By Marina Constas, Director BBM Attorneys

Do you remember the moment, that exact moment, when the security guard at a complex into which you were attempting to gain access, asked the question: “Can you please open your boot?”.  I do. 

I was fetching my daughter at a friend’s house in one of the vast estates in the northern suburbs of Johannesburg.  “What?” I exclaimed, “Open my boot?  Not a chance!  Do you have a search warrant?”  The security guard was rather stunned.

In response to this onslaught of questions, he gave me a huge, endearing grin and gently, as though speaking to a small child, said:  “The boss of the complex says you cannot come in if your boot is not checked.”  Then, leaning into my car, which, by the way infuriates me at the best of times, he added in a comforting tone, “Don’t worry, I know you not a crook.”

Well, did I let him have it – I gave him a lecture on my inalienable right to privacy, our South African Constitution, the Criminal Procedure Act  51 of 1977 and the Protection of Personal Information Act 4 of 2013.   All in one neat package.  He still didn’t let me in.  After spitting fire under my breath, I opened my boot, fetched my daughter and regaled her all the way home with how the Rule of Law is becoming meaningless in daily life.  She just shook her head and asked what time dinner would be ready.

Since then, the scanning of drivers’ licenses has also become prevalent at entrances of schemes and, yes, you will be denied access to the scheme if you don’t whip out that license. I get it. Unlicensed drivers can gain access to a scheme and may cause an accident.  Unsavoury individuals with  questionable motives may be casing the joint to come in later and steal out of homes or hijack vehicles.

Right to privacy

On the other hand, the right to privacy is a very real thing.  Trustees and Directors of Community Schemes will have to balance interests on both sides and must contemplate the following:  Firstly, security officers are not authorised officers in terms of Section 17 of the Identification Act 68 of 1997, only police officers and peace officers are legally entitled to verify a person’s identification.

Then we have the boot business.  Section 14 of our Constitution says that everyone has the right to privacy, which includes the right not to have their property searched.  In the very same Constitution, those rights can be limited and the Criminal Procedure Act is very clear when it stipulates that a police officer is only entitled to search a person or a person’s property with a Court-issued search warrant.  If there’s no warrant, then that police officer must have reasonable grounds and a reasonable suspicion that the person or property being searched has been involved in the commission of a crime.  My affable security guard had no such suspicion and is rather lucky that I didn’t effect a citizen’s arrest on him.

POPI Act

The most important piece of legislation for the Trustees or Directors to which to put their minds, is the Protection of Personal Information Act (POPI Act), (which will become effective in the very near future), particularly when it comes to scanning drivers’ licenses.  A license yields specific data, i.e. the name of the driver, his photograph, identity number and date of birth.

One just has to watch “The Great Hack” about Cambridge Analytica, the British political consulting firm which combined the mining of data and data analysis with strategic communication during electoral processes, to become alive to the reality of personal data harvesting without consent.   The use of data for ill-gotten gains, including identity theft, is on an upward spiral which is, quite frankly, frightening and out of control.

“Trustees and Directors need to urgently begin scrutinising  their rules and procedures”

The POPI Act aims to protect us in as much as it can.  The Act says that the collectors of information must stipulate why they want it and for what they will use it.  They must tell us where they are storing it and when they will destroy it. The rules of the scheme and information at the entrance of the scheme must cover these questions.  Trustees and Directors need to urgently begin scrutinising their rules and procedures.  If they don’t, I shall be the first one to bring a Court application to interdict the practice of scanning licenses and opening boots.  I understand that these practices are rationally connected to a legitimate objective, however, I concur with the words of Benjamin Franklin who said: “They who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”

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