South Africa’s data regulation efforts remain fragmented and outdated.
This is the headline finding from a University of Cape Town (UCT) study examining the role of law in regulating data, within the evolving digital ecosystem of the Fourth Industrial Revolution.
The study found that a lack of clear rules on data ownership and the absence of harmonised guidelines on reuse limit the transformative potential of data.
Hanani Hlomani’s PhD thesis in Commercial Law proposes a hybrid legal model that balances individual rights with equitable access, and recommends developing of a data-specific legal regime that is inclusive, future-oriented, and fit for the information age.
The study is titled Unlocking data for development in South Africa: Legal approaches to equity, access, and innovation.
“Innovation, increased Internet connectivity and the proliferation of connected devices have catapulted the world into the information age, where the ability to access, use and share information is vital to economic productivity and civic life. At the centre of this shift is data – the raw material from which information is produced,” explains Hlomani.
However, he adds: “A small number of organisations have gained dominance through their capacity to generate, store and control data flows, giving rise to data monopolies. These are often reinforced by legal frameworks such as intellectual property law, data protection law and trade secrecy. At the same time, many governments, including South Africa’s, have introduced laws in pursuit of data sovereignty – some of which may be restrictive or misaligned with broader development goals.”
Hlomani’s research investigated what an effective data governance framework might look like, particularly for African economies. He used South Africa as a case study. “It draws on comparative insights from the European Union to evaluate how current legal frameworks in South Africa address issues of data ownership, access and reuse, and whether they support or hinder innovation and development.
“Because we currently exist in an information driven society, whoever holds information holds power.,” he says. “And when I say information, I’m using that term quite loosely, because in the digital space what we’re really talking about is data, the raw material that computers are constantly consuming, analysing, and sharing.”
Using a comparative doctrinal method supported by regulatory and policy analysis, the thesis examined the impact of data use on key sectors of the economy; the extent to which South African laws are exclusionary regarding of data access, use and movement and the implications thereof; the potential of big data to support greater continental goals such as Agenda 2063 and the African Continental Free Trade Area; and the relevance of EU approaches to African data governance.
Hlomani explains the partly enabling and partly restrictive nature of our laws as “almost pulling in multiple directions at once”.
“On the restrictive side, you’ve got laws like copyright, where the exceptions simply weren’t designed with the digital age in mind,” he says. “They’re outdated and they weren’t built to accommodate the way data actually moves and gets used today. On the other side, there are elements that are genuinely enabling. If you look at things through the lens of competition law, for example, there are mechanisms there that support more equitable access and less gatekeeping.”
Hlomani has always been drawn to technology. “I suppose you could call me a technocrat at heart. I started this research at a time when technologies such as AI and data analytics were just beginning to capture global attention – and I wanted to understand the legal and policy questions that would come with that shift before they became urgent.”
He is also deeply passionate about development on the African continent and considers himself a futurist. “I believe strongly in proactive, pre-emptive governance, meaning we should be preparing our legal and regulatory environment ahead of time, so that when we do pursue our developmental goals – whether in health, agriculture, education or the economy more broadly – the legal environment is already enabling rather than playing catch up.
“Too often, law and policy respond to problems after they have already caused harm, and I wanted my research to contribute to a more forward-looking approach,” he says.
Hlomani says this area of law is also fairly technical and, admittedly, difficult to grasp for people outside the field. “I have always enjoyed the challenge of taking complex, dense subject matter and making it easier for ordinary people to understand, and this thesis gave me the space to do exactly that.”