A South African Historico-Legal Perspective on Plagues and Pandemics

Author Marita Carnelley

ISSN: 2411-7870
Affiliations: BA LLB (Stell) LLM (UNISA) PhD (Amsterdam). Professor, Faculty of Law, North-West University
Source: Fundamina, Volume 28 Issue 1, p. 1-65


Global health experts have warned for decades of potential global influenza outbreaks. Although some strides have been made to mitigate the risks and consequences of a pandemic, concerns have been raised about the level of preparedness – both nationally and internationally. This contribution considers a number of plagues and pandemics that directly or indirectly played a role in the development of the South-African legal system, specifically the Justinian Plague, the Black Death, the Great Plague, the Third Bubonic Plague, the Spanish Flu and the Influenza Outbreaks of the past century. Each pandemic created legal and political challenges at the time that were dealt with in the context of the existing conceptions of social justice; this inevitably shaped the development of public health and disaster management jurisprudence and, in some instances, also contributed to the change in the underlying world order. This contribution aims to set out the legal development associated with pandemics that influenced the South African common-law legal system from Roman times until the end of 2019, just prior to the Covid-19 outbreak. There are two main parts to this contribution: The first deals with local or national activities at the time of the pandemic, while the second deals with later international law developments to address possible negative global consequences of such pandemics. The aim is thus, on the one hand, to detect themes from local or national responses to the social, cultural and economic costs of a pandemic, even though it is understood that the impact and consequences of plagues and pandemics are not identical. On the other hand, international law developments are discussed as these too had an impact on the South African legal framework and commitments. Although various aspects related to addressing the consequences of pandemics have improved – such as global surveillance, prevention and eventual control to decrease the incidence and severity of outbreaks – a historical assessment of these experiences is useful for evaluating the progress made towards preparedness at national and international levels. The contribution concludes with a short description of the South African legal framework in 2019 as it pertained to a potential pandemic outbreak.