The information regulator will serve an infringement notice to a responsible party that the regulator believes has breached a provision of POPIA. No responsible party wants to receive an infringement notice or enforcement notice. It is even more intimidating than an information notice, which is related, but different in very important ways. The infringement notice will contain full particulars of the responsible party facing the accusation of breaching POPIA (the infringer), details about the offence, and the amount of an administrative fine that the party must pay (section 109).

The responsible party has some options available to them.

  • Pay the fine.
  • Make a payment arrangement with the regulator to pay the fine in instalments.
  • Convince the regulator that there is no merit to the accusations of infringing POPIA and hope the regulator does not issue an information notice and pursue or investigate the matter any further.
  • Take the matter to court.

There are certain consequences with each of the above options. We explain those below.

Examples of offences under POPIA

Before we get to the choices that a responsible party has when they receive an infringement notice, let us first look at some of the POPIA offences they (or their employees) may commit under POPIA.

Pay the fine

If the responsible party pays the fine in the infringement notice, they will not face further prosecution or have any criminal record against their name.

If a responsible party chooses to pay the fine (in full or in instalments), they:

  • will not have a criminal record against them;
  • will not face an accusation of an offence under POPIA by the regulator, if it is for the same set of facts;
  • may not face prosecution by the National Prosecuting Authority (NPA); and
  • must pay it into the National Revenue Fund.

Take the matter to court

If an infringer decides to take the matter to court, then the regulator will hand the matter over to the South African Police Service (SAPS). The regulator will inform the infringer accordingly. The infringer will not have to comply with the infringement notice until the court hands down a judgment. The court may agree with the fine, it may reduce the fine or it may overturn the regulator’s decision.

It is important to mention that another way in which the matter may end up in court is if the regulator decides not to issue an infringement notice but to instead hand the matter over to SAPS from the moment that the regulator receives a criminal complaint about the responsible party. In such a case, the responsible party would have to make representations to the NPA and follow all the steps that normally form part of the criminal justice process.

Non-compliance with an infringement notice

If a responsible party does not comply with the requirements of the notice, the whole amount becomes due and payable. The regulator will file a certified statement with the clerk or registrar of the court. The statement will specify the amount of the administrative fine that the responsible party must pay. The statement is equivalent to civil judgment in the regulator’s favour.

Actions for you to take