Abstract
The promulgation of the Protection of the Personal Information Act 2013 has led to numerous topical discussions on issues pertaining to privacy laws when weighed against the right to access to information in South Africa. As with any other democratic country guided by its constitution and the rule of law, the right to privacy and the right to access of information are enshrined in South Africa’s Constitution. At face value, both these rights appear to be in conflict, thus rendering the notion of these laws co-existing in the same regulatory framework seem impossible.
Accordingly, everyone has the right to the protection of their personal information shared with public or private bodies against third parties. Conversely, everyone also has the right to information. Section 26 of the Companies Act allows the public to have access to the security registers of a company’s directors and/or its members. These legislative provisions have caused much confusion and uncertainty pertaining to the matter of conflicting rights concerning the protection of personal information and access to information.
Some of the legal questions to be answered and resolved by the South African law and /or policy makers in respect of the public’s right to information insofar as section 26 of the Companies Act is concerned, is the motive behind obtaining such information. This study presents an analysis on how section 26 of the Companies Act 71 of 2008 may be amended to apply only to a natural person or juristic person with interest to the company as per the POPIA. The person of interest should be defined as a person who has business operations/relationship with a particular company.
This will ensure a limited application of section 26 of the Companies Act 71 of 2008 by persons with no interest in the company and align it with the intention of the legislature and purpose of the POPIA. Therefore, section 26 of the Companies Act should pose a qualified right to the public to access a company’s security registers.
Keywords: POPIA, PAIA, conflict, Constitution, rights, UK, NOVA