Real Estate Investor Magazine South Africa May/June 2015 | Page 40

LEGAL

POPI

and You

POPI’s Impact On The
Property Industry
BY MARLON SHEVELEW

T

he Protection of Personal Information Act
(POPI) – Number 4 of 2013 – and its impact
on the rental property industry cannot be
understated. Whilst sections and clauses, that will
directly impact the industry, are still incrementally
coming into force, it seems it is an opportune time to
remind the property industry about POPI’s potential
impact.
The aim of POPI is to protect privacy collection,
retention, dissemination and general use of personal
information.
In short, a rental agent must be careful when
screening tenants or entering into leases with tenants
- of every individual’s right, as well as every company’s
right, to privacy. The legal right of privacy is based
on Section 14 of the Constitution of the Republic of
South Africa.
‘Personal Information’ is widely defined in POPI
and includes, inter-alia, race, a name, date of birth,
phone number (home and cellular), work and home
address, identity number, passport number, banking
information or income (of a company or individual),
gender, contact details, personal opinions, private
correspondence, financial information, and any other
information which is deemed to be personal. Personal
information applies to tenants (and, in fact, all people
and entities) who are both companies and individuals.
There is an inherent duty to process information
lawfully and reasonably when screening the potential
tenant. This is done in a manner that does not infringe
on the privacy of that tenant (individual or company)
by gathering as little information as possible, under the
circumstances, with the consent of the tenant.
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MAY 2015 SA Real Estate Investor

Once this information is to hand, POPI dictates
how such information may be stored, recorded, used
and disclosed, not to mention the duty to have high
standards of security in place from an IT point of view,
when storing information electronically, whether in the
cloud or on the agent’s own IT systems.
The agent must also protect a tenant’s (or potential
tenant’s) personal information in its custody or control
by adopting safeguards to prevent unauthorised
access, use, disclosure, loss, destruction, copying or
modification of any personal information.
POPI is quite clear that the tenant’s consent needs
to be obtained before disclosing personal information
to third parties (with certain exceptions, such as state
security).

“POPI dictates how such
information may be stored,
recorded, used and disclosed.”
To conclude, non-compliance with POPI can
potentially lead to claims for civil damages (including
punitive damages), administrative fines of up to R10
million or criminal prosecution where unlimited fines
and imprisonment of between one and 10 years are
prescribed, so be sure to engage an attorney practicing
in this field to guide you accordingly.

RESOURCES
Marlon Shevelew and Associates Inc.
www.reimag.co.za