LEGISLATIVE AMENDMENT AND DEVELOPMENT NEWSLETTER - JULY 2021

Protection of Personal Information Act, 2013 (Act No. 4 of 2013):

The Information Regulator has extended the applications for Prior Authorisation in terms section 57(1), subject to section 58(2) of POPIA, to 1 February 2022. Responsible Parties must obtain authorisation from the Regulator prior to any processing of personal information where that responsible party plans to–

• process any unique identifiers of a data subject for a purpose other than indicated in section 57(1), where the responsible party must obtain authorisation from the Regulator in terms of section 58 prior to any proceedings if such responsible party plans to (a) process any unique identifiers of data subjects (i) for a purpose other than the one for which the identifier was specifically intended at collection; and (ii) with the aim of linking the information together with information processed by other responsible parties.
• process information concerning criminal behaviour, or unlawful or objectionable conduct on behalf of third parties.
• process information for purposes of credit reporting.
• transfer special personal information or personal information of children to foreign countries that do not provide an adequate level of protection for processing of personal information.

The Information Regulator will start enforcing compliance with POPIA as from 1 July 2021 for all other businesses in South Africa.

The Information Regulator published the following media statements and documentation:

• A Guidance note on exemptions from the conditions for lawful processing of personal information in terms of sections 37 and 38 of the Protection of Personal Information Act, 2013 (Act No. 4 of 2013) was published on 21 June 2021. POPIA prescribes the eight (8) conditions for the lawful processing of personal information by or for a responsible party. These conditions are not applicable to the processing of personal information to the extent that such processing is exempted in terms of section 37 or 38, from one or more of the conditions in relation to such processing.
• An exemption Application Form indicating that the personal information submitted on this form shall be used solely for purposes of an exemption application submitted to the Information Regulator in terms of section 37(1) of POPIA. Furthermore, in a media statement dated 22 June 2021, the Information regulator stated that “Responsible parties are advised to carefully read the Guidance Note on Exemptions before submitting an application form to the Regulator”.
• In a media statement dated 22 June 2021, the Information Regulator confirmed that there is no deadline for registration of Information Officers and Deputy Information Officers; therefore, no responsible party would be held liable for not registering by 30 June 2021. The registration of a Chief Executive Officer (CEO) as an Information Officer for multiple legal entities has been taken into consideration and will be permissible. The registration portal is currently being upgraded to accommodate these changes due to technical glitches and concerns raised by responsible parties.

A Guidance note on processing of Special Personal Information was published on 28 June 2021. The purpose of this Guidance Note is to guide responsible parties who are required to obtain authorisation from the Regulator to process special personal information, as provided for in section 27(2) of POPIA. An application form for authorisation to process Special Personal Information has also been published.

Practical application of POPIA in the workplace:

• Should an employer process personal information of employees, the rights of the employees cannot be impacted negatively. Such processing must be done in a fair manner.
• Obtaining consent from an employee prior to processing their personal information is the recommended route to take. In the absence of consent, personal information can be processed where the processing is necessary for pursuing the legitimate interests of the responsible party (the employer, or of a third party) to whom the information is supplied.
• In order for an employer to be compliant with POPIA, it is recommended that their employment contracts be amended to ensure that the employee is informed; that express and voluntary consent is obtained; and that the employment contract makes provision for the monitoring and interception of communications on the employer’s devices or the use of the employer’s telecommunication systems by an employee.

Promotion of Access to Information Act (Act No. 2 of 2000), as amended by Act No. 31 of 2019:

In a media statement dated 22 June 2021, the Information Regulator announced that as of 30 June 2021, it would also be absorbing the function of the Promotion of Access to Information Act (PAIA) from the South African Human Rights Commission (SAHRC). Should the public wish to lodge a complaint, they may approach the Regulator to adjudicate, or they may approach the courts directly.

The Information Regulator released an additional statement dated 29 June 2021 indicating that in terms of section 51(1) of PAIA, as amended, previously developed PAIA manuals of the public and private bodies must be updated to include provisions relating to the processing of personal information in terms of POPIA. The Regulator will soon be publishing PAIA manual templates which is deemed as a guide to simplify the compilation process of PAIA Manuals in terms of sections 14 and 51 of PAIA.

In a Government Gazette published on the Information Regulator’s website dated 29 June 2021, the Minister of Justice and Correctional Services, under section 51(4) of PAIA, exempted all private bodies from compiling the manual contemplated in section 51(1) of the aforementioned Act for a period of six (6) months, from 1 July 2021 to 31 December 2021, with the exception of a company which–

1. is not a private company as defined in section 1 of the Companies Act, 2008 (Act No. 71 of 2008); and
2. is a private company as defined in section 1 of the Companies Act, 2008 (Act No. 71 of 2008) which–
   1. operates within any of the sectors mentioned in Column one of the Schedule to this Notice and employs 50 or more people; or
   2. has a total annual turnover equal to or more than the applicable amount mentioned in Column 2 of the Schedule to this Notice.

COLUMN 1	COLUMN 2
Agriculture	R 6 million
Mining and Quarrying	R 22,5 million
Manufacturing	R 30 million
Electricity, Gas and Water	R 30 million
Construction	R 15 million
Retail and Motor Trade and Repair Services	R 45 million
Wholesale Trade, Commercial Agents and Allied Services	R 75 million
Catering, Accommodation and other Trade	R 15 million
Transport, Storage and Communications	R 30 million
Finance and Business Services	R 30 million
Community, Special and Personal Services	R 15 million

The Information Regulator has indicated that no further exemption from PAIA will be granted after 31 December 2021.

Cybercrimes Act, 2020 (Act No. 19 of 2020):

Besides the Protection of Personal Information Act 4 of 2013 (POPIA) and the recently published Draft National Data and Cloud Policy, President Ramaphosa also signed the Cybercrimes Act, 2020 into law on 26 May 2021 to regulate digital criminal activities.

The aim of the Cybercrimes Act is to create offences which have a bearing on cybercrime; to criminalise the

disclosure of data messages which are harmful and to provide for interim protection orders; to regulate the jurisdiction of cybercrimes, the powers and mutual assistance to investigate cybercrimes; and to impose obligations to report cybercrimes.

SERR Synergy’s Information Compliance (POPI and PAIA) Department can assist businesses or entities with a full range of Information Compliance service offerings, including the compilation of Data and Information Protection Reports, drafting of the required Data Privacy policies, updating agreements to deal with data considerations, advice on internal data-handling requirements or understanding the specific data-privacy roles that businesses or entities are required to fulfil.

AARTO Amendment Act, 2019 (Act No. 4 of 2019):

According to Memorandum 1 published in the Government Gazette No. 43758 dated 2 October 2020, the Administrative Adjudication of Road Traffic Offences (AARTO) Amendment Act, together with its associated points-demerit system, will apply nationally with effect from 1 July 2021. However, the President has not yet published an implementation date in this regard.

The Minister of Transport, Mr Fikile Mbalula, joined the Road Traffic Infringement Agency (RTIA) in a virtual briefing at 12:00 on 1 July 2021 to report on progress made with the rollout of AARTO). He indicated that it would be implemented in four phases and that the demerit system would probably commence in July 2022.

Due to uncertainty regarding the implementation date of the AARTO Act, the SERR Synergy Labour Department will release the company AARTO Policy that was developed to all its labour clients as soon as the date for AARTO implementation is gazetted.

The AARTO Act will have an effect on business vehicles and employees assigned to drive company-owned vehicles, as well as employees using their vehicle for private and/or business purposes.

Bargaining Councils:

• The Minister of Employment and Labour, in Government Notice No. 44674 dated 4 June 2021, extended the National Bargaining Council for the Private Security Sector to non-parties of the Main Collective Amending Agreement, which shall remain in force until 1 March 2023.
• The Director of Collective Bargaining, in General Notice No. 44723 dated 18 June 2021, extended the period of operation of the Main Collective Agreement of the National Bargaining Council for Hairdressing, Cosmetology, Beauty and Skincare Industry from 12 June 2020 (Government Notice No. R 663), 4 September 2020 (R. 965) and 27 November 2020 (R.1264), respectively, to 30 June 2023.
• The Minister of Employment and Labour, in Government Gazette No. 44724 dated 18 June 2021, extended the Bargaining Council for the Furniture Manufacturing Industry of the Western Cape to non-parties of the Main Collective Amending Agreement, which shall remain in force until March 2023.
• The Minister of Employment and Labour, in Government Gazette No. 44724 dated 18 June 2021, cancelled Government Notice R.496 of 11 September 2021 and declared that the Collective Agreement (in the Schedule to the gazette) concluded with the South African Road Passenger Bargaining, would be binding in terms of section 31 of the Labour Relations Act 66 of 1995 on the parties to the Agreement, and shall further be binding on the other employers and employees in that Industry until 31 March 2022 or until replaced by a subsequent agreement.

Latest caselaw:

Brightstone Trading 3 Closed Corporation t/a Gordon Road Spar v Economic Freedom Fighters and Others (J 605/21) [2021] ZALCJHB 122 (18 June 2021)

On 15 April 2021, the applicant (hereafter referred to as the employer) demoted Ms Emma Lobakeng, from floor manager to cashier.  As a result of the demotion, Ms Patricia Bafedile, sought assistance from a political party, the Economic Freedom Fighters (EFF), to intervene in the employer’s labour structure. In a letter to the employer, the EFF proposed a meeting for Sunday, 16 May 2021.

Members of the EFF arrived at the employers’ premises on Sunday, 16 May 2021 where the situation became volatile as these members, together with the employees cited in this application, engaged in intimidating behaviour as supported by uncontested photographic evidence. Employees and customers felt intimidated and feared for their physical safety. A second protest action at the employer’s premises took place on 28 May 2021. The employer agreed to a meeting on 30 May 2021, but subsequently cancelled it.

The employer, in a letter addressed to the EFF, cautioned EFF members, who had “threatened to ensure the closure of the store”, that if they arrive at the applicant’s premises on 29 May 2021, the employer would bring an urgent Court application. As a result of the failed scheduled meeting, the EFF members continued to protest until 1 June 2021, demanding that customers leave the store and threatening to attack those who did not adhere. Customers fled the store and whilst the store was not physically barricaded on this occasion, it was closed for the safety of the public and the remaining staff members. As a result of continued protest action by the EFF, the employer approached the Labour Court (LC) for urgent relief, culminating in the interim rule nisi granted to the employer on 1 June 2021.

As a political party, the EFF has no standing as a trade union and is not entitled to organise employees at the employer’s workplace or engage in unlawful protest action in pursuance of demands outside its legal mandate. If it wants to do so, it must register as a trade union and comply with the Labour Relations Act 66 of 1995.

The Court found that the employer is entitled to a final order, confirming the rule nisi previously granted which prohibited the EFF from carrying out the unlawful conduct as set out therein.

Hirt & Carter (Pty) Ltd v IT Arntsen N O and Others (277/2020) [2021] ZASCA 85 (18 June 2021)

At a Linkin Park concert held at the Cape Town Stadium on 7 November 2012, Mrs Florentia Loredana Popa tragically lost her life when scaffolding structures, to which advertising material was attached, collapsed. Several other concertgoers were also injured as a result of the scaffolding collapsing.

Pursuant to this tragedy, an inquest was held in terms of section 5(2) of the Inquests Act 58 of 1959 (the Act). The Magistrate found, in terms of section 16(2)(d) thereof, that the death of Mrs Popa was brought about by an act or omission on the part of the appellant (Hirt & Carter (Pty) Ltd), Vertex Scaffolding CC (Vertex) and Maxwill 137 CC t/a Bothma Signs (Bothma Signs), which prima facie involves or amounts to an offence.

Hirt & Carter took the finding of the Magistrate on review in the Western Cape Division of the High Court, Cape Town. A full court dismissed the review application, and it was against that finding that Hirt & Carter, applied for leave to appeal in the Supreme Court of Appeal (SCA).

The SCA, on appeal, held that “the Magistrate cannot be faulted for concluding that the death of the deceased was brought about by an act or omission that prima facie amounts to or involves an offence on the part of Hirt & Carter. It was premised on a finding of negligence on the part of Hirt & Carter”. The SCA dismissed the appeal.

National Union of Mineworkers obo Masha and Others v SAMANCOR Limited (Eastern Chromes Mines) and Others (CCT 154/20) [2021] ZACC 16 (22 June 2021)

On 19 October 2015, Mr Madikwane, the mine overseer, found five employees working under unsafe conditions. The five employees were charged with misconduct for failing to comply with a verbal and written instruction issued by their supervisor. Following a disciplinary inquiry, they were found guilty of misconduct and dismissed.

The dismissed employees lodged a dismissal dispute with the Commission for Conciliation, Mediation and Arbitration (CCMA). The arbitrator concluded that the employees had been guilty of working without installing the safety measures as instructed. However, the CCMA held that there was an unjustifiable differentiation between the employees which amounted to an inconsistency in the implementation of the disciplinary measures. Accordingly, the arbitrator held that the dismissal was unfair and issued an award for reinstatement of the employees.

After two divergent rulings by the Labour Court and Labour Appeal Court (LAC), Mhlantla J of the Constitutional Court held that the employees were employed in the mining industry. They were performing underground work and drilling in unsafe conditions. They had disregarded their supervisor’s verbal and written instructions which were meant to ensure that adequate safety measures were in place. By doing so, they undermined their supervisor. The misconduct is serious because it placed their lives, and those of the other workers, at risk. The sanction of dismissal was thus justified. Therefore, the LAC was correct in setting aside the arbitration award and confirming the dismissal of the five employees.

CCMA and Bargaining Council caselaw:

Khumalo / Game Stores [2021] 6 BALR 614 (CCMA):

The applicant (Khumalo) was a cashier employed for approximately 9 months at one of the respondent’s (hereafter referred to as the employer) stores. He was apprehended by security guards outside the store at the back of the staff entrance for suspicious behaviour involving a lit dagga joint. He was charged and dismissed on account of the following charge: “Serious misconduct in that on 11 July 2020 you were found to be in possession of an illegal substance and detained whilst in the Game uniform”. Khumalo claimed that he was on a tea-break at the time and that the dismissal was unfair because his conduct had nothing to do with his work.

The Commissioner noted that the respondent had a “zero-tolerance” rule regarding the possession of narcotic or alcoholic substances and that the applicant was aware of the rule, which was reasonable.  Due to the nature of the employer’s business, there is the potential for harm given that incorrect scanning of items created a shrinkage problem. The zero-tolerance approach, which included possession of illegal substances, was also intended to ensure the safety of the team and customers. This version was corroborated by all three witnesses of the respondent (Game Stores).

The Commissioner held that the sanction of dismissal was appropriate and substantiated by many of the same reasons why the rule should be construed as reasonable, inter alia, that the company had a zero-tolerance approach in terms of their Substance and Abuse Policy which included the potential for harm and the need to deal with discipline in a consistent manner. The application was dismissed and Khumalo’s dismissal was found to be substantively and procedurally fair.

Unemployment Insurance Fund:

The Minister of Finance, in Government Notice No. 44641 dated 28 May 2021, withdrew all previous notices under to section 6(2) of the Unemployment Insurance Contributions Act 4 of 2002 effective from 1 June 2021 and subsequently determined that, in terms of section 6(2) of the Unemployment Insurance Contributions Act 4 of 2002, with effect from 1 June 2021, section 6(1) of the Act would not apply to the remuneration paid or payable by an employer to an employee during any month in excess of R17 712,00.

The SERR Synergy Labour Department can guide and assist businesses with the processes and procedures to ensure compliance with labour legislation and to mitigate risks relating to employment issues to which businesses are exposed. The above documentation can be requested from the SERR Synergy Labour Department.

Compensation for Occupational Injuries and Diseases Act, 1993 (Act 130 of 1993):

The Director-General of Employment and Labour, Thobile Lamati, in General Notice No. 44702 dated 15 June 2021, announced the introduction of a minimum assessment of R381 specific to the Domestic sector in terms of section 83(1) of the Act.

Disaster Management Act, 2002 (Act No. 57 of 2002):

The Minister of Cooperative Governance and Traditional Affairs published the following government notices:

Firstly, Government Notice No. 44692, announcing that the national state of disaster had been extended from 15 June 2021 to 15 July 2021.

Secondly, in Government Notice No. 44772 dated 27 June 2021, the announcement that Adjusted Level 4 would apply nationally from 28 June 2021, accompanied by the following important provisions:

• Regulation 15B establishes mandatory protocols when in a public place, namely–
  (2) that wearing a face mask is mandatory for every person when in a public place, excluding a child under the age of six years, and that any person who fails to comply with a verbal instruction by an officer to wear a face mask, commits an offence and, on conviction, is liable to a fine or a period of imprisonment not exceeding six months, or to both such fine and imprisonment;
  (5) an employer may not allow any employee to perform any duties or enter the employment premises if the employee is not wearing a face mask while performing his or her duties.
• Regulation 17 regulates the movement of persons in that–
  (1) every person is confined to his or her place of residence from 21:00 to 04:00 daily unless a person–
  (a) has been granted permission through directions issued by the relevant Cabinet member, or a permit which corresponds with Form 7 of Annexure A, to perform a service other than a service related to an activity under Table 1;
  (3) closing time for the places permitted to remain open is 20:00;
  (4) (a) interprovincial travel for leisure to and from Gauteng is prohibited (b);travel to and from Gauteng is permitted–
  1. for persons doing so in the course of carrying out work responsibilities or performing any service permitted under Adjusted Level 4, provided that such person is in possession of a permit issued by the employer which corresponds with Form 7 of Annexure A;
  2. for the attendance of a funeral within or outside Gauteng, providing that the person wishing to travel to or from Gauteng has obtained a permit, which corresponds substantially with Form 4 of Annexure A, from his or her nearest magistrate’s office or police station to travel to the funeral and back;
  3. for persons transiting through Gauteng;
  4. for obtaining medical treatment.
• Regulation 21 regulates gatherings as follows:
  (1) All gatherings are prohibited, except–
      (a) for funerals;
      (b) when at a workplace; or
      (c) when buying or obtaining goods and services.

  (5) Gatherings at a workplace for work purposes are allowed, subject to strict adherence to all health protocols and social distancing measures.

• Regulation 24 establishes which places and premises are closed to the public as follows:
  (1) Any place or premises normally open to public where religious, cultural, entertainment, recreational or similar activities which are prohibited in terms of these regulations may take place are closed.
  (2) The following places or premises normally open to the public or where people may gather, are closed and include–
  1. gyms and fitness centres;
  2. flea markets
  3. fêtes and bazaars;
  4. night clubs;
  5. casinos;
  6. taverns and shebeens or similar establishments, except for sales for off-site consumption of food and non-alcoholic beverages;
  7. restaurants, except for sales for off-site consumption of food and non-alcoholic beverages;
  8. conferences, exhibitions and entertainment facilities;
  9. theatres and cinemas;
  10. museums, libraries, archives and galleries; and
  11. older persons’ residential facilities for visits.
• Regulation 29 refers to the sale, dispensing or transportation of liquor:
  1) The sale, dispensing and distribution of liquor is prohibited.
  2) The transportation of liquor is prohibited, except where the transportation of liquor is–
  1. in relation to alcohol required for industries producing hand sanitisers, disinfectants, soap or alcohol for industrial use and household cleaning products;
  2. for export purposes;
  3. from manufacturing plants to storage facilities; or
  4. from any licenced premises for safe keeping.

     3) The transportation of liquor for export purposes is permitted.

     4) No special or events liquor licences may be considered for approval for the duration of the national state of disaster.

    5) The Cabinet member responsible for transport must, after consultation with the Cabinet members responsible for co-operative governance and traditional affairs, health, police and trade, industry and competition, issue directions for the transportation and storage of liquor.

• Regulation 30 regulates the operation of the economic sector as follows:
  Businesses may operate except for those set out in Table 1.
• Table 1 Adjusted Alert Level 4: All persons who are able to work from home must do so. However, persons will be permitted to perform any type of work outside the home and to travel to and from work and for work purposes under Adjusted Alter Level 4 subject to–
  1. strict adherence to health protocols and social distancing measures;
  2. the return to work being phased-in in order to put in place measures to make the workplace Covid-19 ready;
  3. returning to work being done in a manner that avoids and reduces the risks of infection; and
  4. the work not being listed under the specific exclusions in this table:
  5.  

     SPECIFIC EXCLUSIONS
     1.	Night vigils
     2.	After-funeral gatherings, including “after tears” gatherings
     3.	All social gatherings.
     4.	Political events and traditional community meetings (izimbizo)
     5.	Night clubs
     6.	The land borders that remain closed, excluding those contemplated in regulation 26(1)
     7.	Initiation practices
     8.	Post-initiation practices (imigidi)
     9.	Passenger ships for international leisure purposes, excluding small crafts, in line with health and border law enforcement
     10.	Attendance of any sporting event by spectators
     11.	Exclusions relating to public transport services as set out in the directions issued by the Cabinet member responsible for transport
     12.	Exclusions relating to education services as set out in the directions issued by the Cabinet members responsible for education.

The SERR Synergy Occupational Health and Safety Department can assist businesses to comply with the relevant legislation. The above documentation can be requested from the SERR Synergy OHS Department.

Covid-19 Employment Practical Guidelines for Employers:

The South African Government News Agency published an article on 25 June 2021, reporting that Acting Health Minister, Mmamoloko Kubayi-Ngubane, had announced that the Covid-19 vaccines would be made available to persons 50 years and older as from 15 July 2021. The registration period for said vaccination will commence on 1 July 2021. Persons older than 60 can still register and receive their vaccinations as encouraged by the Minister.

The Minister of Employment and Labour, in a Government Gazette No. 44700 dated 11 June 2021, published the Consolidated Directions on Occupational Health and Safety Measures in Certain Workplaces:

• Implementation of a mandatory Covid-19 vaccine policy in the workplace which requires an employer to consider the business’s operational requirements, health and safety risks in the workplace; the duties performed by employees; an employee’s susceptibility to suffering serious consequences or death as a result of having contracted Covid-19 due to co-morbidities or their age; and lastly, medical grounds and the Constitutional rights of the employee.
• Employers who intend to implement a mandatory Covid-19 vaccine must undertake a risk assessment within 21 days of the published directive, regarding their intention to implement a mandatory vaccination policy, identifying employees who will be required to be vaccinated. Subsequently, on the basis the risk assessment, the employer must develop or amend its Covid- Ready Workplace Plan.
• Every employee identified by the employer who will be required to be vaccinated–
  • will be notified of the obligation as and when a vaccine becomes available for such employee;
  • must be informed of his or her right to refuse to be vaccinated on constitutional or medical grounds; and
  • will be provided with an opportunity, at his or her request, to consult a health and safety representative or a worker representative or trade union official.

Employers must have a valid and clear reason for implementing a mandatory Covid-19 vaccine policy in the workplace, which must also be fair and justified.

SERR Synergy has developed a Covid-19 Mandatory Vaccine Workplace Policy to provide assistance to employers in addressing aspects such as the application of and parties excluded from the directive; obligations of the employer and employee; employees suffering from side effects from the Covid-19 vaccine; confidentiality aspects; and disciplinary measures to be taken should an employee refuse to receive the mandatory Covid-19 vaccinated.

The SERR Synergy Labour Department can assist businesses to comply with the relevant legislation. The above policy and directive can be requested from the SERR Synergy Labour Department.

Compiled by:

SERR Synergy Research Division

Lané Boshoff – research@serr.co.za