Research Archives

Section 11 Consent, justification and objection

Personal information may only be processed if—
1. the data subject or a competent person where the data subject is a child consents to the processing;
2. processing is necessary to carry out actions for the conclusion or performance of a contract to which the data subject is party;
3. processing complies with an obligation imposed by law on the responsible party;
4. processing protects a legitimate interest of the data subject;
5. processing is necessary for the proper performance of a public law duty by a public body; or
6. processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied.
1. The responsible party bears the burden of proof for the data subject’s or competent person’s consent as referred to in subsection (1)(a).
2. The data subject or competent person may withdraw his, her or its consent, as referred to in subsection (1)(a), at any time: Provided that the lawfulness of the processing of personal information before such withdrawal or the processing of personal information in terms of subsection (1)(b) to (f) will not be affected.
A data subject may object, at any time, to the processing of personal information—
1. in terms of subsection (1)(d) to (f), in the prescribed manner, on reasonable grounds relating to his, her or its particular situation, unless legislation provides for such processing; or
2. for purposes of direct marketing other than direct marketing by means of unsolicited electronic communications as referred to in section 69.
If a data subject has objected to the processing of personal information in terms of subsection (3), the responsible party may no longer process the personal information.

Section 14 Retention and restriction of records

Subject to subsections (2) and (3), records of personal information must not be retained any longer than is necessary for achieving the purpose for which the information was collected or subsequently processed, unless—
1. retention of the record is required or authorised by law;
2. the responsible party reasonably requires the record for lawful purposes related to its functions or activities;
3. retention of the record is required by a contract between the parties thereto; or
4. the data subject or a competent person where the data subject is a child has consented to the retention of the record.
Records of personal information may be retained for periods in excess of those contemplated in subsection (1) for historical, statistical or research purposes if the responsible party has established appropriate safeguards against the records being used for any other purposes.
A responsible party that has used a record of personal information of a data subject to make a decision about the data subject, must—
1. retain the record for such period as may be required or prescribed by law or a code of conduct; or
2. if there is no law or code of conduct prescribing a retention period, retain the record for a period which will afford the data subject a reasonable opportunity, taking all considerations relating to the use of the personal information into account, to request access to the record.
A responsible party must destroy or delete a record of personal information or de-identify it as soon as reasonably practicable after the responsible party is no longer authorised to retain the record in terms of subsection (1) or (2).
The destruction or deletion of a record of personal information in terms of subsection (4) must be done in a manner that prevents its reconstruction in an intelligible form.
The responsible party must restrict processing of personal information if—
1. its accuracy is contested by the data subject, for a period enabling the responsible party to verify the accuracy of the information;
2. the responsible party no longer needs the personal information for achieving the purpose for which the information was collected or subsequently processed, but it has to be maintained for purposes of proof;
3. the processing is unlawful and the data subject opposes its destruction or deletion and requests the restriction of its use instead; or
4. the data subject requests to transmit the personal data into another automated processing system.
Personal information referred to in subsection (6) may, with the exception of storage, only be processed for purposes of proof, or with the data subject’s consent, or with the consent of a competent person in respect of a child, or for the protection of the rights of another natural or legal person or if such processing is in the public interest.
Where processing of personal information is restricted pursuant to subsection (6), the responsible party must inform the data subject before lifting the restriction on processing.

Section 15 Further processing to be compatible with purpose of collection

Further processing of personal information must be in accordance or compatible with the purpose for which it was collected in terms of section 13.
To assess whether further processing is compatible with the purpose of collection, the responsible party must take account of—
1. the relationship between the purpose of the intended further processing and the purpose for which the information has been collected;
2. the nature of the information concerned;
3. the consequences of the intended further processing for the data subject;
4. the manner in which the information has been collected; and
5. any contractual rights and obligations between the parties.
The further processing of personal information is not incompatible with the purpose of collection if—
1. the data subject or a competent person where the data subject is a child has consented to the further processing of the information;
2. the information is available in or derived from a public record or has deliberately been made public by the data subject;
3. further processing is necessary—
  1. to avoid prejudice to the maintenance of the law by any public body including the prevention, detection, investigation, prosecution and punishment of offences;
  2. to comply with an obligation imposed by law or to enforce legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);
  3. for the conduct of proceedings in any court or tribunal that have commenced or are reasonably contemplated; or
  4. in the interests of national security;
4. the further processing of the information is necessary to prevent or mitigate a serious and imminent threat to—
  1. public health or public safety; or
  2. the life or health of the data subject or another individual;
5. the information is used for historical, statistical or research purposes and the responsible party ensures that the further processing is carried out solely for such purposes and will not be published in an identifiable form; or
6. the further processing of the information is in accordance with an exemption granted under section 37.

Section 18 Notification to data subject when collecting personal information

If personal information is collected, the responsible party must take reasonably practicable steps to ensure that the data subject is aware of—
1. the information being collected and where the information is not collected from the data subject, the source from which it is collected;
2. the name and address of the responsible party;
3. the purpose for which the information is being collected;
4. whether or not the supply of the information by that data subject is voluntary or mandatory;
5. the consequences of failure to provide the information;
6. any particular law authorising or requiring the collection of the information;
7. the fact that, where applicable, the responsible party intends to transfer the information to a third country or international organisation and the level of protection afforded to the information by that third country or international organisation;
8. any further information such as the—
  1. recipient or category of recipients of the information;
  2. nature or category of the information;
  3. existence of the right of access to and the right to rectify the information collected;
  4. existence of the right to object to the processing of personal information as referred to in section 11(3); and
  5. right to lodge a complaint to the Information Regulator and the contact details of the Information Regulator, which is necessary, having regard to the specific circumstances in which the information is or is not to be processed, to enable processing in respect of the data subject to be reasonable.
The steps referred to in subsection (1) must be taken—
1. if the personal information is collected directly from the data subject, before the information is collected, unless the data subject is already aware of the information referred to in that subsection; or
2. in any other case, before the information is collected or as soon as reasonably practicable after it has been collected.
A responsible party that has previously taken the steps referred to in subsection (1) complies with subsection (1) in relation to the subsequent collection from the data subject of the same information or information of the same kind if the purpose of collection of the information remains the same.
It is not necessary for a responsible party to comply with subsection (1) if—
1. the data subject or a competent person where the data subject is a child has provided consent for the non-compliance;
2. non-compliance would not prejudice the legitimate interests of the data subject as set out in terms of this Act;
3. non-compliance is necessary—
  1. to avoid prejudice to the maintenance of the law by any public body, including the prevention, detection, investigation, prosecution and punishment of offences;
  2. to comply with an obligation imposed by law or to enforce legislation concerning the collection of revenue as defined in section 1 of the South African Revenue Service Act, 1997 (Act No. 34 of 1997);
  3. for the conduct of proceedings in any court or tribunal that have been commenced or are reasonably contemplated; or
  4. in the interests of national security;
4. compliance would prejudice a lawful purpose of the collection;
5. compliance is not reasonably practicable in the circumstances of the particular case; or
6. the information will—
  1. not be used in a form in which the data subject may be identified; or
  2. be used for historical, statistical or research purposes.

Section 32 Authorisation concerning data subject’s health or sex life

The prohibition on processing personal information concerning a data subject’s health or sex life, as referred to in section 26, does not apply to the processing by—
1. medical professionals, healthcare institutions or facilities or social services, if such processing is necessary for the proper treatment and care of the data subject, or for the administration of the institution or professional practice concerned;
2. insurance companies, medical schemes, medical scheme administrators and managed healthcare organisations, if such processing is necessary for—
  1. assessing the risk to be insured by the insurance company or covered by the medical scheme and the data subject has not objected to the processing;
  2. the performance of an insurance or medical scheme agreement; or
  3. the enforcement of any contractual rights and obligations;
3. schools, if such processing is necessary to provide special support for pupils or making special arrangements in connection with their health or sex life;
4. any public or private body managing the care of a child if such processing is necessary for the performance of their lawful duties;
5. any public body, if such processing is necessary in connection with the implementation of prison sentences or detention measures; or
6. administrative bodies, pension funds, employers or institutions working for them, if such processing is necessary for—
  1. the implementation of the provisions of laws, pension regulations or collective agreements which create rights dependent on the health or sex life of the data subject; or
  2. the reintegration of or support for workers or persons entitled to benefit in connection with sickness or work incapacity.
In the cases referred to under subsection (1), the information may only be processed by responsible parties subject to an obligation of confidentiality by virtue of office, employment, profession or legal provision, or established by a written agreement between the responsible party and the data subject.
A responsible party that is permitted to process information concerning a data subject’s health or sex life in terms of this section and is not subject to an obligation of confidentiality by virtue of office, profession or legal provision, must treat the information as confidential, unless the responsible party is required by law or in connection with their duties to communicate the information to other parties who are authorised to process such information in accordance with subsection (1).
The prohibition on processing any of the categories of personal information referred to in section 26, does not apply if it is necessary to supplement the processing of personal information concerning a data subject’s health, as referred to under subsection (1)(a), with a view to the proper treatment or care of the data subject.
Personal information concerning inherited characteristics may not be processed in respect of a data subject from whom the information concerned has been obtained, unless—
1. a serious medical interest prevails; or
2. the processing is necessary for historical, statistical or research activity.
More detailed rules may be prescribed concerning the application of subsection (1)(b) and (f).

Section 35 General authorisation concerning personal information of children

The prohibition on processing personal information of children, as referred to in section 34, does not apply if the processing is—
1. carried out with the prior consent of a competent person;
2. necessary for the establishment, exercise or defence of a right or obligation in law;
3. necessary to comply with an obligation of international public law;
4. for historical, statistical or research purposes to the extent that—
  1. the purpose serves a public interest and the processing is necessary for the purpose concerned; or
  2. it appears to be impossible or would involve a disproportionate effort to ask for consent,
  3. and sufficient guarantees are provided for to ensure that the processing does not adversely affect the individual privacy of the child to a disproportionate extent; or
5. of personal information which has deliberately been made public by the child with the consent of a competent person.
The Regulator may, notwithstanding the prohibition referred to in section 34, but subject to subsection (3), upon application by a responsible party and by notice in theGazette, authorise a responsible party to process the personal information of children if the processing is in the public interest and appropriate safeguards have been put in place to protect the personal information of the child.
The Regulator may impose reasonable conditions in respect of any authorisation granted under subsection (2), including conditions with regard to how a responsible party must—
1. upon request of a competent person provide a reasonable means for that person to—
  1. review the personal information processed; and
  2. refuse to permit its further processing;
2. provide notice—
  1. regarding the nature of the personal information of children that is processed;
  2. how such information is processed; and
  3. regarding any further processing practices;
3. refrain from any action that is intended to encourage or persuade a child to disclose more personal information about him- or herself than is reasonably necessary given the purpose for which it is intended; and
4. establish and maintain reasonable procedures to protect the integrity and confidentiality of the personal information collected from children.

Section 37 Regulator may exempt processing of personal information

The Regulator may, by notice in the Gazette, grant an exemption to a responsible party to process personal information, even if that processing is in breach of a condition for the processing of such information, or any measure that gives effect to such condition, if the Regulator is satisfied that, in the circumstances of the case—
1. the public interest in the processing outweighs, to a substantial degree, any interference with the privacy of the data subject that could result from such processing; or
2. the processing involves a clear benefit to the data subject or a third party that outweighs, to a substantial degree, any interference with the privacy of the data subject or third party that could result from such processing.
The public interest referred to in subsection (1) includes—
1. the interests of national security;
2. the prevention, detection and prosecution of offences;
3. important economic and financial interests of a public body;
4. fostering compliance with legal provisions established in the interests referred to under paragraphs (b) and (c);
5. historical, statistical or research activity; or
6. the special importance of the interest in freedom of expression.
The Regulator may impose reasonable conditions in respect of any exemption granted under subsection (1).