Page 99 - Profile's Unit Trusts & Collective Investments - March 2025

Legislation and Guidelines

Processing Personal Information
“Personal Information” is defined as any information relating to an identifiable, living natural person
or any juristic person. It includes (but is not limited to) the following examples (amongst others):
Contact details: email, telephone, birth date, ethnicity
History: employment, financial, educational, criminal, medical records
Biometric information: blood type, fingerprints, voice signature
Personal opinions: including private views and preferences
Private correspondence: where it is implicitly or explicitly of a confidential nature
“Processing” means, very broadly, anything done with personal information, including
collection, usage, storage, dissemination, modification, and even deletion.
Note that “personal information” does not necessarily mean data held in a database, it would
include hand-written notes, emails, WhatsApp messages, or even audio or video call recordings.
Hard copy records also fall under POPI.
Does POPI apply to Financial Advisers?
The scope of POPI is very wide and it applies to almost everything that gets done with the
personal data of individuals.
POPI covers the defined activity of “processing” personal data – the activity is defined rather
than particular professions or types of entities. This makes the definition very broad: anyone who
processes personal data must comply with POPI and must only use personal data in accordance
with POPI’s data protection principles.
Any person or entity, therefore, that collects and/or holds information on identifiable
individuals – or uses, discloses or retains such information – is likely to fall under the definition of
“processing” personal data.
Clearly, financial services firms, including brokers and financial advisers, need to make sure
they comply with POPI. Any non-compliance with POPI since 1 July 2021 can have consequences
including penalties up to R10 million, civil proceedings instituted by data subjects or the
Regulator, and the possibility of both criminal charges and fines in some circumstances.
Consent
Under POPI, consent needs to be informed and specific; it needs to be voluntary and an
expression of will. In other words, the subject must make an active choice (clicking on a tick box,
for example) – it is no longer permissible to engineer automatic “opt in” when someone types an
email address or cell number, with “consent” buried somewhere in the terms and conditions.
Consent does not entitle anyone to misuse information. If a subject has given limited consent
and the personal information is used for other purposes, the responsible party could still be
reported to the Information Regulator.
POPI and PAIA
The implementation of POPI has focussed attention on the 2000 Promotion of Access to
Information Act (PAIA), which is a “freedom of information” law.
PAIA, which came into effect on 9 March 2001, was enacted to give effect to the constitutional
right of access to information. Section 32 of the Constitution states that: “Everyone has a right of
access to any information held by the state and any information held by another person that is
required for the exercise or protection of any rights.”
In terms of both the Constitution and PAIA, therefore, all people in South Africa, including
non-nationals, can request information from public and private bodies.
The ostensibly conflicting objectives of POPI and PAIA can be summarised as follows:
POPI requires organisations to safeguard information they collect and ensure data is not
misused
PAIA requires organisation to provide certain defined information both on request and in
published documents

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