Author: Accessible Law

1. If it appears from a complaint, or any written response made in relation to a complaint under section 79(b)(ii), that it may be possible to secure—
   1. a settlement between any of the parties concerned; and
   2. if appropriate, a satisfactory assurance against the repetition of any action that is the subject matter of the complaint or the doing of further actions of a similar kind by the person concerned,
   3. the Regulator may, without investigating the complaint or, as the case may be, investigating the complaint further, in the prescribed manner, use its best endeavours to secure such a settlement and assurance.

1. For the purposes of the investigation of a complaint the Regulator may—
   1. summon and enforce the appearance of persons before the Regulator and compel them to give oral or written evidence on oath and to produce any records and things that the Regulator considers necessary to investigate the complaint, in the same manner and to the same extent as the High Court;
   2. administer oaths;
   3. receive and accept any evidence and other information, whether on oath, by affidavit or otherwise, that the Regulator sees fit, whether or not it is or would be admissible in a court of law;
   4. at any reasonable time, subject to section 81, enter and search any premises occupied by a responsible party;
   5. conduct a private interview with any person in any premises entered under section 84 subject to section 82; and
   6. otherwise carry out in those premises any inquiries that the Regulator sees fit in terms of section 82.

1. A judge of the High Court, a regional magistrate or a magistrate, if satisfied by information on oath supplied by the Regulator that there are reasonable grounds for suspecting that—
   1. a responsible party is interfering with the protection of the personal information of a data subject; or
   2. an offence under this Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information, that are within the jurisdiction of that judge or magistrate, may, subject to subsection (2), grant a warrant to enter and search such premises.
2. A warrant issued under subsection (1) authorises any of the Regulator’s members or staff members, subject to section 84, at any time within seven days of the date of the warrant to enter the premises as identified in the warrant, to search them, to inspect, examine, operate and test any equipment found there which is used or intended to be used for the processing of personal information and to inspect and seize any record, other material or equipment found there which may be such evidence as is mentioned in that subsection.

1. A judge or magistrate must not issue a warrant under section 82 unless satisfied that—
   1. the Regulator has given seven days’ notice in writing to the occupier of the premises in question demanding access to the premises;
   2. either—
      1. access was demanded at a reasonable hour and was unreasonably refused; or
      2. although entry to the premises was granted, the occupier unreasonably refused to comply with a request by any of the Regulator’s members or staff to permit the members or the members of staff to do any of the things referred to in section 82(2); and
      3. that the occupier, has, after the refusal, been notified by the Regulator of the application for the warrant and has had an opportunity of being heard on the question whether the warrant should be issued.
2. Subsection (1) does not apply if the judge or magistrate is satisfied that the case is one of urgency or that compliance with that subsection would defeat the object of the entry.
3. A judge or magistrate who issues a warrant under section 82 must also issue two copies of it and certify them clearly as copies.

1. A police officer who is assisting a person authorised to conduct an entry and search in terms of a warrant issued under section 82 may overcome resistance to the entry and search by using such force as is reasonably necessary.
2. A warrant issued under this section must be executed at a reasonable hour unless it appears to the person executing it that there are reasonable grounds for suspecting that the evidence in question would not be found if it were so executed.
3. If the person who occupies the premises in respect of which a warrant is issued under section 82 is present when the warrant is executed, he or she must be shown the warrant and supplied with a copy of it, and if that person is not present a copy of the warrant must be left in a prominent place on the premises.
4. A person seizing anything in pursuance of a warrant under section 82 must give a receipt to the occupier or leave the receipt on the premises.
5. Anything so seized may be retained for as long as is necessary in all circumstances but the person in occupation of the premises in question must be given a copy of any documentation that is seized if he or she so requests and the person executing the warrant considers that it can be done without undue delay.
6. A person authorised to conduct an entry and search in terms of section 82 must be accompanied and assisted by a police officer.
7. A person who enters and searches any premises under this section must conduct the entry and search with strict regard for decency and order, and with regard to each person’s right to dignity, freedom, security and privacy.
8. A person who enters and searches premises under this section must before questioning any person—
   1. advise that person of the right to be assisted at the time by an advocate or attorney; and
   2. allow that person to exercise that right.
9. No self-incriminating answer given or statement made to a person who conducts a search in terms of a warrant issued under section 82 is admissible as evidence against the person who gave the answer or made the statement in criminal proceedings, except in criminal proceedings for perjury or in which that person is tried for an offence contemplated in section 102 and then only to the extent that the answer or statement is relevant to prove the offence charged.

If the Regulator has granted an exemption in terms of section 37, the information that is processed in terms of that exemption is not subject to search and seizure empowered by a warrant issued under section 82.

1. Subject to the provisions of this section, the powers of search and seizure conferred by a warrant issued under section 82 must not be exercised in respect of—
   1. any communication between a professional legal adviser and his or her client in connection with the giving of legal advice to the client with respect to his or her obligations, liabilities or rights; or
   2. any communication between a professional legal adviser and his or her client, or between such an adviser or his or her client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act, including proceedings before a court, and for the purposes of such proceedings.
2. Subsection (1) applies also to—
   1. any copy or other record of any such communication as is mentioned therein; and
   2. any document or article enclosed with or referred to in any such communication if made in connection with the giving of any advice or, as the case may be, in connection with or in contemplation of and for the purposes of such proceedings as are mentioned therein.

1. If the person in occupation of any premises in respect of which a warrant is issued under this Act objects to the inspection or seizure under the warrant of any material on the ground that it—
   1. contains privileged information and refuses the inspection or removal of such article or document, the person executing the warrant or search must, if he or she is of the opinion that the article or document contains information that has a bearing on the investigation and that such information is necessary for the investigation, request the Registrar of the High Court which has jurisdiction or his or her delegate, to attach and remove that article or document for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not; or
   2. consists partly of matters in respect of which those powers are not exercised, he or she must, if the person executing the warrant so requests, furnish that person with a copy of so much of the material as is not exempt from those powers.

1. A warrant issued under section 82 must be returned to the court from which it was issued—
   1. after being executed; or
   2. if not executed within the time authorised for its execution, and the person who has executed the warrant must make an endorsement on it stating what powers have been exercised by him or her under the warrant.

1. The Regulator, on its own initiative, or at the request by or on behalf of the responsible party, data subject or any other person must make an assessment in the prescribed manner of whether an instance of processing of personal information complies with the provisions of this Act.
2. The Regulator must make the assessment if it appears to be appropriate, unless, where the assessment is made on request, the Regulator has not been supplied with such information as it may reasonably require in order to—
   1. satisfy itself as to the identity of the person making the request; and
   2. enable it to identify the action in question.
3. The matters to which the Regulator may have regard in determining whether it is appropriate to make an assessment include—
   1. the extent to which the request appears to it to raise a matter of substance;
   2. any undue delay in making the request; and
   3. whether or not the person making the request is entitled to make an application in terms of section 23 or 24 in respect of the personal information in question.
4. If the Regulator has received a request under this section it must notify the requester—
   1. whether it has made an assessment as a result of the request; and
   2. to the extent that it considers appropriate, having regard in particular to any exemption which has been granted by the Regulator in terms of section 37 from section 23 or 24 applying in relation to the personal information concerned, of any view formed or action taken as a result of the request.