JUST WHEN ESTATE AGENTS WERE GETTING TO GRIPS WITH THE CPA, WE WELCOME POPI – A NEW
DIMENSION TO COMPLIANCE
Introduction:
In 2013, Parliament passed into law the Protection of Personal Information Act Number 4 of 2013 (“POPI”). To date, a commencement date of POPI has not yet been established but the public expectation is that the commencement date will be in 2014.
The purpose of POPI is to protect personal information of individuals in a manner that is controlled and secure.
Personal information must be processed lawfully and reasonably, in a manner that does not infringe on the privacy of the potential tenant or property purchaser (i.e. the “customer”), by gathering as little information as possible and information that is reasonable in the circumstances. As its name suggests, POPI protects the rights of individuals to privacy, in line with the Constitution. The right to privacy includes the right to protection against the unlawful collection, retention, dissemination and use of a customer’s personal information. POPI deals in detail with how personal information must be used and it changes the entire way in which estate agents will now need to carry out their business, whether screening tenants for lease agreements, dealing with purchasers of immovable property or marketing for new business.
How does POPI define “Personal Information?
“Personal Information” is very widely defined in POPI and includes, among other things, a home and work address, an email address or other contact details, race, gender, a name, date of birth, phone number (home and cellular), identity number or other identifying details, passport number, banking information or income (of a company or individual), and other information which is defined as personal information by POPl. Personal information applies to both companies and individuals.
When marketing, canvassing or screening, what must the Estate Agent do to ensure that the Law is being complied with?
If the Estate Agent contacts the customer for the purposes of marketing or cold canvassing, whether by telephone, email or sms, the legal position has drastically changed. The Estate Agent may no longer contact the customer and then give the customer the opportunity to ‘opt-out’ but, in fact, the Estate Agent may only contact the customer once the consent of such customer has been specifically given by the customer. In other words, the individual cannot be contacted without specific prior consent. This will change the way that marketing is done and will require innovation by
Estate Agents. Estate agents will need to advertise in different ways so that they are first given the permission

required by POPI to contact customers. Although this will involve a strategic change in advertising, this must be done together with legal support, in order to ensure compliance with POPI.
If, for example, an Estate Agent is screening a customer, POPI requires that the Estate Agent can only do this with the consent of the customer. Once again, this must be done together with legal support to ensure compliance with
POPI.
When you advertise for personal information – how much information do you ask for?
Personal information must be processed lawfully and reasonably, in a manner that does not infringe on the privacy of the customer (individual or company), by gathering as little personal information as possible and reasonable in the circumstances. For example, if an Estate Agent is requesting information from a customer, the Estate Agent must only ask for the minimum amount of information necessary to achieve its purpose.
What must an Estate Agent notify their customers of under POPI?
POPI governs how Estate Agents may collect, store, record, use and disclose personal information of their customers.
POPI states that Estate Agents must notify customers (or potential tenants/purchasers) of the purpose for the collection, storage, recordal, use and disclosure of personal information.
Storage of personal information
There is now a duty on Estate Agents who store personal information to have high standard of security in place from an IT point of view, when storing information electronically, whether in the cloud or on the Estate Agent’s own IT systems. The Estate Agent must also protect all personal information in its custody or control by adopting safeguards to prevent unauthorised access, use, disclosure, loss, destruction, copying or modification of any personal information.
An Estate Agent must respond to a request for access to personal information by providing the customer with copies of records in the Estate Agent’s possession or control. An Estate Agent must also tell the customer how their personal information has been used and to whom it has been disclosed.
Can an E state Agent ask a third party for a tenant’s (or potential tenant’s) personal information or for the personal information of a purchaser or potential purchaser?
No.
The Estate Agent has to have the consent of the person whose personal information is being disclosed.
Can an Estate Agent disclose personal information to another Estate Agent without its customer’s consent?
No. As a general rule, POPI requires that Estate Agents obtain consent.

Non-compliance
It is to be noted that non-compliance with POPI can potentially lead to claims for civil damages (including punitive damages), administrative fines of up to R10 million or criminal prosecution where fines and imprisonment of between
1 and 10 years are prescribed.
Conclusion
It is an inarguable fac t that Estate Agents will be left in “estate” of disarray if POPI is carried out to the fullest extent of the law.
Marlon Shevelew
Marlon Shevelew is the Director of Marlon Shevelew and Associates Inc., an International award winning Cape Town Law firm, specialising in Rental Property, Contractual, Consumer and Company law. Mr Shevelew is a National Legal Advisor and/or presenter of rental property seminars with the Institute of Estate Agents (IEASA), Tenant Profile Network (TPN),
Payprop, the University of Cape Town (UCT) and is a monthly guest expert on the “Law Report” on SAfm. Mr Shevelew also created the unique Rental Retainer Club which offers affordable legal fees to rental agents and landlords. www.marlonshevelew.co.za
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