Brexit, football and eDiscovery in South Africa

I woke up this morning trying to decide if I was more shocked by England’s embarrassing exit from the football European Championship than I was at the Brexit vote. As a Brit who has spent all of his life in the UK save for the last 2 years since moving to SA, both of these events shocked and alarmed me and it is only an increased dose of caffeine and nicotine which has dragged me to my Mac today. Briefly on football first, it is only a game, I hear you say - well it isn’t. The famous Bill Shankly once said, “Football is not life or death, its more important than that”. Losing that game to lowly Iceland (who were excellent and thoroughly deserved to win) is a hammer blow to a sport loving and football mad nation that often sees sport as an oasis in the desert of their lives especially after something as divisive as the Brexit vote. SA will understand that - look at the effect in 1995 when SA won the rugby World Cup in Johannesburg, prompting one of my all time favourite movies, Invictus. Well of course now its Wimbledon and perhaps Andy Murray will help to heal the wound for we Brits. Oh, I forgot, he is Scottish and soon, very probably, will not be part of Britain - which leads me to Brexit.

Some may recall an old joke about a tourist driving around looking for a place and becoming hopelessly lost when he sees a local country man leaning on a gate surveying the countryside and the tourist, brashly asks the best way to get to the place quickly. The old boy maintains his gaze across the countryside and simply replies, “Well I wouldn't have started from here”. That is where I begin with Brexit because I do not agree with referenda, per se. I think they occur when politicians “cop out” of an issue which may well lose them a General Election so they use the notion of a referendum as some sort of sweetener to attract votes. I happen to think that if a Government is elected democratically, they should govern and be judged accordingly, not keep asking the public afterwards what to do. I believe that David Cameron took a risk, an almost arrogant one, and it has backfired upon him spectacularly and doomed him to a legacy he would not have wanted. Be that as it may, the referendum happened and apart from just over 17m people no one anticipated the result. Since the result, so much has been written, including jokes and cartoons, that it has overtaken the lives of many of us and I have absorbed so much information and comment, deciding to “keep my powder dry” other than the odd comment/reply on Linkedin or Twitter. That is, until I read the latest blog post of my longstanding and good friend, UK eDiscovery commentator, Chris Dale.

As I say I have known Chris for many years, shared numerous communications with him as well as panels at eDiscovery events and without doubt he has been one of my major motivations in becoming SA’s first and only independent eDiscovery Consultant. I read his comments avidly and I think the above post is possibly the best he has ever written and I have told him so. I could never aspire to have as much intellect and knowledge of the eDiscovery industry as Chris Dale or write as well as he does, but I do my best, largely, alone, in this developing country (I refuse to use the phrase “Third World”), which has become my adopted one. The aftermath of Brexit will be messy, uncomfortable, and prolonged, not just for the UK, and that is probably me being polite. Someone commented on Linkedin that nothing has changed so what is all the fuss about. I replied that the pound had already dropped dramatically, UK is in negative credit status (according to Moodys), large corporations are already planning to leave UK, Scotland will probably devolve and UK has lost trust across the world. Yes, as the commentator said “nothing has changed” - really? As I see it, UK now has at least 2 years to put all of this right and be strong again - the quicker it starts the better and it will need strong leaders, calm heads and intelligence. Sadly these are attributes I do not see in abundance in Messrs Gove, Johnson and Farage. The author Henry Cate V11 said, “the problem with political jokes is that they get elected”. 

I do not see that it could possibly be right to have a second referendum. What do you do - keep having them until you get the result you want? In any event we may have already burnt our boats with the members of the EU who now have to pick up the pieces and put their own house in order without the UK. 

Enough - it is what it is and we cannot turn back the clock. As Chris Dale said, “..I see opportunities..”. So do I here in SA and no matter what has occurred and what consequences there may be (truth is no one knows), we must look forward. Change is what we have and change brings opportunities. Data still exists and may even increase as litigation, regulatory and internal investigations, competition cases and arbitrations have a habit of expanding when economies are adversely affected. Many have spoken about DP and Privacy and, again, someone on Linkedin said this was not a problem as the UK already has laws. I disagree - it is a problem because the law he is referring to its presumably the 1998 Data Protection Act. That will not cut it alongside GDPR. Unless the UK amends or replaces that Act so that it is in line with GDPR then the UK will have terrible difficulties as far as data in Europe is concerned. Can anyone honestly see other European countries being helpful here? What of SA as far as DP and Privacy is concerned? It has POPI which is based upon the EU Data Privacy laws (he says, with an ironic smile) but this Act was passed in 2013 and is not yet implemented. The delay is in the hands of President Zuma and his Government who have not yet appointed a Regulator. Now, I am sure that the President does not read my blogs but if he did I would strongly say to him that Brexit offers the opportunity to get this done and let us have POPI in place. However, we are talking about another politician here who has many other problems and this may not find its way to the top of the list, but it should. There was a cartoon in the Cape Times (the Western Cape equivalent of The Times in the UK) recently, depicting President Zuma talking to one of his Ministers and saying that he felt like having “Mcdonalds tonight” to which the Minister replied that if he could spell McDonalds he would order it for him. The President pondered and then said”.. ok I will have KFC then”. From this you may see some of the problems we have. To get back to the point let us please implement POPI as soon as possible so that can see that SA will take seriously attempts to remove data from this jurisdiction. It is happening at the moment and in my time here I am aware of US and UK lawyers and service providers coming into SA, collecting data and taking it back to their own countries for processing and hosting. Let Brexit be the catalyst for putting a stop to this and ensuring work for people here in SA.

Coupled with DP and Privacy is eDiscovery. Regular readers of my blogs will know that we do not embrace eDiscovery into our Rules of Civil Procedure (which incidentally follow in most cases the UK Rules), and that I have been campaigning for this change for a long time. You will also know that there is significant progress and whilst I am sworn to silence on details, I am extremely optimistic that it will happen within an acceptable time period from now. I repeat for the umpteenth time to law firms, service providers, corporations and organisations in South Africa that writing eDiscovery into our discovery Rules along with the implementation of POPI will be a game changer. Look at Brexit as being the mess that provides SA with a great opportunity here.

In summary I am saddened by the Brexit vote for the sake of the country of my birth but, along with Chris Dale, I say let us not be blind to the opportunities it brings, in our case to the country I have adopted. I am advised that in January 2017 I am eligible to apply for permanent residence here and I fully intend to do so. That is my commitment and I can only hope and pray that by then we have seen some progressive ideas and changes affecting the stability of the UK, along with POPI and eDiscovery in the Republic of South Africa.