Country: South Africa

The Protection of Personal Information Act (POPIA) Regulations have just received a facelift, with the Information Regulator publishing amendments to the Regulations on 17 April 2025. The amendments, which came into effect immediately upon publication, aim to enhance data subject rights whilst ensuring that organisations adhere to stricter compliance requirements and remain accountable.

So, what do you need to know about the amended Regulations?

Additional definitions

The amended Regulations introduce several new definitions to provide further clarity and certainty as regards the application of the Regulations. These include, for example:

• ‘Complainant’ and ‘Complaint’ – which, respectively, recognises that any person may lodge a complaint with the Information Regulator and aligns the term to specific provisions of POPIA;
• ‘Day’ – which has been clarified to mean any calendar day, unless the last day of a prescribed period falls on a Sunday or a public holiday, in which case the time shall be calculated by excluding that Sunday or public holiday. This aligns with the Interpretation Act;
• ‘Relevant bodies’ – which has been introduced for purposes of industry-specific codes of conduct and acknowledges that any specified industry or profession, or class of industries or professions, that has sufficient representation, may apply for the issuing of a code of conduct; and
• ‘Writing’ – which is defined as encompassing any electronic documents or information that are in writing and subsequently accessible, in line with the definition in the Electronic Communications and Transactions Act.

Multi-channel access for data subjects

The amended Regulations allow data subjects to exercise their rights to object to the processing of personal information or to request the correction or deletion of personal information free of charge through various channels, including by hand, fax, post, email, SMS, WhatsApp or in any other manner expedient to the data subject. In addition, a data subject may exercise their rights telephonically and, in such a case, an organisation is required to electronically record the communication and make the recording, or a transcription thereof, available to the data subject upon request.

Further, when collecting personal information, organisations are required to inform data subjects of their right to object and, in respect of requests for the correction or deletion of personal information, to advise the data subject of the action taken in response to the request within 30 days of receipt of the request.

Consent for direct marketing

An organisation that wishes to send direct marketing communications to a data subject that is not an existing customer must obtain the consent of a data subject in a manner that is expedient, free of charge and reasonably accessible to the data subject, including by email, telephone, SMS, WhatsApp or automated calling machine.

If a request for consent is made telephonically or by automated calling machine, an organisation is required to keep an electronic recording of the consent, and make the recording, or a transcription thereof, available to the data subject upon request. This requirement aligns with the Guidance Note on Direct Marketing released by the Information Regulator late last year.

Whilst under the previous Regulations, organisations were required to obtain a data subject’s consent using Form 4 annexed to the Regulations, the amended Regulations allow for consent to be obtained in a form ’substantially similar to’ Form 4. In short, organisations must specify the goods or services to be marketed and obtain the data subject’s consent to receive marketing communications in respect of such goods or services, including the specific method of preferred communication.

Importantly, when obtaining consent from a data subject to receive direct marketing communications, the amended Regulations expressly provide that an ‘opt-out shall not constitute consent’. Simply providing a data subject with the means to opt out of receiving marketing communications and, in the absence of the data subject exercising the right to opt out, does not mean that the data subject has provided their consent to be contacted or have their personal information processed. Consent in this context requires a positive action.

Information officers

Whilst the amended Regulations have removed the duty placed on information officers to develop and maintain a manual in terms of the Promotion of Access to Information Act (PAIA) (which obligation nevertheless remains in place under PAIA for organisations in South Africa), the duty to develop and implement a POPIA compliance framework has been expanded upon to provide that such compliance framework must be ‘continuously improved’. This acknowledges the need to revisit and improve upon an organisation’s compliance framework with reference to ongoing operational and legal developments.

Enhanced complaint process

The amended Regulations allow for complaints to be submitted to the Information Regulator by any person with a sufficient personal interest in the subject matter of a complaint, or any person acting in the public interest. A complaint must be made in writing using the prescribed complaint form and can be submitted to the Information Regulator via email, fax, post, courier or by hand. Assistance will now be made available to complainants when reducing the complaint to writing or who make a complaint in a language other than English.

The amended Regulations set out detailed requirements for the content of complaints and allow for complainants to request that their identity not be disclosed (with the Information Regulator considering the reasons for such request before making a decision in this regard).

Administrative fines

Where an organisation is issued with an administrative fine and is unable to pay the fine in a lump sum, the amended Regulations allow for an organisation to make arrangements with the Information Regulator to pay the fine in instalments. When determining an appropriate payment period, the Information Regulator will consider the financial circumstances of the organisation and any other relevant reasons that may directly or indirectly impact the organisation’s affordability.

The amended Regulations mark a bold move toward greater accountability and stronger protection for the rights of data subjects. It’s time for organisations to dust off their data protection compliance frameworks and ensure that their processes align with the new requirements – because when it comes to privacy, the rules just received a serious upgrade.

The new Employment Equity Regulations, 2025 (General Administrative EE Regulations) and final sectoral numerical targets (collectively, the 2025 EEA Regulations) published in terms of the Employment Equity Act, 1998 (EEA) have brought about additional obligations on designated employers and shifted the way in which they are required to prepare their employment equity plans and report on their progress towards achieving employment equity in the workplace.

In part 1 of our series on the 2025 EEA Regulations, we set out a brief history of the sector targets and a high-level view of how the final 2025 sector targets compare to the draft targets that were published in 2023 and 2024.

The key question now for designated employers is what do they do next, and how long do they have to do this? We set out the timeline below, and the steps that designated employers ought to take to ensure compliance with their affirmative action obligations under the EEA and the 2025 EEA Regulations.

Conduct a workplace analysis as soon as possible

In terms of section 19 of the EEA, a designated employer is required to collect information relating to its employment policies, practices, procedures and the working environment in order to identify employment barriers which adversely affect people from designated groups. This analysis must include a workforce profile to determine the degree of underrepresentation of people from designated groups in the various occupational levels in the workplace, as compared to the economically active population (EAP).

Employers may have previously undertaken this analysis for purposes of their current employment equity plans, but because all designated employers will now need to put in place a new plan, it will be necessary to conduct a fresh analysis, using the updated prescribed forms in the General Administrative EE Regulations.

Designated employers will accordingly need to pick a date shortly as its cut-off date, which will be used for taking a ‘snapshot’ of its workforce for purposes of its profile. This date should be determined by working back from 1 September 2025, factoring in sufficient time to consult and prepare the employment equity plan (EE Plan).

Prepare a new EE Plan before 1 September 2025

Informed by the results of the analysis, a designated employer will then need to prepare a new draft EE Plan in terms of section 20 of the EEA and, as set out in more detail below, it will need to consult with representatives of its workforce on the analysis and the draft EE Plan.

In terms of the General Administrative EE Regulations, the EE plan’s duration must be five years, from 1 September 2025 to 31 August 2030. If an employer becomes a designated employer after 1 April 2025, the employer must prepare an EE Plan for the remainder of the period until 31 August 2030.

Among other things, the plan must include the numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational level of the workforce. These must be determined by considering the employer’s workforce profile, the sector targets applicable to the designated employer and the applicable EAP.

The EE Plan is not filed at the Department of Employment and Labour (DoEL) but may need to be produced upon request by the Director-General as part of a review.

Consult on the analysis and the EE Plan

In accordance with sections 16 and 17 of the EEA, a designated employer must consult with representatives of its workforce on the conduct of the analysis and the EE Plan.

These representatives must represent the interests of employees from across all occupational levels of the employer’s workforce and the interests of people from the designated groups, as well as people who are not from the designated groups. Where there is a representative trade union representing members at the workplace, the trade union must also be consulted.

Submit a report in the period between 1 September 2025 and 15 January 2026

A designated employer must submit a report to the Director-General of the DoEL in terms of section 21 of the EEA (EE Report). In terms of the General Administrative EE Regulations, the EE Report can either be submitted manually, by hand, or electronically using the online reporting system.

Electronic submissions of the EE Report may be made between 1 September 2025 and 15 January 2026. If a designated employer seeks to submit the EE Report manually, it will need to deliver the report by hand to the Head Office of the DoEL in the period between 1 September 2025 and 1 October 2025. A representative of the DoEL will then assist the designated employer in immediately capturing the information onto the online system. 

An employer that becomes a designated employer after the first working day of April must only submit its EE Report in the following reporting cycle.

Submit an Income Differential Statement in the period between 1 September 2025 and 15 January 2026

In addition to the EE Report, a designated employer must submit an Income Differential Statement (EEA4 Form) to the National Minimum Wage Commission in terms of section 27 of the EEA.

The EEA4 Form can be submitted electronically using the same online reporting system and at the same time as the EE Report. If submitted manually, this must be done together with the EE Report between 1 September 2025 and 1 October 2025.

An employer that becomes a designated employer after the first working day of April must only submit its EEA4 Form in the following reporting cycle.

Request a compliance certificate after submission of the EE Report

In the event that an employer seeks to do business with the State, it will be required to produce a compliance certificate in terms of section 53 of the EEA, which will be conclusive proof that the employer complies with the relevant chapters of the EEA.

In respect of designated employers, a compliance certificate may only be issued where the Minister is satisfied that:

• The designated employer has complied with any applicable sector numerical target, or has raised a reasonable ground to justify its non-compliance;
• The designated employer has submitted its EE Report;
• There have been no findings by the Commission for Conciliation, Mediation and Arbitration (CCMA) or a court in the last 12 months that the employer breached the unfair discrimination provisions of the EEA; and
• The CCMA has not issued an award against the employer in the previous 12 months for failing to pay the national minimum wage.

Designated employers may request their compliance certificates online after they have submitted their EE Reports. The certificate will be valid for 12 months from the date of issue.

 

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This is part 2 in a six-part series comprising:

• Part 1 sets out a brief history of the sector targets and a high-level view of how the final 2025 sector targets compare to the draft targets that were published in 2023 and 2024.
• Part 2 outlines the timelines and steps designated employers will need to take to ensure compliance with their affirmative action obligations.
• Part 3 provides information on the first step that designated employers will need to take to ensure compliance with their affirmative action obligations – the workplace analysis.
• Part 4 considers the second step that designated employers will need to take to ensure compliance with their affirmative action obligations – the employment equity plan.
• Part 5 outlines the third step that designated employers will need to take to ensure compliance with their affirmative action obligations – the employment equity report.
• Part 6 outlines the process and requirements for obtaining the employment equity compliance certificate to do business with the State.

 

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On 15 April 2025, the Minister of Employment and Labour (Minister) published the ‘Determination of Sectoral Numerical Targets’ (Final Sector Target Regulations) and the ‘Employment Equity Regulations, 2025’ (General Administrative EE Regulations), which repeal the Employment Equity Regulations, 2014 (collectively, the 2025 EEA Regulations). The 2025 EEA Regulations are published, following the Employment Equity Amendment Act, 2022 (Amendment Act) coming into effect on 1 January 2025, and the purported consultations that took place between the Department of Employment and Labour (DoEL) and representatives of various sectors.

In the Final Sector Target Regulations, the Minister has identified 18 national economic sectors and set numerical targets for each sector. The ultimate purpose of these sector targets is to ensure the equitable representation of suitably qualified people from designated groups. In terms of section 20(2A) of the Employment Equity Act, 1998 (EEA) the numerical goals set by an employer must comply with any sector target that applies to that employer and is, in terms of section 42(1)(aA), one of the measures that is considered in the assessment of compliance. Further, the Minister may only issue a certificate of compliance in terms of section 53 of the EEA if the Minister is satisfied that, among other things, the employer has complied with a sector target that applies to that employer, and if it did not, there were justifiable reasons for non-compliance.

The enforcement of these sector targets will have significant impact on designated employers and their ability to do business with the state. Further, fines and penalties may apply for non-compliance with sector targets unless a justifiable reason exists for such non-compliance.

History behind the targets

The timeline and process leading to the finalisation of the sectoral targets involved several stages, as set out below:

• 18 sectors were identified by the DoEL on 21 September 2018 through the publication of draft regulations (Draft 2018 EEA Regulations). These 18 sectors have remained unchanged, and are based on the broad categorisation in the Standard Industrial Classification Codes.
• Following the tabling of the Employment Equity Amendment Bill in Parliament, various meetings were held with stakeholders during the period from 2019 to 2022 regarding the proposed sector targets, which were initially based on the sector charters published under the Broad-Based Black Economic Empowerment Act, 2003 (BBBEE Act).
• The President only signed the Employment Equity Amendment Bill into law on 6 April 2023. The promulgation and coming into effect of the Amendment Act would be on a later date, which we now know to be 1 January 2025.
• Draft targets were published for public comment on 12 May 2023 (2023 Draft Sector Targets) as well as on 1 February 2024 (2024 Draft Sector Targets). Such publication took place even though the Amendment Act had not yet come into effect.
• The Amendment Act came into effect on 1 January 2025, and section 15A of the EEA empowers the Minister (following a multi-stage process of consultation) to set sector targets.
• During February 2025, the DoEL conducted virtual meetings with stakeholders in the 18 sectors and invited written representations within an expedited timeframe on new proposed draft targets (2025 Draft Targets). These 2025 Draft Targets were not published for public comment.
• Following the virtual meetings, and during February and March 2025 various stakeholders requested and held bilateral engagements with the DoEL as a means to discuss the rationale underlying the 2025 Draft Targets, as well as the rationale pertaining to the identification of the sectors. The sectors had remained unchanged since the sectors were first identified in the Draft 2018 EEA regulations, despite representations by various organisations that these were over-broad and did not take into account the unique circumstances of sub-sectors.
• Finally, the sector targets were published in final form on 15 April 2025 (Final Sector Targets), with no further period for public comment provided, and without prior publication of these Final Sector Targets in draft form.

As with the 2024 Draft Sector Targets, the Final Sector Targets are set for males and females from ‘designated groups’ generally and are not broken down further per population group. Further, and as previously recorded in the 2024 Draft Sector Targets, the five-year sector targets are not intended to add up to 100%; as the sector numerical target excludes white males with no disabilities and foreign nationals as part of the workforce profile.

When determining annual employment equity targets towards achieving the five-year sector numerical targets, a designated employer must set numerical targets for all designated groups in each of the four upper occupational levels in relation to the applicable sector targets and Economically Active Population (EAP), and for persons with disabilities. The General Administrative EE Regulations state that the manner in which designated employers must take the sector targets into account and apply the affirmative action measures is set out in the EEA, the General Administrative EE Regulations and the codes of good practice issued under the EEA.

Comparison of the 2024 Draft Sector Targets and the Final Sector Targets

In comparing the 2024 Draft Sector Targets and the Final Sector Targets, the following is notable:

• Overall, the Final Sector Targets are significantly higher than the 2024 Draft Sector targets, with significant increases particularly for females in the designated groups. For instance, the target for females in senior management in the Finance and Insurance sector has increased by 21.3% when compared to the 2024 Draft Sector Targets. Targets set for females in senior management have similarly significantly increased in the Professional, Scientific and Technical Activities sector by 23.1%. Conversely, there have been some decreases in the targets for males in the designated groups.
• The target for people with disabilities has been increased from 2% to 3% across all sectors.
• Some of the principles agreed to between the South African Government and Solidarity trade union during 2023, which were previously included in the Draft 2024 Targets are absent in the 2025 EEA Regulations. For example, the 2025 EEA Regulations do not explicitly contain the principle ‘No employment termination of any kind may be effected as a consequence of affirmative action.’ The principle that ‘affirmative action shall be applied in a nuanced way’ is also missing from the 2025 EEA Regulations, however the regulations do outline guidelines for implementing affirmative action.
• Unlike the 2024 Draft Sector Targets, the DoEL has not explained in the Final Sector Targets what factors it took into account when setting the five-year sector targets. For example, it does not refer to the latest workforce profile statistics, the EAP, the various sector codes published under the BBBEE Act, or the unique sector dynamics.
• Similar to the 2025 Draft Sector Targets, guidance is provided on the over-representation of any particular group. The 2025 General Administrative EE Regulations discourage designated employers from perpetuating the over-representation of any group if their representation exceeds the applicable EAP in a particular occupational level.
• Further information is provided in circumstances where a designated employer exceeds the sector target. For example, if a designated employer has exceeded the numerical target set for a particular designated group at an occupational level, it should continue to set targets that maintain compliance with the EAP. There is no longer a prohibition on “regression” in a particular race/gender group, which was contained in the Draft 2024 Sector Targets.
• It is possible for designated employers that operate in more than one province to adopt multiple provincial EAPs, taking into account the nature of their operations and geographical area. This was not previously permitted in the Draft 2024 regulations.

Rationale for revised targets

For various sectors, the Final Sector Targets are the same as those targets shared by the DoEL during the virtual meetings held in February 2025 and are unchanged despite representations and bilateral engagements. Importantly, those draft targets shared in February 2025 were not published in the Government Gazette for public comment.

The DoEL explained in the meetings that the 2025 Draft Targets were based on the feedback received in the prior public participation process, the latest workforce profile statistics and sector dynamics. The DoEL indicated that the rationale for the change in draft targets was due to various sectors comparing well and exceeding the 2024 Draft Sector Targets in the last reporting period, which appears to explain the markedly increased and different Final Sector Targets.

During engagements and in some of the bilateral engagements, the DoEL further explained its rationale and ‘formulae’. The DoEL considered the workforce profiles of the various sectors for 2023 and 2024. It then set the target for the top four occupational levels at 6%, 7%, 8% and 9% respectively. This appears to be based on the DoEL’s view that these are appropriate targets. The Final Sector Targets therefore do not appear to have been formulated on any scientific or empirical basis.

The challenge arises when the workforce profiles of subsectors are considered. In some instances, the targets are then much higher than the 6%-9% principle applied by the DoEL, which makes compliance with the sector targets a challenge for these subsectors.

Some comfort for designated employers

Whilst section 20(2A) contemplates peremptory compliance with the Final Sector Targets when setting numerical goals, comfort should be taken in the well-established principles in employment equity law that have been interpreted and developed by our courts. In this regard, section 15(3) explicitly states that affirmative action measures include preferential treatment and numerical goals, but exclude quotas, and that there should not be absolute barriers to the appointment or promotion of over-represented groups. Regard should also be had to the justifiable reasons for non-compliance which are repeated in the General Administrative EE Regulations, which remain unchanged from the Draft 2024 Sector Targets.

 

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This is part 1 in a six-part series comprising:

• Part 1 sets out a brief history of the sector targets and a high-level view of how the final 2025 sector targets compare to the draft targets that were published in 2023 and 2024.
• Part 2 outlines the timelines and steps designated employers will need to take to ensure compliance with their affirmative action obligations.
• Part 3 provides information on the first step that designated employers will need to take to ensure compliance with their affirmative action obligations – the workplace analysis.
• Part 4 considers the second step that designated employers will need to take to ensure compliance with their affirmative action obligations – the employment equity plan.
• Part 5 outlines the third step that designated employers will need to take to ensure compliance with their affirmative action obligations – the employment equity report.
• Part 6 outlines the process and requirements for obtaining the employment equity compliance certificate to do business with the State.

 

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To address the capacity-constrained national grid, the Interim Grid Capacity Allocation Rules (ICGAR), released by Eskom’s Grid Access Unit (GAU) in 2023, have shifted from a first-come, first-served connection process to a first-ready, first-served model.

Broadly speaking, the ICGAR aims to provide clarity on several fronts, including the documents to be included in a grid connection application, the guidelines governing the budget quote application process, how project readiness is determined, and various Budget Quote Conditions.

Click here to view a high-level overview of the grid connection process from the cost estimate letter stage to the allocation of grid capacity.

On 12 March 2025, the GAU released the IGCAR Assessment Criteria Document, which seeks to clarify the criteria used to assess the readiness of a project, and guides budget quote applicants on how to package their submissions to the GAU.

Some notable points from the IGCAR Assessment Criteria Document are outlined below.

Traders

According to the IGCAR Assessment Criteria Document, Eskom acknowledged that clarity is required on a trader’s role in the grid allocation process. For this reason, Eskom stated that ‘no traders’ details will go into Network Service Provide (NSP) consent letters from 8 November 2024. Eskom further noted that traders ‘will be seen as end users who actually consume energy … and therefore must provide account details of account /Point of Delivery for the NSP letter’.

Prior to the IGCAR Assessment Criteria Document being published, applicants were able to obtain NSP consent letters by naming the relevant trader to whom they intended to supply their energy. The GAU has sought to close the loop on committed offtakers and now requires that traders provide the list of their customers to the GAU to obtain the NSP consent letter.  

The NSP consent letter is required for any application to NERSA for registration in terms of Schedule 2 of the Electricity Regulation Act, 2006 and is therefore required as part of the readiness assessment under IGCAR. 

The GAU states in multiple instances that, in terms of the documents to be submitted as part of a budget quote application, the generator’s maximum export capacity (MEC) must match the end-user’s notified maximum demand (NMD). Applicants will need to consider the GAU’s emphasis on this issue.

The GAU further requires that traders furnish Eskom with their trading licences. This was not the case prior to the IGCAR Assessment Criteria Document being published. The GAU previously accepted a demonstration from traders that they had applied for their respective trading licences.

Environmental authorisations and water use licences

The IGCAR requires that an applicant must furnish an environmental authorisation (EA) and a water use licence (WUL) as part of its application, for purposes of assessing the readiness of the project. It has now clarified that the project must ‘preferably have an EA’, but that the GAU may approve the application if this is not the case ‘depending on the project and the risk’ and provided that the GAU ‘does not spend any unrecoverable money.’ 

Eskom has similarly said they will accept proof of submission of the application for a WUL. This is aligned with Eskom’s clarification statements made in 2023, where it held that they ‘may accept proof of submission of application to relevant authorities … as commensurate compliance taking into account specific details and circumstances of the project, including unreasonable delays in processing such applications by the relevant authorities.’ 

Both the EA and WUL have long lead times, and these clarifications allow applicants to commence with budget quote applications sooner.

Power Purchase Agreements

The GAU noted that it would accept power purchase agreement (PPA) heads of terms in lieu of an executed PPA, but not in the case where ‘the power is used for offsetting and own-use’.

IGCAR guarantee

Under the IGCAR, the GAU requires that the applicant furnish it with a Grid Capacity Allocation Guarantee (IGCAR Guarantee), which may be called upon where the customer has:

• ‘breached any requirement of the Budget Quote or the customer has failed to comply with any terms of its Budget Quote and/or related Connection Agreements and/or related grid connection undertakings and/or Budget Quote development milestones as agreed to between Eskom and the Customer; or
• had its reserved capacity or allocated capacity revoked as a result of the Customer’s actions; and/or
• failed to utilise the allocated grid capacity within the timelines stipulated in the Budget Quote.’

The GAU has reiterated that the IGCAR Guarantee must be the ‘Eskom-approved template original IGCAR guarantee’. Albeit not a new requirement, this form is onerous and secures a broad range of customer obligations.

The clarifications to IGCAR that relate to the EA, WUL and the acceptance of PPA term sheets provide some welcome leniency to the readiness assessment requirements in the context of a lengthy and expensive grid connection process.

However, the applicants who intend to supply their energy to traders should note the new criteria. In terms of the IGCAR Assessment Criteria Document, traders are required to be more ‘ready’ than before and must be able to furnish their trading licences and list of customers, demonstrating a committed offtake that matches the applicant’s MEC.

The regulations in terms of the Employment Equity Act, 1998 were published in the Government Gazette on 15 April 2025.

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Charles Douglas, Claire Tucker and Ryan Kitcat wrote the SA chapter in the Global Legal Post’s guide to ESG for 2025.

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