A new City of Johannesburg (CoJ) Bylaw, that allows it access to CCTV camera footage that has been installed by residential owners and which faces open spaces, is seen by some as a step in the right direction in the CoJ’s fight against crime. Others are, however, outraged, especially individuals and businesses who either have or intend to install a CCTV camera with a view of a public space, and will now be required to obtain formal approval from the municipality. The Bylaw is also seemingly full of holes, with unanswered questions and debatable decision-making. That it is being challenged by some local political parties is not surprising,
Corlia van Zyl, Director in the Property Practice Group of PH Attorneys fielded some of the questions that impact affected residents. She also draws attention to some of the red flags.
Q1: What should be the concerns of residential property owners who have such CCTV cameras facing public property?
The main concern for residential property owners will be the infringement of their right to privacy as well as their right to property and not to be deprived thereof. This Bylaw will also place yet another financial and administrative burden on residential property owners, which not all might be able to afford due to increases in the cost of living.
There is also a major concern in the turnaround times that the CoJ will take to deal with these applications as one’s safety is a high priority, and to have to wait months for approval before you can erect a CCTV camera to keep yourself safe within your own property is not at all ideal.
Q2: Do you think the CoJ, despite having good intentions, has fully considered the broader impact on residential property owners—such as the cost of registration, privacy concerns, and potential infringement on their entire CCTV setup?
It is clear and understandable that the CoJ wants to combat crime but to place this burden on private citizens does not make sense. If the Bylaw only applied to CCTV cameras that are to be erected on public spaces and on public property for the use by a private or commercial owner, it would not have been far-fetched to have such a Bylaw as the CoJ would have to regulate and maintain the property assets in their control. But, the problem with these Bylaws is that the CoJ wants to control and have access to what a private property owner does on his property. For me, this is clearly an infringement on a residential owners right to privacy and right to property:
Right to privacy:
What one does within the boundaries of one’s property can be seen as private and the state must be careful not to intrude on this privacy. This will be seen as a substantive privacy right that allows a person to make a decision about the conduct of their lives without interference from the state. If a private residential owner wishes to set up a CCTV system on their property it is their private right to do so, irrespective whether the camera might have a view on a public space. The information on the CCTV cameras can also be seen as private as it shows the blind spots of a property, which in the wrong hands can create opportunities for criminals to break into these properties and cause further harm.
Right to property:
Residential owners have a right to property and the right not to be arbitrarily deprived of this right and should there be an infringement it must be for a public purpose and in the interest of the public. There must exist a proper reason for the infringement.
I fail to see that the objects and purpose of the Bylaw provides proper reason for the infringement as the means to the end are far more than what it could be to achieve the purpose of the Bylaw. A far less intrusive manner can be used to combat crime in that owners can be asked, or if need be subpoenaed, to obtain copies of the CCTV footage; for example in the event that a crime was committed in the area where the camera is recording.
The CoJ can budget and erect their own cameras in high crime areas and manage that instead of interfering with the private property of citizens. I also fail to see how it is in the public’s interest that private residents’ CCTV cameras on their private property must be monitored and also at their cost.
It is important to note that whether there is sufficient reason to warrant the deprivation will depend on all the facts of the case and I would like to see this Bylaw being scrutinised by the Constitutional Court and to apply all the relevant tests to see if the Bylaw is truly constitutional.
Q3: Any other red flags that a Bylaw of this nature raises for residential property owners, even if they live in a high crime area?
After reading through the Bylaw I have marked the following as further red flags and concerns.
It is not clear how the CoJ will monitor whether owners have a CCTV camera on their premises and whether those have been registered. It is also not clear how residents will know that their information is being kept safe and will not fall in the hands of criminals. One’s security layout on your property has dire consequences should it fall into the hands of criminals as your security can be breached.
Data is to be kept and handed over, but most private homes have CCTV cameras that only store the information for a short period, after which the system automatically wipes itself to keep the internal memory of these systems open for new data. I do not see that this is even a consideration in the Bylaw and it sparks the question whether private owners will now have to upgrade their systems to comply with the Bylaw?
No CCTV cameras may be erected or removed without consent. What if you move from one place to another? Will you have to wait for approval before removing your camera? What if the CoJ takes months to approve the removal ,will you receive a penalty? It becomes absurd in the enforcement of the Bylaw.
Owners must obtain a certificate from an engineer when the installation has been done. This is very expensive and I fail to see why an engineer should be involved when an owner attaches wireless cameras to their property that does not affect the structure of their home nor the electricity supply.
To require that consent must be provided to connect the camera to your home’s electricity supply is absurd. Will owners also be required to obtain future consent if wishing to add a new light at the outside of our home?
It is an interesting Bylaw and as mentioned earlier, it might be that constitutional rights are being infringed, but, as per all legislation, this Bylaw will have to be brought to the Constitutional Court to check and to apply all the necessary tests and to declare whether it is truly constitutional and if the state can indeed justify the infringement on the right of residences’ privacy and right to property.
