goal of developing African customary law in South Africa is a question that will be explored and debated in this contribution. Its aim is to assess the role of higher learning institutions in developing African customary law through their teaching of this system of law, as well as to outline some of the challenges faced by these institutions in offering an African customary law course to students. Possible solutions are discussed; the aim is to ensure that the teaching component of African customary law is developed, and to contribute to the current debate about curriculum transformation among universities and various stakeholders in higher learning. Curriculum transformation is key to the future development and inclusiveness of the South African community that is so diverse.

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Rautenbach, Christa. "Oral Law in Litigation in South Africa: An Evidential Nightmare?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3268.

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In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

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GRANT, EVADNÉ. "HUMAN RIGHTS, CULTURAL DIVERSITY AND CUSTOMARY LAW IN SOUTH AFRICA." Journal of African Law 50, no. 1 (2006): 2–23. http://dx.doi.org/10.1017/s0021855306000039.

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In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

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Bronstein, Victoria. "Reconceptualizing the Customary Law Debate in South Africa." South African Journal on Human Rights 14, no. 3 (1998): 388–410. http://dx.doi.org/10.1080/02587203.1998.11834984.

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Dyani-Mhango, Ntombizozuko. "Reflecting on South Africa's Attempt to Withdraw from the Rome Statute in Favour of Immunities for Sitting Heads of State: An Analysis of the International Crimes Bill 2017." African Journal of International and Comparative Law 28, no. 2 (2020): 319–51. http://dx.doi.org/10.3366/ajicl.2020.0315.

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This article reflects on South Africa's International Crimes Bill 2017 in relation to the customary international law immunities of sitting heads of states. It revisits the discussion on these immunities and examines their legal status in South Africa. It argues that if South Africa adopts the International Crimes Bill, subject only to the procedural prescripts of the Constitution of the Republic of South Africa, this will have the effect of recognising customary international law immunities for sitting heads of state in South Africa thereby resolving the legal conundrum arising from the non-recognition of immunities for sitting heads of state.

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Faris, John Andrew. "African Customary Law and Common Law in South Africa: Reconciling Contending Legal Systems." International Journal of African Renaissance Studies - Multi-, Inter- and Transdisciplinarity 10, no. 2 (2015): 171–89. http://dx.doi.org/10.1080/18186874.2015.1107991.

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Himonga, Chuma, and Fatimata Diallo. "Decolonisation and Teaching Law in Africa with Special Reference to Living Customary Law." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 30, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3267.

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The student protests in South African Universities, which started in 2015, demanded the decolonisation of certain aspects of higher education. While the primary demand is free education, issues of the curriculum and transformation connected with the country's history of colonialism and apartheid have also surfaced. In the field of law, demands for curriculum change are accompanied by the broad issue of the decolonisation of law, translating into questions of legal history, the concept of law, the role of law in African societies, the status of indigenous systems of law in the post-independent/apartheid legal system, and how law is taught in law schools.This paper examines the idea of the decolonisation of law in relation to the teaching of law in African states previously under the influence of English or Roman-Dutch colonial/apartheid legal history. The teaching of law is with special reference to the system of law that governs the majority of people in Africa in private law and aspects of governance – living customary law. The paper examines the design of legal education with respect to three elements that are essential to the decolonisation of law and legal education. The elements under review are the inclusion of living customary law in legal education, a shift in the legal theoretical paradigm within which law is taught, and the interdisciplinary study of law. Thus, the paper links the decolonisation of law to how law is taught, with special reference to living customary law. In discussing these elements, the paper draws examples from the South African legal system, because it has the most advanced jurisprudential conceptualisation of customary law on the African Continent.

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Siegel, Nica. "Thinking the Boundaries of Customary Law in South Africa." South African Journal on Human Rights 31, no. 2 (2015): 357–78. http://dx.doi.org/10.1080/19962126.2015.11865251.

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Du Plessis, Paul, and Willemien Du Plessis. "Editorial: Engaging with African Customary Law: Legal History in Contemporary South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (October 18, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3266.

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This special edition consists of a selection of the contributions delivered an event on Custom, Oral History and Law: Writing South African Legal History, co-hosted by the Law School, University of Edinburgh and the Faculty of Law, North-West University.

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Suttner, Raymond. "The social and ideological function of African customary law in South Africa." Social Dynamics 11, no. 1 (1985): 49–64. http://dx.doi.org/10.1080/02533958508458381.

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Dissertations / Theses on the topic "Customary law – South Africa"

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Weeks, Sindiso Mnisi. "The interface between living customary law(s) of succession and South African state law." Thesis, University of Oxford, 2010. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.669981.

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Mqeke, Bangilizwe Richman. "Traditional and modern law of procedure and evidence in the chief's courts of the Ciskei." Thesis, Rhodes University, 1986. http://hdl.handle.net/10962/d1003202.

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In this thesis it is intended to show, among other things, the evolution of the Ciskeian traditional African Court practice and procedure from the time of the advent of white rule up to the present day. In chapter two we show the manner in which the various Cape Governors tried to suppress the traditional court system and law by superimposing western type law and norms (repugnancy clause) on the unwilling African population. The case law discussed in chapter 3 clearly shows the problems that arose and which to a large extent, still arise in the application of the Chiefs' Civil Courts Rules. Non-compliance with these rules reveals the need both for the training of the personnel of these courts and reform of the rules governing the Chief's courts. The areas that need urgent attention have been identified and the necessary recommendations have been made.

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Costa, Anthony Alec. "Segregation, customary law and the governance of Africans in South Africa, c.1919-1929." Thesis, University of Cambridge, 1999. https://www.repository.cam.ac.uk/handle/1810/272699.

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Mwambene, Lea. "Divorce in matrilineal customary law marriage in Malawi: a comparative analysis with the patrilineal customary law marriage in South Africa." Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&amp.

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This research aimed to undertake an investigation into the question of whether after divorce, in the matrilineal customary law marriage in Malawi, women's rights are severely violated. The study showed causes of divorce, how proceedings are done, how issues of property are handled, how the issue of custody of children and maintenance are also handled. All this was weighed against the constitutional provisions and international law.

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Mashalaba, Siyabulela Welcome. "Discrimination against women under customary law in South Africa with reference to inheritance and succession." Thesis, University of Fort Hare, 2012. http://hdl.handle.net/10353/505.

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In South Africa, it is evident that women are uniformed of their essential human rights, especially their inheritance and succession rights, including protection of such rights. Human rights are international norms that protect individuals everywhere from the states’ political, legal and social abuse. Human rights are entitlements which human beings have in order to enhance their human condition. They are the fundamental entitlements or minimum standards to be met for individual so that they live with dignity. This study focused on discrimination of women under customary law in South Africa with reference to inheritance and succession. The study validated the findings of other researchers on the impact of cultural practices on women’s rights to inheritance and succession. In addition the findings revealed that efforts t eliminate traditional practices, should foremost come from men and from communities that hold such destructive attitudes towards women. The outcomes and recommendations of this study would assist the government and other institutions to adopt effective measures to empower women and especially educate them so that they can assert and defend their human rights

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Kamieth, Alexander. "The traditional Leadership and Governance Framework Act, 2003, and its subsequent provincial legislation: a critical review of attempts at integrating traditional leadership into the new democracy in South Africa." Thesis, University of the Western Cape, 2007. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_8199_1256293513.

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<p>The subject of this research paper is the analysis of the recent national and provincial legislation on traditional leadership. Within the new constitutional dispensation the legislature had to retain traditional leadership pursuan to Chapter 12 of the Consstitution of the Republic of South Africa, 1996. It was unclear how to change institutions that are based on customary<br>aw at the same time, recognize them as they are. The legislative branch of government provided its answer through the national and provincial Acts. Precisely the answer forms part of the research paper.</p>

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Mwambene, Lea. "The impact of the Bill of Rights on African customary family laws : a study of the rights of women in Malawi with some reference to tevelopments in South Africa /." Online Access, 2008. http://etd.uwc.ac.za/usrfiles/modules/etd/docs/etd_gen8Srv25Nme4_8528_1271625878.pdf.

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Osman, Fatima. "The administration of customary law estates post the enactment of the reform of customary law of succession act: a case study from rural Eastern Cape, South Africa." Doctoral thesis, Faculty of Law, 2019. http://hdl.handle.net/11427/30791.

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After years of deliberation and judicial activism, the South African legislature in September 2010 brought into force the Reform of Customary law of Succession and Regulation of Related Matters Act 11 of 2009 (the Reform Act). The Act regulates the devolution of property of individuals who live according to customary law and die intestate. The notorious customary law principle of male primogeniture, according to which males inherited to the exclusion of females, has been abolished and replaced with the common law system of intestate succession. It has been nine years since the enactment of the Reform Act. This thesis investigates the implementation of the Act to understand its application by officials and people’s experiences thereof. It is a qualitative study that draws upon doctrinal and empirical research to address its objectives. The theoretical concepts of deep legal pluralism and the semi-autonomous social field are employed as the analytical prism through which the administration of customary law estates is investigated. The findings are based on a comprehensive case study conducted in a rural village in the Eastern Cape of South Africa. Individuals, the traditional leader, the headman and state officials were interviewed to understand how estates are reported and the devolution of benefits. The interviews were augmented by an analysis of a sample of case files drawn from the Master’s Office responsible for the administration of estates. The findings revealed the resilience of living customary law in the administration of estates, particularly in respect of homes situated in rural areas. In this regard, living customary law has evolved to allow women and daughters greater rights to property but it still displays patriarchal overtones as males are considered the true owners of homes. The Reform Act regulates more effectively the devolution of assets found in the formal sector, such as financial assets. The case study found most estates were valued at less than R250 000, with the result that deceased’s surviving spouse and children were the primary beneficiaries of the estate. However, a statutory right of inheritance is no guarantee that beneficiaries enjoy their rights as there is a significant risk of property grabbing. While much has been done to reform the customary law of succession, there is room for improvement in securing the rights of dependents of the deceased, facilitating the reporting of estates and ensuring the implementation of mediated solutions in communities. The thesis thus offers practical recommendations to improve the system of administration. First, the thesis recommends a move towards a functional, fact-based approach to inheritance which extends inheritance rights to individuals supported by the deceased while alive, regardless of whether they constitute a spouse or a descendant as statutorily defined. This addresses the lack of protection for unmarried partners and the broader notions of family found in customary law. Second, it advocates for the greater leveraging of traditional institutions such as chiefs and families in the reporting of estates and resolution of disputes. Third, the dissemination of information through state and non-state institutions is promoted. Fourth, it advocates for the explicit condemnation of corrupt state practices which exploit vulnerable individuals. Finally, the thesis recommends further research into practices such as the existence of family property and administration of estates in urban areas. Understanding the nuanced manner in which administration is experienced is argued to be necessary for successful reform.

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Sunde, Jacqueline. "Customary governance and expressions of living customary law at Dwesa-Cwebe: contributions to small-scale fisheries governance in South Africa." Doctoral thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/13275.

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Includes bibliographical references.<br>Customary systems of marine resource governance have gained increasing attention internationally in the past three decades. Notwithstanding this, and despite the Constitutional recognition of customary governance and customary law in South Africa, the post-apartheid legislative reforms in the fisheries sector have failed to recognise customary systems of marine resource governance. Drawing on a case-study of the Dwesa-Cwebe community in the Eastern Cape, South Africa, this research aimed to describe and understand the customary marine resource governance system of this community and its relationship to living customary law. It explores how this customary system of marine resource governance has interfaced with statutory and other systems of law in the past and how it continues to develop in the current context. The findings from this research highlight the distinctive nature of the customary system of marine resource governance practiced by the community of Dwesa-Cwebe and their expressions of living customary law embedded in this governance system. The nature of this system is foundationally different to that of a Western statutory governance system. This customary system of governance has interacted with the statutory system for over a century, in part distorted by this system but retaining its integrity. In the context of the Constitutional recognition of customary systems of governance and customary law, this governance system now requires understanding and recognition in a new system of marine resource governance in South Africa. This thesis explores the contribution that this system of customary governance can make towards promoting socially just smallscale fisheries in South Africa. It argues that harmonisation of the statutory and customary system of marine resource governance demands an approach to governance theory and practice that is able to imagine an alternative ‘ecology of governance’.

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Hugh, Brian Ashwell. "Traditional leadership in South Africa: a critical evaluation of the constitutional recognition of customary law and traditional leadership." Thesis, University of the Western Cape, 2004. http://etd.uwc.ac.za/index.php?module=etd&amp.

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The main objectives of this study were to identify the role that customary law and traditional leadership can play, without compromising their current positions or future recognition through legislation, in creating a better life for their constituents. The study analysed diverse issues such as legislative reform, the future role and functions of traditional leaders, training needs of traditional leaders, and the impact of a possible lack of commitment by national and provincial government on the training of traditional leaders to fulfill their functions within the ambit of the Constitution.

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Books on the topic "Customary law – South Africa"

1

Bennett, T. W. Customary law in South Africa. Juta, 2004.

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Oomen, Barbara. Chiefs!: Law, power, and culture in contemporary South Africa. Universiteit Leiden, 2002.

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Legal pluralism in South Africa: Aspects of African customary, Muslim and Hindu family law. Van Schaik, 2009.

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Africa, South. Selected South African legislation on customary law and traditional authorities. Konrad-Adenauer-Stiftung, 1998.

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Bennett, T. W. Human rights and African customary law under the South African Constitution. Juta, 1995.

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Bennett, T. W. Human rights and African customary law under the South African Constitution. Juta, 1999.

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Marriage, land and custom: Essays on law and social change in South Africa. Juta, 2013.

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Genders and generations apart: Labor tenants and customary law in segregation-era South Africa, 1920s to 1940s. Heinemann, 2002.

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Cornell, Drucilla. Ubuntu and the law: African ideals and postapartheid jurisprudence. Fordham University Press, 2012.

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Mohammed, S. Politics of law: The RDP of South African law : non₋recognition of religious and customary marriages. RDP Foundation, 1995.

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Book chapters on the topic "Customary law – South Africa"

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Heemann, Lisa. "Living customary law in South Africa." In Normative Spaces and Legal Dynamics in Africa. Routledge, 2020. http://dx.doi.org/10.4324/9781003015734-13.

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Olaf, Zenker. "Bush-level bureaucrats in South African land restitution." In The State and the Paradox of Customary Law in Africa. Routledge, 2018. http://dx.doi.org/10.4324/9781315552491-2.

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Jaichand, Vinodh. "Women’s Land Rights and Customary Law Reform in South Africa: Towards a Gendered Perspective." In Justiciability of Human Rights Law in Domestic Jurisdictions. Springer International Publishing, 2015. http://dx.doi.org/10.1007/978-3-319-24016-9_16.

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Duany, Wal. "6. Customary law and ways of life in transition among the Nuer of south Sudan." In Managing Mobility in African Rangelands. Practical Action Publishing, 1999. http://dx.doi.org/10.3362/9781780442761.006.

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Kemp, Gerhard. "South Africa." In Homicide in Criminal Law. Routledge, 2018. http://dx.doi.org/10.4324/9781351016315-12.

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Knobel, Johann C. "South Africa." In Tort and Insurance Law. Springer Vienna, 2002. http://dx.doi.org/10.1007/978-3-7091-6120-3_21.

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Theron, Jan, and Ursula Titus. "South Africa." In International Handbook of Cooperative Law. Springer Berlin Heidelberg, 2013. http://dx.doi.org/10.1007/978-3-642-30129-2_32.

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Sundaram, Jae. "South Africa." In Pharmaceutical Patent Protection and World Trade Law. Routledge, 2018. http://dx.doi.org/10.4324/9781315267692-10.

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Collier, Debbie. "South Africa." In Ius Comparatum - Global Studies in Comparative Law. Springer International Publishing, 2018. http://dx.doi.org/10.1007/978-3-319-90068-1_24.

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Edward, Jane Kani. "Conflict, customary law, gender, and women’s rights in South Sudan *." In South Sudan. Routledge, 2018. http://dx.doi.org/10.4324/9781315162638-4.

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Conference papers on the topic "Customary law – South Africa"

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Marta, Auradian. "Recognition and Protection Customary Law Community in Indragiri Hulu Regency of Riau Province." In Proceedings of the 1st International Conference on Environmental Governance, ICONEG 2019, 25-26 October 2019, Makassar, South Sulawesi, Indonesia. EAI, 2020. http://dx.doi.org/10.4108/eai.25-10-2019.2300521.

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Mostert, Sias, Mothibi Ramusi, Herman Steyn, and Martin Jacobs. "A National Pathfinder Satellite for South Africa." In 56th International Astronautical Congress of the International Astronautical Federation, the International Academy of Astronautics, and the International Institute of Space Law. American Institute of Aeronautics and Astronautics, 2005. http://dx.doi.org/10.2514/6.iac-05-b5.1.03.

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Butgereit, Laurie. "Covid-19 New Cases Measurements and Benford's Law with Specific Focus on South Africa." In 2021 International Conference on Artificial Intelligence, Big Data, Computing and Data Communication Systems (icABCD). IEEE, 2021. http://dx.doi.org/10.1109/icabcd51485.2021.9519321.

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Ngubane, N., and S. Chowdhury. "Performance Analysis of a Stand-Alone Solar PV battery System for Supplying Low Voltage Rural Customers in South Africa." In 2019 10th International Renewable Energy Congress (IREC). IEEE, 2019. http://dx.doi.org/10.1109/irec.2019.8754563.

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Onuoha, K. Mosto, and Chidozie I. Dim. "Prospects and Challenges of Developing Unconventional Petroleum Resources in the Anambra Inland Basin of Nigeria." In SPE/AAPG Africa Energy and Technology Conference. SPE, 2016. http://dx.doi.org/10.2118/afrc-2571791-ms.

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ABSTRACT The boom in the development of unconventional petroleum resources, particularly shale gas in the United States of America during the last decade has had far reaching implications for energy markets across the world and particularly for Nigeria, a country that traditionally has been Africa&rsquo;s leading crude oil producer and exporter. The Cretaceous Anambra Basin is currently the only inland basin in Nigeria where the existence of commercial quantities of oil and gas has been proven (outside the Tertiary Niger Delta Basin). The possibility of similarly finding commercially viable resources of unconventional petroleum resources in the basin appears quite attractive on the basis of the existence of seepages of shale oil and presence of coal-bed methane in some of the coal seams of the Mamu Formation (Lower Coal Measures) in the basin. This paper presents the results of our preliminary assessment of the shale oil and gas resources of the Anambra Basin. Our main objective is to locate the zones of very high quality plays within the basin, focusing on their depositional environments (whether marine or non-marine), areal extent of the target shale formations, gross shale intervals, total organic content, and thermal maturity. Data on the total organic content (TOC %, by weight) and thermal maturity of shales from different wells in the basin show that many of the shales have high TOCs (i.e greater than 2%) comparable to known shale gas and shale oil plays globally. Shale oil seepages are known to occur around Lokpanta in south-eastern Nigeria, but there is a general predominance of gas-prone facies in our inland basins indicating good prospects for finding unconventional petroleum in this and other Nigerian inland sedimentary basins. The main challenge to the exploration of unconventional resources in Nigeria today has to do with the absence of the enabling laws and regulatory framework governing their exploration and subsequent exploitation. The revised Petroleum Industry Bill (PIB) currently under consideration in the National Assembly is expected to introduce drastic and lasting changes in the way the petroleum industry business is conducted in the country, but all the provisions of the draft law pertain mainly to conventional oil and gas resources.

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Reports on the topic "Customary law – South Africa"

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Cachalia, Firoz, and Jonathan Klaaren. Digitalisation, the ‘Fourth Industrial Revolution’ and the Constitutional Law of Privacy in South Africa: Towards a public law perspective on constitutional privacy in the era of digitalisation. Digital Pathways at Oxford, 2021. http://dx.doi.org/10.35489/bsg-dp-wp_2021/04.

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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 digitalisation’s impact in the health sector. For the most part, we focus on technologies that have health benefits and privacy costs, but we also recognise that certain technologies have health costs and privacy benefits. We also briefly outline the recent establishment (and subsequent events) in South Africa of a contact tracing database responding to the COVID-19 pandemic – the COVID-19 Tracing Database – a development at the interface of the law enforcement and health sectors. Our main point in this accompanying paper is to demonstrate the value that a constitutional right to privacy can bring to the regulation of digital technologies in a variety of legal frameworks and technological settings – from public to private, and from the law of the constitution to the ‘law’ of computer coding.

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Cachalia, Firoz, and Jonathan Klaaren. A South African Public Law Perspective on Digitalisation in the Health Sector. Digital Pathways at Oxford, 2021. http://dx.doi.org/10.35489/bsg-dp-wp_2021/05.

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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 practical step further: we use our public law perspective on digitalisation in the South African health sector. We do so because this sector is significant in its own right – public health is necessary for a healthy society – and also to further explore how and to what extent the South African constitutional framework provides resources at least roughly adequate for the challenges posed by the current 'digitalisation plus' era. The theoretical perspective we have developed is certainly relevant to digitalisation’s impact in the health sector. The social, economic and political progress that took place in the 20th century was strongly correlated with technological change of the first three industrial revolutions. The technological innovations associated with what many are terming ‘the fourth industrial revolution’ are also of undoubted utility in the form of new possibilities for enhanced productivity, business formation and wealth creation, as well as the enhanced efficacy of public action to address basic needs such as education and public health.

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