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SAFETY AND SECURITY PORTFOLIO COMMITTEE
6 June 2001
DEPARTMENT’S SUMMARY OF SUBMISSIONS ON SECURITY INDUSTRY REGULATION BILL
Chairperson: Mr M George
Documents handed out
Security Industry Regulation Bill [B12-2001]
Summary of submissions on Bill
The Department of Safety and Security read through its summary of submissions on the Bill. The summary is not an evaluation of the comments - it provides only the essence of the comments that were made.
The Committee must look at whether the security industry’s regulatory authority is simply going to be a continuation of the existing Board or if it will be a completely new and separate entity. The issue is discussed within the recently tabled Security Industry Regulation Bill.
In terms of administrative justice, the old Authority staff held a legitimate expectation to be part of the staff in the new Board. This is an issue which the Committee must address.
The Security Officers Interim Board made a proposal in respect of clause 37(2)(g) of the Bill. They wanted to extend this subclause to criminalise the contracting for a security service and suggest that consumers should be held liable in the proposed ''Security Industry Tribunal''.
The Chairperson said that the Committee will not give them such powers.
The Committee will not be able to pass this Bill during this session of Parliament. This is partly because they have to wait for the completion of the Money Bill. Also, they noted that they do not want to rush the legislation, in order to do a proper and thorough job. They hope to pass the Bill during the next session of Parliament.
Security Industry Regulation Bill
Adv Kok and Mr Sonnekus from the Department of Safety and Security read through the summary of all the submissions on the Security Industry Regulation Bill and the Committee asked questions as they went along.
Mr Sonnekus said that the document is a draft summary. It is not an evaluation of the comments but provides only the essence of the comments that were made.
The Chairperson asked what the reason was that the State Law Advisors gave for changing the Bill.
Adv Kok said that changes were made for technical legal reasons. There was no policy decision from the Department to make these changes. It was more an issue of drafting style. The changes did not address any of the fundamental issues so it will not be taken before the Cabinet. It is left to the Portfolio Committee to decide on the more fundamental issues.
Adv Swart (DP) said that the Minister himself tabled the Bill in Parliament therefore there should be no problem with the Executive.
Adv Kok said that he would give the Committee a copy of the draft that was submitted to Parliament and the draft they are dealing with now.
Adv Kok briefly read through the document. (For a copy of the document see annexure).
The following questions and comments arose in relation to the document:
1) Reverend Meshoe (ACDP) asked a question in relation to ''security service''. He asked what kind of advice is given as to how one will know when a car guard is working for a company and when a car guard is working on his own.
Adv Kok replied that normally car guards working on their own do not wear a uniform (a bib). If a company or a business is profiting in some way then the car guard normally wears a bib. People feel safer with asking a car guard who is wearing a bib. The problem arises therefore that individuals get a bib from companies and they then pay the company a fee for use of the bib with a name on it. This can be addressed by regulating the formal contracts where the car guard enters into a contract with a security company.
2) Reverend Meshoe asked if the Minister's attention was brought to the changes.
Adv Kok replied that if the matter was of a fundamental nature then they would have taken it to Cabinet. The Minister received the final document. To go into more detail with Cabinet would not be practical. Therefore, they have brought it before the Committee.
3) Adv Gaum (NNP) asked what the law advisors’ position was on the constitutionality of clause 5 (in light of the fact that representation affects the Equality provision).
Adv Kok replied that the law advisors (and he personally) are happy with it. An argument for unconstitutionality exists but there is a justifiable argument against it.
The Chairperson instructed Adv Kok to get a legal opinion on the constitutionality of the clause (apart from that of the State Law Advisors).
4) In respect of clause 14(7), there is a suggestion that people should not lose their jobs by legislation.
The Chairperson said that they must address this issue. She wanted to know if the new regulatory Authority was simply going to be a continuation of the Board or if it will be a completely new and separate entity.
Mr Ndlovu (IFP) said that if it is a new board and the legislation says staff cannot be fired then the firing of staff could be a contradiction of the BCEA (Basic Conditions of Employment Act).
Advocate Kok replied that, in terms of administrative justice, the old Authority staff can say that they had a legitimate expectation to be part of the staff in the new Board. Workers will have their rights preserved.
The Chairperson said that in terms of the new Labour Relations Act major problems could arise if a worker draws conclusions over their future position.
5) Adv Kok was dealing with the clause on the funds of the Authority. He said that there must be a link between this Bill and the Money Bill.
Adv Swart asked when the Money Bill would be finished.
Adv Kok replied that Mr Rasegatla will schedule a drafting session with the National Treasury. It will take a few days for them to finalise a text.
6) Adv Kok said that the decision that the Committee makes in respect of clause 22 of the Bill is a major policy issue. The Committee must debate this.
In respect of 22(1), the Chairperson said that Adv Kok must check on the director issue, which Webber Wentzel Bowens raised on behalf of Armor Group Africa Pty Ltd.
7) The proposal by the Security Officers Interim Board (SOIB) in respect of clause 22(1)(c), deals with requiring people to be adequately trained in a particular type of service before allowing people to perform that security service.
Adv Swart agreed with the concept. However he said that the clause which SOIB proposes refers to ''officials''.
Adv Kok replied that this proposed draft comes from the Board and they are not drafters. If the Committee decides to include this proposal in the Bill then it will be drafted properly to include the right titles.
8) In respect of clause 30, Adv Kok said that it is a policy decision of Cabinet that security officers do not have the powers of peace officers. Inspectors are completely different. Inspectors must have more extensive powers. Constitutional concerns regarding this were raised and it was debated with the State Law Advisors. The Advisors agree that the inspectors must have stronger powers.
Adv Swart asked if there were not any provisions in the Bill providing for action against inspectors for misconduct.
Adv Kok replied that perhaps they should make explicit provisions for this in the Bill.
9) Clause 32 deals with the powers of inspectors in relation to security service providers while clause 33 deals with the powers of inspectors in respect of other persons. It may be constitutionally safe to give the clause 32 powers to the inspectors, but with giving powers to other people there must be safeguards.
Adv Swart asked why the bill should have an ''other people'' clause if one can make the powers in respect of security service providers broad enough to cover the instances in clause 33.
Through the Chair, Adv Swart asked Adv Kok to draft possibilities to incorporate all the powers into one clause.
10) Clause 35 deals with providing the Authority with information. The Board stressed the importance of them having the power to get the information within a reasonable time. If they stand in queue (with the normal public) waiting for information then they may not get the information in time.
Adv Gaum suggested that they say something like a ''reasonable time frame not exceeding X amount of days''.
Adv Kok replied that it may be difficult to do this because what is a reasonable time will depend on the particular circumstances. In some instances a period of one year may be reasonable. Therefore, it could be problematic to attach a time period to this.
11) The SOIB made a proposal in respect of clause 37(2)(g). They want to extend this subclause to criminalise the contracting for a security service and suggest that consumers should be held liable in the proposed ''Security Industry Tribunal''.
Adv Kok said that this is a policy issue on which the Committee must decide.
The Chairperson said that they will apply their minds to the issues but the Committee will not give them such powers.
In conclusion the Committee will not be able to pass this Bill during the current session of Parliament. This is partly because they have to wait for the completion of the Money Bill. Also, they noted that they do not want to rush the legislation so that it may be as thorough and just as possible. The Committee will meet again on Wednesday, 13 March 2001. They hope to complete the Bill during the next session of Parliament.
The meeting was adjourned.
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