POPIA: time for a data protection health check

The Protection of Personal Information Act No. 4 of 2013 (“the Act”) came into force on 1 July 2021. The Act governs how companies handle the personal information of their customers, suppliers, and staff members. By that date, companies had to appoint and register an Information Officer and comply with the Information Regulator’s Codes of Conduct.  

 

If companies fail to comply with the Act, either intentionally or inadvertently, they could face an administrative fine of up to R10 million.

 

We strongly advise you to assess if your compliance measures are adequate and establish what (if any) improvements you can make. In short, consider a data protection health check.

 

Bregman Moodley Attorneys offers a comprehensive POPI tool to assist you in ensuring that you are compliant with the Act.

This tool will help you train your c-suite and staff to implement a suitable compliance framework. The training for the information officer, and staff, should be ongoing to ensure accountability in terms of the Act.

 

The tool provides a process for conducting personal information impact assessments and putting policies or procedures in place to deal with data subject access requests. It also generates a PAIA manual that considers the recent changes brought about by the latest regulations promulgated in terms of PAIA. The tool also enables the information officers to conduct a preliminary and annual risk assessment.

 

Transfer costs in a deceased estate

A client asked:

We own a property that is registered in both my wife’s and my name, meaning we have joint ownership on an equal basis.

What I’d like to obtain clarity on is, how are the property transfer fees calculated if the first dying leaves the property to the surviving spouse? Are transfer fees based on 50% of the property value, and if not, why not?

The deceased’s spouse’s half share must be transferred to the surviving spouse at the Deeds Office either by formal transfer (if married out of community of property) or by endorsement (if married in community of property), which is a less formal process.

There will be no transfer duty payable to SARS.

Attorney’s fees are based on the value of the property reflected in the Liquidation and Distribution Account, as follows:

• Marriage in community –  75% of the value
• Marriage out of community – 50% of the value

The deceased estate usually pays the attorney’s fees, but if there are no funds available, then the surviving spouse must pay the costs.

When is it unconstitutional that a spousal visa becomes invalid if the relationship ends?

A spousal visa allows a foreigner to live with a South African Citizen or permanent residence holder in South Africa on a temporary visa.

s 11(6)(a) of the Immigration Act provides that a spousal visa shall only be valid while the good faith spousal relationship between the parties ‘exists’, and s 43(b) of the Act provides that upon the expiry of their status foreigners are to (‘shall’) depart SA. If they do not, they are considered to be illegal foreigners and unless authorized by the Director-General to remain pending an application for status become liable to be deported.

In a case heard in the Western Cape in June 2022, certain persons affected by these sections asked the court to declare that foreign parents of South African children should be allowed to remain in the country even if their relationship with their spouse ends.

The applicants had children (with their SA spouses) who were SA citizens, born in SA or had acquired SA citizenship on the strength of their SA parent’s citizenship. All the applicants had been living and working in SA for many years. All of them had been dutiful and supportive parents and caregivers to their children, sharing parental responsibilities with their partners both during and after the termination of their spousal relationships.

The judge found certain sections of the Act to be inconsistent with the Constitution and therefore unconstitutional, to the extent that they require foreigners who are parents and caregivers of SA children to cease working and to leave SA when their spousal relationships with their SA spouses come to an end, or they no longer cohabit together.

The judge suspended the declaration of invalidity for 24 months to enable Parliament to remedy the inconsistencies but ordered a “reading in” of the provisions in the interim.

Transfer costs in a deceased estate

 

A client asked: 

We own a property that is registered in both my wife’s and my name, meaning we have joint ownership on an equal basis. What I'd like to obtain clarity on is, how are the property transfer fees calculated if the first dying leaves the property to the surviving spouse? Are transfer fees based on 50% of the property value, and if not, why not?

The deceased’s spouse’s half share must be transferred to the surviving spouse at the Deeds Office either by endorsement (if married in community of property) or by formal transfer (if married out of community of property). 

There will be no transfer duty payable to SARS.

Attorney’s fees are based on the value of the property reflected in the liquidation and distribution account, as follows:

• Marriage in community –            75% of the value
• Marriage out of community –    50% of the value

The deceased estate usually pays the attorney's fees, but if there are no funds the surviving spouse must pay the costs.

 

 

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.