Legal Framework
Surveillance cameras within sectional title community schemes have become increasingly prevalent, raising questions about their implications for the privacy rights of property owners in South Africa.
This opinion aims to analyse the legal framework surrounding the installation and use of surveillance cameras in such schemes and its impact on the privacy rights of owners.
Governing Law
There is currently no law that expressly regulates the use of CCTV cameras and the footage thereon. The main prevailing governing pieces of legislation that indirectly govern video surveillance are: The Constitution of the Republic of South Africa, 1996 (“the Constitution”), Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) the Protection of Personal Information Act 4 of 2013 (“POPI”), which was enacted to give effect to the constitutional right of privacy contemplated in section 14 of the Constitution, and the Promotion of Access to Information Act 2 of 2000 (“PAIA”), which gives effect to the right to access to information contemplated in section 32 of the Constitution.
Sectional Titles Act, 95 of 1986: The Sectional Titles Act governs the establishment and management of sectional title schemes in South Africa. Section 5(1)(b) of the Act provides that an owner of a section shall not, without the written consent of the trustees, make any improvements to the common property. The installation of surveillance cameras may be construed as an improvement to the common property, thus requiring the consent of the trustees.
Sectional Titles Schemes Management Act, No. 8 of 2011 (STSMA): The STSMA provides for the establishment of bodies corporate to manage and regulate sectional title schemes. Section 3(1)(l) of the STSMA empowers the body corporate to make and amend rules regarding the use and enjoyment of sections and common property. Rules may be adopted to regulate the installation and use of surveillance cameras within sectional title schemes, subject to compliance with statutory requirements and constitutional principles.
Protection of Personal Information Act, 4 of 2013 (POPIA): POPIA regulates the processing of personal information and promotes the protection of privacy rights. The Act applies to the collection, storage, and use of personal information by both public and private entities. Surveillance cameras that capture images of individuals within a sectional title community scheme may involve the processing of personal information, thus requiring compliance with POPIA.
Privacy Rights of Owners
Privacy rights are fundamental rights enshrined in the Constitution of South Africa. Section 14 of the Constitution protects the right to privacy, which includes the right to be free from unreasonable searches and seizures. The installation of surveillance cameras within sectional title community schemes raises concerns regarding the infringement of privacy rights of property owners.
Impact Assessment
The installation of surveillance cameras must be assessed in light of its necessity, proportionality, and impact on the privacy rights of owners. Factors to consider include the purpose of surveillance, the scope of monitoring, the duration of retention of footage, and measures to safeguard the privacy of individuals.
Necessity and Proportionality: Surveillance cameras may be installed for various purposes, including security, crime prevention, and monitoring of common areas. However, the necessity and proportionality of surveillance must be carefully evaluated to ensure that it does not unduly infringe on the privacy rights of owners.
Consent and Notification: Property owners and Trustees must be informed about the installation of surveillance cameras and provided with an opportunity to express their consent or objection. Trustees should engage in transparent communication with owners regarding the purpose and scope of surveillance activities.
Data Protection and Security: Surveillance cameras must comply with data protection principles outlined in POPIA. Measures should be implemented to ensure the security and confidentiality of captured footage, including encryption, access controls, and regular audits of surveillance systems.
Conclusion
In conclusion, the installation of surveillance cameras within sectional title community schemes must be conducted in accordance with relevant legal provisions, including the Sectional Titles Act, the STSMA, and POPIA, while respecting the privacy rights of owners.
Trustees have a duty to balance the need for security and surveillance with the protection of individual privacy.
Any decision to install surveillance cameras should be accompanied by a thorough impact assessment and consultation with affected homeowners and Trustees before instillation commences.