Complying with Changes in Legislation

Notification of processing

Personal Information that is processed in a fully or partly automated manner may only be processed if the Responsible Party has notified the Regulator in the prescribed manner, in advance. Failure to notify is an offence.

Rights of data subjects regarding unsolicited electronic communications and automated decision making

The processing of Personal Information for the purpose of direct marketing by means of automatic calling machines, facsimile machines, SMSs or electronic mail is prohibited unless the Data Subject has given consent to the processing, or the Data Subject is a customer of the responsible party (subject to conditions).

Any communication for the purpose of direct marketing (such as spam mail) must contain details of the identity of the sender or the person on whose behalf the communication has been sent, and an address or other contact details to which the recipient may send a request that such communications cease.

Marketing communications may be sent to customers only if their details were obtained in the context of the sale of goods or services. Only the goods or services of the same company may be advertised in this manner – in other words, marketers may not forward personal details to associated companies or sell such databases.

Any marketing communication must clearly indicate the identity of the sender and give an “unsubscribe” address.

Prior to the publication or use of directories, all those included in the directory should be informed of their inclusion and the intended purpose and use of the directory. Individuals must also be given a reasonable opportunity to object to their inclusion in the directory and request the withdrawal of their information.

Enforcement

POPI contains a complaints procedure whereby any person may lodge a complaint with the regulator against any company or organisation relating to unsolicited communications, directories and automated decision-making. The regulator will have extensive powers of investigation including:

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  The right to apply to a court for a warrant to enter and search premises;
  
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  The right to bring a claim for damages;
  
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  The right to issue enforcement notices.
  

Offences and penalties

Contravention of any of the Principles is not, in itself a criminal offence. However the Regulator has the power to issue enforcement notices for certain breaches of the Bill and failure to comply with an enforcement notice is a criminal offence.

On conviction of an offence under the Bill, a person is liable to a fine and / or up to 12 months imprisonment, except if the offence relates to obstructing the Regulator, in which case the person is liable to a fine and / or up to 10 years imprisonment.

Implementation timeline

Companies must, within one year from the date that the Bill comes into force, ensure that their Processing of Personal Information complies with the legislation and is notified to the Regulator. This one year grace period may be extended by the Minister to a maximum of three years.

The Companies Act, 71 of 2008

Objectives

The Department of Trade and Industry has throughout the corporate law reform process emphasised the need for simplification, flexibility, corporate efficiency, transparency and predictable regulation. In addition, a need for legislation to be appropriate to the legal, economic and social context of South Africa was identified.

Categories of companies

Two types of companies may be formed and incorporated, namely profit companies and non-profit companies.

 A profit company is:

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   A state-owned company;
  
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  A private company if:
  
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    it is not a state-owned company; and
    
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    its Memorandum of Incorporation prohibits it from offering any of its securities to the public; and restricts the transferability of its securities.
    
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  A personal liability company if:
  
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    it meets the criteria for a private company; and
    
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    its MOI states that it is a personal liability company.
    
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  A public company, in any other case.
  

 Criteria for names of companies (Section 11)

A company name may comprise words in any language, irrespective of whether or not the words are commonly used or contrived for the purpose, together with:

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  Any letters, numbers or punctuation marks;
  
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  Any of the following symbols: +, &, #, , %, =;
  
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  Any other symbol permitted by the regulations; or
  
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  Round brackets used in pairs to isolate any other part of the name, alone or in any combination.
  

In the case of a profit company the name may be the registration number of the company.

The name of a company must not be the same as, or confusingly similar to:

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  The name of another company, registered external company, close corporation or co-operative unless the company forms part of a group of companies using similar names;
  
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  A name registered for the use of a person as a business name;
  
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  A registered trade mark belonging to a person other than the company, or a mark in respect of which an application has been filed in the Republic for registration as a trade mark or a well-known trade mark;
  
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  A mark, word or expression the use of which is restricted, or protected, in terms of the Merchandise Marks Act;
  
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  Not falsely imply, suggest, or mislead a person to believe, that the company:
  
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    is part of, or associated with, any other person or entity;
    
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    is an organ of state or a court, or is operated, sponsored, supported or endorsed by the State or by any organ of state or a court;
    
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    is owned, managed or conducted by a person or persons having any particular educational designation or who is a regulated person or entity;
    
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    is owned, operated, sponsored, supported or endorsed by, or enjoys the patronage of any:
    
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      foreign state, head of state, head of government, government ,administration or any department of such a government or administration; or
      
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      international organisation.
      
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  Not include any word, expression or symbol that may reasonably be considered to constitute:
  
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    propaganda for war;
    
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    incitement of imminent violence; or
    
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    advocacy of hatred based on race, ethnicity, gender or religion, or incitement to cause harm. 
    

If the name of a profit company is the company’s registration number, that number must be immediately followed by the expression ‘‘(South Africa)’’.

If the MOI includes any important provisions, the name must be immediately followed by the expression ‘‘(RF)’’.

A company name, irrespective of its form or language, must end with one of the following expressions;

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  The word ‘‘Incorporated’’ or its abbreviation ‘‘Inc.’’, in the case of a personal liability company;
  
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  The expression ‘‘Proprietary Limited’’ or its abbreviation, ‘‘(Pty) Ltd.’’, in the case of a private company;
  
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  The word ‘‘Limited’’ or its abbreviation, ‘‘Ltd.’’, in the case of a public company;
  
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  The expression ‘‘SOC Ltd.’’ in the case of a state-owned company;
  
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  The expression ‘‘NPC’’, in the case of a non-profit company.