Legal Updates

Legal Updates


We have gathered below a repository of useful information that may assist you in your business.  These documents are for information purposes only and cannot be construed as legal advice from PPM Attorneys or any of its professionals.

Whilst we make an effort to upload relevant and updated documents, we cannot guarantee that these documents are free from inaccuracies and errors.

Feel free to contact us for good, clear, precise advice. 

* Whilst we make an effort to upload relevant and updated documents, we cannot guarantee that these documents are free from inaccuracies and errors.

Privacy Law and POPIA

The year 2023 has been an interesting one regarding legal developments in our law. We have compiled a white paper outlining some of the key legal and regulatory developments that occurred in the past year. Read on for a quick yet comprehensive look at the past year’s milestones and a glimpse into what’s coming in 2024.

The South African Police Services, on Friday 6 October 2023, published the Standard Operating Procedures (“SOP”) under Section 26 of the Cybercrimes Act 19 of 2020.  They set out the procedures to be followed by the South African Police Service and other enforcement agencies in conducting investigations, searches, accesses or seizures of cyber articles.  The SOP aims to ensure that the process of obtaining evidence from cyber articles for the purpose of investigating criminal offences aligns with South African legislation, such as the Protection of Personal Information Act 4 of 2013 (“POPIA”).  For example, in cases where the responsible party, being either SAPS or the Directorate for Priority Crime Investigation, uses a third party or service provider to assist in the search, access and seizure of a cyber article, such party would be regarded as an Operator, and must comply with the provisions of POPIA.

The Minister of Finance has issued a notice in terms of the Financial Intelligence Centre Act 38 of 2001.  The notice invites submissions on the draft amendments to the Money Laundering and Terrorist Financing Control Regulations (“Draft Regulations”).  The Draft Regulations seeks to protect personal information when it is shared between accountable institutionsFor example, the Draft Regulations requires accountable institutions to have reasonable measures in place to secure the integrity of the personal information in their possessionThe Draft Regulations also require that a written agreement must be entered into prior to sharing a client’s personal information.  Lastly, the Draft Regulations sets out the procedure to be followed if personal information is accessed by an unauthorised person.   

The Information Regulator has issued an Enforcement Notice against Dis-chem Pharmacies following a security compromise and data breach suffered by Dis-chem Pharmacies’ third party service provider, Grapevine. As a result, the Information Regulator found Dis-chem Pharmacies to have contravened, inter alia, section 22 of POPIA which requires a Responsible Party to notify Data Subjects of any security compromises or data breaches.

The Information Regulator found that Dis-chem Pharmacies failed to identify the risk of using weak passwords, failed to adopt adequate measures to monitor or detect unlawful access to their environment, and failed to enter into operator agreements that would ensure that Dis-chem’s third party service providers have adequate security measures in place to secure the personal information of Dis-Chem’s data subjects.

Accordingly, the Information Regulator has ordered Dis-chem Pharmacies to provide it with a report of the implementation of the actions it has called for in the Enforcement Notice.  The failure to abide by the Enforcement Notice means that Dis-chem will be found guilty of an offence, on which the Information Regulator may impose an administrative fine of an amount not exceeding R10 million or be liable upon conviction to imprisonment or both.

Infrastructure and Telecommunications

ICASA has called for the submission of the Annual Forecast of Licence Fees and Universal Service and Access Fund Contributions for 2024/2025.  The call is incumbent on all Broadcasting, Electronic Communications Services (ECS), and Electronic Communications Network Services (ECNS) Licensees whose financial year ends between October 2023 to March 2024. The Licensees must submit on or before 30 April 2024. 

The Independent Communications Authority of South Africa (“ICASA”) has issued a notice on illegal provision of, or access to satellite internet services and possession, distribution or use of satellite broadband terminals and equipment in South Africa (“Notice”). ICASA has taken notice of the recent developments on the alleged provision of satellite internet services through Starlink terminals in South Africa, and of some entities distributing Starlink products in South Africa from within the country and from the neighbouring countries. ICASA has indicated that Starlink does not possess any licence issued by ICASA to provide electronic communications, electronic communications network or broadcasting services in South Africa.

As a response to these developments, the Notice sets out the licensing requirements for satellite internet services, specifically the criteria for both Individual and Class Electronic Communications Services and Electronic Network Service Licences.

The Independent Communications Authority of South Africa (“ICASA“) invites interested parties to make written representations on the Draft Amendment to the National and Provincial Party Elections Broadcasts and Political Advertisements Regulations, 2014 (“Regulations“) by no later than 17 November 2023.  The purpose of the Regulations is to regulate the broadcasting of party election broadcasts on broadcasting services. The Regulations also seek to determine and prescribe the framework and guidelines under which party election broadcasts and political advertisements will be conducted and carried by various broadcasting service licensees during the elections.

Media and OTT

The Johannesburg High Court ruled in favour of EFF’s Dr Mbuyiseni Ndlozi (“Dr Ndlozi”) against Media24.  The case pertained to the Daily Sun’s publication of rape allegations against Dr Mbuyiseni Ndlozi during the very early stages of police investigations.  In reaching its ruling, the court considered the issue of public interest.  In its examination of public interest, the court weighed the public benefit of reporting gender based violence on the purports of freedom of speech, and media freedom, against protecting the confidentiality and integrity of police investigations especially at their very early stage, as well as the dignity and integrity of the complainant.  The court found that a rape complainant’s interest in confidentiality will generally weigh against reporting the fact of the complaint and the identity of the suspect prematurely.  Accordingly, the court found that the respondents failed to demonstrate that statements made were published for public benefit, and the publication thereof was defamatory and unlawful.
The Film and Publication Board (FPB) has published the Draft Regulatory Instruments of the Film and Publications Board.  These include the draft industry code on Prevention of online harm, draft guidelines dealing with peer-to-peer video sharing and draft guidelines to determine whether content is harmful.  The regulatory instruments are published pursuant to the FPB’s mandate to regulate the creation, production, possession, and distribution of films, games, certain publications and the internet by way of classification of content.  Interested persons who wish to comment on any or all of the draft regulatory instruments may submit written representations with 15 working days of the publication of the Notice.

The Gauteng High Court dismissed an urgent application to “gag” a media house and its newspapers from using the term “Alex Mafia”.  The applicants had applied for an urgent interim interdict to restrain the media house and its journalists from referring to them as the “Alex Mafia”.

The Film and Publication Board has published a notice issued in terms of section 24C and 27A of the Films and Publications Act. The amendments relates to the obligations of internet access and service providers to provide a safer platform for children when accessing their services. The amendments also seek to curb the distribution of child pornography. The amendments further provides for a complaints mechanism where service providers can report to the FPB if their service is being used to host prohibited content.

Commercial Law

The Competition Commission has launched the Media and Digital Platforms Market Inquiry, in terms of section 43B(1)(a) of the Competition Act 89 of 1998, to scrutinize media content distribution on South African digital platforms and advertising technology markets.  It has also published a Statement of Issues.  Interested parties and market participants are encouraged to comment on the operation of markets for the online distribution of media content and online digital advertising in South Africa.  Some of these issues include trends, adoption and use of digital platforms to aggregate and display news content online, and the importance of digital revenue sources for news media organisations; whether market features distort competition for advertising revenue, consumer data and subscription fees; and whether there is an imbalance of bargaining power between news media and digital platforms that affect the news media industry.  The inquiry will seek to evaluate these issues.

The Competition Commission is set to conduct a market inquiry into the distribution of media content on digital platforms , including search, social media and news aggregation platforms.  This inquiry is initiated because the Commission believes that there exists market features in digital platforms that distribute news media content which impede, distort or restrict competition, or undermine the purposes of the Competition Act.  This has material implications for the news media sector in South Africa.  The final terms of reference for the inquiry are now published after comments and submissions from industry stakeholders were considered.

The Minister of Trade, Industry and Competition has published an explanatory note on the Companies First and Second Amendment Bills, 2023. The first relates to ease of doing business, disclosure of senior remuneration and disclosure of ultimate share ownership. The second addresses extending time periods within which applications may be brought, to declare a director delinquent and using the courts to extend the period within which directors may be held liable

The Competition Commission has published the Final Report and Decision on the Online Intermediation Platforms Market Inquiry.  The Report is a result of the Online Platforms Market Inquiry which was initiated by the Commission on 19 May 2021 because the Commission has reason to believe that there are market features of online intermediation platforms that may impede, distort or restrict competition.  The report dives into ecommerce and online platforms in operating South Africa, such online travel agencies, food delivery, and online app stores. The inquiry engaged on remedial actions to address the identified harms to provide comprehensive and practical solutions. The report sets out the primary findings and remedial actions in respect of each platform category. 

Admin and Procurement Law