Does the POPI Act prohibit trustees from giving owner’s details to neighbours?
Hi, the Sectional Titles Management Rules state that personal details such as telephone and email details etc. of owners must be given to other owners when it is requested. However, the POPI Act was since enacted, which rule should be enforced? Should the details be given out, or must the trustees stay compliant with the POPI act and not provide the information? Thank you – Anneke
Hi Anneke, it is first necessary to point out that the Sectional Title Schemes Management Act and consequent amendments to the Prescribed Management Rules only came into effect as recently as October 2016, whereas POPI has been in operation since 2013. That said, the chronology doesn’t immediately address the question posed, however, it does assist in the sense that the relevant management rule dealing with sharing an owner’s contact details was only formally approved while POPI was already in existence – therefore, one assumes its potentially countervailing provisions were taken into account.
To address the specific question:
POPI isn’t intended to act as a blanket prohibition on responsible parties (in this context, the trustees) sharing data subjects’ (the owners) personal information in all conceivable circumstances. Instead, the Act — in section 5 — affords data subjects the right to have their personal information processed lawfully, and in accordance with POPI, as well as the right to object to their information being processed on reasonable grounds relating to his or her particular situation.
The crux of the matter, however, lies in the following provisions of the Act:
Section 9: personal information must be processed (a) lawfully; and (b) in a reasonable manner that does not infringe on the privacy of the data subject;
Section 10: Personal information may only be processed if, given the purpose for which it is processed, it is adequate, relevant and not excessive.
Section 11: Personal information may only be processed if — (c) processing complies with an obligation imposed by law on the responsible party; (d) processing protects the legitimate interests of the data subject; (e) processing is necessary for pursuing the legitimate interests of the responsible party or the third party (the other owners in the scheme) to whom the information is supplied.
With these provisions in mind, the next step is to consider that trustees are responsible for carrying out the duties of the body corporate, which includes the responsibility for the overall management of the scheme; and, further, that they are empowered to do all thing necessary to enforce the rules.
The sharing of an owner’s contact details is intended to assist both the trustees and co-owners, inter alia, in any one of a myriad of situations where an owner might urgently need to contact a co-owner. For example, where a serious water leak is causing damage to a neighbouring unit and the owner of the unit concerned is not at home. Sharing details in these circumstances is not likely to lend itself to abuse, but, on the other hand, it is surely reasonably necessary to achieve the desired purpose.
It follows that allowing trustees to give out contact details to owners supersedes the associated infringement on a co-owner’s constitutional right to privacy, and is therefore reasonable and justifiable — indeed it is necessary for pursuing a legitimate interest: the effective management of the scheme-at-large. This is of course subject to the proviso stated in POPI that the information shared is adequate, relevant and not excessive in the circumstances.
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Who is Marlon Shevelew?
Marlon Shevelew is the director of Marlon Shevelew and Associates Inc. a law firm specialising in rental property, contractual, consumer and company law.