POPI Manual

1. Introduction

• The Protection of Personal Information Act (POPI) is intended to balance two competing interests.
  
  
• These are:
  • Individual constitutional rights to privacy (which requires personal information to be protected); and
  • The needs of Society to have access to and to process (work with) personal information for legitimate purposes, including the purpose of doing business.
  • This Compliance Manual sets out the framework for our practice’s compliance with POPI.
  • Where reference is made to the “processing” of personal information, this will include any activity or context within in which the information is used, from the time that the information is collected, up to the time that the information is destroyed, regardless of whether the information used manually, or by automated systems.

2. Undertakings to Customers:

• We undertake to follow POPI at all relevant times and to process personal information lawfully and reasonably, so as not to infringe unnecessarily on the privacy of customers.
  
  
  
• We undertake to process information only for the purpose for which it is intended, and within the scope of our work, as agreed with our customers.
  
  
  
• Whenever necessary, we shall obtain consent to process personal information.
  
  
  
• Where we do not seek consent, the processing of our customer’s personal information is solely for the purposes of complying with a legal obligation placed upon us, or to protect legitimate interests that require protection.
  
  
  
• We will refrain from using and/or processing personal information if the required consent is withdrawn, or if a legitimate objection is raised.
  
  
  
• We shall collect personal information directly from the customer whose information we require, unless:
  • the information is of public record, or
  • the customer has consented to the collection of their personal information from another source, or
  • the collection of information from another source does not prejudice the customer, or
  • the information to be collected is necessary for the maintenance of law and order or national security, or
  • the information is being collected to comply with a legal obligation, including an obligation to SARS, or
  • the information collected is required for the conduct of proceedings in any Court or Tribunal or any other Legislative Body, where these proceedings have commenced or are reasonably contemplated; or
  • the information is required to maintain our legitimate interests; or
  • where requesting consent would prejudice the purpose of the collection of the information; or
  • where requesting consent is not reasonably practical in the circumstances.
  • We shall advise our customers of the purpose of the collection of personal information.
  • We shall retain records of the personal information we have collected for the minimum period as required by law unless the customer has furnished their consent and or has instructed us to retain the records for a longer period.
  • We shall destroy or delete records of personal information (so as to de-identification customers) as soon as reasonably possible after the time period for which we were entitled to hold the records have expired.

3. We Shall Restrict the Processing of Personal Information:

• where the accuracy of the information is contested, for a period sufficient to enable us to verify the accuracy of the information;
  
  
  
  • where the purpose for which the personal information was collected has been achieved and where the personal information is being retained only for the purposes of proof;
  • where the customer requests that the personal information is not destroyed or deleted, but rather retained; or
  • where the customer requests that the personal information be transmitted to another automated data processing system.
    
    
• The further processing of personal information shall only be undertaken, if the requirements above have been met; or
  • where further processing is necessary because of a threat to public health or public safety or to the life or health of the customer, or a third person, or
  • where the information is used for historical, statistical or research purposes and the identity of the customer will not be disclosed; or
  • where this is required by the Information Regulator appointed in terms of POPI.
    
    
• We undertake to ensure that the personal information which we collect and process is complete, accurate, not misleading and up-to-date.
  
  
• We undertake to retain the physical file, and the electronic data related to the processing of personal information.
  
  
• We shall take special care with our customer’s bank account details, and we are not entitled to obtain or disclose or procure the disclosure of such banking details unless we have the customer’s specific consent.
  
  

4. Customer’s Rights

• In cases where the customer’s consent is required to process their personal information, this consent may be withdrawn.
  
  
• In cases where we process personal information without consent to protect a legitimate interest, to comply with the law or to pursue or protect our legitimate interests, the customer has the right to object to such processing.
  
  
• All customers are entitled to lodge a complaint regarding our application of POPI with the Information Regulator.
  
  

5. Security Safeguards

• In order to secure the integrity and confidentiality of the personal information in our possession, and to protect it against loss or damage or unauthorised access, we will continue to implement the following security safeguards:
  
  
  
  • Our business premises where records are kept will remain protected by access control, burglar alarms and armed response.
  • All the user terminals on our internal computer network and servers will be protected by passwords which must be changed on a regular basis.
  • Our email infrastructure will comply with industry standard security safeguards and meet the General Data Protection Regulation (GDPR).
  • Vulnerability assessments will be carried out on our digital infrastructure on an annual basis to identify weaknesses in our systems and to ensure we have adequate security in place.
  • Archived files will be stored behind locked doors and access control to these storage facilities must be implemented.
  • We will use an internationally recognised Firewall, to protect the data on our local servers, and we will run antivirus protection at least every 60 minutes to ensure our systems are kept updated with the latest patches. The security of this system must comply with the GDPR.
  • Our staff will be trained to carry out their duties in compliance with POPI, and this training will be ongoing.
  • It will be a term of the contract with every staff member that they must maintain full confidentiality in respect of all of our customers’ affairs, including our customers’ personal information.
  • Employment contracts for staff whose duty it is to process a customer’s personal information, will include an obligation on the staff member (1) to maintain the Company’s security measures, and (2) to notify their manager/supervisor immediately if there are reasonable grounds to believe that the personal information of a customer has been accessed or acquired by any unauthorised person.
  • The processing of the personal information of our staff members will take place in accordance with the rules contained in the relevant Labour Legislation.
  • The digital work profiles and privileges of staff who have left our employ will be properly terminated.
  • The personal information of customers and staff will be destroyed timeously in a manner of de-identification procedures.
  • These security safeguards will be verified on a regular basis to ensure effective implementation, and these safeguards will continually be updated in response to new risks or deficiencies.
    
    

6. Security Breaches

• Should it appear that the personal information of a customer has been accessed or acquired by an unauthorised person, we will notify the Information Regulator and the relevant customer/s, unless we are no longer able to identify the customer/s. This notification will take place as soon as reasonably possible.
  
  
• Such notification will be given to the Information Regulator first as it is possible that they, or another Public Body, might require the notification to the customer/s be delayed.
  
  
• The notification to the customer will be communicated in writing in one of the following ways, with a view to ensuring that the notification reaches the customer:
  • by registered mail to the customer’s last known physical or postal address;
  • by email to the customer’s last known email address;
  • by publication on our website or in the news media; or
  • as directed by the Information Regulator.
    
    
• This notification to the customer will give sufficient information to enable the customer to protect themselves against the potential consequences of the security breach, and will include:
  
  
  
  • a description of the possible consequences of the breach;
  • details of the measures that we intend to take or have taken to address the breach;
  • the recommendation of what the customer could do to mitigate the adverse effects of the breach; and
  • if known, the identity of the person who may have accessed, or acquired the personal information.
    
    

7. Customers Requesting Records

• On the production of proof of identity, any person is entitled to request that we confirm, free of charge, whether or not we hold any personal information about that person in our records.
  
  
• If we hold such personal information, on request, and upon payment of a fee of R1750-00 plus VAT, we shall provide the person with the record, or a description of the personal information, including information about the identity of all third parties or categories of third parties who have or have had access to the information. We shall do this within a reasonable period of time, in a reasonable manner and in an understandable form.
  
  
• A customer requesting such personal information must be advised of their right to request to have any errors in the personal information corrected, which request shall be made on the prescribed application form.
  
  
• In certain circumstances, we may be obliged to refuse to disclose the record containing the personal information to the customer. In other circumstances, we will have discretion as to whether or not to do so.
  
  
• In all cases where the disclosure of a record will entail the disclosure of information that is additional to the personal information of the person requesting the record, the written consent of the Information Officer (or his delegate) will be required and that person shall make their decision having regard to the provisions of Chapter 4 of Part 3 of the Promotion of Access to Information Act.
  
  
• If a request for personal information is made and part of the requested information may, or must be refused, every other part will still be disclosed.

8. The Correction of Personal Information

• A customer is entitled to require us to correct or delete personal information that we have, which is inaccurate, irrelevant, excessive, out of date, incomplete, misleading, or which has been obtained unlawfully.
  
  
• A customer is also entitled to require us to destroy or delete records of personal information about the customer that we are no longer authorised to retain.
  
  
• Any such request must be made on the prescribed form.
  
  
• Upon receipt of such a lawful request, we will comply with same as soon as reasonably practicable.
  
  
• In the event that a dispute arises regarding the customers’ rights to have information corrected, and in the event that the customer requires, we will attach to the information, in a way that it will always be read with the information, an indication that correction of the information has been requested but has not been made.
  
  
• We will notify the customer who has made a request for their personal information to be corrected or deleted what action we have taken as a result of such a request.
  
  

9. Special Personal Information

• Special rules apply to the collection and use of information relating to a person’s religious or philosophical beliefs, their race or ethnic origin, their trade union membership, their political persuasion, their health or sex life, their biometric information, or any criminal behavior.
  
  
• We will not process any of this Special Personal Information without the customer’s consent or where this is necessary for the establishment, exercise or defence of a right or an obligation in law.
  
  
• Having regard to the nature of our work, it is unlikely that we will ever have to process special personal information, but should it be necessary the guidance of the Information Officer, or his delegate, will be sought.
  
  

10. The Processing of Personal Information of Children

• We may only process the personal information of a child if we have the consent of the child’s parent or legal guardian.
  
  

11. Information Officer

• Our Information Officer is designated to be _______________________. We, at any time, may delegate this authority as Information Officer or Deputy Information Officer, to another staff member within the Company or senior staff member, who is part of the management team. Our information Officers duties and responsibilities include:
  
  
  
  • Ensuring compliance with POPI.
  • Dealing with requests which we receive in terms of POPI.
  • Working with the Information Regulator in relation to investigations.
    
    
• The Information Officer must designate in writing as many Deputy Information Officers as are necessary to perform the tasks mentioned above.
  
  
• The Information Officer and our Deputy Information Officers must register themselves with the Information Regulator prior to taking up their duties.
  
  
• In carrying out its duties, the Information Officer must ensure that:
  • A compliance manual is developed, implemented, monitored and maintained;
  • A Personal Information Impact Assessment is done to ensure that adequate measures and standards exist in order to comply with the conditions for the lawful processing of personal information;
  • That this Compliance Manual is developed, monitored, maintained and made available;
  • That internal measures are developed together with adequate systems to process requests for information or access to information; and
  • That internal awareness sessions are conducted regarding the provisions of POPI, the Regulations, codes of conduct or information obtained from the Information Regulator; and
  • That copies of this Manual will be provided to persons at their request, upon payment of a fee to be determined by the Information Regulator.
    
    

12. Circumstances Requiring Prior Authorisation

• In the following circumstances, we will require prior authorisation from the Information Regulator before processing any personal information:
  
  
  
  • In the event that we intend to utilise any unique identifiers of customers (account numbers, file numbers or other numbers or codes allocated to customers for the purposes of identifying them in our business) for any purpose other than the original intention, or to link the information with information held by others;
  • if we are processing information on criminal behavior or unlawful or objectionable conduct;
  • if we are processing information for the purposes of credit reporting;
  • if we are transferring special personal information or the personal information of children to a third party in a foreign country, that does not provide adequate protection of that personal information.
    
    
• The Information Regulator must be notified of our intention to process any personal information as set out above prior to any processing taking place and we may not commence with such processing until the Information Regulator has made a decision in our favour. The Information Regulator has 4 weeks to make a decision but may decide that a more detailed investigation is required. In this event the decision must be made in a period as indicated by the Information Regulator, which must not exceed 13 weeks. If the Information Regulator does not make a decision within the stipulated time periods, we can assume that the decision is in our favour and commence processing the information.
  
  

13. Direct Marketing

• We may only carry out direct marketing (using any form of electronic communication) to customers if:
  
  
  
  • they were given an opportunity to object to receiving direct marketing material by electronic communication at the time that their personal information was collected; and
  • they did not object then or at any time after receiving any such direct marketing communications from us.
    
    
• We may only approach customers using their personal information, if we have obtained their personal information in the context of providing products and services to them, and we may then only market such products and services to them.
  
  
• We may only carry out direct marketing (using any form of electronic communication) to other people if we have received their consent to do so.
  
  
• We may approach a person to ask for their consent to receive direct marketing material only once, and we may not do so if they have previously refused their consent.
  
  
• A request for consent to receive direct marketing must be made in the prescribed manner and form.
  
  
• All direct marketing communications must disclose our identity and contain an address or other contact details to which the customer may send a request that the communications cease.
  
  

14. Inter Border Information

• We may not transfer a customer’s personal information to a third party in a foreign country, unless:
  • the customer consents to this, or requests it; or
  • such third party is subject to a law, binding corporate rules or a binding agreement which protects the personal information in a manner similar to POPI, and such third party is governed by similar rules which prohibit the onward transfer of the personal information to a third party in another country; or
  • the transfer of personal information is required for the performance of the contract between ourselves and/or any third party and the customer; or
  • the transfer is necessary for the conclusion or performance of a contract for the benefit of the customer entered into between us and the third party; or
  • the transfer of the personal information is for the benefit of the customer and it is not reasonably possible to obtain their consent and that if it were possible the customer would be likely to give such consent.
    
    

15. Curtailment of Powers of Search and Seizure

• The powers of search and seizure conferred by a search warrant issued at the request of the Information Regulator will not be exercised in respect of any communication between ourselves and our customer’s inner business dealings with respect to their obligations, liabilities, or rights or any communications made in connection with or in contemplation of proceedings under or arising out of POPI.
  
  
  
• In the event that we raise the point of privileged information during a search and seizure operation, the person executing the warrant may request that the Registrar of the High Court attach and remove that article or document for safe custody until a court of law has made a ruling on the question of privilege.
  
  

16. Offences and Penalties

• POPI provides for serious penalties for the contravention of its terms. For minor offences a guilty party can receive a fine or be imprisoned for up to 12 months. For serious offences the period of imprisonment rises to a maximum of 10 years. Administrative fines for the company can reach a maximum of R10 million. Breaches of this Compliance Manual will also be viewed as a serious disciplinary offence.
  
  
  
• It is therefore imperative that we comply strictly with the terms of this Compliance Manual and protect our customer’s personal information in the same way as if it was our own.