We are currently living in a time where human activity has a dominant influence on the environment and climate change.^[1] Recorded environmental injustices started in the 1960’s when toxic waste was dumped in poor and mostly African-American communities in America.^[2] Studies were made about these injustices and it came about that there was a link between race, poverty and environmental risk. The reason for this link could be argued that during this period the environmental concerns were more related to the ‘wilderness’ instead of poor and vulnerable communities affected by the money-hunger countries of the North.^[3] Studies proved that poor and black communities were and still are exposed to more vulnerability than richer and whiter communities.^[4]

A homeless person is more vulnerable to rain than a person inside a house when it rains. In the same way, poor countries are more vulnerable to climate change than wealthy communities.^[5]

Climate change has a direct and indirect impact on vulnerable communities.^[6] Climate change impacts the ecosystem which results in declining agricultural activity, water shortages and rising conflicts over land.^[7]

An occurring and recurring problem with climate change is that personal wealth is seen as more important as the well-being of humans. For example, the abuse of energy by big governmental companies and the government’s chosen ignorance towards detrimental impacts it holds for the community and the people who live in it.^[8]

An important relationship should be established and recognised especially between ‘cultural practices, sovereignty rights, and lives immersed in diverse and threatened ecosystems… [that is] at the heart of indigenous environmental justice.’^[9]

Climate justice means preventing serious consequences of climate change in a fair and equitable way. Climate justice is the inclusion, fair treatment and involvement of all people regardless of race, income and origin when implementing climate policy. To achieve climate justice urgent solutions need to be evaluated.

A new social community where climate justice includes the inequitable distribution of environmental risks and governmental protection should be created.^[10] We should insist on an economy that is based on a clean source of energy that does not come from fossil fuels. Lastly, we need to insist on renewable energy that respects the sovereignty of indigenous people and nature. Environmental law is important as it is linked to humans’ survival on Earth. Earth’s resources are limited and we need to institutionalise it and have respect for it.^[11]

The world has a ‘duty of assistance’ and a ‘duty of humanitarianism’.^[12] The sooner we accept that we have common ownership of the earth and move away from selfish individual-country gain the better the lives of all people around the world will be – especially considering the irony that the people who leave the smallest carbon footprint are the worst affected by climate change.^[13]

^[1] LJ Kotze ‘Rethinking Global Environmental Law and Governance in the Anthropocene’ (2014) Journal of Energy & Natural Resources Law, 32:2, 121, 121.

^[2] D Schlosberg and LB Collins ‘From environmental to climate justice: climate change and the discourse of environmental justice’ 2014 John Wiley & Sons Ltd.

^[3] Schlosberg and Collins (note 1 above).

^[4] Schlosberg and Collins (note 1 above).

^[5] CanadianYCC ‘Intro to Climate Justice’ 23 September 2011 https://www.youtube.com/watch?v=5PQKYt6H4Fw (Accessed 6 September 2017).

^[6] Schlosberg and Collins (note 1 above).

^[7] Specifically referring to Donald Trumps’ decision to possible withdrawal from the Paris Agreement.

^[8] Schlosberg and Collins (note 1 above).

^[9] Schlosberg and Collins (note 1 above).

^[10] Schlosberg and Collins (note 1 above).

^[11] Michael Kidd Environmental Law (2nd ed) 2011, 14.

^[12] (See note 9 above), p222.

^[13] (See note 9 above), p222.

Protection of Personal Information Act (“POPI”)

South Africans across all industries have been holding their breath since the Protection of Personal Information Act (“POPI”) was published on 26 November 2013. Businesses in South Africa are facing the imminence of POPI that will come into effect in its entirety on a date that is still to be determined.POPI’s objectives are to regulate the processing of personal information and data protection in an effort to align South African data protection laws with international standards.

In the meantime, other data protection legislation came to the party and although it is not South African law, South African businesses dealing with the European Union (“EU”) will have to comply as well.

EU – GENERAL DATA PROTECTION REGULATIONS (“GDPR”) WILL AFFECT SA BUSINESSES

The EU GDPR is a new privacy and data protection law which was adopted in Europe in April 2016. The GDPR became effective on 25 May 2017, with a one year grace period for companies to bring their privacy regulations in line with the regulations of the GPDR. It will be enforceable from 25 May 2018.

It is important for companies conducting business in the European Union (“EU”) to understand exactly how they will be affected. Any company processing the personal data of EU residents in connection with offering goods or services, or that monitors the behaviour of those residents, will have to comply with GDPR.

The key requirements of the GDPR can be simplified and summarised as follows: Companies have a responsibility to process personal data lawfully, fairly and in a transparent manner, as well as ensure that the personal data kept is accurate and up to date. The data may only be retained as long as it is necessary for a company to achieve the purpose for which the personal data was collected.

The GDPR aims to safeguard against any privacy and data breaches in a new global environment where business has become intertwined with technology and where most of the data is electronically transmitted.

GDPR SOUNDS A LOT LIKE POPI, SO WHY SHOULD WE BE CONCERNED?

The main concern is that South African companies conducting business with European companies will be seen as high risk from a personal information protection perspective, if compliance with GDPR is lacking.

The GDPR forces businesses to adopt a risk based approach in which personal information is processed and sets out severe consequences for non-compliance.

THE GDPR POPI DEBATE – SAME PRODUCT DIFFERENT FLAVOURS?

Similarities

The conditions and principles are the same in many ways, save for the definitions and naming conventions. Both necessitate compliance with processing of personal data, the Regulator to be notified of a privacy breach and regulates which data can be sent cross-border.

In essence, if your company complies with GDPR, it will comply with POPI.

Differences

Some of the significant differences are the security regulations, for example:

GDPR: “The controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security and appropriate to risks represented by the processing and the nature of the personal data to be protected.”

POPI: “A responsible party must secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate, reasonable technical and organisational measures.”

The most significant difference is the penalty for a breach under the GDPR, which can be a fine up to four percent of annual global turnover or €20 million, whichever is greater. These penalties have a potentially debilitating consequence for South African companies.

FAILING TO PREPARE IS PREPARING TO FAIL

In order to ensure that your business is GDPR and POPI compliant, a comprehensive due diligence of the business and the manner in which personal data is processed, should be conducted. This will ensure that appropriate retention policies and security measures can be put in place in order to safeguard unauthorised access, loss, damage, modification and destruction of data.

Our office can assist your business with the necessary policies and compliance with GDPR and POPI.

Life is complicated enough – compliance does not need to be.

The meaning of prescription

In terms of the Prescription Act^[1] (hereinafter referred to as “the Act”) prescription is described as the period of time available in order to pay off a debt (i.e. the obligation to pay money). As soon as the period lapses, the debt is considered to be extinguished.^[2]

It is important to note that the person responsible for paying the debt is referred to as the Debtor and the person receiving payment of the debt is referred to as the Creditor.

Prescription period starting date

Section 11 of the Act^[3] states that the prescription period available for contractual debts (referred to as “normal debts”) prescribes three years from the date when the debt becomes due. This date is usually stated in the contract as the obligation to make payment.

The Supreme Court of Appeal (SCA) in Apalamah v Santam Insurance Co^[4] also confirmed that a debt is only due when it can be recovered by the Creditor. A debt becomes recoverable once the Debtor has an obligation to perform immediately. This date is usually stated in the contract as the obligation to make payment or the date when payment is due.

Therefore, prescription starts from the date when payment is to be made and runs for a consecutive period of 3 years thereafter.

Instances where a prescription period may be delayed

The prescription period may be delayed in circumstances where the facts of the matter inhibit a Creditor from instituting an action against the Debtor. The Act lists these impeding facts as follows^[5]:

1. The Creditor is a minor / was a minor or declared insane by an order of court;
2. There is a court order declaring that the Creditor is mentally unfit;
3. The Creditor is a person under curatorship;
4. The Creditor is prevented by superior force including any law or any order of court from judicial interruption of prescription;
5. The Debtor leaves South Africa for a period of time;
6. The Creditor is married to the Debtor;
7. The Creditor is in a partnership with the Debtor and the debt arose as a result of the partnership;
8. The debt is a dispute in an arbitration;
9. The Creditor is a juristic person (company, co-operative or close corporation) and the Creditor is a member of the governing body of such a juristic person; or
10. The executor of a deceased estate has not yet been appointed.

The impediment causing the delay must have taken place within 1 year pending the date of prescription. The prescription will thus be delayed and the 1 year will be added on to the prescription period.^[6] Consider the following example: A contract stipulates that the debt is payable (becomes due) on the 20^th of January 2015. Ordinarily, prescription will start from the stipulated date of payment and prescribe 3 years later, on the 20^th of January 2018. On the 20^th of January 2016 the debtor leaves South Africa on a business trip for 12 months and returns on the 20^th of July 2017. The return date of the Debtor will be within the 1 year period before the normal prescription period will prescribe. Therefore, 1 year is added from the date on which the delay occurred, making the new prescription date the 20^th of July 2018.^[7]

Instances when the prescription period may be interrupted

Prescription may be interrupted either by acknowledgment by the Debtor^[8] or by judicial interruption.^[9]

For purposes of determining interruption by acknowledgment, the bench in Petzer v Radford (Pty) Ltd^[10] stated that “acknowledgment must amount to an admission [by the Debtor] that the debt is in existence and that he is liable. Furthermore, the admission must cover every element of debt and should exclude any defence as to its existence”.

Should an interruption occur as a result of acknowledgment by the Debtor, the Prescription will start afresh either from the day of interruption, the date on which the debt becomes due again or any date agreed upon by the parties as a result of postponement of the date payable.^[11]

Conclusion

Prescription is available to Debtors as a preventative remedy as it prevents Creditors from instituting old claims and  provides certainty to Debtors as to whether a debt is still owing or not. A prescription period is not always easily determinable and every factor relating to the contract should be considered. Therefore, a Debtor wishing to rely on prescription as a defence should always consult with a legal practitioner.^[12]

^[1] Act 68 of 1969

^[2] Section 10 of the Prescription Act 68 of 1969; see also “Prescription” available at www.legalwise.co.za (01/06/2017)

^[3] Act 68 of 1969

^[4] 1975 (2) SA 229 (D)

^[5] Section 13 of Act 68 of 1969

^[6] Anye Jansen van Rensburg “Prescription of debt” available at www.schoemanlaw.co.za (30/01/2018)

^[7] Prescription available at www.legalwise.co.za (01/06/2017)

^[8] Section 14 of Act 68 of 1969

^[9] Section 15 of Act 68 of 1969

^[10] 1953 (4) SA 314 (N) at 317

^[11] JH Eugenè Joubert “The story of the dead Springbok OR Prescription – the next chapter in the NCA debt saga” available at www.rebels.co.za (31/01/2018).

^[12] Anye Jansen van Rensburg “Prescription of debt” available at www.schoemanlaw.co.za (30/01/2018).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.