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May 07, 2016

Is your sectional title complex looking a bit tired?

Sectional title maintenance and improvement

The trustees of your body corporate need to maintain the complex (to keep it more or less in its original condition). These items are provided for in a budget that deals with routine maintenance and provision for unforeseen expenses. The trustees normally have discretion to authorise spending on these items. If the maintenance item is out of the ordinary (e.g. you need to spend a large sum to resurface your tennis court) a majority of the owners should approve the expenditure.

Sometimes, it may be necessary to improve the property (perhaps to make it appear more modern).  An improvement that is a “must have” is likely to be non-luxurious but one that is a “nice to have” is probably luxurious. The common property of a scheme is owned by all owners in undivided shares. One of the basic principles of co-ownership is that all owners must agree to any significant or change to their property.

Maintenance of the common property, especially in schemes that have been running for a few years, should hold no surprises. Improvements to the common property, on the other hand, are not routine. This uncertainty is unfortunate because while a non-luxurious improvement must almost always be authorised by a special resolution of the body corporate, a difficult thing to achieve, authorising a luxurious improvement always requires a unanimous resolution, an exceptionally difficult thing to achieve.

The trustees are entitled to suggest a non-luxurious improvement but there is a specified procedure that must be followed to get the authorisation. The owners must be notified in writing of the trustees’ suggestion and given 30 days to request a meeting to discuss the proposal. They must be fully informed of the financial implications and, if any owner requests a meeting to discuss the improvement, a meeting must be held and the special resolution taken at the meeting. If the resolution is not taken, the improvement cannot be made. There are two implications to this provision. The first is that if no owner requests a meeting within the required thirty day notice period, the meeting need not be held and no special resolution is required to authorise that particular improvement. The second is that this is one special resolution that must be taken at a meeting and cannot be taken by round robin.

May 02, 2016

What is POPI all about?

·         The Protection of Personal Information Act ("POPI") was signed into law by the President on 19 November 2013. POPI seeks to regulate the Processing of Personal Information.

·         POPI will have a far-reaching impact on your organisation with severe consequences for non-compliance.

·         POPI will regulate almost everything that companies do with information relating to customers, employees, suppliers, and others, including information already in your possession or under your control.
Personal Information broadly means any information relating to an identifiable, living natural person or juristic person (companies, CC’s etc.) and includes, but is not limited to:
  • contact details: email, telephone, address, etc.
  • demographic information: age, sex, race, birth date, ethnicity, etc.
  • history: employment, financial, educational, criminal, medical history
  • biometric information: blood type, etc.
  • opinions of and about the person
  • private correspondence, etc.
Processing means broadly anything done with the Personal Information, including collection, usage, storage, dissemination, modification or destruction (whether such processing is automated or not).
Some of the obligations under POPI are to:
  • only collect information that you need for a specific purpose
  • apply reasonable security measures to protect it
  • ensure it is relevant and up to date
  • only hold as much as you need, and only for as long as you need it
  • allow the subject of the information to see it upon request
Does POPI really apply to me?
Accountability for compliance rests with a Responsible Party, meaning a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information. Generally the Responsible party must be resident in South Africa or the processing should occur within South Africa (subject to certain exclusions).
There are cases where POPI does not apply. Exclusions include: 
  • purely household or personal activity
  • sufficiently de-identified information
  • some state functions including criminal prosecutions, national security, etc.
  • journalism under a code of ethics
  • judiciary functions, etc.
Why should I comply with POPI?
POPI promotes transparency with regard to what information is collected and how it is to be processed. This openness is likely to increase customer confidence in the organisation.
POPI compliance involves capturing the minimum required data, ensuring accuracy, and removing data that is no longer required. These measures are likely to improve the overall reliability of the organisation databases.
Compliance demands identifying Personal Information and taking reasonable measures to protect the data. This will likely reduce the risk of data breaches and the associated public relations and legal ramifications for the organisation.
Non-compliance with the Act could expose the Responsible Party to a penalty of a fine and / or imprisonment of up to 12 months. In certain cases the penalty for non-compliance could be a fine and / or imprisonment of up 10 years. 

Image with thanks to www.saica.co.za