Consent as requirement of popia guideline

Consent is defined by POPIA as voluntary, specific, and informed expression of will in terms of which permission is given for the processing of personal information. Therefore, implied consent by virtue of knowledge of processing does not necessarily constitute consent as required by POPIA. For that reason, whenever a responsible party (the employer) requires a Data subject (employee) to consent to processing, it is advisable to obtain consent in written form, which clearly complies with the requirements of consent as defined. Consent as a requirement in employment contracts: Similarly, to GDPR, consent is not an absolute requirement to process personal information (PI). Various other reasons for processing can be used where consent cannot be obtained. Section 11 of POPIA (Condition 2) states various instances in which PI may be processed. Those instances are (1) consent being given by the responsible person or a competent person on behalf of a minor; (2) processing is necessary to carry out actions for the conclusion or performance of a contract to which the Data Subject (DS) is a party; (3) processing complies with an obligation imposed by law on the RP; (4) processing protects the legitimate interest of the DS; (5) processing is necessary for the proper performance of a public law duty by a public body or (6) processing is necessary for pursuing the legitimate interest of the RP or of a third party to whom the information is supplied. In most instances, where consent is not obtained, the RP can continue to process PI under the various other instances mentioned in section 11 such as contract or legitimate interest to the operation of the RP. Even when the RP has consent and the employee withdraws consent at any given time, the RP can continue to process the PI under the other instances of section 11. Therefore, the refusal to give consent or the withdrawal of consent by a DS will not necessarily prevent a RP to process PI legitimately. In terms of section 11(3) a DS may object at any time to the processing of his or her PI. This objection must be on reasonable grounds, whereafter the RP must stop processing the PI.