Finally! Protection of personal information. Not yet…

On 19 November 2013 the Protection of Personal Information Act 4 of 2013 (PoPIA) was assented to by the President. The date of commencement however remains a mystery, as a date is yet to be proclaimed via Government Gazette. This article will however attempt to shed some light on the purpose, application and interpretation of the PoPIA.

The purpose of the PoPIA is to give effect to the constitutional right to privacy contained in section 14 of the Constitution of the Republic of South Africa, 1996 (Constitution). This includes the right not to have your person or home searched, your property searched, your possessions seized or the privacy of your communications infringed. The PoPIA further attempts to safeguard personal information when processed by a responsible party, to regulate the manner in which personal information may be processed, to provide persons with rights and remedies to protect their personal information from being processed in a manner other than in accordance with the PoPIA and to establish voluntary and compulsory measures by way of an Information Regulator.

These rights are however not limitless and can be limited to the extent that they are aimed at balancing the right to privacy against other rights, particularly the right of access to information and protecting important interests, including the free flow of information within the Republic and across international borders. PoPIA therefore introduces, in addition to the limiting factors set out in section 36 of the Constitution, two additional factors that will now need to be taken into account when the right to protection of personal information is to be limited.

The PoPIA makes mention of the following terms, which need to be understood in context and have accordingly been defined in section 1 of the PoPIA as follows:

’Personal information’” is information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to information relating to race, education, any identifying number, biometric information, personal opinions, correspondence that is implicitly or explicitly of a private or confidential nature, views or opinions of another individual about a person and the name of the person if it appears with other personal information relating to the person etc.”

‘“Processing’” is any operation or activity or any set of operations, whether or not by automatic means, concerning personal information including inter alia: the collection, receipt, recording, organisation, collation storage, updating or modification, retrieval, alteration, consultation or use; dissemination by means of transmission, distribution or making available in any other form; or merging, linking, as well as restricting, degrading, erasing or destruction of information”

’Responsible party’” is 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.”

The definitions of the above terms are so wide that it appears to apply to any person who processes personal information. This is however not the case as section 3 provides clarity on the ambit of the PoPIA. In context and purpose, the PoPIA applies to a responsible party having entered personal information into a record by making use of automated or non-automated means, provided that if the recorded information was processed in a non-automated manner it forms part of a filing system or is intended to form part of such system. This is only in instances where the responsible party is domiciled within the Republic, or makes use of automated or non-automated means in the Republic, unless those means are used only to forward personal information through the Republic.

It should be noted that section 6 of the PoPIA specifically excludes instances where personal information has been processed in the course of purely household or personal activity; that the information has been de-identified to such an extent that it cannot be re-identified again; if such information is processed by or on behalf of a public body which involves national security; the Cabinet and its committees or the Executive Council of a province; the judicial function of a court. In addition it should be noted that should a responsible party process personal information solely for journalistic purposes the PoPIA will not apply, subject to the code of conduct set out in Chapter 7 of the Act.

We have now addressed the ambit of the act and will soon delve deeper into whether the PoPIA makes provision for responsible parties concluding non-disclosure agreements for the processing of personal information between one another.

by Albert Arnold
albert@dyason.co.za

Fixed term contracts: The expectation of permanent employment

In this article the balancing of scales between a newly hired employee in terms of a fixed term contract and his/her legitimate expectation of permanent employment will be discussed. This will equally apply to probationary employees and the employer’s right to first evaluate the employee’s work performance prior to determining whether such employee is worthy of permanent employment. All of the aforesaid factors have legal consequences and should be carefully observed.

Guidelines regulating the issue of probation are found in the Code of Good Practice contained in Schedule 8 to the Labor Relations Act (LRA) 66 of 1995, which states that a newly hired employee may be placed on probation for a period that is reasonable given the circumstances of the job. The period should be determined by the nature of the job, and the time it takes to determine the employee’s suitability for continued employment. It can therefore be deduced that the legislator had no intention of prescribing the duration of probation, or probation at all, and left it in the discretion of the employer

The Code further states that, when appropriate, an employer should give an employee whatever evaluation, instruction, training, guidance or counselling the employee requires to render satisfactory service. Dismissal during the probationary period should be preceded by an opportunity for the employee to state a case in response and to be assisted by a trade union representative or fellow employee. The employer should therefore monitor the probationer’s performance from the start and any imperfection in performance must be addressed by giving the employee the necessary evaluation, counselling, instruction, training and guidance in order to assist him/her to achieve the required work performance standard. In addition the employee should be given the opportunity to explain the cause of non-performance and how this specific situation can be rectified. These are absolute requirements.

During a fixed term contract, the employee might be influenced by either objective or subjective circumstances where a reasonable expectation of permanent employment was created. Should an employer under these circumstances fail to renew a fixed term contract of employment on the same or similar terms, on less favorable terms, or not renew it at all, then the LRA will regard such conduct as a dismissal. The Labor Court held that the reason for this provision is to prevent the unfair practice by employers of keeping an employee on a temporary basis, without employment security until such time as the employer decides to dismiss the employee without complying with the obligations impost by the Act in respect of permanent employees.

It is generally believed that after a fixed term contract of employment is rolled over or renewed, the employee may develop a right to expect that the employer will continue to renew the contract. However, section 186(1)(b) of the LRA makes the expectation of permanent employment problematic for fixed term employees. This section states that:

“An employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offer to renew it on less favorable terms, or did not renew it.”

This section therefore contemplated claims for renewal of a fixed term contract and not claims for permanent employment as such.

In the matter of University of Pretoria vs Commission for Conciliation, Mediation and Arbitration & Others (JA 38/2010) [2011] ZALAC 25; [2012] 2 BLLR 164 (LAC); (2012) 33 ILJ 183 (LAC) (4 November 2011), the Applicant was employed by the university on a number of fixed term contracts for three years. During this period the employee applied for one of several permanent positions that the university needed to fill but she was unsuccessful in her application. Instead she was offered another fixed term contract of employment but failed to accept the contract and referred the matter to the CCMA as an unfair dismissal in terms of section 186(1)(b) of the LRA. She also claimed that she expected to be appointed permanently. The university argued that no dismissal took place in terms of section 186(1)(b) of the LRA. The Commissioner disagreed and held that the employee had discharged the onus of proving that she had reasonable expectation of permanent employment. The university took the matter on review but was unsuccessful and then took the matter on appeal. The issue to be decided by the Labor Appeal Court was whether section 186(1)(b) could be understood to include a right of expectation of permanent employment. The court noted that specific reference was made to fixed term contracts only. According to the court the legislator opted to specifically limit this right of expectation to fixed term contracts and that the expectation of permanent employment cannot be dealt with under the current section 186(1)(b) unless the LRA is amended. The appeal of the university was upheld. Since this matter, the 2012 Relations Amendment Bill was published and the new section 198B of the amended Act now indeed makes provision for the right of reasonable expectation of indefinite employment.

The practical implication is that employees appointed on fixed terms contracts will be able to claim that they reasonably expected to be appointed indefinitely as a result of the behaviour of the employer. However, it appears that this expectation is qualified by the new section 198B of the LRA, as amended by Act 6 of 2014, in that, in order to claim expectation of permanent employment, the employee has to prove that he/she earns below the monetary threshold determined by the Minister from time to time (currently R205 433.00 per annum) and that he/she was on a fixed term (or probationary) contract for longer than three months, in which event it will be deemed to be a permanent employment.  Should the employer then fail to appoint the employee permanently, this conduct may constitute a dismissal, unless the employer can demonstrate a justifiable reason to keep the employee on a fixed term contract, in writing, or the nature of the job requires it.

However, these provisions does not apply to small businesses which employs less than 10 employees or an employer employing less than 50 employees but who’s business has been in operation for less than two years – unless the employer conducts more than one business or the business was formed by the division or dissolution of an existing business.

It is thus important for employers to be wary of successively renewing or extending fixed term employment contracts without a justifiable reason to do so. Equally important is for the fixed term employee to understand that there are certain requirements to comply with before alleging that he/she perceived an expectation of permanent employment.

by Francois van Zyl
francois@dyason.co.za

Emergency medical treatment: when waiting becomes unreasonable

No one may be refused emergency medical treatment.” This guarantee is contained in section 27(3) of the Bill of Rights (Chapter 2) of the Constitution of the Republic of South Africa, 1996.

But anyone who ever visited the emergency room of any hospital on a Saturday afternoon can testify that the wait for this guaranteed emergency treatment can be quite long. The reasonability of the length of time spent before such a wait deprives a patient of his or her imbedded constitutional right was a decisive factor in the judgement of Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape [2015] ZACC 33 handed down in the Constitutional Court on 14 October 2015.

Oppelt sustained spinal cord injuries at 14:15 on a Saturday afternoon when his head struck the shoulder of an opponent, after a scrum collapsed, during a club rugby game. He was rushed to the nearest hospital and admitted to Wesfleur Hospital at 15:15, an hour after the accident. More than three hours after the accident Oppelt were transported via ambulance to Groote Schuur Hospital, after telephonic advice was obtained from a neurosurgical registrar, who also advised that Oppelt rather be airlifted to Groote Schuur Hospital, a mere twelve minutes away from Wesfleur Hospital, if transported via helicopter. However, no helicopters were apparently available at the time and Oppelt arrived at Groote Schuur Hospital at 17:40 and was only examined at 18:00, 4 hours after the accident. Oppelt was yet again transported to Conradie Hospital, a unit specialising in spinal cord injuries, via ambulance, where he received a closed reduction procedure at about 03:50, more than 13 hours after the accident. Oppelt was ultimately medically qualified as a quadriplegic.

The mentioned time frames are important due to the fact that Oppelt’s argument for claiming damages, resulting from the Health Department’s failure, through its hospitals, to provide Oppelt with emergency medical treatment, is primarily based on a theory by Dr Newton, an orthopaedic surgeon who was in charge of the Conradie Spinal Cord Injuries Unit from 1988-2002, that if low velocity spinal cord injuries, such as the injuries sustained by Oppelt, where the spinal cord is not transected or severed, are treated within 4 hours, the patient has a substantially better prospect of not suffering permanent damage, or suffer damage to a much lesser degree. During low velocity injuries the primary injury is caused by trauma to the neck resulting in a dislocation, while the secondary injury called “ischemia”, or oxygen deprivation of the cells, resulting from an interference with blood flow as a result of the dislocation, is actually the injury that ultimately causes paralysis. Relief of the primary injury, the dislocation, by means of inexpensive, non-invasive skin traction that can be set up fairly quickly, within 4 hours from suffering such a dislocation, Dr Newton theorised that neurological recovery could be drastically improved. Dr Newton concluded that had a closed reduction procedure been performed on Mr Oppelt within 4 hours of his injury, he would probably not have become a quadriplegic. Dr Newton’s opinion was motivated with reference to two of his own research papers in this respect, the latest one only being published after finalisation of the trial.

In the majority judgement Molemela AJ found the delay by Wesfleur Hospital that did not even had an x-ray machine, to refer Oppel to a facility that could have properly treated him unreasonable. Molemela also held that no reason was advance why Oppelt was never referred to Conradie Hospital’s speciality spinal cord injury directly and heavily criticised the rigid following of protocol by hospital staff by first referring the patient to Groote Schuur Hospital and thereafter to Conradie Hospital.

He said that

Although protocols are vital for the proper functioning of a health care system, reliance on rigid protocols cannot be allowed to trump section 27(3) of the Constitution.”

and further held that

The respondent (Health Department) constructively refused to provide the necessary emergency medical treatment and breached its legal duty to provide the applicant with medical treatment promptly within the required 4 hours and thus acted unlawfully.”

In respect of negligence the majority of the court found that where Dr Newton’s four-hours theory was well known in the medical community, that it was also well known that Conradie Hospital was best equipped to deal with spinal cord injuries, that a deviation from the referral protocol in Oppelt’s circumstances should have been allowed and reasonable steps to avoid the onset of permanent neurological damage to Oppelt’s spinal cord were not taken, and that emergency treatment was negligently frustrated, resulting in Oppelt’s permanent paralysis.

However, in a minority judgement Cameron J refused to find the hospital staff negligent by accepting that they did not take every reasonable step to avoid further harm befalling Oppelt and unpacked his opinion as follows.

Oppelt was never “refused” emergency treatment as provided for in the Constitution.

Mr Oppelt was assessed, stabilised and catheterised. He was given oxygen and a high dose of steroids. The system received him and treated him with due care. It afforded him the standard of treatment the circumstances demanded of reasonable hospital personnel and delivered him to Conradie.”

Although the majority judgement did indicate that Wesfleur Hospital did not have an x-ray machine, it did not go further to state that an x-ray was also a requirement for admission at Conradie Hospital.

Cameron J further said that the majority judgement placed insufficient weight on the circumstances in which doctors and medical personnel worked on the critical day. In another Constitutional matter of Soobramoney v Minister of Health, KwaZulu-Natal [1997] ZACC 17; 1998 (1) SA 765 (CC); 1997 (12) BCLR 1696 (CC) the court made it clear that the constitutional obligations that section 27 places on the state is dependent on the availability of resources and that a lack of resources may limit the rights this provision confers. Abundant evidence were provided that Groote Schuur Hospital’s trauma unit was burdened with acute trauma cases ranging from multiple motor vehicle accidents, gunshot wounds, stabbings, assaults and resuscitations. It must be borne in mind that it is under “this near-hellish” situation that the reasonability of the steps taken by hospital staff must be judged. Accordingly it was impossible for Cameron J to find that Oppelt was refused emergency treatment or inappropriately treated in light of this desperate situation of resource scarcity and pressure medical personnel had to work in and confirmed the statement of the court in Mitchell v Dixon 1914 AD 519:

“A medical practitioner is not expected to bring to bear upon the case entrusted to him the highest possible degree of professional skill, but is bound to employ reasonable skill and care…”

Cameron J also highlighted that, on Dr Newton’s own testimony, there was no consensus in the medical scientific literature concerning the relationship between the success of spinal decompression following an acute spinal injury and the time when such decompression is applied, and that his theory in this regard was “brand new”. No other evidence existed to indicate that Dr Newton’s theory was well known or practiced widely. Accordingly the majority judgement in this regard was based on one contested expert opinion, which theory was only publish after the trial.

Lastly Dr Newton also testified that the referral protocol did not need to be followed in emergencies. The referring doctor at Wesfleur Hospital first consulted with a specialist at Groote Schuur before referring the patient, thus only after satisfying himself that Oppelt would receive the best treatment available there. Protocol was accordingly not followed blindly. Cameron J then summed up the situation from his view:

Were they wrong? Yes. Tragically so. Had they struck out the Groote Schuur option, and sent Oppelt straight to Conradie, he would, on Dr Newton’s theory, probably not be paralysed today. But were they negligently wrong? No. Culpability depends on what they knew or should have known at the time. As shown, Dr Rothmeyer had no notion whatsoever of Dr Newton’s four-hour theory. That is why. In Mr Oppelt’s best interests, she had him brought to Groote Schuur.”

They say that in hind sight everyone has 20/20 vision. Not having any insight into the exact circumstances in which life changing decisions must be made in limited time under pressure, Cameron J found that

“…it would be unjust to impose an after-the-fact wisdom on the doctor’s best professional judgement at the time. The medical personnel’s course of conduct was, at the time, and given their means of knowledge, reasonable.”

Both judgements leave much to be debated and conjures up more questions than answers, but must one be alive to the fact that we often don’t see the world as it is, but as we are, and must we then ask the question, which reality is the truer…

by Marietjie Botes
marietjie@dyason.co.za