popi act and eia
TRANSCRIPT
THE POPI ACT AND EIA
Adv. Peter Kantor
Chai r , ELA
kantorcc@iaf r ica.com
Balancing Constitutional Rights –Privacy v Public Participation
POPI Preamble
RECOGNISING THAT-
• section 14 of the Constitution of the Republic of South Africa, 1996, provides that
everyone has the right to privacy;
• the right to privacy includes a right to protection against the unlawful collection,
retention, dissemination and use of personal information;
• the State must respect, protect, promote and fulfil the rights in the Bill of Rights;
…
Public participation is one of the fundamental principles of our constitutional democracy. The
Constitution of the Republic of South Africa, 1996 (Constitution) embraces both representative
and participatory democracy.
Firstly, it entrenches the right of citizens to elect (political rights in s19 of the Bill of Rights) their
representatives into government (representative democracy).
It also enshrines many other human rights in the Bill of Rights and imposes state obligations to
facilitate participatory democracy. These include:
- right of access to information (s32);
- the right to just administrative action (s33)
- the right to equality (s9);
- right to have their dignity respected and protected (s10);
- the right to freedom of belief and opinion (s15);
- right to freedom of expression (s16);
- right to assembly, demonstration, picket and petition (s17);
- the right to education (s29);
- the right to citizenship (s20).
POPI preamble continues …
◦ AND BEARING IN MIND THAT-
◦ • consonant with the constitutional values of democracy and openness, the need
for economic and social progress, within the framework of the information society,
requires the removal of unnecessary impediments to the free flow of information,
◦ including personal information;
◦ …
NEMA s1 definition
"public participation process", in relation to the assessment of the environmental impact of any application for an environmental authorisation, means a process by which potential interested and affected parties are given opportunity to comment on, or raise issues relevant to, the application;
POPI
Consent, justification and objection
Section 11 (1) Personal information may only be processed if-
◦ (a) the data subject or a competent person where the data subject is a child consents to the processing;
◦ (b) processing is necessary to carry out actions for the conclusion or performance of a contract to
which the data subject is party;
◦ (c) processing complies with an obligation imposed by law on the responsible party;
◦ (f) processing is necessary for pursuing the legitimate interests of the responsible party or of a thirdparty to whom the information is supplied.
POPI s1 definition
◦ 'responsible party' means a public or private body or any other person which,
alone or in conjunction with others, determines the purpose of and means for
processing personal information;
NEMA EIA Regulations, 2014
Regulation 42 A proponent or applicant must ensure the opening and maintenance of a register
of interested and affected parties and submit such a register to the competent authority, which
register must contain the names, contact details and addresses of—
(a) all persons who, as a consequence of the public participation process conducted in respect of
that application, have submitted written comments or attended meetings with the proponent,
applicant or EAP;
(b) all persons who have requested the proponent or applicant, in writing, for their names to be
placed on the register; and
(c) all organs of state which have jurisdiction in respect of the activity to which the application
relates.
Regulation 43 – public rights
43 (1) A registered interested and affected party is entitled to comment, in writing, on all reports or plans
submitted to such party during the public participation process contemplated in these Regulations and to
bring to the attention of the proponent or applicant any issues which that party believes may be of
significance to the consideration of the application,
provided that the interested and affected party discloses any direct business, financial, personal or other
interest which that party may have in the approval or refusal of the application.
EAP duties in public participation
Regulation 41(6) When complying with this regulation, the person conducting the public participation process
must ensure that—
(a) information containing all relevant facts in respect of the application or proposed application is made
available to potential interested and affected parties; and
(b) participation by potential or registered interested and affected parties is facilitated in such a manner that all
potential or registered interested and affected parties are provided with a reasonable opportunity to comment
on the application or proposed application.
NEMA Appeal regulations
4. Appeal submission.-(1) An appellant must submit the appeal to the appeal
administrator, and a copy of the appeal to the applicant, any registered interested and
affected party and any organ of state with interest in the matter within 20 days from- …
5. Responding statement. The applicant, the decisionmaker, interested and affected parties
and organ of state must submit their responding statement, if any, to the appeal authority
and the appellant within 20 days from the date of receipt of the appeal submission.
8. Communication.-(1) A person may deliver documents in terms of these regulations
by using one of the delivery methods referred to in section 47D of the Act.
◦
(2) In order to meet the time periods determined in these regulations, the person
referred to in subregulation (1), must also email, fax or hand deliver the document to the
recipient, if the document is delivered by ordinary mail or registered mail.
47D. Delivery of documents.
(1)
- by hand
- by registered mail
- by fax
- by email
- By ordinary mail
- by publishing it in the Gazette and a local newspaper
DEA 2017
PUBLIC PARTICIPATION GUIDELINE IN TERMS OF NATIONALENVIRONMENTAL MANAGEMENT ACT, 1998 ENVIRONMENTALIMPACT ASSESSMENT REGULATIONS
4.1 Identifying and approaching specific I&AP’s …
The following means of identifying stakeholders should be used when appropriate:
• social profiles or probes provide a comprehensive summary of the key characteristics of the
people of a community or area and can serve as a starting point for identifying stakeholders;
• brainstorming profiles or probes provide a comprehensive summary of the key characteristics of
the people of a community or area and can serve as a starting point for identifying stakeholders;
• established lists and databases, held by consultancies, authorities or research institutions, may
hold additional contact details of residents, non-government organisations, community based
organisations or constituents; and
• network or chain referral systems according to which key stakeholders are asked to assist in
identifying other stakeholders.
POPIA s18 Notification to data subject when collecting personal information(2) The steps referred to in subsection (1) must be taken-
(a) if the personal information is collected directly from the data subject, before the information is
collected, unless the data subject is already aware of the information referred to in that subsection; or
(b) in any other case, before the information is collected or as soon as reasonably practicable after it has
been collected.
(4) It is not necessary for a responsible party to comply with subsection (1) if-
(b) non-compliance would not prejudice the legitimate interests of the data subject as set out in terms of
this Act;
(e) compliance is not reasonably practicable in the circumstances of the particular case;
(1) If personal information is collected, the responsible party must take reasonably
practicable steps to ensure that the data subject is aware of-
(a) the information being collected and where the information is not collected from the data
subject, the source from which it is collected;
(b) the name and address of the responsible party;
(c) the purpose for which the information is being collected;
(d) whether or not the supply of the information by that data subject is voluntary or
mandatory;
(e) the consequences of failure to provide the information;
(f) any particular law authorising or requiring the collection of the information;
(g) the fact that, where applicable, the responsible party intends to transfer the information
to a third country or international organisation and the level of protection afforded to the
information by that third country or
international organisation;
(h) any further information such as the-
(i) recipient or category of recipients of the information;
(ii) nature or category of the information;
(iii) existence of the right of access to and the right to rectify the information collected;
(iv) existence of the right to object to the processing of personal information as referred to in
section 11 (3);
and
(v) right to lodge a complaint to the Information Regulator and the contact details of the
Information Regulator, which is necessary, having regard to the specific circumstances in
which the information is or is not to be processed, to enable processing in respect of the data
subject to be reasonable.
Duties when processing information
4 Lawful processing of personal information
(1) The conditions for the lawful processing of personal information by or for a responsible party are the
following:
(a) 'Accountability', as referred to in section 8;
(b) 'Processing limitation', as referred to in sections 9 to 12;
(c) 'Purpose specification', as referred to in sections 13 and 14;
(d) 'Further processing limitation', as referred to in section 15;
(e) 'Information quality', as referred to in section 16;
(f) 'Openness', as referred to in sections 17 and 18;
(g) 'Security safeguards', as referred to in sections 19 to 22; and
(h) 'Data subject participation', as referred to in sections 23 to 25.
POPI s 20 Information processed by operator or person acting under authority
An operator or anyone processing personal information on behalf of a responsible party or an operator,
must-
(a) process such information only with the knowledge or authorisation of the responsible party; and
(b) treat personal information which comes to their knowledge as confidential and must not disclose it,
unless required by law or in the course of the proper performance of their duties.
'operator' means a person who processes personal information for a responsible party in terms of a
contract or mandate, without coming under the direct authority of that party;
www.elasa.co.za
enviro.association.sa@g
mail.com