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Why South Africa’s draft revised material transfer agreement is not fit for purpose

Forcing a square into a circle: why South Africa’s draft revised material transfer agreement is not fit for purpose

PAIA manual

View the PAIA manual HERE 20230626_PAIA_Manual_Esselaar Attorneys_PGE

Paul Esselaar

Paul Esselaar completed his BA, LLB at Rhodes University in Grahamstown in 1997. Thereafter he attended the School for Legal Practice at the University of Cape Town in 2000 and went on to complete his articles at Kessler De Jager Inc. During his articles he focussed...

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The Esselaar Attorneys Web Site is subject to copyright by Esselaar Attorneys or is licenced under copyright from third party owners. You may reproduce any web page - subject to the disclaimer below - for personal use only. Any comments and statements contained within...

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This message and any accompanying attachment(s) may contain confidential and copyrighted information. If you are not the addressee(s) indicated in this message or responsible for delivery of the message to the addressee(s), do not copy or deliver this message or the...

Financial Services Laws General Amendment Bill tabled in Parliament

According to the South African Government News Agency (SANews) the Financial Services Laws General Amendment Bill was tabled in Parliament last week. In short, 'the Bill, which was released for public comment in March, addresses urgent issues in eleven financial...

Is the Financial Services Industry pulling wool over consumers’ eyes?

The Financial Services industry is in a state of flux. The Financial Services Laws General Amendment Bill (FSLGAB) was tabled in parliament on 25 September 2012. The aim of the Bill is to ensure that ‘South Africa has a sounder and better regulated financial services...

Credit Law: Section 89(5)(c) of the NCA declared unconstitutional

In the May/June edition of CLR Paul Esselaar wrote about a decision by the Western Cape High Court in which s 89(5)(c) of the National Credit Act was declared unconstitutional for being inconsistent with the right to property in s 25(1). In other words it was found...

Draft NCA Regulations on Affordability Assessments published

The Department of Trade and Industry has published draft regulations on, "Affordability Assessment for the Amendment of Regulations for matters relating to the functions of the National Consumer Tribunal and Rules for the Conduct of matters before the National...

Drowning in Red Tape: The new threshold for registration as a credit provider

With all the pieces of legislation that are constantly being updated it is easy to miss changes to legislation that are really important – especially if that change comes in the form of a Regulation (something typically drafted by a ministry such as the Department of...

NEW

Why South Africa’s draft revised material transfer agreement is not fit for purpose

Forcing a square into a circle: why South Africa’s draft revised material transfer agreement is not fit for purpose

PAIA manual

View the PAIA manual HERE 20230626_PAIA_Manual_Esselaar Attorneys_PGE

Paul Esselaar

Paul Esselaar completed his BA, LLB at Rhodes University in Grahamstown in 1997. Thereafter he attended the School for Legal Practice at the University of Cape Town in 2000 and went on to complete his articles at Kessler De Jager Inc. During his articles he focussed...

Web Site Terms and Conditions

The Esselaar Attorneys Web Site is subject to copyright by Esselaar Attorneys or is licenced under copyright from third party owners. You may reproduce any web page - subject to the disclaimer below - for personal use only. Any comments and statements contained within...

Email Disclaimer

This message and any accompanying attachment(s) may contain confidential and copyrighted information. If you are not the addressee(s) indicated in this message or responsible for delivery of the message to the addressee(s), do not copy or deliver this message or the...

Financial Services Laws General Amendment Bill tabled in Parliament

According to the South African Government News Agency (SANews) the Financial Services Laws General Amendment Bill was tabled in Parliament last week. In short, 'the Bill, which was released for public comment in March, addresses urgent issues in eleven financial...

Is the Financial Services Industry pulling wool over consumers’ eyes?

The Financial Services industry is in a state of flux. The Financial Services Laws General Amendment Bill (FSLGAB) was tabled in parliament on 25 September 2012. The aim of the Bill is to ensure that ‘South Africa has a sounder and better regulated financial services...

Credit Law: Section 89(5)(c) of the NCA declared unconstitutional

In the May/June edition of CLR Paul Esselaar wrote about a decision by the Western Cape High Court in which s 89(5)(c) of the National Credit Act was declared unconstitutional for being inconsistent with the right to property in s 25(1). In other words it was found...

Draft NCA Regulations on Affordability Assessments published

The Department of Trade and Industry has published draft regulations on, "Affordability Assessment for the Amendment of Regulations for matters relating to the functions of the National Consumer Tribunal and Rules for the Conduct of matters before the National...

Drowning in Red Tape: The new threshold for registration as a credit provider

With all the pieces of legislation that are constantly being updated it is easy to miss changes to legislation that are really important – especially if that change comes in the form of a Regulation (something typically drafted by a ministry such as the Department of...

Kyknet recently released a news report (click here for the Youtube video) where they interviewed Paul Esselaar on the right of privacy of Nelson Mandela as well the right of privacy of the relatives. The book, which is written by Dr Vejay Ramlakan and published by Penguin Random House, has been removed from the shelves, but not before several copies of the book had been purchased. All of this raises a number of questions, and as always we need to make sure we ask the right questions before we look to the answers. Some of the questions which should be considered are:

1) Does a doctor have an ethical duty to keep any patient interaction confidential even after the patient is dead? 

2) Does a doctor have a legal duty to preserve the privacy of the doctor – patient relationship even after the patient is dead? 

3) Does a doctor have a legal / ethical duty to the patient’s next of kin to preserve their privacy and confidentiality? 

Ethical Duty to Deceases patient

The answer to this is actually quite simple. Rule 13 of the Ethical Rules of the HPCSA states that a ‘practitioner may divulge information regarding a patient only if this is done…(i)n the case of a deceased patient with the written consent of the next of kin or the executor of the deceased’s estate’. Note that the consent must be in writing and so the onus lies on the doctor to prove that written consent was provided. It is likely that this consent should be (as the Protection of Personal Information Act (POPI) states): informed, specific and voluntary. It appears that this consent was not obtained at the time, but this should be a fairly simple question of fact – either the written consent was obtained or it was not…

LEGAL DUTY TO THE DECEASED PATIENT

Does a deceased person have personal information? The answer in terms of POPI is ‘no’ for the simple reason that the definition of ‘personal information’ requires that the data subject (i.e. the person) be ‘living’. This in turn means that the entire of POPI does not apply any more to the information about deceased people. However, this is not the end of the question.

LEGAL / ETHICAL DUTY TO THE NEXT OF KIN

Of course POPI would apply to the people who are still alive, and specifically to the next of kin. In this particular case it seems clear that not only confidential information of Mandela but also personal information of the next of kin (remember that ‘personal information’ even includes opinions and preferences) is also in the book. Although POPI is not yet in force it is highly likely that the Information Regulator (the body set up to police POPI) would be able to object to the use of the personal information of the next of kin on several different grounds, such as:

  1. The personal information that was collected was not collected for the purposes of writing a book, but to assist with the treatment of the patient,
  2. The purpose of using the Personal Information (which was to write a book and sell it to the public) does not comply with section 11 of POPI (which requires that PI can only be used for a purpose that meets the test of section 11),
  3. A data subject (in this case the next of kin) can object to the processing (i.e. use of the their PI in a book) in terms of section 11(3) of POPI and this in turn means that the PI cannot be used. 

WHAT ABOUT THE ‘LITERARY’ EXCEPTION IN POPI? 

On the other hand, (and it is important to realise that there is always ‘another hand’ when it comes to privacy) POPI provides a specific exclusion for literary works (such as books) in section 7 where is states that POPI does not apply to a book ‘to the extent that such an exclusion is necessary to reconcile, as a matter of public interest, the right to privacy with the right to freedom of expression’. While there is tremendous public interest in the book, the real question here is whether the right to freedom of expression should trump the right to privacy of the next of kin. Some help in this regard can come from the Promotion of Access to Information Act (PAIA) which indicates (in section 34 for public entities and in section 63 for private entities) that a request for personal information – even about a deceased – must be refused if the next of kin have not provided consent (obviously this excludes situations where the personal information is required by a law). 

WHY ‘PRIVACY BY DESIGN’ IS SO IMPORTANT

Confused? 

More than anything this case shows how difficult it is to deal with privacy and personal information. There are always many rights that need to be considered and a careful and systematic approach to dealing with these thorny issues should always be done (preferably before you publish a book). In fact this is the whole point of ‘privacy by design’ which underpins the global approach to the protection of personal information. Essentially the idea of ‘privacy by design’ is that an investigation into the personal information used and the privacy of the individuals should be done routinely by all organisations. Perhaps if Penguin Random House had done this the book may well still be on the shelves…