When South Africa became a democracy in 1994, it entered into BITs with a number of its trading partners, including Germany, the United Kingdom and the Netherlands. As mentioned above, South Africa has recently sought to revise the protections it offers to foreign investors by introducing a new investment law and by terminating or renegotiating existing BITs (although under the ‘sunset’ provisions of those BITs, investments that already benefited from their protections would continue to do so for a certain period).

However, the status of those BITs that South Africa has purported to terminate is unclear at present, following the Pretoria High Court’s ruling, in February 2017, that the national executive cannot lawfully terminate international agreements without consulting parliament.65 While the case will undoubtedly be appealed, it nonetheless creates a precedent for the argument that the unilateral termination of the BITs by the Department of Trade and Industry was unconstitutional and therefore invalid.

South Africa is a signatory to 40 BITs, of which those with the following 14 states are, subject to the observations made above, currently in force: Argentina, China, Cuba, Finland, Greece, Iran, Italy, Mauritius, Nigeria, Russia, Senegal, South Korea, Sweden and Zimbabwe.

Investor-state disputes

South Africa has been party to two investor-state disputes to date. The Foresti claim, mentioned above, was brought pursuant to the ICSID Facility Rules (which permit arbitration of disputes between an investor and a non-ICSID member state). The claimants, investors in the granite-quarrying sector, alleged that the requirement to sell equity in their investments in compliance with the 2004 mining law and black empowerment regulations constituted an expropriation. The case was discontinued with the tribunal ordering the claimant to contribute to the state’s costs.

On 8 September 2017, the Department of Justice and Constitutional Development published the draft regulations relating to the protection of personal information (draft regulations) under section 112(2) of the Protection of Personal Information Act 4 of 2013 (POPIA). The public has been invited to comment by 7 November 2017. Click here to read the notice.

The draft regulations provide clarity regarding prescribed forms and processes to be followed under POPIA:

The draft regulations further sets out the prescribed form and process to be followed under POPIA by a public or private body which, in the opinion of the Information Regulator (Regulator) is sufficiently representative of any class of bodies or of any industry, profession or vocation, who wishes to apply to the Regulator to issue a code of conduct. This relates to the Regulator’s mandate to issue codes of conduct applicable to specific sectors when it deems it necessary and also on application by a body in terms of section 61 of POPIA.

The draft regulations provide more detail on the duties and responsibilities of information officers. Section 55 sets out a broad outline of the duties and responsibilities of an information officer and in section 55(e) covers any further duties and obligations to be prescribed. Pursuant to this the draft regulations provide more specific obligations of an information officer, including:

The draft regulations further elaborate on:

Click here to access the draft regulations, which are also available on the Regulator’s website.