Important and useful information for residential property owners as well as Property Management Agents/HOA Management – especially important and relevant in residential estates and complexes where private properties are situated much closer to each other.
Definitions:
- “CCTV” = Closed-Circuit Television, that is an older, general term for a video surveillance and monitoring system. It uses strategically placed cameras to transmit signals to a limited set of monitors, rather than a broadcast signal. CCTV is today often used as a layman’s term for any “surveillance and monitoring camera system”, while
- “security camera = is a broader, modern term that now typically refers to modern digital, surveillance internet-protocol (IP) cameras that use a digital signal to store transmitted data.
- CCTV cameras typically record footage continuously, while IP security cameras can also be set to record only when motion is detected.
- Today’s “CCTV” systems are often digital, but the term remains to differentiate from broadcast television. Security cameras can be a component of a CCTV system or a standalone, modern IP camera, which offers features like cloud storage, motion detection, and remote access over the internet that traditional CCTV systems lacked.
Please note: In this article, the term “CCTV” will refer to any type of surveillance and monitoring camera system.
Home surveillance through CCTV cameras:
In South Africa, there are no explicit laws prohibiting residential CCTV cameras/security cameras, but its use must respect the constitutional right to privacy, meaning cameras should only monitor your own property and not areas with a reasonable expectation of privacy, like bedrooms or bathrooms – even of your own property.
Violating privacy, harassing house members/residents, and/or neighbours, or creating a nuisance through surveillance and monitoring other private property, of common/public areas and/or the movement of private individuals or other can lead to:
- Legal action/protection orders under Common Law;
- Legal action/protection orders under the Protection from Harassment Act;
- The Protection of Personal Information Act (POPIA) also applies to the use and storage of footage (video/images), requiring responsible data handling; as well as
- The Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA); and
- Specific municipal by-laws, CSOS and HOA Rules & Regulations/Policies.
A. Key Legal Principles:
- Right to Privacy: The Constitution guarantees a broad right to privacy, which is the primary factor in determining the legality of home CCTV / other camera surveillance.
- Right to Dignity of Person: Both the Common Law and Constitution of the RSA (specifically Section 10 of the Bill of Rights) protects the right to dignity of person – this right is considered absolute and is non-derogable.
- Common Law & Protection from Harassment Act: This provides protection against criminal or voyeuristic surveillance, nuisance, harassment, or invasions of privacy in private areas and/or private property, or monitoring of movement of person.
- POPIA: The Protection of Personal Information Act (POPIA) regulates the processing of personal information and applies to CCTV footage/data (video and/or photos).
- RICA: Regulation of Interception of Communications & Provision of Communication-Related Information Act (RICA), which prohibits recording conversations (voice) without consent.
B. What You Cannot Do:
- Target Private Areas: Do not point cameras at a neighbour’s bedroom, bathroom, or any other area where they would reasonably expect privacy.
- Harass or Nuisance: Using cameras to personally monitor, spy, harass, create a nuisance, or prevent someone from enjoying their property and freedom of movement are prohibited and is illegal.
- Criminal or Voyeuristic Surveillance: Any surveillance that is criminal or voyeuristic in nature is illegal.
- Causing a security risk or breach: CCTV surveillance/monitoring of another private property and the movement of owners/residents can be a security breach, especially when monitored data or knowledge of movement are shared or distributed without the authorisation of the recorded individual(s) and is as such illegal.
C. How to Use Cameras Legally and Ethically:
- Monitor Your Property Only: Use common sense when deciding where to place your cameras and ensure cameras are positioned to only capture your own property.
- Avoid intrusive monitoring: If the surveillance is constant or so intense it prevents neighbours/residents from enjoying their own property and freedom of movement, it can be considered a nuisance, voyeuristic and even with criminal intend (“spying”).
- Inform Neighbours: Be transparent by informing your neighbours about your security system and specific coverage and make sure you’re only monitoring your own property.
- Use Signage: Place signs to inform people that they are being monitored, especially if your camera overlooks a section of a common/public area – note official written permission is pre-required from ALL residents using that common/public area as it would affect and interfere with all other owners’/residents’/visitor’s privacy rights.
- Footage Capture & Storage: Footage (video/image) of your own property and family members may not be a problem, but even then and especially when including neighbours, visitors or other residents/people – the POPIA specifically prohibits the processing of personal information, which includes recording someone’s image or voice, without their consent.
- Do not record audio: Audio recording is generally considered a greater invasion of privacy and is prohibited in some local by-laws, like in Johannesburg.
- Sound/voice Capture & Storage: You should also consider the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), which prohibits recording conversations without consent.
This also applies for CCTV/other camera sound recording that could potentially extend beyond your own private property boundaries as well as into common/public areas where the information captured (like a person’s voice or opinions) is still personal information subject to POPIA. - Avoid Disputes: Install cameras in a way that minimizes potential conflict and avoids accusations of violating privacy or harassment.
- Respect Neighbours: Ensure that your camera is not angled in a way that captures your neighbour’s yard, driveway, house windows and/or doors. Complaints about invasion of privacy and harassment can arise if your camera infringes on their space.
- Harassment: If the cameras are part of and/or used to support a campaign of harassment, it can be grounds for a legal protection order or other formal law action.
D. Consequences of Unauthorized Recording:
- POPIA Penalties: Individual owners must ensure their private cameras don’t record common areas or a neighbor’s private space. The Information Regulator can impose significant administrative fines of up to R10 million or 10% of your annual turnover, whichever is higher.
- Civil Lawsuits: Affected individuals can bring civil lawsuits for damages due to/for invasion of privacy and even reputational damage .
- Criminal Charges: Unauthorized recording can also lead to criminal charges under relevant legislation.
- Protection from Harassment Act: Affected individuals can approach a Magistrates’ Court for a court protection order in terms of which the harasser is prohibited from continuing with the act and if the order is breached, it is punishable by a fine or a period of imprisonment.
- Distribution: If the recording (video/image/audio) is distributed or shared publicly, including on social media (including WhatsApp) or other platforms, the legal repercussions are even more severe.
- CSOS: In the case of a HOA or other property scheme – the CSOS can issue adjudication orders for the removal of illegally placed articles or for breaches of rules, such as those related to surveillance camera placement that violates privacy of units (STSMA) or private property (HOA).
You have a right to privacy …
The Constitution enshrines one’s right to privacy, confirming that everyone has the right to privacy, freedom of movement and general well-being, including the right not to have the privacy of their communications infringed.
It also extends to video footage and/or images capturing the movement and behaviour of individuals within the residential estate by the cameras of the owners/residents.
While the installation of surveillance systems does not, of itself, constitute a violation of POPIA, it is important to recognise that video and audio recording systems are inherently intrusive by nature as they can capture personal information about individuals.
Legal experts have warned residents in complexes, estates and sectional title communities in South Africa to ensure that the setup of CCTV surveillance – whether private or by a HOA or body corporate – is in line with the law.
Even as concerns about safety, security, and crime increase, surveillance systems set up around units, sections, or private properties in these residential complexes or schemes need to consider the various legal implications of installing cameras.
In fact, not even insurance companies can insist on CCTV/security cameras in public areas or surveilling outside your own private property, as this would violate the right to privacy and property rights, and as such would infringe on the rights of the public and other property owners.
According to law firm Wright Rose-Innes:
“While surveillance systems can play an important role in promoting safety, their use in residential estates and especially smaller complexes must be carefully balanced against residents’ rights.
Property owners and complex management/trustees must understand that surveillance, by its nature, can be legally and ethically sensitive, particularly when it impacts common property areas or other private homes.”
IMPORTANT LINKS:
“Think twice before installing security cameras inside a complex or estate in South Africa” – to read more, CLICK HERE
“CCTV cameras at Home and the Right to Privacy” – CLICK HERE
“CCTV cameras and Harassment” – CLICK HERE
“What the law says about CCTV cameras at your home” – including The Protection from Harassment Act (No. 17 of 2011)” – CLICK HERE
