HELPING YOU AND YOUR BUSINESS TO BE FULLY POPI COMPLIANT

The Protection of Personal Information Act (Act 4 of 2013) (POPI) obliged you to become POPI compliant by 1 July 2021. 

What must you do to implement POPI in your Business? 

Section 3 of POPI provides the legal requirement for every Business and Legal Entity (=Responsible Party) to comply with the POPI Act in every respect in relation to the Processing of Personal Information of all natural and juristic persons, including employees, clients, suppliers and service providers (=Data Subjects)

POPI applies to all natural persons and juristic persons (business and legal entities including funds and schemes), whether owned by individuals, companies, partners, members, sole proprietors, close corporations, NGOs/PBOs, associations and business trusts, including dormant entities. Only de-registered entities do not need to have a POPI Manual, and Information Officer registered.

POPI is a Privacy Law that applies conditions for the lawful processing of personal data. The goal of POPI is to protect data subjects (such as employees, customers, services providers etc) from security breaches, theft and discrimination and is based on the European Union’s legislation, called the GDPR (General Data Protection Regulation). 

How Can We Assist You to be POPI Compliant and Implement POPI? 

We offer you an extremely user-friendly online program that provides: 

•        POPI Awareness Training for you and your staff

•        A POPI Compliance Certificate

•        A POPI Compliance Manual and Toolkit that covers the step-by-step implementation documentation, reporting, policies, procedures, and controls to manage and monitor POPI activities in your business

•        A Non-Compliance Gap Analysis and Notes Reports

•        Over 20 POPI policies

•        Over 30 Information Regulator forms and registers

•        A customised PAIA manual

•        A customised Privacy Policy

•        New features, enhancements and policies

•        Updated acts and regulations

See the attached video that describes in detail how the program works and how really simple it is to become fully POPI compliant.

 

 

How to protect yourself and your loved ones if you become temporarily or permanently disabled

 

There’s nothing wrong with your head, apart from the throbbing gash over your right eye and the 20 stitches that are holding it together.  You vaguely recall screeching brakes and flying glass.  You notice your right leg and arm are suspended in traction and your foot is itchy.  You are also thirsty. 

The doctors are talking about a lengthy period of rehabilitation with intensive physio and occupational therapy.  You will not be able to drive for six months.  You live alone. 

You and your newest friend named “Panic”, ponder how you might manage your ablutions, answer your front door or prepare a meal.  

What now?

With your mind accelerating into overdrive, you stress over how much of the recovery tab your medical aid may pick up?  (Or not.)  Since you have no family and your closest friend has a house with stairs, where will you go for the next six months?  What can you afford? 

Unless you are prepared to give someone you trust, a Power of Attorney to handle all your affairs and pay your bills over the next six months, a curator will have to be appointed.  This is tantamount to giving a complete stranger access to all your financial and personal affairs.

Can there be anything worse?

Yes.  Reduced mental capacity.

Whether temporary or permanent, from concussion to brain damage, early onset dementia to Alzheimer’s.  Once you are mentally incapacitated without a plan B, you are deemed to be incapable of taking care of yourself.  A curator it is.  (A Power of Attorney has no legal standing with respect to mental incapacitation.)

The curator will be appointed by the courts.  He or she may be the nicest person you have ever met (you have reduced mental capacity!).  The truth is that the courts do their best to appoint honest, suitably qualified people and there are many good and able curators, but the fact remains, you do not know this person who is now in complete control of all your affairs, with access to every nook and cranny of your life – including where you may have to spend the rest of your life.

There is a way better option.  It requires foresight, common sense and planning.  Nobody wants to be beholden to a third party for their care, it is a burdensome responsibility that may render you powerless and vulnerable. 

A contingency plan created before any physical or mental incapacitation happened, will have kept the newly-disabled person in the driver’s seat. It entails a personal blueprint of instructions that covers any future physical or mental incapacitation.  It is a plan that replaces complete strangers with people one knows and trusts.

Disability Planning within a Discretionary Living Trust represents a protective legal framework that holds the Trustees accountable to the law, to you and to each other.

Life happens. 

Get ahead of the threat and contact my respected associate, Dr Mervin Messias, a specialist in this field with years of professional (and life) experience.  For an appointment, call 011 – 783 0108 or email mervin@mmtrustspecialist.co.za. Please tell him that Bregman Moodley referred you to him.

Recognition of foreign marriages in South Africa

 

Destination weddings 

If you intend to have a destination wedding or if the husband is not a South African, you can and should enter into an antenuptial contract regulating the consequences of your marriage. Otherwise, you may be married in community of property. See this article. 

Registering a foreign marriage in South Africa 

You should inform the Department of Home Affairs (DHA) of the foreign marriage to update your marital status and surname, if it has changed, on the Population Register. 

You must submit the following documents to register the marriage: 

·         A written request for the foreign marriage registration, including your full contact details (address, mobile number, and email address). 

·         Your South African passport or identity document. 

·         Original or certified copy of the foreign marriage certificate accompanied by an English translation by a sworn translator if the original marriage certificate is not in English. 

The DHA does not issue a certificate confirming the changed status. However, it will capture the information on its website. 

Change of surname 

A female South African citizen who has changed her surname after marriage may apply for a new tourist passport and identity document reflecting her new married surname. 

However, she does not need to apply for the change of her surname formally and may choose to use either:

·         Her married surname 

·         Her maiden surname 

·         A double-barrel surname combining both married and maiden surnames

·         Any other surname had at any time prior to her current marriage 

Any male South African citizen who has chosen to change his surname after marriage must make a formal application for the change of surname.

The advantages of a modern living-trust-centred estate plan

In many countries, there is what is called a durable power of attorney. Making a durable power of attorney for finances ensures that someone you trust will have the legal authority to take care of financial matters if you become incapacitated and unable to handle things yourself. (The term “durable” simply means that the document remains effective if you become incapacitated. A nondurable power of attorney would automatically end if you are no longer of sound mind). The tasks may range from paying bills to handling insurance and filing taxes. 

South Africa has not yet accepted that principle. Accordingly, if you appoint an agent on your behalf to manage some or all your affairs in terms of a general or special power of attorney, the rights that the agent enjoys under such power of attorney will lapse if you become incapacitated or die. 

Incapacity may be temporary (for example if you have a stroke that you recover from or are badly injured in a motor collision) or permanent (for example if you never recover from your stroke or suffer from dementia or other mental impairment). 

The consequence of this is that if you are deemed to be unable to manage your financial affairs your family needs to approach the High Court, at huge expense, to appoint a curator to act on your behalf. Curatorship proceedings are not only complicated and expensive, but they put private matters on public record – rarely a desirable outcome. 

If the concept of a durable power of attorney does not apply in South Africa and if South African powers of attorney lapse on your death or incapacity, what is your option? 

Approach your lawyer to implement a modern living-trust-centred estate plan. He or she will advise you how to take best advantage of the planning talents of your accountant, financial planner and stock broker, to manage your affairs, not only during your period of disability. This would enable you to have a say in the control of your property while you are alive; provide for you, your spouse, and your children, without any curator proceedings, if you become sick, injured or disabled; provide for your loved ones in exactly the way you want after you die and make absolutely sure you don’t take your family public and make a lot of strangers richer at your expense or the expense of your loved ones.

 

CCTV cameras at home and the right to privacy

 

A client asked: What is the law on CCTV installation on a private property in relation to privacy and the law? I have a situation where a camera has been set such that 85% of what is being captured is in my yard.

Privacy issues 

You have the right to protect your property and this can be done by using a CCTV system where it is necessary, such as a security measure. However, out of respect for your neighbour, CCTV systems should be used in a responsible way to respect the privacy of others. 

The problem arises when you cross the line between monitoring your own property and somebody else’s. If your camera is angled in such a way that it includes coverage of your neighbour’s yard or driveway, then complaints about invasion of privacy will follow. 

CCTV monitoring is acceptable and even welcomed in public places, but it is unreasonable to be spied on in your own private property.  

The law 

The complaints about invasion of privacy are not specifically protected in law. Our constitution gives a citizen the broad right to privacy. However, there is nothing illegal, per se, about home surveillance in South Africa.

South Africa’s Protection of Personal Information Act which seeks to regulate the Processing of Personal Information, does not apply to purely household or personal activity.

Clearly, the common law would protect you, regarding your neighbour’s CCTV cameras, when:

·         The surveillance is of a criminal or voyeuristic nature;

·         The area being monitored is one where someone would reasonably expect to have privacy, such as a bedroom or bathroom;

·         The surveillance is of such intensity that it is creating a nuisance, preventing someone from the enjoyment of their property;

·         The installation of the cameras is the result of a neighbourhood dispute involving threatening behaviour, in which case an apprehended violence order may call for the cameras to be removed.

The solution

Use some basic common sense to avoid alienating your neighbours and possibly being taken to court.

When you install CCTV cameras, make sure that:

·         You are transparent to those around you when installing your CCTV system, by informing your neighbour(s) about your system;

·         They are only monitoring your property;

·         If your camera is pointing directly at a neighbour’s property, you should take steps to reposition it to avoid complaints or in some cases accusations of violation of privacy or harassment;

·         If they are overlooking the street, there is a sign informing people they are being monitored;

·         They are not monitoring areas where people could reasonably expect privacy;

·         The stored information is not used for any other purpose than protecting your property;

·         If you record images, regularly delete the recordings and do not keep them for longer than is necessary for the protection of your property;

·         If your system captures information of an incident, retain that information as it could be use by the police to aid an investigation.