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Category: Protection Act

POPI AND YOUR PAYROLL

POPI AND YOUR PAYROLL

The requirements of the POPI Act stipulates that an entity is required to take reasonable measures of a technical, as well as organisational nature, to ensure the adequate safeguarding of personal information. Personal Information, according to the Protection of Personal Information Act, 2013 includes the following:

  1. Information relating to the following of a person:

  • Race/nationality/ethnic/social origin/colour

  • Gender/sex

  • Pregnancy

  • Marital status

  • Sexual orientation

  • Age

  • Physical or mental health/well-being/disability

  • Religion/conscience/belief

  • Culture/language

  • Birth

  1. Education, medical, criminal, employment or financial history of a person

  2. Identifying number, email address, telephone and physical address, location information, online identifier

  3. Biometric information

  4. Personal opinions, views or preferences

  5. Explicitly or implicitly private or confidential correspondence

  6. Views of others about that person

  7. Name, if it appears together with other personal information about that person or if the name would reveal information about that person

Personal information may only be processed (collected, stored, received, organised etc.) if the following conditions are complied with:

  1. Accountability

All the conditions below must be complied with.

  1. Processing

Personal information may only be processed if the processing is lawful and in a reasonable manner which does not infringe the privacy of the data subject

  • Consents

  • Necessary to carry out a contract to which the data subject is a party

  • Obligation imposed by law

  • Protects legitimate interest of data subject

  • Necessary for a proper performance by a public body

  • Processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied

Information must be collected directly from the data subject unless the information is obtained from a public record, then the data subject consented would not prejudice a legitimate interest of the data subject or if the collection is necessary in terms of a law.

Employers must obtain the employee’s consent for their personal information to be collected and used. They must be aware of the third parties (or other individuals) who might have access to it.

  1. Purpose Specification

Personal information must be collected for a specific, defined and lawful purpose related to a function or activity of the responsible party.

Records of information must not be retained for a longer period than is necessary. If it is kept for research, statistical or historical purposes, then it can be kept for longer if there are adequate safeguards in place from the records being used for other purposes.

The responsible party (the employer) must ensure that safeguards are in place to protect the data from being used for other purposes. Employees obtaining these types of personal information of other employees should have a clause in their employment contracts dealing with confidentiality.

  1. Further Processing Limitation

Further processing of personal information must be in accordance or compatible for the purpose it was collected for (see Section 15). It will not be incompatible if the data subject consents or 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 purpose and will not be published in an identifiable form.

The employer must obtain the employee’s consent if further processing takes place and it is not compatible with the reason it was collected for.

  1. Information Quality

A responsible party must take steps to ensure the information is accurate, complete and not misleading.

  1. Openness

The data subject (employee) must be aware of the information being collected, or if information is not collected from the data subject, the source where it is collected from, the purpose for the collection etc. unless the data subject consents to the non-compliance. The responsible party must take reasonable steps to ensure that the data subject is informed.

If personal information of the employee is collected by a third party via the employer, the employee needs to be aware of it unless the employee consents to non-compliance.

  1. Security Safeguards

The responsible party must ensure the integrity and confidentiality of the information in its possession or under its control by taking reasonable and appropriate measures to prevent loss or damage to personal information and unlawful processing of information.

Anyone processing personal information on behalf of a responsible party may not disclose the information.

Data subjects must be notified if personal information has been accessed or acquired by an unauthorised person (or the responsible party has reasonable grounds to believe so).

The employer or third party should ensure that employee data is treated as confidential information. Our suggestion would be to include a confidentiality clause in the employment contracts. Passwords must also be set up on the systems.

  1. Access to personal information

A data subject (employee) has a right to request access to personal information, also to correct or delete it.

***Although financial information is not specifically dealt with in the above mentioned Protection of Personal Information Act, according to the Basic Conditions of Employment Act, it is an offence for any person to disclose information which that person acquired while exercising or performing any power or duty in terms of this Act and which relates to the financial or business affairs of any other person, except if the information is disclosed in compliance with the provisions of any law..***

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

HOW DO I GET COPYRIGHT ON SOMETHING?

HOW DO I GET COPYRIGHT ON SOMETHING?

a1_aWhenever someone creates a piece of original work based on their own idea, they are automatically granted copyright on that creation. This includes work produced by authors, musicians, computer programmers, artists etc.

Once someone has taken their idea and turned it into material form, they will immediately own the copyright on their work without having to register it or inform someone else, the only exception to this is cinematograph films, which can be registered. After a musician has written and recorded a song, for instance, it would have automatically become copyrighted with the musician being the copyright owner. Things that are part of the public domain do not fall under copyright. A public speech by a politician or public lecture by an author falls within the public domain so would not have copyright. A newspaper journalist, for example, would be able to reproduce and quote from a public lecture without the speaker’s permission.

What if there was more than one person involved?

The person who has copyright ownership over a product differs for the type of creation. In the case of a literary work, such as a novel, it would be the person who first created the work, the author. However, if it is a film, the person who made all the arrangements of the film, such as the producer, would own the copyright, and not the actors and actresses. If a person created something under the proprietorship of someone else or a business, then the copyright belongs to that person or entity, not the creator.

Who will protect my copyrighted work?

All countries who have signed the Berne Convention will automatically protect the copyright of any original work that someone produces. That means if you create a painting here in South Africa, it will still be copyright protected in another country, such as America, that’s part of the Berne Convention.

Has someone violated my copyright?

If another person has made photocopies of your work for themselves only, then it’s not a copyright infringement. As mentioned earlier, recording, copying or reproducing a public speech is also not a copyright infringement. In the academic world, it’s common for people to use each other’s material or research. If the original author and their work is properly acknowledged by being cited, then no infringement has happened. However, if the original work has not been properly cited, it would be considered a serious copyright infringement, or plagiarism.

So when do I know if someone has infringed on my copyright? If another person has used or reproduced your original work to share with others for profit, without your permission, then it’s a copyright infringement. Taking another person’s song and selling it online without paying royalties or informing them, for instance, would be a serious copyright infringement. Another example is if someone takes the literary or academic work of the original author, and puts their own name to it, making it seem as if they were the original author.

What is the duration of copyright?

Copyright doesn’t last forever. However, they do last for an exceptionally long time. Copyright lifespans also differ depending on the work produced. Copyright on literary work lasts for 50 years after the death of the author. Copyright over films lasts for 50 years after the date the film was first shown. Computer programs have a copyright that lasts for 50 years after the first copies of the program were made available.

In short, if you have created something original, such as a song or painting, you don’t have to figure out how to protect it. The law automatically protects you as the original creator of your work. If someone does try copy your work without your permission, you don’t need to worry. Your claim on your song, book, painting, program etc. was set the moment you created it.

References

Icts.uct.ac.za. 2011. Information and Communication Technology Services. The University of Cape Town. Copyright Guidelines. [online] Available at: http://www.icts.uct.ac.za/ modules.php?name=News&file=article&sid=4749/
[Accessed 25/05/2016].

Saiipl.org.za. South African Institute of Intellectual Property Law. Copyright. [online] Available at: http://www.saiipl.org.za/introip/74-copyright/
[Accessed 25/05/2016].

Cipc.co.za. Companies and Intellectual Property Commission. Copyright. [online] Available at: http://www.cipc.co.za/index.php/trade-marks-patents-designs-copyright/copyright/
[Accessed 25/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

PROTECTION ORDER

PROTECTION ORDER

A3BIn this article we will deal with the manner in which to obtain a protection order, the possible reasons for obtaining such an order, and the consequences of disobeying the order.

A protection order is described as being a form of court order that requires a party to do, or to refrain from doing, certain acts. These orders flow from the court’s injunction power to grant equitable remedies, and can deal with the following:

  • That someone should not commit any act of domestic abuse.
  • That someone should pay you rent, mortgage, or other monies, such as child support.
  • That someone should hand over firearms or dangerous weapons to the police.

If you feel that you need to protect yourself by applying for a protection order, you must apply at a court which has jurisdiction over the area where you are residing. It is also important to first phone a court and make sure on which days you can apply for a protection order, since many courts only have certain days on which they deal with the application for protection orders, unless the protection order is a matter of urgency and you feel that your life might be at risk.

Before obtaining a final protection order, you need to apply for an interim protection order. To do this, you need to apply to the court. The interim order specifies the date on which the final order will be considered. Once the final order is made, it is permanent and can only be changed by making an application to do so at the court at which it was granted. Once an interim order is granted a copy of the order must be served on the Defendant by either the police or a sheriff of the court. The Defendant then has the opportunity to defend the matter on the return date and the Magistrate has the discretion to either make it a final protection order or not.

Requesting a protection order does not mean that you are laying a charge against your abuser. You do not need to lay a criminal charge in order to obtain a protection order. However, if you are a victim of a type of domestic abuse that is also a crime, you can apply for a protection order, lay a criminal charge, or both. Some examples of abuse that are also crimes include common assault, rape, incest, attempted murder and the abuse of animals.

If your abuser breaches or breaks the conditions of the protective order, he has committed a crime, being in contempt of court. This applies even if the breach is not an actual crime, such as controlling behaviour. If the breach itself involves a crime, such as assault, then the abuser can be charged with both contempt of court and assault. If your abuser, or the person that you have the protection order against, breaches the terms of the order you should phone the police as a matter of urgency. The police will then proceed to arrest him/her.

It is important to take note that as soon as a Magistrate grants an interim protection order, the docket number will be placed in your identity document to ensure that the police are aware of this, if matters turn for the worse. It is also important that you go back to court on the return date, because if you don’t, the Magistrate will remove the interim order and the matter will be struck off the roll.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

BESKERMINGSBEVEL

BESKERMINGSBEVEL

A3BIn hierdie artikel bespreek ons die wyse waarop ‘n beskermingsbevel verkry word, die moontlike redes vir so ‘n bevel, asook die gevolge wat ontstaan indien so ‘n bevel nie gehoorsaam word nie.

‘n Beskermingsbevel kan beskryf word as ‘n tipe hofbevel wat vereis dat partye sekere handelinge moet verrig, of nie moet verrig nie. Hierdie bevel vloei uit die hof se krag om billike remedies toe te staan, byvoorbeeld​​:

  • Dat geen persoon ‘n handeling mag uitvoer wat op gesinsgeweld neerkom nie.
  • Dat ‘n persoon geld aan jou verskuldig is, soos huurgeld, verband of onderhoudsgelde.
  • Dat ‘n persoon vuurwapens of gevaarlike wapens aan die polisie moet oorhandig.

Indien dit nodig is om jouself te beskerm deur middel van ‘n aansoek om ‘n beskermingsbevel, moet jy eers seker maak dat jy ‘n hof nader wat in jou jurisdiksiegebied is. Dit is ook belangrik om eers die hof te kontak om seker te maak op watter dae jy aansoek kan doen vir ‘n beskermingsbevel, omdat baie howe net op sekere dae aansoeke om beskermingsbevele hanteer, tensy jou aansoek dringend is en jy voel dat jou lewe bedreig word.

Voor die verkryging van ‘n beskermingsbevel moet jy aansoek doen om ‘n tussentydse beskermingsbevel. Die tussentydse bevel bepaal die datum waarop die finale bevel oorweeg sal word. Sodra die finale bevel gemaak is, is dit van krag en kan dit slegs verander word indien jy so ‘n aansoek tot die hof rig. Sodra ‘n tussentydse bevel toegestaan ​​is, moet ‘n afskrif van sodanige bevel op die Verweerder beteken word deur die polisie of ‘n balju van die hof. Die Verweerder het dan die geleentheid om die saak te verdedig teen die keerdatum, en die Landdros het die diskresie om ‘n finale bevel te maak al dan nie.

Om ‘n beskermingsbevel te versoek, beteken nie dat jy ‘n klag teen jou mishandelaar indien nie. Jy hoef nie ‘n kriminele klag te lê om ‘n beskermingsbevel te bekom nie. Indien jy ‘n slagoffer is van enige vorm van gesinsgeweld wat ook as ‘n misdaad gekwalifiseer word, kan daar aansoek gedoen word vir ‘n beskermingsbevel, ‘n kriminele klag, of beide. Sommige voorbeelde van gesinsgeweld wat ook as misdade gedefinieer is, sluit in gewone aanranding, verkragting, bloedskande, poging tot moord en die mishandeling van diere.

Indien jou mishandelaar oortree, of die voorwaardes van die beskermingsbevel verbreek, het die oortreder ‘n misdaad gepleeg, en sal hy gestraf word vir die misdaad van minagting van die hof. Dit geld selfs al is die oortreding nie ‘n werklike misdaad nie, soos manipulerende gedrag. Indien die verbreking op sigself ‘n misdaad is, soos aanranding, kan die oortreder vervolg word vir minagting van die hof sowel as aanranding. Indien jou oortreder of die persoon teen wie jy die beskermingsbevel het, die bepalings van die bevel oortree, moet jy die polisie onmiddellik daarvan in kennis stel. Die polisie sal dan voortgaan om hom/haar te arresteer.

Dit is belangrik om daarop te let dat sodra ‘n Landdros ‘n tussentydse beskermingsbevel toestaan, die dossiernommer in jou identiteitsdokument aangebring sal word om te verseker dat die polisie bewus is van die aangeleentheid indien sake versleg. Dit is ook belangrik dat jy terugkeer na die hof op die keerdatum, want indien jy versuim om dit te doen, sal die Landdros die tussentydse bevel verwyder en die saak sal van die rol geskrap word.

Hierdie is ‘n algemene inligtingstuk en moet gevolglik nie as regs- of ander professionele advies benut word nie. Geen aanspreeklikheid kan aanvaar word vir enige foute of weglatings of enige skade of verlies wat volg uit die gebruik van enige inligting hierin vervat nie. Kontak altyd u regsadviseur vir spesifieke en toegepaste advies.