“Not DASO’s baby”: Who really has your information

Banathi Nkehli

On 23 September, PDBY received an advisory opinion from the Constitutional Tribunal concerning the alleged unlawful acquisition of students’ personal information by the Democratic Alliance Student Organisation (DASO) during the most recent UP SRC election cycle. The advisory opinion presided over by judges: Daniella de Figueiredo and Zakariya Adam, concluded, “there had been a prima facie violation of student privacy rights by DASO in the manner in which they have attained this information.” However, the court simultaneously concluded that DASO had: “Seemingly acted within the bounds of the law in sending out the message as empowered by section 31 of POPIA.” However, the most important takeaway from the advisory opinion may very well be the fact that DASO UP may have relied on the efforts of the national Democratic Alliance (DA) to pull off the most interesting information heist in UP memory.

The judgement

The court arrived at two seemingly contradictory conclusions. DASO has violated student privacy rights in the manner in which they collected that information, however, they simultaneously acted within the bounds of the law when processing that information. On consultation with the panel, their reasoning is premised on the information, or rather the lack of information, DASO could provide as to the nature of its database where the information was derived as Judge Adams explains, “We can’t say where the data came from exactly. As [DASO] refused to explain where they got the information but rather insisted that it was acquired lawfully without explaining that lawfulness.” Therefore, when the court made its inference that the information was acquired unlawfully but simultaneously processed lawfully, this is premised on Schrodinger’s lawful database, which may or may not be. In addition, the court confirmed that the SMSes were not sent out by DASO UP members and instead by former UP SRC president, Kwena Moloto with the knowledge of DASO’s presidential candidate at the time, Liam Jacobs.

The bigger picture

In PDBY’s consultation with the panel, the panel could not stress any further that this is a bigger matter than we realise and that their capabilities were limited in answering the legal questions presented. As Judge de Figueredo explains, “DASO is a smaller part of the DA and the tribunal has, limited resources and no real authority outside of UP, to make any meaningful decision on the matter and this is something that the Information Regulator would have to take on directly.” These limitations were exacerbated when a member of the National Assembly and legal representative for DASO, Werner Horn, was invited to a consultation with the panel on 1 September. Horn criticised the tribunal and the manner of the proceedings and refused to directly answer any questions relating to the nature that information was collected for the database in question, yet maintained that the information was lawfully acquired. Horn would go on to make some interesting averments going forward as judge Adams explained, “According to Horn, the SMS was not limited to just UP students and that anyone on their national database could have very well received the SMS that wasn’t solely aimed at UP students.” However, this averment must be approached with great circumspection as the recipients that PDBY and the Tribunal had interviewed offer a different outlook in this regard. The aforementioned group is neither registered on the voters’ roll nor any DAaffiliated resources, and Horn’s averments do not sustain any credibility in light of this. PDBY made several attempts to reach out to Liam Jacobs and Shaina Moses to no avail, with Jacobs expressing his disinterest in responding to these allegations directly.