A South African historico-legal perspective on plagues and pandemics

• Citation: (2022) 28(1) Fundamina 1
• DOI: https://doi.org/10.47348/FUND/v28/i1a1
• Published date: 16 November 2022
• Pages: 1-65
• Author: Carnelley, M.
• Date: 16 November 2022

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https://doi.org/10.47348/FUND/v28/i1a1

ARTICLES

A SOUTH AFRICAN HISTORICO-

LEGAL PERSPECTIVE ON PLAGUES

AND PANDEMICS

Marita Carnelley*

ABSTRACT

Global health experts have warned for decades of potential global

inuenza 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, specically the Justinian Plague, the

Black Death, the Great Plague, the Third Bubonic Plague, the Spanish

Flu and the Inuenza 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 inuenced 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

* BA LLB (Stell) LLM (UNISA) PhD (Amsterdam). Professor, Faculty of

Law, North-West University. E-mail: marita.carnelley@nwu.ac.za.

(2022) 28(1) Fundamina 1

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MARITA CARNELLEY

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this contribution: The rst 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.

Keywords: plague; pandemic; inuenza; South Africa; World Health

Organization; International Health Regulations; disaster management

Plague represent[s] a moment when previously separate discourses and

practices collide. Plague is a moment when individuals, policies and

societies are shorn of all certainties. Personal survival is prioritised

over established customs and irreverence towards civic and divine

authority threatens to spill into unrest.1

1 INTRODUCTION

The worldwide spread of the novel Coronavirus disease (hereafter

“Covid-19”) since early 2020 served as a stark reminder of

humanity’s potential mortality in respect of pathogens for which

there are no effective treatments or cures.2 Although, prior to 2020,

1 McKinlay 2009: 181 with reference to the Great Plague (hereafter “GP”).

In this current contribution, the following abbreviations for the various

plagues and pandemics will be used in the footnotes for ease of reference:

Justinian Plague (JP), Black Death (BD), Great Plague (GP), Third

Bubonic Plague (TBP), Spanish Flu (SF), and Inuenza Outbreaks (IO).

The background and relevance of each of these are discussed below.

2 For current purposes, pathogens include both viruses and bacteria. The 2019

novel Coronavirus is believed to have been zoonotic, transmitted from wild

animals to humans, and thereafter transmitted from human to human.

See Scripps Research Institute 2020. Although it is unclear whether the

disease originated with bats, pangolins or an entirely different animal species,

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PLAGUES AND PANDEMICS

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most of us had not experienced a pandemic, having to deal with

plagues and pandemics is an age-old exercise.3 The world should

have expected another pandemic. Virologists and global health

experts have warned for decades of potential global inuenza

outbreaks4 that may follow unpredictable patterns – with more than

one pathogen possibly circulating simultaneously.5 Notwithstanding

the seemingly inevitable, numerous concerns have been raised about

the level of preparedness for such an event – both nationally6 and

internationally.7 Global preparedness in the current world order is

especially important in light of globalised trade, interconnected

economies and movement of persons that, like a pandemic,

transcends national borders.8 Ill-preparedness in one or more

geographical areas can have a negative impact globally.9

Historically, numerous recurring plagues and pandemics have

caused millions of deaths and untold hardships, although specic

numbers of the affected and the dead remain undetermined.10 It

is accepted that the spread and impact were exacerbated by the

such zoonotic outbreaks resulting in human-to-human infections are not

unknown. One of the IO pandemics, SARS, originated after exposure to

civets infected by bats and another, MERS, through infected camels. See

Firman, Williams & Baggoley 2016: 2.

3 Wildenboer 2021: 88.

4 Batlan 2007: 57; Kamen 2008: 160; Parmet 2006: 157; Jernigan & Cox 2015:

369; Youde 2012: 93; Phelan & Gostin 2014: 138; Schwartz 2018: 1457.

5 Cox & Subbarao 2000: 418.

6 In 2009, Nathan 2009: 68 found that the South African provincial hospitals

were not adequately prepared for the management of an infectious disease

outbreak. For international warnings, see the references in n 4 supra.

7 Hay & McCauley 2018: 555; Parmet 2006: 157; Bennett & Carney 2010: 301;

Kamen 2008: 159.

8 Mackay & Liang 2012: 119. Labonté, Mohindra & Schrecker 2011: 265–266

speak of the increase in ve global ows, namely pathogen ow, information

ow, trade ow, nancial ow and people ow.

9 Kamen 2008: 161.

10 Regarding the JP, see Smith 1996–1997: 9–10; Retief & Celliers 2005: 120;

Russell 1968: 180. Regarding the BD, see Ligon 2006: 163; Sloan 1981: 647;

Marks 1971: 60. Regarding the GP, see Marks 1971: 16–17. Regarding the

TBP, see James 1970: 1431, 1433; Phillips 2018b: 19, 25; Phillips 1988: 59.

Regarding the SF, see Evans, Egan & Hall 2018: 97. Regarding IO, see Cox &

Subbarao 2000: 410.

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