The Bok, the estranged wife and the booting of the cameras
In issue 5, we spoke about the Rugby World Cup win and the players' right to privacy. On a different note, former Springbok lock, Hannes Strydom, who was in the Springbok team that won the World Cup in 1995, has recently been ordered to remove security cameras from his Waterkloof home. This follows after his wife, Nikolie, argued that her constitutional rights to privacy and human dignity were being infringed by the cameras, that Strydom intimidated and harassed her "emotionally, verbally, psychologically and economically" and that there was no reason for her to suffer "ongoing bullying".
At the end of October, Nikolie obtained an urgent interdict in the Pretoria High Court, forcing Strydom to remove all of the CCTV cameras in the house (where the estranged couple still lives together, albeit in bedrooms on opposite sides) and those overlooking the swimming pool and outside areas. It was held that he may not replace them while she still lives there and without her written consent.
In her court papers Nikolie claimed that Strydom had installed more than 20 motionactivated cameras inside and outside their house for ulterior purposes, because the property was completely safe and in a safe area. Insofar as Strydom could monitor the cameras from his cellphone, and the camera installers and security personnel would have similar access to the images captured on the cameras on a 24-hour basis, she argued that she would be under continuous surveillance.
Strydom, in opposing the court application, was of the view that he had no intention of spying on her through cameras. If, for example, he wanted to look at her swimming, he could do so in person, "although he tries to have as little contact with her as possible". On his version, the cameras were installed because Nikolie was persistently careless in not locking the house and had no regard for safety. He also denied that they lived in a safe area. He claimed that there were no cameras in the bedrooms or bathrooms, only in the communal areas inside or outside the house and denied ever abusing his wife. According to Strydom, she assaulted and verbally abused him and did not want this behaviour recorded.
As mentioned above, Nikolie relied on her constitutional rights. To this end, section 14 of chapter 2 of the Constitution of the Republic of South Africa, 1996 provides that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed.
Previously, South Africa did not have legislation dealing specifically and exclusively with data privacy. Hence, to give effect to the constitutional right to privacy, on 20 August 2013, the National Assembly passed the Protection of Personal Information Bill [B9D of 2009], which is largely based on the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which was replaced by the General Data Protection Regulation ("GDPR") in May 2018 and also has a Commonwealth influence. The Bill was signed into law by the President on 19 November 2013 and was gazetted as the Protection of Personal Information Act 4 of 2013 ("POPIA") on 26 November 2013. POPIA will come into force on a date to be determined by the President by proclamation in the Gazette, which date is yet to be determined. Certain provisions relating to the establishment of the Information Regulator and the making of Regulations under POPIA have however come into force on 11 April 2014. The Regulator was appointed on 1 December 2016 and the final regulations were published on 14 December 2018.
It is interesting to note that once POPIA is fully effective it will apply to both public and private bodies, but excluded from its application is, among other things, the processing of personal information in the course of a purely personal or household activity. It would seem that the Strydoms' argument would have been classified as a purely personal or household activity outside the scope of POPIA.
Likewise, the GDPR does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity.
POPIA in brief
Condition 5: information quality
An organisation must take reasonably practicable steps to ensure that a data subject is aware of certain matters, including the information being collected and where the information is not collected from the data subject, the source from which it is collected; the name and address of the responsible party; the purpose for which the information is being collected; and the existence of the right to object to the processing of personal information.
GDPR: article 12
The controller must take appropriate measures to provide prescribed information relating to processing of personal data to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information must be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means. (This is not one of the 7 data protection principles set out in article 5, but is referred to as the data subject's right to "transparent information".)
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