PROATIA - Government does business a favourů
The recent controversy surrounding the requirement that every public and private body in South Africa compile and display a Manual in accordance with the requirements of the Promotion of Access to Information Act (what is this?) has almost completely obscured the substantial benefits which can be attained through this process.
And while Government has reacted to the outcry by granting a further extension for compliance with the Act (until 31 August 2003), the attitude of the majority of businesses remains one of dissatisfaction. Many believe that the entire process has been dreamed up as a way for the South African authorities to gather private information and generate extra revenue (for example through the requirement that all manuals be published in the Government Gazette at R275 per page).
Negative attitudes have been further entrenched by other factors, including:
- the apparent inability, until recently, of the South African Human Rights Commission, a key role player under the Act, to get its own house in order;
- a number of entities offering to assist with the drafting of manuals at exorbitant prices - while these may be justified in respect of larger corporations, the majority of SMMEs should be able to complete the manual at little or no cost by using the materials on the SAHRC web site (www.sahrc.org.za); and,
- a lack of publicity and confusion surrounding the consequences of non-compliance and the benefits to be had through observing the requirements of the Act.
The benefits of compliance
The primary benefit of compiling a manual lies in the enforced organisation of the information which a business (including certain parties related to that business such as independent contractors) has in its possession.
Completing a manual essentially involves undertaking an information due diligence or stock take of the information records which a business holds. The outcome should be the development of a system of storing and tracking existing and newly entered information at both an employee and organisational level.
It is clearly a truism that management of information within South African organisations is chaotic. Decentralisation of functionality, lack of policy guidance and woefully inadequate staff education and training have all contributed to a status quo where the average SA business has no real idea of what information it holds, where to access it and how to share it effectively.
While this has an obvious negative impact on workplace productivity and efficiency, organisations will increasingly find themselves facing legal and other risks, particularly in the areas of corporate governance (as defined by, inter alia, the King II Report) and the retention and handling of personal information.
There is, for example, a great deal of legislation, such as the recently enacted Financial Intelligence Centres Act as also the Companies and Close Corporations Acts, which requires businesses to retain certain records for specified periods of time. Organisations, on pain of potentially crippling fines, have to ensure that different information records are compiled and retained for different periods and then effectively disposed of. This is not a simple undertaking.
A document management policy, which seeks to ensure that a business complies with these laws, requires as a preliminary step ascertaining exactly what information is held and what legislation is applicable to certain classes of information. Proper completion of the manual will have exactly this result and facilitate the formulation of a document management or retention matrix to govern information held.
Business opportunities - new channels for contracting
Complying with the Act furthermore allows an organisation to benchmark existing methods of handling information and to consider these in the light of the business opportunities created by the Electronic Communications and Transactions Act.
The ECT Act, through the broad introduction of the doctrine of functional equivalence - essentially that information in the form of electronic data has the same legal effect as traditional paper-based information - allows organisations to, inter alia, conclude contracts online and electronically store documents which previously had to be held in paper-based form.
The potential for cost-savings and enhanced efficiency should, in most cases, be self-evident. These benefits, however, can only be attained once information organisation and policy guidelines are in place.
The South African Law Commission is currently conducting an investigation into "Privacy and Data Protection" (Project 124). This is intended to bring South Africa into line with other developed countries insofar as the protection of personal information and the balancing of this protection with competing interests such as preserving law and order are concerned.
It is likely that the outcome of this process will be the enactment of legislation akin to the UK Data Protection Act, which contains compulsory Data Protection Principles to be observed by data controllers. Compulsory rules, which will replace the voluntary principles in the ECT Act, will place an absolute premium on effective and secure document and information management.
While the Department of Justice has seen fit to extend the time period within which private bodies must comply with the Act, the requirements relating to the compilation of a manual will not go away. More than likely the last two weeks of August will see a further flurry of publicity, often incorrect, together with more wailing about the inequity of the provisions.
The ELC believes that businesses should adjust their attitude to the Act and see it as an opportunity to proactively address the process of organising information. Once you know where your information is, how to access it and what can be done with it, life and business will be a great deal simpler.
22 Mar 2003
This article is intended to provide general guidance and does not constitute professional advice relating to specific instances. Should you wish to place any reliance on the information presented in this article we strongly advise that you consult your legal advisor or the Electronic Law Consultancy - firstname.lastname@example.org