Owner or Bondholder or someone requesting information and POPIA

An owner wants the contact details of another owner in the scheme / the Bondholder wants the levy account details of a section. Can we give information out what does POPIA state?

POPIA is all about Protection of Personal Information – that is what it stands for, but there are other legislation that states that information must be given out.

For instance the STSM Act states the following on financial information:

PMR 26 (2)

On the application of any member, registered bondholder or of the managing agent, the body corporate must make all or any of the books of account and records available for inspection and copying

And then the STSM Act lists information that the Body Corporate must collect and keep record of:

PMR 27 (2) The body corporate must prepare and update the following records   (a) minutes of general and trustee meetings, including the following information‑
  • the date, time and place of the meeting;
  • the names and role of the persons present, including details of the authorisation of proxies or other representative;
  • the text of all resolutions; and
  • the results of the voting on all motions;
(b) lists of trustees, members and tenants with their‑
  • full names;
  • identity numbers or, in the case of non-South African citizens, their passport numbers; and
  • section addresses and mailing addresses, if different;
  • telephone numbers; and
  • email or other electronic addresses, if any;
(c)  lists of‑
  • sections shown on the sectional plan, indicating in each case whether it is a primary or a utility section, its participation quota and the name of the member in whose name it is registered;
  • exclusive use areas with descriptions of purposes and numbers, if any, indicating whether the rights to each area are conferred in terms of section 27 of the Sectional Titles Act or in terms of a rule, and a reference to the relevant rule where applicable; and
  • registered bondholders with their names and addresses;
(d) details of all future development rights including —
  • names and addresses of all registered holders of such rights; and
  • copies of all documentation prepared in terms of section 25(2) of the Sectional Titles Act for any such right; and
(e) any other records required by the regulations.  (3)  The body corporate may obtain and keep copies of all of the following:
  • The registered sectional plan and any registered amending sectional plan;
  • the Act and the regulations;
  • resolutions that deal with changes to the common property, including the conferring of exclusive use rights on members;
  • consents and approvals given by the body corporate to members;
  • waivers and consents given by members;
  • written contracts to which the body corporate is a party;
  • any decision of an adjudicator, arbitrator, magistrate or judge in a proceeding in which the body corporate is a party, and any legal opinions obtained by the body corporate;
  • the budget and financial statement for the current year and previous years;
  • income tax returns;
(j) insurance policies, endorsement and claim forms; (k)  correspondence sent or received by the body corporate and trustees; and (l) any other records required by the regulations.

And then in PMR 27 (4) the following regarding these records

27(4)   On receiving a written request, the body corporate must make the records and documents referred to in this rule available for inspection by, and provide copies of them to —

  • a member;
  • a registered bondholder; or
  • a person authorised in writing by a member or registered bondholder.

In Section 3 of the STSM the following:

  1. (1) A body corporate must perform the functions entrusted to it by or under this Act or the rules, and such functions include—
  • to comply with any reasonable request for the names and addresses of the persons who are the trustees of the body corporate in terms of the rules or who are members of the body corporate;

Based on this we confirmed with CSOS that should someone request information the Trustees have the right to ask for a reason why they want this information. And the information may not be given without the owner’s consent.

So how we as Trafalgar deal with requests – if it is a request for information of a specific owner we ask consent from the owner before we give out his / her information.  If it is a request of general Body Corporate information then we ask the Trustees instruction.  The Act states that the Body Corporate must give out the information – we are only the Managing Agent not the Body Corporate – there is no obligation on us to give any information.  So we have to run it past the Trustees and ask their instruction – explaining to them that the Act states that they must give it to the listed parties but that they may ask for a reason why the person wants it.

We also have to de-identify information as far as possible before giving it to anyone.  For instance the levy roll – we may give it to owners but need to block out the names of the owners before giving it.