MMA is deeply concerned – particularly in the face of the recent spate of data breaches – that South Africa currently does not have an effective and enforceable data protection framework, despite POPIA having been signed into law in 2013. The failure to bring the substantive provisions of POPIA into force is a consequent failure to realise the right to privacy domestically.

As you will be aware, the state has a constitutional obligation flowing from section 7(2) of the Constitution to respect, protect and fulfil all rights in the Bill of Rights, including the right to privacy. In particular, we note that:

Section 237 of the Constitution of the Republic of South Africa, 1996 (the Constitution) requires that “[a]ll constitutional obligations must be performed diligently and without delay”.

In Khumalo v Member of the Executive Council for Education: KwaZulu-Natal [2013] ZACC 49, the Constitutional Court explained that this provision elevates expeditious and diligent compliance with constitutional duties to an obligation in itself, in recognition of the public interest in having certainty and finality.

It has also been made clear by the Constitutional Court in Ex Parte Minister of Safety and Security and Others: In Re S v Walters and Another [2002] ZACC 6 at para 73 that a power conferred on the President to determine the date of commencement of a statute “is a public power and has to be exercised lawfully for the purpose which was given in the enactment” and that it cannot “be used to veto or otherwise block … implementation” of the statute.

Read the full letter here