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 DA-affiliated 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.
Oh my this is awkward. Having to tell you who I am is a whole ordeal because I am still trying to figure that out myself lol. The most I know at this point is that, I am an unhinged hillbilly from a small town in Northern Kwa-Zulu Natal; My first love had “Petronella” as a middle name (gross right?); I will on occasion get dressed in a onesie, using my red blankie as a cape to live out my fantasy of being the caped crusader of justice: Captain Tanuki; Finally, I have an obsession with owls that should get its own section in the DSM-V. On that owl thing, I feel like in one of my many past lives as a shrew somewhere in the world, I met my end to one of those majestic birds and that specific bird reincarnated as my first love who, at the time of writing, has not killed me…yet! Talk about a circle of life, neh. My goals? Well right now, I have but one very simple goal: to be the best human I can possibly be. Achieving that would make a hillbilly like me, a better person and growth is always good. My time at the paper has made sure I stay on this path. Should a lost soul wanting to know about the paper, stumbles across this bio, I want you to know that I will totally be a radically different person in the best way possible. Who knows, I might have reincarnated as an owl, by then.