Communications and Transactions Act (ECT Act),
9 the National Credit Act,
10 the
Consumer Protection Act
11 and Regulation of Interception of Communications and
Provisions of Communication-Related Information Act (RICA).
12
Notwithstanding the foregoing, the POPI Act applies to the exclusion of any of
the above-mentioned legislation where any of the latter has a provision which is
inconsistent with any of the objective of the POPI Act.
13 This is however in as much
as such other legislation does not have a more extensive provision on the processing
of personal information than the POPI Act. If the other legislation has more
extensive provision, then such other law applies.
The jurisprudence on privacy and data protection in South Africa is, arguably,
still developing and that is why it may be difficult to find any particular case law on
the protection of personal information especially with regard to any of the above
mentioned legislation. Nevertheless, there are quite a number of cases which have
the effect of protecting individuals when there is a violation of certain spheres of
their privacy which has to do with their personal or private information. This is
especially true in cases on section 14 of the South African Constitution which
provides for the right to privacy.
14 For example, in analysing the decision of the
South African Court in Investigating Directorate: Serious Economic Offences v
Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd
v Smit,
15 authors opine that section 14 of the Constitution could also be interpreted as
protecting an individual’s interest in his/her ‘informational self-determination’.
16
Information self-determination is “an interest in restricting the collection, use of and
disclosure of personal information”.
17
A number of international (regional) data protection instruments are relevant to
South Africa. With regard to the African instruments specifically, there is African
Union Data Protection Convention which is an instrument of the African Union of
which South African is a member state.
18 However, South Africa has neither signed
nor ratified the instrument.
19 Another regional instrument which is also relevant to
South Africa is the Southern Africa Development Community (SADC) Model Law
9 Act 25 of 2002. It must be explicitly stated that the provisions of this Act relating to data protection
will be repealed when the POPI Act fully comes into force.
10 Act 35 of 2005.
11 Act 69 of 2008.
12 Act 70 of 2002.
13 Section 3(3)(a) of the POPI Act.
14 Section 3(3)(a) of the POPI Act.
15 No 2001(1) SA 545 (CC).
16 Currie and de Waal (2013), pp. 302–303.
17 Ibidem.
18 The African Union Convention on Cyber Security and Personal Data Protection adopted in 2014.
Available at https://au.int/sites/default/files/treaties/29560-treaty-0048_-_african_union_conven
tion_on_cyber_security_and_personal_data_protection_e.pdf.
19 See https://au.int/sites/default/files/treaties/29560-sl-african_union_convention_on_cyber_secu
rity_and_personal_data_protection.pdf.
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9 the National Credit Act,
10 the
Consumer Protection Act
11 and Regulation of Interception of Communications and
Provisions of Communication-Related Information Act (RICA).
12
Notwithstanding the foregoing, the POPI Act applies to the exclusion of any of
the above-mentioned legislation where any of the latter has a provision which is
inconsistent with any of the objective of the POPI Act.
13 This is however in as much
as such other legislation does not have a more extensive provision on the processing
of personal information than the POPI Act. If the other legislation has more
extensive provision, then such other law applies.
The jurisprudence on privacy and data protection in South Africa is, arguably,
still developing and that is why it may be difficult to find any particular case law on
the protection of personal information especially with regard to any of the above
mentioned legislation. Nevertheless, there are quite a number of cases which have
the effect of protecting individuals when there is a violation of certain spheres of
their privacy which has to do with their personal or private information. This is
especially true in cases on section 14 of the South African Constitution which
provides for the right to privacy.
14 For example, in analysing the decision of the
South African Court in Investigating Directorate: Serious Economic Offences v
Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd
v Smit,
15 authors opine that section 14 of the Constitution could also be interpreted as
protecting an individual’s interest in his/her ‘informational self-determination’.
16
Information self-determination is “an interest in restricting the collection, use of and
disclosure of personal information”.
17
A number of international (regional) data protection instruments are relevant to
South Africa. With regard to the African instruments specifically, there is African
Union Data Protection Convention which is an instrument of the African Union of
which South African is a member state.
18 However, South Africa has neither signed
nor ratified the instrument.
19 Another regional instrument which is also relevant to
South Africa is the Southern Africa Development Community (SADC) Model Law
9 Act 25 of 2002. It must be explicitly stated that the provisions of this Act relating to data protection
will be repealed when the POPI Act fully comes into force.
10 Act 35 of 2005.
11 Act 69 of 2008.
12 Act 70 of 2002.
13 Section 3(3)(a) of the POPI Act.
14 Section 3(3)(a) of the POPI Act.
15 No 2001(1) SA 545 (CC).
16 Currie and de Waal (2013), pp. 302–303.
17 Ibidem.
18 The African Union Convention on Cyber Security and Personal Data Protection adopted in 2014.
Available at https://au.int/sites/default/files/treaties/29560-treaty-0048_-_african_union_conven
tion_on_cyber_security_and_personal_data_protection_e.pdf.
19 See https://au.int/sites/default/files/treaties/29560-sl-african_union_convention_on_cyber_secu
rity_and_personal_data_protection.pdf.
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