26 May 2014

The intention of this Act is to promote the protection of personal information processed by private and public bodies to establish minimum requirements for the processing of this personal information as well as an Information Regulator to regulate and enforce this Act and to issue codes of conduct from time to time.

It further aims to regulate the rights of persons regarding unsolicited electronic communications as well as to regulate the flow of personal information across the borders of South Africa.

Although the Act has been signed into Law as aforementioned, POPI is not effective yet, as the President still has to decide on the commencement date which will be announced by the President by way of proclamation in the Government Gazette.

In terms of Section 9 of the Act it prescribes that personal information of parties must be processed lawfully and in a reasonable manner that does not infringe upon the privacy of such a person.

In terms of Section 10 it is further prescribed that personal information may only be processed for the purpose for which it is required and will only be limited to adequate and relevant information and not excessive in nature or in relation to the purpose for which it is required.

Section 11 clearly prescribes that personal information may only be processed if the party consents to such processing and if so required the responsible party processing such information will have the burden of proof to indicate that the required consent was provided by the relevant party.

A party who grants his consent for the processing of such information may withdraw his consent at any time provided that the prescriptions contained in Section 11 is not affected.

Without discussing the technical nature of this piece of legislation, it will require that estate agents, financial institutions and registration attorneys will have to obtain consent from relevant parties in property transactions to process their personal information required.

In terms of Section 69 the personal information processed may solely be used for the purpose that consent was provided for and not for any other form of direct marketing by means of electronic communication, sms or email unless the relevant party has explicitly provided his consent thereto.

In terms of Section 74, any aggrieved party may lodge a complaint to the Regulator in the prescribed manner alleging interference with the protection of the personal information which complaint has to be in writing. The Regulator further in terms of the Act has a multitude of powers to investigate such complaints.

Amongst others penalties, parties convicted of an offence in terms of this Act can be fined or imprisoned for a period of 10 years or both. Administrative fines of up to R10 million rand can further be imposed by the Regulator.

Should this Act therefore commence, it would be of the upmost importance, as part of your deed of sale to obtain the necessary consent in terms of Section 11 of which a draft is hereby provided for your consideration.

CONSENT IN TERMS OF SECTION 11(1)(a) OF THE POPI ACT 4 OF 2013 I, the undersigned Identity number : _

Hereby voluntary consent to the processing of my personal information as required in the marketing, advertising, putting up for sale and purchase process of my property by _ (estate agency).

  1. The purpose of the processing of the information will be solely for the estate agency related purposes and will not be re-purposed.

  2. Failing to supply the required information will result in ___ (estate agency) not being able to proceed with the transaction and carry out a successful transfer of the property.

  3. Information will only be collected in terms of the Estate Agency Affairs Act 112 of 1976, Deeds Registries Act 47, the Sectional Titles Act 95 of 1986 and the FICA Act 38 of 2001.

  4. The information will not be transferred to a third party unless specifically requested.

  5. This consent covers the natural sharing of information, insofar it is necessary, between the relevant parties involved in the process, including :

  6. Other estate agents in a multi-listing environment or where a working relationship or partnership exist between agents or agencies;

  7. The bond originator;

  8. The Bond Cancellation Attorney;

  9. The Bond Registration Attorney;

  10. The Transferring Attorney;

  11. The Financial Institution;

  12. SARS Revenue Services;

  13. All related institutions including but not limited to the Local Municipality, Home Owners Association and Body Corporates / Managing Agent.

  14. Should this consent be given in process of sale of property, the seller consents that the property may be advertised and marketed on an electronic platform, including but not limited to for example Property 24/Private Property