THE FIRST STEPS TOWARDS COMPLIANCE

During the next few weeks we will be focussing on the implementation of POPI in the businesses of estate agencies. This is to ensure we are all ready for full compliance when the period of grace ends on 30 June 2021.

While we do so we need to keep in mind the intention behind POPI, which is to balance 2 competing interests. These are our individual constitutional rights to privacy (which requires our personal information to be protected); and the needs of our society to have access to and to process (work with) our personal information for legitimate purposes, including the purpose of doing business. While the implementation of the new laws will require some effort from everybody, if we all play by the rules this will be a worthwhile exercise.

In certain circumstances POPI does allow us to access and work with the personal information of people without their consent, but this is the exception. The golden rule is that all businesses need to obtain consent from their customers to use their personal information in the context of their business relationship at the time that the customer’s personal information is collected.

For estate agencies, this could be done by the signature of a stand-alone generic blanket type consent, or, if the client is a seller or a landlord who is signing a written mandate, by the inclusion of such a consent in the mandate. We would also recommend the inclusion of such a consent as a standard clause in your deed of sale/offer to purchase and in your lease.

The generic blanket written consent in the form of a stand-alone document is available on our website. You can access it by clicking this LINK. You are welcome to download it and customise it to make it your own. Please exercise caution if you change the wording, as the document has been drafted to give maximum compliance with the minimum of words.

The standard clauses we suggest including in your mandates, deeds of sale and leases are set out below. You will note we have extended the consent to allow you to discuss matters arising from your mandate with your trusted legal advisors.

CLAUSE TO INSERT IN SALE OR LEASE MANDATE:

I/we hereby give AGENCY NAME consent to process my/our personal information, in accordance with the provisions of the Protection of Personal Information Act, for all purposes related to the carrying out of this mandate. Such consent shall extend to the sharing of my/our personal information with your trusted legal advisors who you may approach for advice or assistance during the provision of your services to me/us.

CLAUSE TO INSERT IN DEEDS OF SALE:

The Seller/s and the Purchaser/s hereby give their consent to the estate agency/ies involved in the sale, and to the Conveyancing Attorneys who will register the transfer of the property, to process our personal information for all purposes related to this sale, in accordance with the provisions of the Protection of Personal Information Act.

CLAUSE TO INSERT IN LEASES:

The Landlord/s and the Tenant/s hereby give their consent to the estate agency/ies involved in the lease, to process our personal information for all purposes related to this lease, in accordance with the provisions of the Protection of Personal Information Act. Such consent specifically includes the consent to work with and disclose our bank account details to facilitate the payment of the deposit and the monthly rent to the Landlord/s, and for the refund of the deposit to the Tenant/s.

You will note that we have included a specific consent to process information related to the clients’ bank account in the clause suggested for leases. This is in compliance with section 106 of POPI.

We hope that this will assist you with your efforts in complying with the new laws. Our next instalment of POPI compliance will follow in a few days.

Kind regards

Deon Welz
Miltons Matsemela Inc.