Can I refuse to take part in the 2022 census?
No, you can’t. But you may require that the collection of your personal information is conducted lawfully by requesting particular information (known as a Section 18 Notification).
The Statistics Act 6 of 1999 stipulates a duty to answer questions “reasonably necessary for the collection of statistics. Every person must, to the best of his or her knowledge and belief and subject to the right to dignity and privacy, answer all questions put orally or in writing” by the Statistician-General or an authorised officer (Section 16). Any person who “fails to answer a question (…) or furnishes an answer to such a question which is false or misleading in any material respect, knowing the answer to be false or misleading” or incites other people to refuse to answer or give false information, is guilty of an offence and liable on conviction to a fine of max R10,000 and/or imprisonment of up to 6 months (Section 18). A conviction does not relieve anyone of the obligation to supply the correct information. You can find more information about the Census 2022 here.
While the Statistics Act does not elaborate on what “the right to dignity and privacy mean” we may refer to Sections 10 and 14 of South Africa’s Constitution, and more specifically to the Protection of Personal Information Act (POPIA) 4 of 2013 which gives effect to Section 14. POPIA states that personal information – which is any information that relates to an identifiable, living person (or existing company or organisation) – may only be collected and processed if consented to (as part of a contract, or not), to protect legitimate interests, or if:-
- processing complies with an obligation imposed by law (Section 11c); or
- processing is necessary for he proper performance of a public law duty by a public body (Section 11e)
It is clear then that POPIA does not prohibit data collection in terms of the Statistics Act.
However, POPIA lists eight conditions for processing of personal information to be lawful. Crucially, Section 18 lists the information the collector of data must make available before the data is collected. Here’s the full list:
- (a) the information being collected and where the information is not collected from the data subject, the source from which it is collected;
- (b) the name and address of the responsible party;
- (c) the purpose for which the information is being collected;
- (d) whether or not the supply of the information by that data subject is voluntary or mandatory;
- (e) the consequences of failure to provide the information;
- (f) any particular law authorising or requiring the collection of the information;
- (g) the fact that, where applicable, the responsible party intends to transfer the information to a third country or international organisation and the level of protection afforded to the information by that third country or international organisation;
- (h) any further information such as the—
- (i) recipient or category of recipients of the information;
- (ii) nature or category of the information;
- (iii) existence of the right of access to and the right to rectify the information collected;
- (iv) existence of the right to object to the processing of personal information as referred to in section 11(3); and
- (v) right to lodge a complaint to the Information Regulator and the contact details of the Information Regulator.
However, one question remains.
Am I allowed to refuse to provide my information if the collecting officer cannot provide a satisfactory Section 18 Notification? Perhaps we may refer back to the Statistics Act’s reference to the right to privacy, and argue that I am allowed to refuse in the event that privacy legislation is violated. Alternatively, one may also argue that the Statistics Act simply does not allow me to refuse under any circumstances, but nothing stops me to submit a complaint with the Information Regulator once I have provided my information. But you’d have to be a lawyer to understand the logic of this option …
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