The ‘Information Society’ – the roots of which can be traced back to efforts after the Second World War to improve the predictability of weather patterns by combining the information gathering and retrieval abilities of new computing equipment and modern systems of electronic communications to analyse vast amounts of data – is at an inflection point. To take just one representative and significant instance, consider the views of Klaus Schwab, Founder and Executive Chairman of the World Economic Forum. Schwab has characterised this phase of ‘Digitalisation’ – involving a much more ubiquitous and mobile internet; smaller, more powerful and cheaper sensors; artificial intelligence; and machine learning – as a ‘ fourth industrial revolution’, distinguishing this current phase of rapid and disruptive technological change from earlier iterations. According to Schwab, the combination of information technology, artificial intelligence and biotechnology heralds the possibility of the integration of the physical and virtual worlds and of the biological body and machines in a ‘post-human’ world. This raises some fundamental questions about the way we understand ourselves and the way we organise our societies, economies and polities. The most basic commitments of constitutional democracy to individual agency and collective self-determination may now be under threat by disruptive technological change.
Schwab’s ‘digitalisation as progress’ story, examined in this paper, accurately presents digitalisation as a global process. But this global process has impacts within states and is perhaps primarily responded to at the national level. While the context for this paper's analysis is global, its specific focus is on the response of the South African legal system to technological change. South Africa underwent its transition from apartheid to constitutional democracy 25 years ago, thus only truly (and democratically) joining the international community comparatively recently. It faces many socio-economic challenges arising from this legacy and its subordinate positioning in the global economy. And it must also face up to many contemporary ‘wicked problems’ including those associated with the ‘fourth industrial revolution’ as a constitutional democracy.