Read the case study below and answer the questions under the case study

Case study

Imagine that, during the COVID-19 pandemic and state of disaster in 2020, Parliament passes a new Act - the "Epidemic Youth Electronic Surveillance Act" (the EYES Act).

The purpose of the Act is given as follows:

Section 2(1): The purpose of this Act is to limit the spread of viruses and other diseases in times of epidemics or pandemics amongst the youth of South Africa.

The Act in section 79 states the following:

Section 79(1): All public learning institutions must install particular equipment at each of their entrances. This equipment must scan the face of each person attempting to enter the premises, process the facial data to check that the entrant is wearing a face mask, and check the entrant's temperature.

Section 79(2): The entrant must be detected to be wearing a mask, and to show no signs of fever, before the entrance may be activated and the entrant permitted to enter.

Section 79(3): The equipment must store the entrant's face, temperature, and mask-status (whether wearing a mask or not), as well as the time, date and location of attempted entry.

Section 79(4): The stored data in subsection (3), above, must be automatically made available to all branches and departments of the State.

Section 79(5): In order to implement this Asct, the State may make use of the services of an external service provider.

Section 95 of the Act states the following:

Section 95(1): This Act is to be administered by the Minister of Health.

In order to implement the Act, the Department of Health undergoes a valid tender process, and appoints a private technology company, called Panopticon Limited. This company is paid to install the facial recognition equipment at all such public learning institutions, and develops and runs the software that scans and processes the entrants' faces. They also proceed to sell the collected facial recognition data of all entrants to security Panopticon, inorder to increase their profits. This sale of data was not authorised by any part of the Act.

Panopticon first installs the equipment and software at schools and universities across the country in late 2021. In late 2022, the pandemic has eased considerably, due to high rates of vaccination and pre-infection granting immunity (unfortunately at the cost of hundreds of thousands of excess deaths in South Africa). Mask-wearing is no longer compulsory by law, nor are temperature checks.

One of the universities at which the equipment is installed is South-East University, in North-West Province. Prior to COVID, this University's campuses were rated as the safest in the country, due to their already extensive security measures. Now, at the end of 2022, some students wishing to enter the campuses of South-East University find that they still cannot enter without scanning their faces, wearing masks and undergoing temperature checks. Around this time, a news story also makes the front page of every newspaper, about how Panopticon has been selling the facial recognition data for over R30 million. The University programme continues with test season, but the students refuse to have their faces be scanned, since they believe the scans to now be unjustified intrusions on their privacy. They thus miss their tests, and thus will fail their modules. This causes a national media stir, and a debate about the Act.

A non-governmental organisation (NGO), called Open Democracy, hears about the media frenzy around the students. Open Democracy decides to challenge the EYES Act in the High Court. They also bring the case against Panopticon, for selling the facial data.

Imagine that there is no Protection of Personal Information Act.

You are judges in the North-West Division of the High Court of South Africa, sitting at Mahikeng. The parties argue the case before you. The applicant is Open Democracy; the respondents are the Minister of Health (defending the Act), South-East University, and Panopticon Limited.

Open Democracy makes two separate arguments.

1. They argue that the EYES Act unreasonably and unjustifiably limits entrants' right to privacy. They argue that the relevant provisions are inconsistent with the Constitution, privacy. They argue that the relevant provisions are inconsistent with the Constitution, are invalid, and should be struck down. They also argue that any actions taken in terms of the Act (including sharing of personal data with other departments of the State, and the barring of students from campuses) must be retroactively declared invalid.

2. They argue that Panopticon infringed on the entrants' right to privacy when Panopticon sold the facial recognition data, and that Panopticon must pay back any money they earned by selling the data.

Open Democracy further asks the Court to make any just and equitable order that the Court thinks appropriate, which may include an order against the Minister, South-East University and/or Panopticon.

The Minister of Health argues the following:

1. That the High Court does not have constitutional jurisdiction in this matter;

2. That Open Democracy does not have legal standing, because it was not directly affected by the facial scans - it is a juristic person and thus could never be affected by entrance limitations, facial scans or personal data;

3. That she is not bound by the right to privacy, and that she is only bound by the right to health;

4. That the entrants do not have these rights in times of a state of disaster;

5. That, if the entrants do have these rights, the rights are not limited by the EYES Act;

6. That the EYES Act is not a law of general application, since it only applies to those who wish to enter public learning institutions; and

7. That, if the rights are limited, they are justifiably limited in terms of section 36, because of the need to prevent the spread of COVID amongst the youth of South Africa. end of case study.

Answer the following questions based on the above case study and this first issue that was raised in the case study. Here we deal with the first issue which is (issue concerns whether the EYES Act amounts to a reasonable and justifiable limitation on the right to privacy; this is the focus of this homework after reading the case study this issue is also in the case study). Here are the questions to answer:

1. Discuss the nature, scope and importance of the right in this case.

2. Discuss whether the right was limited by the EYES Act.

3. Discuss whether the limitation was in terms of a law of general application.

4. Discuss whether the limitation was reasonable and justifiable, following De Vos and Freedman's proposed methodology for section 36.

5. Briefly discuss what you believe an appropriate remedy to be.