Application of the CCTV Camera By-Law

The CCTV Camera By-Law applies to all CCTV cameras, mobile cameras and drone cameras within the CoJ where:

• they are installed in a public space; or
• they are installed on private property with a view, angle or coverage of a public space.

The CCTV Camera By-Law regulates:

• the approval of CCTV cameras;
• the erection of temporary CCTV cameras;
• registration of third-party CCTV cameras on CoJ property;
• unregistered CCTV cameras and equipment;
• the creation of a database of third-party CCTV cameras monitoring CoJ property;
• CCTV cameras that have a view or angle of coverage of a public area; and
• the handling of data collected by CCTV cameras.

The requirements

CCTV camera owners will be required to apply for approval from the CoJ before CCTV cameras are installed where the cameras are on public property or take video footage of public areas within the CoJ. This process is set out below.

1. A pre-evaluation application is brought for the installation of a CCTV camera.
2. If the pre-evaluation is successful, the application on the prescribed form is lodged, which includes specific documents, information, maps, diagrams and plans.
3. Where the application is successful, the applicant must install the camera within three months of receiving the necessary approval.
4. A prescribed fee will need to be paid by the applicant for the installation of the CCTV camera.
5. If an application is unsuccessful, a written request for reasons for the CoJ’s decision may be made in terms of the Promotion of Administrative Justice Act 3 of 2000 and no further application for the same CCTV camera may be brought for a period of one year from the date of refusal.
6. Within two days of the installation of the CCTV camera, a completion certificate from a registered engineer must be provided to the CoJ.
7. This approval will endure for a period of one year after the installation of the CCTV camera.
8. An application for renewal of the approval must be brought three months before the expiry of this one-year period.

All applications, plans, drawings and other documents submitted during the application process must be retained by the CoJ.

In certain instances, the CoJ may withdraw or amend an approval. For example, where the CCTV camera concerned: is detrimental to the area in which it is located due to its size, quality of design, workmanship, material, or existence in that area; is a danger to any person or property; or obscures any other prior approved CCTV camera installation.

The CCTV Camera By-Law prohibits the installation of temporary CCTV cameras on CoJ land or infrastructure for more than 30 days. Additionally, drone CCTV cameras are not allowed over any private or public property in the CoJ.

Non-compliance with the CCTV Camera By-Law may result in a fine and/or imprisonment of up to two years.

Specific requirements for businesses

Where a company wishes to install a camera that is included in this CCTV Camera By-Law, it is required to take out comprehensive public liability insurance for all possible civil claims and risks which may occur from a breach of this CCTV Camera By-Law. This is likely to draw some constitutional ire as this may not be affordable for small and medium-size businesses and will not be uniformly applied across other South African municipalities.

POPIA considerations

The Protection of Personal Information Act 4 of 2013 (POPIA) sets out the requirements for the lawful processing personal information, which includes video footage collected by CCTV cameras. POPIA is underpinned by the right to privacy that is entrenched in the Constitution of the Republic of South Africa, 1996.

The CCTV camera footage may only be processed for the protection of life, public or private property; prevention or detection of crime; or apprehension and prosecution of perpetrators of crime.

By virtue of the fact that the cameras record public areas, the central monitoring of this footage by law enforcement would not be prohibited under POPIA. However, where there is a camera that partially records private areas, the imposition on privacy needs to be carefully considered. Law enforcement agencies would have access to view the footage from these cameras even if they only record a small portion of municipal property.

Any authorised official will have access to the CCTV cameras and the control room. An authorised official, as defined in the CCTV Camera By-Law, includes any person or official who has been duly authorised by the CoJ. This is a wide definition. There is no consideration for who may be authorised to access this footage nor has a protocol for accessing the recordings been set out.

The CCTV Camera By-Law does not set out the retention period for the footage, nor does it factor in the minimisation requirement under POPIA. Furthermore, the CCTV Camera By-Law does not specify who is responsible for the storage of this footage or maintaining the security of that footage.

Conclusion

While this by-law has not yet come into force and effect, it may be promulgated with no notice and there is no clear indication when it will come into force. There are likely to be rigorous debates taking place in the background on the constitutionality and operational application of this by-law.

To the extent that the CCTV Camera By-Law does come into force, it is important to note that it imposes stringent conditions on individuals and companies who have or wish to install CCTV cameras that record public spaces. It is important for both individuals and companies to be aware of the content of the by-law to ensure that they are fully compliant with the legislation and do not encounter any issues with the installation and usage of CCTV cameras at their home or business. For businesses, specific CCTV policies, operational procedures, agreements to facilitate access to footage and managing insurance requirements will be required. See the CCTV Camera By-Law here.