eDiscovery in SA - Changing the Uniform Rules, POPIA, hosting in the cloud, and child adoption in SA

Firstly, sincere thanks to all who sent work anniversary wishes and congratulations - very much appreciated and hard to believe it is 5 years!

I thought we should take a look and see where we are in SA on these matters. Changing the Uniform Rules to incorporate eDiscovery has been and still is, as regular readers know, my mission. It is now almost 5 years since I embarked on the journey and more than 2 years since I presented to the High Court Committee of the Rules Board. You will also know that with the help of the Law Society of SA (as was!) we drafted simple brief amendments and submitted them to the Rules Board and then we waited and waited. Two weeks ago I received a response from the Rules Board to my latest request for an update and the text of the reply is as follows:- “The Board is in the process of finalising the composition of the Task Team that is to deal with the e-development of the Rules. Once finalised, the Team will commence its work, with attention focused initially on the area of e-discovery.” Subsequently, I have offered advice and assistance from myself and others in SA together with people from the UK and New Zealand who have been involved in changing the Rules in their respective countries. So, now you know as much as I do as to where we are on this. Will it happen? I am sure it will. When will it happen? I have no idea. Why does it take so long? Because this is South Africa.

Whilst on the subject of legislative changes taking time, let us now mention POPIA. This Act was passed in 2013 and we are still awaiting implementation. The very latest information as far as I am aware that it is expected to be in “2019” and companies would then have a 2 year period in which to comply. It was “expected” in 2018 but didn’t happen and personally I do not think it will happen in 2019, although I am aware that the Regulator and staff are working hard. Historically, the USA has been slow to consider or adopt laws relating to Data Protection and Privacy but even they are moving rapidly on this topic. Here is a good practical article authored by DLA Piper lawyers in the US

Of course GDPR has really motivated everyone to take notice as there are have already been high profile penalties for breaches, the latest big one is British Airways. With the embarrassment of Brexit the UK had to hastily beef up an old DP Act by passing a new one in 2018 which aligns with GDPR. The world moves forward on this subject but SA is still dragging its feet. Why is it taking so long? Because this is South Africa. Whilst DP laws generally relate to personal information, we are told that POPIA will also include the private information of entities. This will make it more difficult for data to leave the jurisdiction which leads me to cloud hosting.

Generally I am very much in favour of hosting in the cloud which avoids local companies having to spend a fortune on infrastructure and provides excellent security as well as reduced risk of outages etc. The only issue I have is where in the “cloud” the data is being hosted as this may lead to a breach of data protection and privacy. Right now I am aware of so many cases in SA where the data is hosted in the cloud but not in SA. Of course at the moment that is fine as long as the client is happy, but once POPIA is implemented some problems will occur. I am led to believe that generally POPIA will be content if data is outside SA but in a jurisdiction that has data protection laws which are at least the equivalent of POPIA (which is largely based on GDPR anyway). Personally, I am not so sure about that, and I can see some SA institutions and corporations being unhappy about external hosting. Good news is that Microsoft are very close to having their cloud based hosting services, Azure, fully operational here in SA - almost certainly by the year end and of course I applaud that. I recently read a very good article about the legal risks of cloud hosting by Wendy Tembedza a Senior Associate at Webber Wentzel. 

Moving to the fourth arm of the title of this post - child adoption in SA. You will be wondering why I am even writing about this. Well, firstly the main reason I have been quieter than normal in recent months is because 5 months ago my wife Waseema and I adopted a 3 month old SA baby boy. I will spare you the usual comments about how amazing and adorable he is (even though it is true!) but my time is much more limited these days as Waseema is engaged on a long term project in Gauteng which means she is away from home 4 days a week. The second reason I mention it is because I have learned a great deal about adoption in SA and one of the tragedies is that there are 3m unwanted or orphaned children in SA yet less than 2000 a year are adopted. I won’t go into all the reasons for that in this post but I want to highlight one further SA issue. Once the Court has pronounced the final adoption order (which in our case was about a month ago), the whole case is then referred to the Dept of Social Development in Pretoria for the formality of registration within SA and the provision of a new birth certificate confirming the child’s new name. This takes between 2 and 3 years (!) which means that the child cannot obtain a passport and therefore leave the country, even on holiday with parents. Heaven forbid what happens if within that time the parents have to move abroad for one reason or another. Why does it take so long? Because this is South Africa. 

Now you will see the link between the various title topics. The thread running though each is that everything takes so long here in SA. Of course the country has many problems and issues which take up Government time but; we are in the 21st century; the 4th industrial revolution is with us; technology is everywhere; and as a country we are striving to develop nearer to first world countries. Until we can handle comparatively simple matters such as those referred to in this post, in an expeditious manner, SA will continue to be regarded as a developing country only.