Authors: Marina Constas
BBM Law Director and Specialist Sectional Title Attorney
23 April 2021
POPI: NON-COMPLIANT RESIDENTIAL DEVELOPMENTS TO FACE HEFTY FINES
Community housing schemes, like sectional title schemes, apartment blocks, residential estates, and retirement villages, must comply with the Protection of Personal Information (POPI) Act by the 1st of July 2021 or they could be liable for a fine of up to R10 million, says specialist sectional title attorney and BBM Law director, Marina Constas.
“Trustees in sectional title schemes and directors of homeowners associations are responsible for ensuring their development’s POPI compliance and should have a well advanced POPI plan of action by now,” Constas stresses, adding that the penalty for non-compliance is a fine of up to R10 million- or twelve-months’ imprisonment.
“By now, every community housing scheme should have a POPI policy; or be close to finalising this important document. They should have appointed an information officer who is the POPI oversight representative of the scheme; amended their rules, if necessary, to comply with POPI; and they should have POPI agreements with stakeholders like auditors and managing agents who have access to the personal information of owners and tenants,” she advises.
Constas explains that the POPI policy should include details of whose personal information in collected and held by the complex: “This includes trustees, owners and tenants, as well as visitors. The type of personal information that the complex collects and holds, as well as how the complex collects and stores personal information, must be specified. The purposes for which the complex collects, uses and discloses personal information must also be detailed, along with information on how an individual may access personal information.
“Aspects to be considered by the trustees and directors include access control at the guardhouse and CCTV surveillance cameras. They must be ready to answer questions regarding what information is requested from visitors by security guards. Does it include identity numbers and photographs? The trustees and directors must be able to explain why this information is collected; where it is stored; for how long it is stored and when it is destroyed”.
“Community schemes can still make use of CCTV cameras, but there are certain steps that they must take to be POPI compliant,” Constas explains. “These include notifying owners in writing that cameras exist and where they are located. Cameras must be positioned in such a way that they do not infringe on an owners’ right to privacy in their own home. The POPI policy should clearly explain who is responsible for the control of images, what is recorded and how images are utilised. In storing footage, care must be taken that images cannot be corrupted, and there must be a process outlined for destroying footage after a certain time. Signage stating that CCTV cameras are in use for the purpose of crime prevention is recommended for sectional title complexes and residential estates, to ensure POPI compliance.”
“The POPI policy document must also outline how an individual can complain to the Information Regulator and how the complex or residential estate will deal with that type of complaint,” she advises.
“I would strongly suggest that, with final deadline for POPI compliance looming, all sectional title complexes and community housing schemes obtain professional advice and assistance to review and update their privacy policies and privacy statements. Having a detailed POPI policy is the ideal way to manage the imminent onslaught of queries by owners and visitors,” she concludes.
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