Lambert Legal Consulting SA Pty Ltd

21/07/2020

Morning All

Great News - I have updated my eBook entiled “Companion to the POPIA Act”. You can download it for free at https://lambertlegal.co.za/blog/

Please note that I have decided on removing the copyright – it is free to share. Please ignore the copyright at the beginning.

I hope you find it usefull.

Cheers
Alan

Legal Advice Blog South Africa by Lambert Legal Consulting SA. Read our legal advice blog with legal advice specifically for South Africa.

08/07/2020

POPIA Workshops via Zoom or Teams

08/07/2020

https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2020/04/video-conferencing-what-to-watch-out-for/

22/06/2020

POPIA becomes effective on 1 July 2020.

Eventually ..........,.

Today the Presidency announced that the Protection of Personal Information Act would become effective on 1 July 2020.

Once effective, you must comply with the POPI Act and the Information Regulator will start enforcing the POPI Act one year after the commencement date.
I am an acknowledged expert in the protection of personal information. Contact me to discuss your organisations POPIA requirements.

Adv. Alan Lmabert - the POPIA expert

082 316 5052
[email protected]
www.lambertlegal.co.za

15/06/2020

03/06/2020

Level 3 regulations still apply – for now

In a hard-hitting judgment that found the government had failed to fully consider Covid-19 lockdown regulations, the Pretoria High Court found that while declaring the State of Disaster because of the Covid-19 pandemic was rational, the overwhelming number of regulations are ‘unconstitutional and invalid’.

Reyno Dawid de Beer (Applicant) vs The Minister of Cooperative Governance and Traditional Affairs (Respondent)
High Court of South Africa (Gauteng Division, Pretoria) – 02 June 2020
Judge Davis, J

The applicants attacked the regulations on the basis of some of them being irrational in relation to the threat of the coronavirus itself and the number of deaths caused thereby.

The legality of the regulations;
- In terms of section 27(2) of the Disaster Management Act, the power to make regulations and directions “may be exercised only to the extent that this is necessary for the purpose of;

o assisting and protecting the public;
o providing relief to the public;
o protecting property;
o preventing or combatting disruption; or
o dealing with the destructive and other effects of the disaster.

- Regulations must be rationally related to one of the above purposes – this is the “rationality test”. Is there a rational connection between the intervention and the purpose?
The judge cites many examples of where certain regulations do not pass the rationality test (7.2 to 7.13 of the judgement), but despite this there are regulations which pass muster.

The court found that:

- the declaration of a national state of disaster in terms of the Disaster Management Act was found to be rational; and
- the regulations promulgated in respect of Alert levels 4 and 3 in a substantial number of instances are not rationally connected to the objective of slowing the rate of infection or limiting the spread thereof.

The court ordered that:

- the regulations are declared unconstitutional and invalid;
- the invalidity is suspended until such time as the Minister reviews, amends and re-publishes the, amending those regulations which do not meet the rationality test;
- that the Minister complies within 14 business days; and
- that the Alert level 3 regulations shall apply during the period of suspension.

01/06/2020

The Information Regulator issued a Guidance Note on the processing of personal information during the COVID-19 pandemic (see employee questions below)

The Regulators states that it recognises the need to effectively manage the spread of COVID-19 and therefore supports the need to process personal information of data subjects in order to curb such spread. Organisations must adhere to certain conditions. These are:

1. organisations must process personal information of individuals in a responsible manner;
2. organisations must process the personal information of individuals in a lawful and reasonable manner in order to detect, contain and prevent the spread of COVID-19;
3. it is not necessary for an organisation to obtain consent from an individual to process his or her personal information in the context of COVID -19, when:
a. processing complies with the obligation imposed by law;
b. processing protects the legitimate interests of the individual;
c. processing is necessary for the proper performance of a public law duty by a public body; or
d. processing is necessary for pursuing the legitimate interests of the organisation or of a third party to whom the information is supplied.
4. organisations must collect personal information of individuals for a specific purpose, which in this context is to detect, contain and prevent the spread of COVID-19;
5. organisations must maintain the documentation of all processing operations which relate to detecting, containing and preventing the spread of COVID-19; and
6. organisations must secure the integrity and confidentiality of the personal information collected.

Some employment questions:

1. Can the employer request specific information on the health status of an employee in the context of COVID-19?

Yes, the employer is obliged to maintain a safe and hazardous free working environment in terms of the Occupation Health and Safety Act 85 of 1993 read together with the Employment Equity Act 55 of 1998, if an employee’s health status may endanger other employees. The disclosed information should not be used to unfairly discriminate against such an employee.

3. Can the employer force an employee to undergo testing for the COVID-19 virus?

Yes, the employer can force an employee to undergo testing in order to maintain a safe working environment.

4. Can an employee refuse to give consent to be tested for COVID-19?

No, the Regulations require any employee to undergo mandatory testing in order to manage the spread of COVID-19.

5. Does a person who has tested positive for COVID-19 have a duty to disclose his or her status?

Yes, a person who has tested positive has a duty to disclose his or status to enable the Government to take appropriate measures to combat the spread of COVID-19.

26/05/2020

Working from home – is your home considered a workplace and what happens if you are injured at home?

Occupation Health and Safety Act (“OHSA”): “workplace” is defined as any premises or place where a person performs work in the course of his (or her) employment. Working from home in the course and scope of your employment means that your home constitutes a ‘workplace’ in terms of the OHSA.

Compensation for Occupational Injuries and Diseases Act (“COIDA”): For so long as you are working from home, and you are acting in the course and scope of your employment, then, if an incident or accident occurs, you, or yours dependants (if you pass away), will be compensated in terms of COIDA.

For more details have a look at this great article: https://www.golegal.co.za/working-from-home-workplace/

Regards

Adv. Alan Lambert
Lambert Legal Consulting SA (Pty) Ltd
082 316 5052
[email protected]
www.lambertlegal.co.za

07/05/2020

COVID-19 may be killing your business. Is Retrenchment an instant option?

Many business are faced with the daunting prospect of contemplating retrenchments due to the impact of COVID-19 on their businesses. Employers should however be aware that retrenchments are a matter of last resort and can only be undertaken after exploring all alternatives seeking to avoid retrenchment.

The COVID-19 pandemic does not allow for an Employer to skip the retrenchment process set out in the Act and merely retrench Employees without due process. It is imperative that the correct processes, rules and regulations as set out in section 189 of the Labour Relations Act (“LRA”) are followed by Employers if they are considering retrenchment. Failure to follow the process of retrenchment as per the LRA could lead to unfair dismissal claims against Employers which would naturally further cripple the Employer during this period.

As stated earlier, retrenchment is a last resort for Employers. For other options please read this great article published by Schoeman Law Inc at https://www.golegal.co.za/covid-19-retrenchment/

The retrenchment process includes a consultation and joint consensus seeking exercise between the Employer and the Employee to consider all options to avoid retrenchment or at the very least mitigate the impact the retrenchment will have on the Employee. Contact Adv. Alan Lambert of Lambert Legal Consulting SA (Pty) Ltd should you require any guidance in implementing the retrenchment process lawfully and in compliance with the LRA.
O82 316 5052
[email protected]

06/05/2020

Reopening your business under level 4?

As a business what are your legal obligations.

The Department of Employment and Labour and the Department of Health have issued a number of regulations and directives which employers, who are permitted to operate under Alert Level 4, need to comply with to ensure a safe working environment and to comply with prevailing legislation.

In order to assist employers with compliance with these regulations, National Employers Association of South Africa has developed a Toolkit which may be utilised in implementing the necessary measures. The Toolkit comprises

• Toolkit
• Return to work policy
• Workplace plan
• Detailed employer responsibilities
• COVID-19 checklist
• Minutes of meeting
• Warrant letter and appointment of Compliance Officer
• Use of company vehicles
• PPE register
• Screening register

The Toolkit can be found at https://neasa.co.za/covid-19-return-to-work-toolkit/

I have had a look at the above, and it looks very useful. Remember that if any of your staff fall ill with COVID-19 and you have not complied with the COVID-19 regulations and directives you may well be in deep trouble.

Employers who wish to view the regulations, please click here.https://www.gov.za/sites/default/files/gcis_document/202004/43257gon479.pdf

Keep safe

Regards

Alan Lambert

Lambert Legal Consulting SA (Pty) Ltd
082 316 5052
[email protected]

23/04/2020

Do you offer essential goods or services but are not registered with CIPC? E.g. sole trader

“The dti clarified that the registration portal was only for companies registered in terms of the Companies Act. Other essential service providers, such as healthcare professionals registered with the Health Professions Council of South Africa, sole proprietors who provided essential goods and services (small business owners and spaza shops), and small-scale farmers would not register through the Bizportal. These businesses would not have a CIPC certificate, but still had to comply with the provisions of the lockdown regulations, the dti said.” From IOL dated 19 March 2020

I have done the following for a client and it did work

1. The Client must complete the permit required which is prescribed in the GUIDELINE FOR THE COMPLETION OF THE PERMIT TO PERFORM ESSENTIAL SERVICES IN TERMS OF THE DISASTER MANAGEMENT ACT, 2002: AMENDMENT OF REGULATIONS ISSUED IN TERMS OF SECTION 27(2) PER GOVERNMENT GAZETTE NO. 43148 (email me on [email protected] if you need a copy).

The certificate identifies a specific person who is required to perform an essential service. All staff MUST at all times carry an original permit.

2. All staff MUST at all times carry a photo identification issued by the Department of Home Affairs.

3. According to the above-mentioned guideline, the bizportal certification is NON-COMPULSORY. Carry a copy of this guideline in your car to show officials.

4. Have an affidavit (SAPS can stamp it) stating the company details as well as the essential goods or service provided as described in Annexure B of Amendment of Regulations of the Disaster Management Act (Government Gazette 43148 of 25 March 2020). You can also email me for a copy.

5. Annexure B - Essential goods:

a. Any food product including, including animal food and chemicals, packaging and ancillary products used in the production of food;
b. Cleaning and Hygiene products and chemicals, packaging and ancillary products used in production;
c. Medical and hospital supplies, personal protective equipment and chemicals, packaging and ancillary products used in production;
d. Fuel, including gas and coal; and
e. Basic goods, including airtime and electricity.