When a crisis hits your organisation, you need to take action quickly. What practical steps can you and your team take to minimize the impact on your business? What are your reporting requirements in the relevant jurisdiction(s)? What legislation applies there?
Our guide provides you with the answers to these questions in relation to key jurisdictions and it supports your understanding of the relevant local legal framework. It also provides high level practical guidance for those crucial first 72 hours, together with contact details of the local TerraLex firm for when you need specialist advice.
A crisis, by its nature, is both serious and unexpected and your response and actions within the first 72 hours will most likely define its impact on your organisation.
It is therefore important to have in place robust procedures that, if followed, will help minimize the adverse consequences.
The crisis checklist below includes next steps which are common across all jurisdictions. Please refer to the chapter for the relevant jurisdiction for more detailed guidance on your obligations in that country.
How to Use: You can use the tools below to create bespoke reports for the jurisdiction(s) and topic(s) covered. Click into single jurisdiction for one location or use the compare tool to compare multiple jurisdictions. Select the jurisdictions and topics of interest to create your unique report. You also have the option to print or download using the ellipsis button in the top right corner.
The Information Regulator (South Africa) should be notified of any data breaches as per the Protection of Personal Information Act 4 of 2013 (“POPIA”). The Information Regulator is established in terms of section 39 of the POPIA.
These are both covered by the POPIA.
The Competition Commission, as per the Competition Act 89 of 1998 (the “Act”).
In terms of section 49(5) of the Act a person may refuse, during a search, to permit the inspection or removal of an article or document on the grounds that it contains privileged information. This article or document may be subject to legal professional privilege or litigation privilege.
In terms of section 49(6) of the Act, if the person being subjected to the search and seizure makes such a claim, the person conducting the search may request the registrar or sheriff of the High Court having jurisdiction to attach and remove the article or document for safe custody, until the court determines whether or not such article or document is privileged.
In this regard it is important to note that the owner of the premises or the person in control thereof must be furnished with a receipt for such article or document removed by any person and such article or document must be returned as soon as possible after achieving the purpose for which it was removed.
Certain disclosures made by employees against their employers are protected, for example, if it is any information which may show that a crime was committed. The protection is limited to occupational detriment and employment relationships, and the disclosures are only protected if made to the public protector or the auditor general.
The disclosure is protected is it contains information about impropriety and the disclosure has been made to the right person, e.g. a legal advisor with the purpose of obtaining legal advice, your employer, the public protector, the auditor general, the minister/MEC of a province, under certain circumstances, and other person, as long as certain conditions are met, including that the disclosure is made in good faith, and you believed you could not make it to your employer.
Employees enjoy protection under the Protected Disclosures Act of 2000 and the Labour Relations Act.
The primary anti-corruption laws in South Africa are the Prevention and Combating of Corrupt Activities Act (PRECCA). There are secondary acts which govern anti-corruption such as the (i) Prevention of Organised Crime Act, 1998 (ii) Protected Disclosures Act, 2000 (iii) Financial Intelligence Centre Act, 2001 and (iv) Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004.
Yes, there are provisions of the PRECCA that state that even if the offence occurred outside of the republic, a court of the Republic shall, regardless of whether or not the act constitutes an offence at the place of its commission, have jurisdiction in respect of that offence.
The South African Police Services.
No. Companies should have proper procedures in place to investigate potential issues to determine if they have merit and require more to be done post investigation. However, there is no legal requirement that prescribes internal investigations.
Further, companies are generally not required to disclose the existence of internal investigations, but internal investigations are viewed favourably by law enforcement bodies, especially where investigations give rise to clear evidence of wrongdoing that may assist law enforcement bodies (such as the National Prosecuting Authority).
Although there is no legal requirement as to how internal investigations should be conducted, some laws have indirect application, such as the employment laws which guide the manner in which employees are treated during investigations.
In this jurisdiction, this is unclear. However, there is common law authority which states that a party who wants to rely on litigation privilege has to set out objective facts on the basis of which the court can assess whether it can be said that, objectively, litigation was in contemplation.
The relevant case has since been appealed, and while it is hoped that the position will be clarified through the appeal judgment in the interim, companies should adopt a conservative approach when seeking to protect an internal investigation with privilege. For example, engaging an audit firm to carry out an investigation through a law firm may not be enough to claim privilege.
Similarly, vague claims of contemplated litigation may also not be enough. Companies should seek appropriate legal advice at the outset of contentious investigations if they wish to implement appropriate privilege protections.
Provided that the elements of privilege are met, the rules of privilege apply equally to external lawyers and in-house lawyers.
Disclaimer: This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.
