Raising the yellow flag: Legal regulation to contain the spread of smallpox and other contagious diseases in the Zuid-Afrikaansche Republiek

• Author: Wildenboer, L.
• DOI: https://doi.org/10.47348/FUND/v27/i2a4
• Citation: (2021) 27(2) Fundamina 87
• Pages: 87-124
• Published date: 01 March 2022
• Date: 01 March 2022

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https://doi.org/10.47348/FUND/v27/i2a4

ARTICLES

RAISING THE YELLOW FLAG:

LEGAL REGULATION TO CONTAIN

THE SPREAD OF SMALLPOX AND

OTHER CONTAGIOUS DISEASES

IN THE ZUID-AFRIKAANSCHE

REPUBLIEK

Liezl Wildenboer*

ABSTRACT

Although the Cape had experienced frequent outbreaks of smallpox

and other epidemics since the early eighteenth century, the rst

smallpox epidemic only started in the Zuid-Afrikaansche Republiek

(ZAR) much later, in the 1890s. This contribution takes a closer look,

rst, at the regulation of the medical profession in the ZAR, and,

secondly, at the government’s attempts to prevent the spread of the

disease with the promulgation of the Contagious Diseases Law 12 of

1895. That law also attempted to prevent the spread of other diseases,

such as syphilis and leprosy, although the latter would eventually be

regulated in terms of the Leprosy Law 15 of 1897.

* Senior lecturer, Department of Jurisprudence, College of Law, University of

South Africa.

(2021) 27(2) Fundamina 87

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LIEZL WILDENBOER

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https://doi.org/10.47348/FUND/v27/i2a4

Keywords: Smallpox; contagious diseases; leprosy; syphilis; epidemics;

Zuid-Afrikaansche Republiek; regulation of medical profession;

Contagious Diseases Law 12 of 1895; smallpox committees; Leprosy

Law 15 of 1897; legal history

1 Introduction

The recent worldwide outbreak of COVID-19 has once again drawn

the general public’s attention to health matters. Terms such as

“quarantine”1 and “outbreak” have been plucked from the relative

obscurity usually reserved for them in medical journals and

science ction novels. Instead, and sadly so, they overnight became

common-usage terms and even appear on a list of the most-used

words for 2020.2 However, these terms are not modern inventions,

but have been employed frequently throughout history, especially

during the outbreak of epidemics.

South Africa, too, has experienced outbreaks of contagious

diseases in the past. Many of these outbreaks started with the arrival

of ships that carried infected passengers or goods from abroad.3

1 See Okin 2012: 47–56 for a distinction between the terms “quarantine” and

“isolation” (in terms of United States law, at least). Although both terms refer

to the “sequestration of any individuals or groups … capable of transmitting

infectious diseases to other people”, “quarantine” is used mostly when this

process is applied to persons who had been exposed to the disease in question,

but who are still healthy or believed to be healthy. In contrast, “isolation”

is used mostly when such sequestration is applied to persons who had been

exposed to the disease in question, and who are ill or showing symptoms of

that disease, or are believed to be ill. For purposes of this contribution, the

terms are used interchangeably.

2 See Global Language Monitor 2020 for their mid-year update in this regard.

The list indicates the twenty most-used terms by July 2020 and also includes

other terms relating to the pandemic, such as “face mask”, “social distancing”,

“lockdown”, “atten the curve”, “Zoom meeting” and “symptoms”.

3 The rst outbreak of smallpox at the Cape in 1713 was brought there by

a ship from Indonesia. See Laidler & Gelfand 1971: 40. So, too, were the

1812 and 1840 outbreaks. See Laidler & Gelfand 1971: 114 and Theal 1915:

192 respectively. In 1836, the Cape narrowly escaped another outbreak, when

the Lord William Bentinck was placed under quarantine after it arrived in

Cape Town on Sunday, 3 July. For more on the outbreak of smallpox aboard

the Lord William Bentinck, see Du Preez & Droneld 2016: 257–260; and

Laidler & Gelfand 1971: 267–268. Phillips 2012: 28 blames the 1882 outbreak

on yet another passing ship arriving from Britain, the Drummond Castle.

See, also, Van Wyk 2010: 514–516 for an account of the outbreak of smallpox

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CONTAINING THE SPREAD OF CONTAGIOUS DISEASES

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To prevent and contain the spread of smallpox, the Cape authorities

implemented measures as early as 1767.4 These measures mostly

entailed requiring a medical doctor or the health master to inspect

all incoming ships before their passengers and crew were allowed to

step ashore. If any of the crew was indeed found to be infected, they

would be placed in quarantine.5 Such a ship was required to clearly

indicate illness on board by raising a yellow ag6 by day, and by

hanging two lanterns from the ship’s mast by night. This maritime

practice was later also adopted inland to signal a home or building

as being under quarantine due to contagious disease.7

This contribution takes a closer look at the legal regulation

in the ZAR to contain the spread of contagious diseases.

But rst, in order to understand the reason behind the need for

such legislative intervention, it is perhaps necessary to provide some

background on the impact of epidemics at the Cape, and on the

way in which the authorities there chose to contain the spread of

such diseases. The ZAR experienced its rst outbreak of smallpox

relatively late, in the 1890s; since it had little experience of dealing

with contagious diseases, it took its cue from the Cape, which had

been exposed to such outbreaks for much longer. Furthermore,

smallpox was a feared disease, and the measures implemented by

the Cape authorities earlier had had some success in containing and

preventing the spread of the disease.

aboard the Isaäc da Costa, which arrived at Cape Town on 13 Jun 1858.

The ship was immediately placed under quarantine; three days later, the

surviving passengers were removed to a place of isolation on land.

4 See the text to n 15 infra.

5 Laidler 1936: 682.

6 It was a common practice from the eighteenth century onwards for ships

traveling to Britain to display a solid yellow ag if any illness was aboard or

to signal that the ship was under quarantine. The yellow ag was sometimes

referred to as the “Q ag”. See Topinka 2009: 58.

7 In 1812, it became compulsory in the Cape to raise a ag above the front door

of an infected house in order to warn passersby to stay away. In addition,

those who had been in contact with infected persons had to wear white

armlets. See Laidler & Gelfand 1971: 114.

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