Showcasing KZN’s
LEADING LAW Pravin Hurri 084 810 1818 | pravin.hurri@inl.co.za
THE CLOCK IS TICKING – THREE MONTHS TO GO... THE grace period for complying with the Protection of Personal Information Act (Act) will soon end. By July 1, 2021, every business in South Africa must comply with the Act’s eight conditions for lawfully processing personal information. The Act applies to “responsible parties”, which it defines as public or private bodies or persons which alone or together with others, determine how and for what purposes personal information will be processed. To help with your compliance journey, ask yourself: WHO – Whose personal information do you process? Aside from personal information of employees, customers and suppliers, you may process data belonging to shareholders, job applicants, potential customers and tenderers. WHY – Why do you need to process the personal information? The Act requires that you only process personal information needed for “a specific, explicitly defined and lawful purpose” related to your functions or activities. Best practice for purpose specifications recommended by the European Data Protection Board (EDPB) Guidelines on Transparency under Regulation 2016/679 (wp260rev.01) are: keeping your language and words simple, avoiding technicalities and legalities, using definite words and avoiding words like “may”, “might”, “some”, “often” and “possible”. The purpose statement “We may use your personal data to develop new services” isn’t acceptable, because it doesn’t explain what services are being provided, and why the personal information is needed to develop those services. The guidelines say that: “We will retain and evalu
For more information, contact: Jenny Finnigan, Partner in the Commercial Law Department, Shepstone & Wylie Attorneys on 031 575 7406 or Email finnigan@wylie.co.za ate information on your recent visits to our website and how you move around different sections of our website for analytics purposes to understand how people use our website so that we can make it more intuitive” is a better example. WHAT – What personal information are you processing? Only process what you need for the specified purposes because processing more person-
al information than necessary contravenes the condition of minimality. HOW – How do you process personal information? Track the information within your business and between your service providers, and identify the people who process it. Document who does what with the information. The Act obliges you to have a written contract with your service providers who process personal information (operators), binding them to comply with the security requirements imposed by the Act. As you remain responsible for processing done by operators, your contract should also regulate service standards, include indemnities for noncompliance and reporting obligations (including immediately notifying you of any data breaches). WHERE – Where is the personal information processed? What is the data point of rest for all personal information processed within your business (eg on your website, email system and storage and backup systems) and by your operators? Transfer of personal information outside South Africa is restricted by the Act. You must find out where your information ends up (physically and virtually) and what data privacy laws apply in that location.
The Information Regulator appears to accept that the data privacy laws in Europe and the UK are at least equal to the Act, but if data ends up elsewhere, you may have to conclude an agreement with your offshore operator binding it to comply with the data privacy standards prescribed by the Act. Start by mapping the personal information you process and the rest of your compliance obligations will follow.
THE IMPORTANCE OF A WILL Why should I have a will? A will allows you to decide who your beneficiaries and the executor of your estate should be after you have passed away. It will also place you in a position to appoint a guardian of your choice to take care of your children. What happens to your assets if you die without a will? Your estate will be distributed in terms of the law of intestate succession. This may include beneficiaries whom you may not have wished to benefit or may exclude persons whom you would have preferred to benefit. The Master of the High Court will appoint a tutor or curator to take care of, or administer the property of your minor children and their inheritance will go to the Guardians’ Fund. A guardian, who may be different to the person you would have preferred to care for your children, may be appointed by the court for that purpose. Finally, when a person dies intestate, the master appoints an executor of the estate. What are the duties of an executor of a will? The main tasks of the executor or executrix are to: Identify and list all the assets of the deceased; Receive payments that are due to the estate such as interest, dividends, investments and other income (eg: unpaid sala ry, leave pay and other company benefits); Give notice to creditors to prove their claims; Pay funeral bills, outstanding debts, and valid claims against
the estate; File and pay income and estate taxes; Identify who is going to get what and how much, and dis tribute it as per the instructions set out in the will; and Realise assets which require to be realised. Once the will is fully completed, you sign and date it in the presence of two witnesses in order for it to be valid. Both witnesses must be of the age of 14 or above and be competent to give evidence in a court of law. A person must be of sound mind as a test of his/her ability to give evidence in court. A beneficiary in a will must not be involved in the drawing up or attesting to a will as witnesses. A person who attests and signs a will as a witness or is involved in the drafting of a will is disqualified from benefiting under the will. What documents are needed when drawing up a will? You need the following documents to draw up a will: The name and identification details of the executor of your estate; The name and ID number of your spouse and how you are married (in community of property, out of community of property, etc.); Copy of a marriage certificate. Did you divorce recently? If so, a copy of the decree of divorce and settlement agree ment will be required; The full names and ID numbers of all your children, in cluding adopted and stepchildren, you wish to benefit from
your will; The names and ID numbers of any grandchildren you would like included; The name and contact details of a guardian in case you have minor children; Details of the assets you wish to be donated to institutions such as a church, hospice, orphanage; Details of any other party or institution you wish to ben efit; Copies of title deeds in respect of immovable properties in South Africa or mortgage bonds thereof; Copies of insurance policies, such as endowment poli cies, life policies, credit life policies etc; and An inventory of liabilities. Who can draw up a will? It is important to have a person with the necessary knowledge and expertise to draw up your will. A law firm, your bank, or a trust company can help you in drawing up a will. The will must be clear, concise, represent the true intentions of the testator and meet certain legal requirements for it to be valid. Wills drafted by those with little or no experience usually lead to problems. Remember: Every year, for one week, usually during September, attorneys draft free basic wills for members of the public. (Source: https://www.fsb.co.za/Departments/ consumerEducation/Documents/Wills.pdf)
