What are my rights if telemarketers call me without my permission?

 

Telemarketers constantly inundate me with calls. Is this an offence?

The Protection of Personal Information Act (POPIA) doesn’t protect you from marketers who contact you telephonically unless you explicitly tell them to stop calling you.

Section 69 of POPIA deals with processing your personal information without your consent. You must consent to direct marketing using any form of electronic communication. The section mentions automatic calling machines (a machine that can do automated calls without human intervention), facsimile machines, SMSs, or e-mail.

“Electronic communication” is something transmitted over electronic communications networks, stored in the network or the recipient’s equipment (such as a text, a voice, a sound, or an image).

The section does not explicitly include phone marketing in its definition of unsolicited electronic communication. A telephone is not an electronic communications device.

So, telemarketers may call you and ask you to consent to the call and the sales pitch. If you object, they may not contact you again.

If you want to bother, you can request the name of the telemarketers and note their numbers. You can complain to their company or the Information Regulator of South Africa if they don’t stop calling you after you told them telephonically.

Should you object to further calls, any further processing of your information for this purpose is a breach of the provisions of Section 69.

 

Lent your moveable property to someone but can’t get it back?

 

 

By Dean Brainin

 

A client lent a trailer to a friend to use on a camping trip. The friend refuses to return it. What can the client do?

 

Our law defines “Lending” as granting to someone the use of something on the understanding that the borrower will return it. What happens when a person refuses to return the lent property or claims they are the owner of the property?

 

South African law provides a remedy allowing the owner to reclaim the loaned property from whoever is unlawfully in possession of the property. The legal relief is the Rei Vindicatio. The action is open to the owner regarding both moveable and immoveable property.

 

The client needs to prove three things to get his trailer back:

 

1.      He owns the trailer;

 

2.      It must exist and be identifiable; and

 

3.      When he sues for the return of the trailer, it must be in the physical control/possession of the borrower.

 

If the friend disputes that the client owns the trailer, he bears the onus to prove he owns it or has a right to it. The borrower may raise four defences:

 

1.      The person claiming ownership of the property is not, in fact, the owner;

 

2.      The person’s physical possession/control of the property in dispute is not unlawful (a limited real right or a personal right);

 

3.      The property in dispute no longer exists or is no longer identifiable; and

 

4.      The defendant did not have physical control of the property at the time when the Rei Vindicatio was instituted.

 

If a court finds that the lender of the property is the lawful owner of the property in question, however, the person alleging to be the owner of the property has already sold/disposed of the property, the court will order that the equivalent monetary value of the property be awarded to the lawful owner.