|Articles: SOUTH AFRICA|
Criminal Records From South Africa
Criminal records from South Africa should entail a search of the SA Criminal Records Centre (KrimineleRekordSentrum). The Criminal Records Centre is operated by the South African Police Services (SAPS). There are 91 branches of the CRC across South Africa. The Criminal Records Centre currently holds information relating to an estimated 6.5 million individuals. The Criminal Records Centre maintains records of criminal convictions for an indefinite period. If all your getting in return as a result is a narrative result then chances are you are only getting a local individual agency check. In 2002, the Automatic Fingerprint Identification System (AFIS) was implemented by the CRC in South Africa. The AFIS (similar to the U.S. version) is a national, computerized system maintained and used by the police. It contains comprehensive and up-to-date fingerprint data, including historical records. All searches in connection with criminal records disclosure are conducted using fingerprint analysis at the CRC in Pretoria. A prospective US employer can submit an application to the CRC only via an accredited pre-employment screening agent. Individuals are provided with a Police Clearance Certificate if they have no offences registered against their name. The search is national scope.
Skeletons In The Closet: Can They Come Back To Haunt You?
A question that often arises when prospective employees apply for available positions, is exactly how far does the duty to disclose “skeletons in the closet” go, i.e. does a prospective employee have to disclose the reason why he left his previous employment and whether disciplinary action is pending if he is still employed? The Labour Court has recently dealt with this issue in the matter of the Gauteng Department of Education (“the GDE”) and Mgijima.
The Labour Court concluded that the position which Mgijima applied for with the GDE was a senior position and that it required “unimpeachable honesty and integrity on the part of its incumbent” and further that Mgijima’s failure to disclose material information in response to an express invitation to do so, deprived the GDE of the opportunity to make an informed decision as to the effect, if any, of the suspension and pending charges on the contemplated employment relationship. This judgment certainly highlights the responsibility of prospective employees to make full disclosure of any and all circumstances that may reasonably influence the prospective employment relationship. It also highlights the employer’s recourse should relevant information not be disclosed. The determination as to what information is relevant and needs to be disclosed will of course depend on the specific position applied for, the seniority of the position and whether disclosure was specifically requested.
Immigration Amendment Act Becomes Law
On Friday, 26 August 2011, Government Gazette No. 34561 (Volume 554) was published. This action heralded the coming into being of the Immigration Amendment Bill into law. The date upon which the Immigration Amendment Act of 2011 will come into operation is yet to be announced by the President. Before the Amendment Act can come into operation, the Regulations which empower it and which are the “nuts and bolts” of the Immigration Amendment Act, have yet to be drafted.
A brief summary of some of the salient changes to the principal Act, the Immigration Act 13 of 2007, are set out hereunder.
-DATA PROTECTION AND PRIVACY-
Data Bill Offers Companies Opportunities
The purpose of the legislation is to safeguard personal information by regulating the manner in which it may be processed, retained and destroyed. It is a replica of the European Union’s (EU’s) data protection directive. The bill is set to come into force within a couple of months.
DaniellaKafouris, senior manager of risk advisory at Deloittesays compliance is good for SA as it will facilitate international trade. “We are taking the next step (with the act) to align ourselves with our international counterparts.” Countries that have the legislation are reluctant to trade with those that do not have it. The bill is expected to come into force in the first quarter of next year. Legal experts who have assessed the amount of work that needs to be done say companies should not underestimate what is needed to achieve compliance. The processing and safeguarding of personal information cover the life cycle of the information. Therefore, the compliance period is quite lengthy, says MsKafouris.
MsKafouris says companies should look at the principles of the act, and see it as an opportunity to begin a fresh relationship with their clients, allowing them to update their data and to engage in data cleansing.
Bid to Render Privacy Bill Meaningless
A South African lawyer says the proposed widening of the definition of consent in the nation’s privacy bill will render privacy protections meaningless. The suggested change to the definition of consent in the Protection of Personal Information Bill (PPI) would nullify all the data protection provisions in the law that aimed to cut down information sharing and spam. Inkatha Freedom Party MP Mario Oriani-Ambrosini has proposed that the definition of consent be widened to include data subjects’ failure to opt out of the processing of their personal data within a given time period and dropping the age for the definition of a child to 13. Attorney Paul Jacobson says these two issues together spell disaster for children as they may receive an SMS, not understand it and ignore it, allowing their information to be processed and retained. In addition, Jacobson says the proposal puts the burden on an individual to opt out and would change the underlying basis of the Bill and how it works. The Bill is expected to be enacted this year.