Two pieces of legislation you should know about

Staying up to date on current legislation is essential, not only for legal professional but also for individuals, to ensure all transactions are concluded correctly and in line with all relevant legislation.

Two important pieces of legislation that have received significant interest already are the Protection of Personal Information Act (commonly referred to as POPI) and the Property Practitioners Bill, and here, we offer an overview of each.

The Protection of Personal Information Act

The purpose of this Act is to ensure that all South African institutions operate in a responsible manner when collecting, storing or processing the personal information of entities or individuals.  The intention is to achieve this through holding these institutions accountable should they be found to have acted negligently with regards to the use of any personal information.  

Compliance with the Act will have a large impact on how personal information is gathered and processed and ultimately how employees handle such information. It should, however, be noted that a duty of care is also placed on the individual himself to protect personal information. For example, an individual cannot hold another institution liable for compromising his or her information if such information is also posted on a public forum such as social media.

The POPI Act stipulates that all personal information gathered should only be used for the purposes for which it was collected, as agreed upon with the customer, client or employees. In addition to this, personal information is also only to be retained for as long as is necessary. To comply with these points, institutions should implement retention periods relating to the holding of personal information, and should also only ever request and process relevant information as is necessary for the required purpose.

For any business or institution to incorporate the POPI Act will take a tremendous amount of time, resources and effort, however, it is of utmost importance that all institutions that are seen as custodians of personal information comply with the provisions of the Act. As such, it is essential that staff be trained accordingly, any processes relating to the business be updated, and technology solutions improved.

The Property Practitioners Bill

The Property Practitioners Bill is intended to repeal the Estate Agency Affairs Act, 112 of 1976, and will have some dramatic implications for the property industry.

The new bill envisages to broaden the definition of a ‘property practitioner‘ to include estate agents, rental agents, mortgage originators, property inspectors, and property managers as well as a number of others. Excluded from the definition, though are sheriffs of the court, a person offering the services of a property practitioner but not in the normal course of his business, a person that is selling his property in his private capacity and attorneys or candidate attorneys.

The Bill aims to replace the Estate Agency Affairs Board with a new body which will be known as the Property Practitioners Regulatory Authority. This authority will be responsible for the conduct of property practitioners relating to their dealings with consumers including when it comes to marketing, letting, selling, and financing.

Further to this, the Bill also proposes to establish a regulatory body to consider any form of complaint lodged in terms of sections of the Act, should be passed into law. Any complaints from the public will be dealt with by the Ombud, and these will follow the necessary procedures as prescribed in the Property Practitioners Bill in order to resolve such dispute.

There are a number of elements still under review or that require clarification by the legislature, including when a property practitioner is required to have his or her own trust account and Fidelity Fund Certificate.

Going forward it is hoped that both sellers and their agents will be more aware of what is required from them before their property can be sold.

The proposed Bill remains in a draft format and changes are likely to still be made, after which the revised Bill will be released for further review and comment.

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Written by Wessel de Kock

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