Wake up and smell the POPI
By Carryn Melissa Durham
The Protection of Personal Information Act 4 of 2013 (“POPI”) gives effect to the constitutional right to privacy while advancing the right of access to information. The Act was signed into law by the President on 19 November 2013 and published in the Government Gazette Notice 37067 on 26 November 2013. The President will determine commencement of POPI by proclamation in a Gazette. The provisions relating to definitions, establishment of the office of the Information Regulator and the making of the regulations came into force on 11 April 2014. No one is sure when the Act and Regulations will come into operation. Once the Act comes into force there will be one year’s grace period to become compliant with the requirements for processing of personal information.
The purpose of the Act is to promote and introduce certain conditions for the protection of personal information processed by public and private bodies; to provide for the establishment of an Information Regulator; and the issuing of codes of conduct.
This Act could have an affect on the access to and processing of information in sectional title schemes. The body corporate, trustees and managing agent have the responsibility in terms of various provisions in the Sectional Titles Act to process owner’s personal information, thus making them the “responsible party” and the owners, tenants, employees, contractors etc to whom the personal information will relate, will be the “data subject.” “Personal information” has a wide definition in section 1 of the Act and includes information relating to race, gender, pregnancy, marital status, sexual orientation, age, physical or mental health, religion, language, education, financial history, identifying number, e-mail address, physical address, telephone number, location information, online identifier, personal opinions, views or preferences, confidential correspondence, views or opinions of another individual about the person, and the name of the person if it appears with other personal information.
Within the context of sectional titles POPI requires that the body corporate not intrude on the owner’s privacy to an unreasonable extent. All the information must be collected for a specific, defined and legitimate purpose and it cannot be further processed for a different purpose. The body corporate must maintain the information quality in that it must be accurate and complete and not misleading and must be updated where necessary. Furthermore, the body corporate must have appropriate technical and organisational security safeguards for the information. The owner must know why the personal information is kept and must have the opportunity to amend or correct it. Therefore, once the POPI Act comes into force trustees, on behalf of bodies corporate, will have to consider what data they keep, how it is stored, secured, used and made available to others.
Section 32 of the Constitution of the Republic of South Africa, 1996 supplemented by the Promotion of Access of Information Act 2 of 2000 guarantees the making available of information. The principle is that a person is entitled to be furnished with all available information that affects his interest. An interesting question, in the light of POPI, is whether the owners are entitled to the scheme’s debtors age analysis reports that sets out which owners are in arrears with their levies and for what period of time they have been in arrears. PMR 35 requires that the trustees keep books and records that fairly explain the financial position of the body corporate, and owners are entitled to inspect these records. Furthermore PMR 48 requires that the managing agent keep full records of his or her administration and report to the body corporate and to all holders of registered sectional mortgage bonds who have notified the body corporate of their interest of all matters which in his or her opinion detrimentally affect the value or amenity of the common property and any of the sections. It is for these reasons that I am of the opinion that all the members of the body corporate are entitled to information regarding any owner who is in arrears with their levies.
The body corporate has access to the contact details of the owners. Section 37(1)(l) of the Sectional Titles Act requires that the body corporate comply with any reasonable request for the names and addresses of the persons who are the trustees of the body corporate or who are members of the body corporate. PMR 35(2) provides that on the application of any owner, registered mortgagee or the managing agent the trustees must make all or any of the books of account and records available for inspection by such owner, mortgagee or managing agent. PMR 3(2) provides that the domicilium citandi et executandi (service address) of each owner shall be the address of the section registered in his name. The owner is entitled at any time to change the domicilium on condition that any new domicilium selected must be situated within South Africa. The change shall only be effective on receipt of written notice thereof by the body corporate at its domicilium. This rule implies an obligation on the body corporate to keep a list of owners and their addresses, while section 37(1)(l) requires that the body corporate must comply with any reasonable request for the names and addresses of its members. Whether or not the trustees must make the names or addresses available will depend on the reasonableness of the request.
The very nature of communal living requires that the inhabitants have reasonable access to each other’s contact details to exercise their rights. POPI cannot be used as an excuse not to give this personal information, as the Sectional Titles Act provides legitimation to the fact that owners are entitled to this information. On the other hand it also does not mean that the trustees must give all the contact information, but merely the name and domicilium as is required in terms of PMR 3(2).
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Thinking Inside the Box 
Trustees are hiding behind the managing agent and the Popi act and the managing agent is saying that they cannot provide their details without their consent. Trustees have accepted nominations on behalf of the B/c owners and should then be available to discuss matters of importance wrt the B/C and that includes the Managing Agent when an owner has a concern. How do you get them to comply short of having to take legal action?
Hi Cheryl,
Thank you for your comment. As far as we are aware, the POPI Act is not in effect yet, however companies and organisations should be preparing for the implementation of POPI.
Kind regards,
Paddocks
Even before POPI, managing agents and trustees already made it difficult to obtain a simple list of owners and their contact details. With this new law, it will only give dictatorship type MA and Trustees bigger reason as to why they cannot comply with simple rules of giving an owner aforementioned. In some BC it is impossible to get such a list . and there are times when it is absolutely needed such as in the case of reaching owners to discuss certain matters of importance. M.A + Trustees, simply don’t like to give owners this info for fear of being exposed or loosing control on certain matters and THAT is WRONG!