Regulations relevant to NPOs

Ricardo Wyngaard | The NPO Lawyer

The following two sets of Regulations have important implications for NPOs.

Regulations relating to the Protection of Personal Information

The Information Regulator has, under section 112 (2) of the Protection of Personal Information Act, Act No. 4 of 2013 (the Act) made regulations (the POPI Regulations), which were published on 14 December 2018.

The POPI Regulations make, amongst other, provision for the responsibilities of an 'information officer' as referred to under section 55 of the Act. An information officer, in relation to a private body, means the head of a private body as contemplated in section 1, of the Promotion of Access to Information Act, which includes any former or existing juristic person. For NP Os, this is interpreted to mean the head of the NPO, i.e. chief executive officer, executive director, head of staff, etc.

According section 55 of the Act, the responsibilities of an information officer include: the encouragement of compliance, by the [NPO], with the conditions for the lawful processing of personal information; dealing with requests made to the [NPO] pursuant to the Act; and ensuring compliance by the [NPO] with the provisions of the Act. Information officers must take up their duties in terms of this Act only after the responsible party (i.e. NPO) has registered them with the [nformation Regulator.

The POPI Regulations require information officers to ensure that:

  • A compliance framework is developed, implemented, monitored and maintained;
  • A personal information impact assessment is done to ensure that adequate measures and standards exist in order to comply with the conditions for the lawful processing of personal information;
  • A manual is developed, monitored, maintained and made available as prescribed in terms of the Promotion of Access to Information Act;
  • Internal measures are developed together with adequate systems to process requests for information or access thereto; and
  • Internal awareness sessions are conducted regarding the provisions of the Act, regulations made in terms of the Act, codes of conduct, or information obtained from the Regulator.

The information officer must, upon request, provide copies of the manual to a person who requests such upon the payment of a fee to be determined by the Information Regulator.

National Minimum Wage Regulations, 2018

The National Minimum Wage Act, No. 9 of 2018 (the NMWA) came into operation on 1 January 2019, which provides for a national minimum wage and the establishment of the National Minimum Wage Commission.

The NMWA applies to all workers and their employers (including NPOs) except members of the South African National Defence Force, the National Intelligence Agency and the South African Secret Service. According to section 3(2) of the NMWA. The Act does not apply to a volunteer, who is defined as a person who performs work for another person and who does not receive or is not entitled to receive, any remuneration for his or her services.

The NMWA further provides that every worker is entitled to payment of a wage not less than the national minimum wage, as determined under Schedule 1 of the NMWA, and every employer must pay such minimum wage. An employer may, in the prescribed form and manner, apply for an exemption from paying the national minimum wage.

The Minister of Labour has, under section 16 of the NMWA made regulations (Minimum Wage Regulations), which provide that an employer may apply to the delegated authority (Director-General: Labour or authorised official) for an exemption from paying the national minimum wage. This application must be lodged in the required form on the National Minimum Wage Exemption System and can only be granted if the employer cannot afford to pay the minimum wage. The affordability must be determined in accordance with the decision process set out in Schedule 1 of the Minimum Wage Regulations, which includes a process entitled: Non-profit Organisations Financial Decisions Process. NP Os may according to this process be exempted from paying the national minimum wage if the NPO cannot afford:

  • Due to a deficit from income versus expenditure analysis.
  • Due to insufficient surplus from income versus expenditure analysis.
  • If the surplus and liquidity-based calculations indicate that the applicant cannot afford.

Conclusion

NPOs must ordinarily navigate a myriad oflaws and regulations and non-compliance may unfortunately have debilitating implications for NPOs and their beneficiaries. The King IV Code on Corporate Governance refers to 'compliance governance' and recommends that the board should 'ensure that compliance is understood, not only as an obligation, but also as a source of rights and protection.'


Important Note: The information contained in this newsletter is general in nature and should not beinterpreted or relied upon as legal advice. The information may not be applicable to specific circumstances. Professional assistance should be obtained before acting on any of the information.

npo lawyer vol 46 regulations relevant

Source:  Ricardo Wyngaard Attorneys - The NPO Lawyer, NPO Legal Issues, Volume 46, January/February 2017

 

Ricardo Wyngaard | The NPO Lawyer

Ricardo Wyngaard (Ricardo Wyngaard Attorneys) is passionate about the non-profit sector and has been focusing on non-profit law since 1999. He is a lawyer by profession who has obtained his LLB degree at the University of the Western Cape in South Africa and his LLM degree at the University of Illinois in the USA. He has authored a number of articles and booklets on non-profit law and governance. http://www.nonprofitlawyer.co.za

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