South Africa has been celebrating Child Protection Week since 28 May. I’m a bit late to the celebrations, but I’m still happy that we’re taking the protection of our children so seriously. The Domestic Violence Amendment Act is a huge part of extending that protection to our children (and even elderly people and persons with disabilities). We’re finally getting to a place where we understand the need to protect children both online and offline. I’m very happy about that. Everyone has a role to play.

To be clear, child protection is a vast topic that encompasses many areas and concerns. My focus right now is only on data protection and how the Domestic Violence Amendment Act impacts the processing of children’s personal information. On another day, and perhaps another platform, I may talk about the other aspects of child protection.

Domestic Violence Amendment Act

The Domestic Violence Amendment Act (the amendment Act), which commenced on 14 April 2023, makes key changes to the Domestic Violence Act of 1998. Because of these changes, the latest Child Protection Week arrived at the perfect time. Considering how POPIA changed the landscape for the processing of children’s personal information, the changes that the Domestic Violence Amendment Act now bring have serious implications for every day South Africans. The changes go as follows:

  • The Minister may designate someone or a group of people as a functionary that has the obligation to report domestic violence towards children, elderly people, and persons with disabilities. A functionary is a health care professional, a social worker, caregiver, and, potentially, any person whose job is to work with children. The last part impacts many schools and non-profits.
  • Any adult person who witnesses or reasonably suspects that a child, elderly person, or person with a disability, has suffered or is about to suffer domestic violence, must report the matter to a social worker or the police. If the adult person fails to report the matter, they may be guilty of a crime, and go to prison for three months or pay a fine.
  • The amendment Act requires that the report that the adult person or functionary submits, be in a particular form.
  • Electronic Communications Services Providers (ECSPs) (such as mobile networks) must assist a court presiding over a domestic violence matter. The ECSPs must give the court any information relating to a message, email, post, or website page that a respondent (someone accused of domestic violence) may have used to commit domestic violence.
  • There will now be an online portal through which a complainant (or a person acting on their behalf) can submit an application for a Protection Order.

What is the impact of the amendment Act?

The big impact of the amendment Act is the increased amount of data processing that the law invites. It will result in schools, non-profits, mobile networks, community schemes, and others, processing more personal information than they ever have before. The personal information will be of a very sensitive nature because it’ll involve children’s personal information or special personal information (like the health-related information of victims, and the accusation of criminal conduct against perpetrators).

While people or organisations will be able to rely on the amendment Act as the basis for their processing, it is still worth noting that POPIA will have an increased impact on them. They will feel the impact when they collect, disclose, store, protect, or delete the personal information.

What now?

The main takeaway for you is that if you (in your personal capacity) or your organisation work with children, elderly people, or people with disabilities, there is a possibility that you may witness or become aware of domestic violence against them. If that happens, you will be obliged to report it.

We can help organisations to make sense of the data protection implications of reporting such domestic violence. We’ve been helping non-profits, schools, and other organisations for many years.

If you’d like to do a deep dive into the rest of what the law now says about domestic violence, read the amendment Act yourself.

Written by Sicelo Kula.