In a recent article for my Substack newsletter I looked at the running “transfer sheets” that some rugby websites keep of schoolboy players moving between schools, and I asked a data protection question: who consented to each boy’s entry? That article dealt with the Protection of Personal Information Act 4 of 2013. This one approaches the same phenomenon from the direction I know best, which is family law. The transfer sheet is, after all, a public record of a decision taken inside a family about a child. Once one sees it that way, the Children’s Act 38 of 2005, the Constitution and the everyday realities of separated parents have a great deal to say about it.
I repeat the caution I gave before. I do not say that any particular website publishes without consent. I have no knowledge of what any operator has or has not obtained. The point is one of law: a child’s school move is a family decision, family law tells us who is entitled to make that decision and who is entitled to consent to its publication, and a website that cannot answer those questions for every name on its list is in difficulty.
A school move is a parental decision, not a rugby event
A match is a public event. A boy who runs out for his school’s first team, with his name in the programme and the game streamed, is playing in public with the knowledge of his school and his parents, and a report of that match identifies him for a reason nobody could sensibly object to. A move from one school to another is a different kind of thing altogether. It is not something that happens on a field. It is a decision, and in law it is a decision that belongs to the people who hold parental responsibilities and rights in respect of the child.
Section 18(2) of the Children’s Act lists those responsibilities and rights: to care for the child, to maintain contact with the child, to act as guardian of the child and to contribute to the child’s maintenance. Section 18(3) sets out what a guardian does: administering and safeguarding the child’s property, assisting or representing the child in legal matters, and giving or refusing any consent required by law. Decisions about a child’s education fall squarely within care, which the Act defines in section 1 to include guiding, directing and securing the child’s education and upbringing in a manner appropriate to the child’s age, maturity and stage of development. Choosing a school, and changing it, is one of the most significant exercises of care a parent undertakes.
The Act is explicit that this kind of decision is a major one. Section 31(1)(b)(iv) identifies as a major decision any decision which is likely to change significantly, or to have an adverse effect on, the child’s living conditions, education, health, personal relations with a parent or family member or, generally, the child’s well-being. Moving a boy from the school where he has grown up to a school in another town, often into a hostel, with a bursary attached and a first-team jersey in prospect, is the paradigm case. The Act does not treat it as a transfer. It treats it as a decision of the first order about a child’s life.
Separated parents and the question nobody on the website can answer
This is where family law earns its place in the discussion. A large proportion of South African children have parents who do not live together, and a school move is one of the decisions most likely to divide them. The Act’s answer to who decides is layered.
Section 30(2) provides that where more than one person holds parental responsibilities and rights in respect of a child, each co-holder may act without the consent of the other unless the Act, any other law or a court order provides otherwise. On its own that would suggest that one parent may move the child. But section 31(2) qualifies it: before a co-holder takes any decision contemplated in section 31(1)(b) that is likely to change significantly, or to have an adverse effect on, the co-holder’s exercise of parental responsibilities and rights, that co-holder must give due consideration to any views and wishes expressed by the other co-holder. A move that takes the child from the father’s town to a hostel three hundred kilometres away changes the father’s contact fundamentally, and the mother may not take it without first giving his views due consideration. In practice, where parents are divorced, the parenting plan under sections 33 and 34, or the divorce order itself, very commonly goes further and requires the parents to agree on the child’s schooling. In those families one parent simply cannot decide alone.
Now put the transfer sheet beside that. A reader hears from a coach that a boy is moving and submits his name. The website publishes it. What the website cannot know is whether the other parent has been consulted, whether a parenting plan requires his or her agreement, whether the move is contested, or whether an application to the High Court or the Children’s Court is pending. I have seen school moves become the central battleground in divorce litigation. A public entry announcing the move as a fact, in a tracker devoted to the buying of players, lands in the middle of that dispute with no regard for it at all. It presents one parent’s decision as settled. It gives the other parent the news second-hand, from a rugby blog. And it fixes the child, in public, to a choice his own family has not resolved.
The same difficulty arises under POPIA, and it is worth drawing the two statutes together, because they meet precisely here. Section 34 of POPIA prohibits the processing of a child’s personal information, and section 35(1)(a) lifts the prohibition only where the processing is done with the prior consent of a “competent person”, which section 1 defines as any person who is legally competent to consent to any action or decision being taken in respect of any matter concerning a child. Who is legally competent to consent is not a question POPIA answers. The Children’s Act answers it. Where two parents hold parental responsibilities and rights and the decision in question touches the exercise of those rights by the other parent, section 31(2) is engaged, and where a parenting plan or court order requires joint decisions on schooling, one parent’s say-so is not the family’s consent. A website that has a note from a father saying “put my son on the list” may still not have the consent the law requires if the boy’s mother, with whom he lives under a court order, knew nothing of it. The publisher, who under section 11(2)(a) of POPIA bears the burden of proving consent, has no way of knowing which situation he is dealing with, and that is exactly the problem.
Best interests are paramount, and publication is a matter concerning the child
Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Section 9 of the Children’s Act repeats the standard for all matters concerning the care, protection and well-being of a child, and section 6(2)(a) requires that all proceedings, actions or decisions in a matter concerning a child respect the child’s rights in the Bill of Rights and the child’s dignity. The best-interests factors in section 7 include, in section 7(1)(l), the need to protect the child from any physical or psychological harm that may be caused by exposure to exploitation or degradation.
A list of named children compiled so that the public can speculate about which of them were bought is, on any ordinary reading, a matter concerning those children. It is not a match report. The purpose of the list, on its authors’ own account, is to expose a market in boys. One does not need to doubt that purpose to see that the boys themselves are the material on which it is pursued. Every name on the list is a child who is being discussed, by strangers, as a commodity. The Constitutional Court has described the underlying value in terms that need no elaboration. In Centre for Child Law and Others v Media 24 Limited and Others [2019] ZACC 46; 2020 (4) SA 319 (CC), at paragraph 50, the Court held that the rights of children and their dignity and privacy are inherently intertwined, each child having his own individual dignity, special needs and interests. The case concerned the anonymity of children in criminal proceedings and decides nothing about rugby websites. The principle, however, is general: a child’s identity is not public property because the child happens to be interesting.
The common law of privacy points in the same direction. In NM and Others v Smith and Others [2007] ZACC 6; 2007 (5) SA 250 (CC), at paragraph 34, the Constitutional Court described private facts as those matters the disclosure of which will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence in the same circumstances, and in respect of which there is a will to keep them private. The reasons a family moves a child, which may include a bursary the family could not otherwise afford, a parent’s retrenchment, a divorce, a relocation, academic difficulty or a problem at the old school, are private facts of exactly that kind. The transfer sheet discloses the fact of the move and invites the public to supply the reason.
Blog operators are not immune: what POPIA does to a publisher
It is sometimes assumed that a supporter website is too small, too informal or too obviously well-intentioned to be caught by the Protection of Personal Information Act. None of those things matters. POPIA applies to any “responsible party”, which section 1 defines as the person who, alone or with others, determines the purpose of and means for processing personal information. The operator of a website who decides to compile and publish a list of school moves is that person. “Processing” under section 1 includes the collection, receipt, recording, collation and storage of information and its dissemination by transmission, distribution or making it available in any other form. A reader’s email, the entry typed into the table and the page served to the public are each processing. And the boys concerned are “children” as section 1 defines the term, natural persons under 18 who are not legally competent to act for themselves.
That last point is the one that carries the consequences. Section 34 provides that a responsible party may not process personal information concerning a child, subject to section 35. The default is a prohibition. Section 35(1) lifts it in only five situations, and for a transfer sheet the sole realistic one is section 35(1)(a), prior consent by a competent person. Section 11(2)(a) places the burden of proving that consent on the responsible party. A publisher who cannot produce it is not in a grey area. He is processing in breach of a statutory prohibition, and an invitation on the page to “email us if you want your son removed” does not change that: consent under section 1 is a voluntary, specific and informed expression of will, given in advance, and a parent’s silence is not consent.
The usual answer is that the site is journalism, and that section 7(1) excludes journalistic processing from the Act. The exclusion exists but it is narrow. It applies only to processing “solely for the purpose of journalistic, literary or artistic expression”, and then only “to the extent that such an exclusion is necessary to reconcile, as a matter of public interest, the right to privacy with the right to freedom of expression”. A match report is journalism. A standing, crowd-sourced register of named children’s school moves, maintained indefinitely so that readers can track the market in boys, is a database, and it is difficult to see why naming a thirteen-year-old is necessary to make the point that player movement is widespread. The scale of movement can be reported without a single child’s name. Section 7(2) offers a second route to publishers who are subject to a code of ethics that provides adequate safeguards, which is where newspapers subscribing to the Press Code sit. Most independent rugby blogs subscribe to no code at all, and so answer under POPIA itself. Even the Press Code, in clause 8.1, requires exceptional care in reporting about children and, where coverage might cause harm, the consent of a legal guardian and a demonstrable public interest. The professional standard and the statute point the same way.
The enforcement machinery is real and it does not depend on the parent. Unlawful processing of a child’s information is an interference with the protection of personal information under section 73(a), and section 74(1) allows any person, a school, a rival website, a member of the public, to complain to the Information Regulator. The Regulator may investigate and may serve an enforcement notice under section 95 requiring the entries to come down. Failure to comply with an enforcement notice is an offence under section 103(1), and section 107(a) fixes the penalty at a fine or imprisonment for up to ten years, or both. Obstructing the Regulator is an offence under section 100 carrying the same maximum. As an alternative to prosecution the Regulator may impose an administrative fine, which section 109(2)(c) caps at R10 million. Alongside all of that, section 99(1) gives the data subject a civil claim for damages whether or not the responsible party intended the breach or was negligent, and the parents retain the ordinary common-law action for invasion of privacy. A hobbyist running a page from his spare room carries exactly the same exposure as a media house. The Act does not have a small-publisher exemption, and goodwill towards schoolboy rugby is not a defence.
What a parent can do
The answer has several parts, and I set them out here in general terms only; the position in any particular case will depend on its facts.
The first is that a parent may demand removal. Under section 24 of POPIA a data subject, and in the case of a child a competent person acting for him, may request a responsible party to delete personal information that was obtained unlawfully, and a publisher who has no consent on file is processing unlawfully from the moment the name went up. The request should be in writing, should identify the entry, and should state that no consent was given.
The second is that a parent may complain. Section 74(1) of POPIA allows any person to submit a complaint to the Information Regulator alleging an interference with the protection of the personal information of a data subject, and the unlawful processing of a child’s information is such an interference under section 73(a). The Regulator may investigate and may issue an enforcement notice under section 95.
The third is that a parent may sue. Section 99(1) of POPIA provides for a civil action for damages for breach of the Act whether or not there is intent or negligence on the part of the responsible party, and the ordinary common-law action for invasion of privacy is available alongside it.
The fourth, a parent who learns from a website that the other parent has arranged a school move without consultation has learnt something relevant to section 31(2), to the parenting plan and to any application that may follow. The publisher who thought he was reporting rugby news has, in that case, published the first notice of a family dispute.
Where the line sits
Nothing here is an argument against schoolboy rugby coverage, which I follow and value as much as anyone. Matches, festivals, selections and announced academy intakes are public events, and reporting them is legitimate. The line sits where coverage of the game becomes a record of the child’s family life. A school move is a major decision under section 31 of the Children’s Act, taken by the holders of parental responsibilities and rights and, where there are two of them, taken after each has heard the other. It is not a rugby event. Its publication, attached to a named child as young as thirteen, in a tracker about the buying of boys, is a matter concerning the child in which his best interests are paramount, and it may lawfully be done only with the prior consent of the person or persons whom family law recognises as competent to give it. The publisher who has that consent on file has nothing to fear. The publisher who does not should take the entry down, and should do so before a parent, or a court, asks him why it was ever there.
The full research paper on schoolboy rugby recruitment and the Children’s Act, Bought, Not Built, is available at The Centre for Open Science, www.familylaws.co.za and at familylaw.substack.com. The companion article on transfer sheets and the POPI Act is published on the Family Law South Africa Substack.
Sources
Children’s Act 38 of 2005, ss 1 (definition of “care”), 6(2)(a), 7(1)(l), 9, 18(2), 18(3), 30(2), 31(1)(b)(iv), 31(2), 33, 34 (https://www.saflii.org/za/legis/consol_act/ca2005104/); Protection of Personal Information Act 4 of 2013, ss 1, 7(1), 7(2), 11(2)(a), 24, 34, 35(1), 73(a), 74(1), 95, 99(1), 100, 103(1), 107(a), 109(2)(c) (https://www.saflii.org/za/legis/consol_act/popia4o2013399/); Constitution, ss 14, 28(2); Centre for Child Law and Others v Media 24 Limited and Others [2019] ZACC 46; 2020 (4) SA 319 (CC) para 50 (https://www.saflii.org/za/cases/ZACC/2019/46.html); NM and Others v Smith and Others [2007] ZACC 6; 2007 (5) SA 250 (CC) para 34 (https://www.saflii.org/za/cases/ZACC/2007/6.html); Press Code, cl 8.1 (https://presscouncilsa.org.za/wp-content/uploads/2024/08/Press-Code_Eng.pdf).
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator, Court Day Calculator and Accrual Calculator.