Access to the records of the body corporate and the POPIA
Category Newsletter: Did you know?
Do you feel like the lone ranger in your scheme, seeking the support of your fellow members to share your concerns or call a special general meeting? As an owner, you are entitled, as per the Sectional Titles Schemes Management Act (STSMA), to (regulated) access the records of the body corporate, including the contact details of fellow owners.
Interestingly, as a non-member of a scheme, any type of scheme, you are entitled to it as well! What? Any person can just access the information of my scheme, of me? Yes. However, this is not provided for under the STSMA, but rather the Promotion of Access to Information Act (PAIA), and you have to show that you, as the requesting person, have a material interest in the scheme and records requested, and a legitimate reason for such request. You also need to fill in some forms and pay some fees. This is all regulated by the Information Regulation, previously the South African Human Rights Commission.
Now, if you request access to records, either via the STSMA or the PAIA, you must still comply with the Protection of Personal Information Act (POPIA), and the scheme, releasing the information, or making it available for inspection and copies, must also be strictly in compliance with the POPIA, the information officer of the scheme needing to make sure of this.
The information officer is registered with the Information Regulator, and is automatically the chairperson of the trustees, or if so mandated, another trustee, an employee of the body corporate, or the managing agent.
So, should you, as a member, require access to the records of your body corporate, you must ask for same in writing, and state the (real) reason for the request, and if the authorised person, as above, is of the opinion, reasonably, that your request is valid and in line with the POPIA, and the STSMA of course, access will be given. The answer cannot be a simple no, without finding out the reason and considering it, in good faith, allowing it or rejecting it, with reasons.
If you wish to access the information of a scheme you are not a member of, remember this process is more complicated, and you will need to deal with the Information Regulator, a statutory body, and not the scheme in question, as it will be contacted by the Information Regulator if your request is deemed acceptable.
Each scheme must have a PAIA manual in place and filed with the Information Regulator, and according to the Community Schemes Ombud Service, each scheme must have a POPIA manual in place and approved, in a body corporate, by an ordinary resolution of the members, and that the information officer must be registered, at all times, with the Information Regulator - so they know where the complaints and requests must go to! So much to do, so much time schemes had to ensure compliance, but it's not too late, so make sure you have your house, or in this case, scheme, in order.
About the Author
Please click on the following link to learn more about the Author and her company, TVDM Consultants - https://www.tvdmconsultants.com/zerlinda-van-der-merwe.
Author: Zerlinda van der Merwe, TVDM Consultants
