A summary of this committee meeting is not yet available.
SAFETY AND SECURITY PORTFOLIO COMMITTEE
2 May 2001
SECURITY INDUSTRY REGULATION BILL: HEARINGS
Chairperson: Mr M E George
SATAWU submission (See Appendix 1)
Chamber of Mines submission (See Appendix 2)
Telkom submission [e-mail email@example.com for submission]
Public hearings commenced on the Securities Industry Regulation Bill. Mr Dirk Lambrechts, the Confederation of Employers of South Africa, The South African Transport and Allied Workers Union, Telkom and the Chamber of Mines of South Africa made presentations to the committee about their views on the Bill and the effect it would have on them. The arguments put forth by the presenters were either for or against regulation of the industry. Many security service providers were in favour of non-regulation or minimal regulation of the industry. The South African Transport and Allied Workers Union made a distinct plea on behalf of the employees of the industry for proper regulation of the industry. The Chairperson felt that Telkom’s concerns on how the Bill affects them were unfounded. The Chamber of Mines of SA engaged in a lengthy argument against the regulation of in-house security.
Submission by Mr Dirk Lambrechts
Mr Lambrechts emphasized that he was in Parliament in a personal capacity and represented no party or organization with a vested interest in the bill. Mr Lambrechts inform the committee that he was currently lecturing Security Industry Management and Criminology at the University of South Africa.
Mr Lambrechts suggested alternatives for certain terms within the bill. Specifically, Mr Lambrechts referred to use of the term "security service" in the Bill as conflicting with its use in the Constitution. The term "security service" in the bill refers to the private security industry whereas in the Constitution it refers to the SAPS and the SANDF. Furthermore, Mr Lambrechts suggested that the name of the Bill be changed to the Asset Protectors Bill and that the word "security" in the Bill be replaced with the word "asset".
Mr Lambrechts recommended that security service providers should have the same legal powers as the police and that these powers be expressly provided for in the Bill. The basic powers Mr Lambrechts referred to inlcuded inter alia the protection of people and property, the prevention of crime and the investigation of offences. Mr Lambrechts also suggested that provision be made in the Bill for the Minister to decide from time to time to extend further powers of the SAPS to security service providers such as search and seizure powers. Mr Lambrechts stated that this was especially relevant since the security service industry has more members than the SAPS.
Mr Lambrechts referred to S v Kidson 1999(1) SACR 338(WLD) and S v Dube 2000(1) SACR 53(NPD) to substantiate his argument. In the Kidson case one private individual bugged another and the court decided that it was not punishable. In the Dube case a private person undertook an undercover operation and once again the court decided that it was not wrongful. Citing these cases, Mr Lambrechts felt it plausible that if private individuals can perform such activities then why not extend such powers to security service providers as well.
In conclusion Mr Lambrechts also suggested minor technical changes to be made to the Bill.
Mr R Zondo (ANC) felt that security service providers should not be given the same powers as the SAPS since there is no mechanism to guarantee that these powers are not abused by service providers in future.
Mr Lambrechts responded that the definition of a ‘security service’ in the Bill already provides that security service providers perform some of the functions of the SAPS and that these functions be codified in the bill.
Mr O Kgauwe (ANC) asked how the protection of people would be included by utilizing the term ‘asset’ instead of ‘security’.
Mr Lambrechts stated that the definition of ‘asset’ could include people.
The Chair disagreed and stated that the meaning of words could not be changed to suit various needs.
Mr Lambrechts conceded that an alternative to ‘asset’ could be used since his was only a suggestion.
Adv A Gaum (NNP) raised the following issues:
(i) The use of the word ‘asset’ creates confusion.
(ii) The reference to S v Kidson is irrelevant as new laws dealing with bugging and tapping are in place.
(iii) Extending the powers of security service providers to that of the SAPS would not be feasible.
Mr Lambrechts stated that most of the powers of security service providers exist at common law and that his suggestion was that these be codified in legislation. At present bugging and tapping is only allowed where the police have obtained a court order to do so. Mr Lambrechts argued that this requirement is superfluous considering the precedents that were set in the abovementioned cases.
Adv P Swart (DP) asked whether it could be accepted that there is agreement on the rest of the Bill other than the issues that were raised and Mr Lambrechts said that there was.
Confederation of Employers of South Africa (COFESA)
Mr Hannes Venter, National Co-ordinator of COFESA stated that COFESA is registered with the Department of Labour and has 5000 direct members and 120 000 members through the federation.
Mr Venter stated that COFESA’s members are victimised by the Security Officers Interim Board - computers and documents are regularly confiscated and many of their members are forced to close down as a result of such actions. Mr Venter emphasized the need for a system that is grass-roots active.
Mr Venter highlighted that COFESA members are regularly in daily contact with the SAPS and recommended that local security service providers register with the local SAPS station commander. In essence, COFESA expressed the view that the industry does not need regulation and highlighted their concern that small business would be regulated out of the industry. To this extent, Mr Venter stated that COFESA felt it necessary that small business be given special consideration when regulating the industry.
Adv Gaum asked to what extent COFESA would have the powers of the inspectors of the Security Officers Interim Board curtailed.
Mr Van Wyk (COFESA) stated that COFESA’a concern was that the Bill would provide inspectors with the same powers as police officers.
Rev Meshoe asked whether COFESA felt that the industry should not be regulated at all.
Mr Van Wyk felt that regulation would hamper small business from entering the industry.
The Chair asked whether COFESA did not want the industry to be regulated at all. The Chair commented that if the inspectors of the Board are misusing their powers this may impact upon the future of the Board.
Mr Booi asked COFESA to elaborate on circumstances where COFESA stated there was an abuse of power.
Mr Venter stated that in most instances, inspectors do inspections without giving prior notice. He added that inspectors also victimise security service providers if they are affiliated to COFESA.
Adv Gaum asked on what grounds COFESA based their argument that the industry should not be regulated.
Mr Van Wyk stated that in the past the industry was over regulated and commented that if a civilian has powers of arrest he saw no reason for the regulation of a security persons powers.
South Africa Transport and Allied Workers Union (SATAWU)
Mr Jerry Ngcomo and Mr Nicholas Majiya presented. In essence, SATAWU agrees with industry regulation, as it would provide impetus for transformation. SATAWU’s main concern is that worker representation in the industry is not forthcoming. Furthermore, SATAWU stated that workers rights have been overlooked in the past, as employers took advantage of a poorly regulated industry. SATAWU highlighted its view that where worker’s rights have been infringed in the past restitution should be payable to such individuals. At present employers are merely fined where rights of workers are infringed. SATAWU stressed that future regulation should place emphasis on employee rights.
SATAWU also made specific recommendations on the Bill. For detail please refer to the attached document.
Adv Swart asked who should deal with labour relations, the Department of Labour or the Board.
Mr Ngcomo stated that the problem with the Department is that it lacks capacity. SATAWU accepts that the Board is at present competently dealing with the issue of labour relations but that in the future the National Bargaining Council should perform this function, thereby diminishing the Board’s role.
Rev Meshoe asked how SATAWU envisages restitution be paid to employees.
Mr Ngcomo stated that currently where an employer commits a breach the Board merely imposes a fine of R500. Mr Ngcomo added that the leniency of sanctions has allowed many businesses to operate for short periods of time, declare bankruptcy and leave workers unpaid. SATAWU recommended that workers also be entitled to claim against the insolvent business.
Mr Booi asked for clarity on the tribunal court that is being referred to in the submission. He also asked what role the National Intelligence Agency (NIA) should play.
Mr Ngcomo stated that a tribunal court could ensure that workers rights were upheld. SATAWU suggests that the court be linked to our justice system. SATAWU calls for the involvement of the NIA to prevent security firms from engaging in espionage activities, as was the case in the past.
Mr Kgauwe (ANC) asked whether the Bill does not adequately address the needs of workers.
Mr Ngcomo emphasised that SATAWU wholeheartedly supports the regulation of the industry. It was merely felt that the rights of workers should be given more attention especially since workers contribute towards the financing of the Board.
The Telkom contingent comprised of Mr A Barendse, Mr P Ross, Mr K Mtlotana and Mr F Slabbert.
Telkom’s main concern was how the Bill affects the functioning of non-security enterprises. Telkom supports regulation but requires certain exclusions and amendments to be made to the Bill. Telkom felt that some of the terminology in the Bill would impact negatively on Telkom’s statuts. Telkom commented that superficially the Bill may not appear to affect non-security industries but on closer inspection it might require Telkom and other non-security industries to register as a security service provider. Telkom submits that it is a public company providing a telecommunications network and therefore should be excluded from the provisions of the Bill. Some of the definitions in the Bill are onerous and would negatively impact on Telkom’s business and operational functions. Telkom therefore submits that the Bill should mainly apply to organisations whose purpose is to provide security.
Please see attached document for Telkom’s presentation.
Adv Swart asked if Telkom’s main concern was that they are not a security company and that the Bill was therefore not applicable to them.
Mr Ross stated that Telkom does not do investigating and monitoring for everybody. Telkom would only do it if requested to do so by the appropriate authorities ie SAPS.
The Chair stated that the mere fact that they do investigating and monitoring is a concern in itself. Who is to keep a check on Telkom if they overstep their bounds? Telkom is the only non-governmental organisation that is allowed to perform such activities.
Mr Mtlotana stated that Telkom is a statutory institution. Their main aim is to give effect to government’s objectives. Telkom does not feel that it should not be accountable but that it should. not be regulated as a security service provider.
Mr Booi pointed argued that security work is security work no matter what the guise and that it would be impossible to allow Telkom to perform the abovementioned functions without being regulated.
Mr Mtlotana stated that Telkom is not trying to escape regulation completely but that Telkom should not be regulated in terms of the Security Industry Regulation Bill.
Adv Swart asked for clarity on whether they are currently performing any of the security services defined in the Bill.
Mr Slabbert conceded that some of the definitions do cover some of the work undertaken by Telkom. However, Mr Slabbert added that Telkom’s operations do not necessarily impact negatively on the rights of individuals.
The Chair felt that the Bill did not affect Telkom and that their concerns were misplaced.
Chamber of Mines (COM)
Mr Anton Van Achterbergh, assistant legal adviser to the Chamber of Mines, presented.
The Chamber of Mines is an employer’s organisation and membership to it is voluntary.
Ninety percent of its members comprise employers in the mining industry.Security requirements of its members comprise of both in-house security and contracts to outside companies.
COM stated that in-house security should be excluded from the provisions of the Bill as in-house regulatory frameworks are already in place and would benefit marginally from the provisions of the Bill. COM believes concerns about the protection of rights of employees are well founded but that COM is actively involved in collective bargaining processes in addition to the industry being strongly unionised. COM stated that if in-house security was included in the Bill, a clause in the Bill should allow for automatic exemptions in certain circumstances.
COM raised a further concern that the Bill would create a duplication of the regulation function as the industry is already regulated by other pieces of legislation. Instead of creating additional regulatory frameworks, COM suggested that existing frameworks be strengthened. Aside from these concerns, COM states that it supported the objectives of the Bill.
For detail on the COM presentation, please refer to the attached document.
Adv Gaum stated that although employers may be adequately regulated by existing legislation he had concerns about the roles of security aspects.
Mr Achterbergh’s view was that security aspects are not adequately regulated at present. Minimum standards must be established to provide for this. In-house security has existing internal mechanisms in place and it is necessary that regulatory measures not be duplicated.
Adv Swart enquired about the following issues:
(i) Larger security firms have codes of conduct for in-house security but what about the smaller firm;
(ii) Is the duplication referred to total duplication or only partial;
(iii) The wording of the Bill requires a shareholder of a company to be registered as a security officer would the same apply to foreign shareholders?
(i) Minimum codes of conduct could be provided for but exemptions should apply to larger companies which have existing measures in place.
(ii) Most of the envisaged functions have been catered for. Departments dealing with labour issues are also performing certain functions.
(iii) Circumstances will arise where shareholders are not SA citizens but appropriate exclusions require formulation.
Mr Booi asked if it was correct to assume from the presentation that the mining industry was adequately regulated and how COM viewed the Bill as relevant to other industries?
Mr Achtenbergh stated that the COM’s main concern is that in-house security is excluded from the Bill, otherwise the Bill was relevant to other industries.
Mr Zondo (ANC) asked whether COM had studied international trends with regards to in-house security.
Mr Achtenbergh conceded that COM had not.
Mr Gaum stated that COM is asking neither for an exclusion nor exemption of in-house security and suggested that the regulation of in-house security also be an option.
Mr Achtenbergh stated that it would difficult to determine the extent of in-house security regulation that would be acceptable.
The meeting was adjourned.
SECURITY INDUSTRY REGULATION BILL
The board is the statutory regulator of the local security industry, which was established through the Security Officers Amendment Act 104 of 1997. T&GWU now SATAWU has been playing meaningful role since the inception of this body to ensure an effective regulation of the industry given the exploitation and the undermining of standard by security businesses. Our role was to ensure that the security industry act in the best interest of the public in terms of assisting the police in the crime combating in this country and to the large extent to protect the well being of the country’s economy, protection of the lives of the South African’s citizen and the protection of properties.
In 1990 T&GWU now SATAWU started a massive campaign against the exclusion of the employee representatives in this body in which this culminated to the setting-up of committees by the then Minister for Safety and Security Minister Sydney Mufumadi. The role of those committees was to come up with a module, which will ensure the participation of the employees in this body as to ensure that the transformation of this body and the industry take place. In 1995 a democratic board, which include the employee representatives, was appointed by the Minister for a period of three years, as it was clear that the ANC government saw the role of the labour as an important role to the effective regulation of the industry.
In 1999 the members of the board were again appointed by the Minister for Safety and Security after a public nomination process. The Minister made the appointments in consultation with the portfolio committee on Safety and Security. There are currently twelve board members in office in terms of the 1997 legislation. They consist of-
-The independent chairperson
- Three users of security services (consumers)
-Three representatives of employees in the security industry
-Two representatives of employers in the industry
-Three additional persons
In light of the above and below-mentioned facts, SATAWU will continue to ensure continuous participation of the employee(s) representatives in the regulatory authority as for the board to ensure that the industry acts in the public interest by adhering to the code of conduct.
General Comments and Preamble
In terms of the current Bill, it is envisaged by the Minister for Safety and Security and its Secretariat that the industry has no role to play in the regulation of the industry. This view seems to be supported by the anti-regulatory lobbying individuals who see this as a freeway to circumvent the regulation and continue the exploitation of their employees to enrich themselves. While on the other hand the new regulation will find some major resistance from the organized employers and labour, and individuals employees in terms of funding, given the exclusion from the regulatory authority. This will also lead to stakeholders challenging the Minister in Court, which will affect the ability of the Safety and Security department to enforce regulations.
SATAWU will not be prepared for its members to fund an institution in which it will have no meaningful say or expression.
It is government policy practice in all the economic sectors to include the industry into the regulatory authority. The exclusion therefore of the security industry cannot be justified. We believe the exclusion of the industry is a serious step backward to the dark days of Apartheid and Kragdagheid when workers in our country had no meaningful representation on such bodies. The new Bill in effect denies the democratic right of approximately 185 000 active registered security officers representation on the body that will regulate the whilst at the same time are expected to contribute towards the functioning of this body. Expected amount from workers is R57.00 for registration and a further R7.98 per month annual fee while they are excluded from participation.
The Bill as it stands, is in conflict with the provisions of the Security Officers Amendment Act 104 of 1997, which foresees a new regulator with increased industry representation. This legislation also requires the promotion of progressive values such as fairness, democracy, equality and transparency. Unfortunately this values do not seem
to find a place in the new Bill. The question remains therefore whether real transformation of the industry is possible given the intention of the proposed draft.
The process of transforming the authority and the industry remain important and it will continue being driven by the working class not intellectuals as currently suggested in the terms of the Bill, as to ensure that the working class is economically liberated and free from exploitation.
It is a well-known fact particularly when it comes to enforcement that institutions run by government are not always effective. This is where in the security industry the role of civil society is committed in providing capacity to enforce and monitor regulations
South African Transport & Allied Workers Union would like to commend the Interim Security Officers Board for the bold, proactive and progressive manner in which they attempted to confront the fundamental changes around meeting the objectives of the Security Officers’ Amendments Act of 1997. It clearly reflects that the Security Officers Board has been able to set a process in place, which would allow the Minister of Safety and Security to present a Bill in Parliament as to the requirements of the amendments to the Act. What is clear is that Security Officers Board has conformed with the transformation agenda and the values of democracy, which is underlined by transparency, equity, professionalism, fairness, efficiency, encouragement, accessibility, accountability and satisfactory of the community and the public at large with regard to their protection, which values are entrenched in the country’s Constitution.
We also understand that there is an anti-regulatory lobby within the industry who are hell bent to promote the anti regulatory measures under the guise of free market system, while at the same time promoting their selfish capital interest and undermining labour standard.
But we would want to assure you that as an organization, we would not want to go back to the dark days of exploitation and no regulation in the Security Industry. And that over and the above, what is done by the Interim Security Officers Board in terms of enforcement and policing, we will complement that by encouraging workers to report any of the transgressions done by the uncroupolous employers, particularly in remote areas where this has been continuing without any detection.
This is informed by the fact that certain stakeholders are hell bent to undermine and frustrate implementation of progressive legislations. This in our view, we will not tolerate and allow under any circumstances.
We also believe that the future regulation should place emphasis on employee rights, which would lead to improved living standards for security officers so that the professionalism of the security industry is uplifted and attract proudness from all recipients. The question of small penalties and restitution need to be adequately addressed, given ‘fly by night” operators who exploit the situation by applying for sequestration or liquidation wherever they are found to be operating illegally. This also applies to operators who do the same and operate under a different name and move to another region to subvert the law.
We do fully support the thrust of the Bill for regulation, which is underpinned by adequate legal powers, sufficient resources human and financial and a positive attitude towards proper regulation
Definition and Interpretation (Scope of Regulation)
We believe that the scope of regulation in its present form should be retained but that in-house security, sub contractors, consultants, labour brokers, mergers and acquisitions, car watch, prison security, and assets in transit or so called cash management should be clearly defined and included in the new Bill. It is important that the scope is widen given that employers try by all means to escape regulation by redefining the relationship of employee and employers which is the fundamental thrust of the current legislation and should be continued with the new legislation.
Clause 1 (c) Security Services definition need to be expended to include Cash in Transit.
Security Industry Regulation Authority
Objects of Authority
While the Bill does address most of objects of the Authority, we believe that in relation to clause (j) of the object a mechanism will have to be addressed regarding restitution, education, training and quality assurance. This is necessitated by the exploitation and the new development, particularly the new Skill Development Act of 1999.
It is our view in the absence of ETQA structures within the POSLEC SETA, the Interim Authority of the SOB should be allowed to act as an ETQA structure on behalf of the POSLEC, and as such a memorandum of agreement to give effect to this be done.
Functions, powers and duties of Authority
(k) (i) to (vii) See the above comments on the Objects of Authority
Establishment and constitution of Council and appointment of Councillors
We want to express our deepest concern regarding the fundamental shift in the proposed Bill, particularly, the appointment of the councilors by the Minister for Safety and Security with the exclusion of the industry, the discretional powers invested with the Minister and the period of office of these councilors is a major concern to us which need to be address as a matter of extremely urgent. Clearly as suggested in terms of the Bill is not addressing the uniqueness and problems beset in the industry. The question of accountability and continuity comes into place in view of the appointment, discretional powers and the office period.
Our view is the status quo should be retain, i.e. employer, employee, plus and independent persons. This is a norm that has been entrenched in all sectors of the economy, particularly it addresses, democracy, transparency and accountability. The role of National Intelligence Agency is minimized except to the government employees, given the role and the interaction of SAPS and SIIB around registration fingerprinting and clearance in processing applications.
Disqualification for appointment as councillor
7(1)(b) (i) (ii) This should be treated the same as above in view of the lack of represantivity on the stakeholders.
Term of office, vacation of office and payment of remuneration and allowances
See comment on establishment and suggest that the period should be increased from one to three years for a person to acquaint with the industry in view of the dynamics and the broad subsectors involved. We further suggest a mechanism to deal with the recall of individuals serving in this authority.
Accountability of Council
Here we do not have a problem save to say that it should be read with submission made by the union on the establishment and the constitution of Council and appointment of councillors
Meetings and conflict of interest
7 (a-d) and 8 (a) clause quite problematic as it can lead to litigation and entrenches further conflicts in the absence of defining a person with no interest, given that there is no person in this country who does not have personal or financial interest to the security industry either directly or indirectly.
Registration as security Service Provider
Requirement for registration.
The entire requirement around registration is fine except clause 21 (4), which deals with the application for registration and renewal of registration. This clause undermines the right to job security as it is going to lead to workers employment having to be terminated every year and to reapply each year. A periodic fingerprints classification can be inserted to avoid criminal elements to operate within the industry. Also clause 22 © should be in line with the Skill Development Act and co-operation between the POSLEC SETA and the Interim Authority as outlined in the Memorandum of Agreement. See further our comment on Objects of Authority above.
Suspension, withdrawal and lapsing of registration
An mechanism need to be found in terms Clause 25 (1) up to (3) given that if a certificate of a business is suspended, the affected business is not suppose to provide any security service until such time the suspension is lifted, in which this will have an negative impact to the employees employed by such a suspended business and this will be more crucial to businesses that employ more than thousand (1000) employees.
We believe that a mechanism has to be found in terms of the withdrawal of the registration certificate of the offender. We further believe that penalties imposed by the authority against the offender should be criminalised and a Tribunal Court system need to be implemented to address the backlog of cases referred to the justice system by the authority.
Obligation to pay monthly amounts to Authority in respect of registration
The current form of funding to annual and registration fees does not address the issue of State funding. There is a need for State funding for the functioning of this authority and to have equity on macro, medium and small enterprises in terms of the employer’s funding. We need to be very careful not to create a three-tier regulation system, which does not level the playing field. We do support a funding system that takes the financial burden off the employee and put this onto the government and enterprises as to ensure proper regulation of the big profit margin by the employers who are living in wealth at the expense of workers and their families who live in abject poverty with no improvement in their living standards. We will support a funding system that is equitable, and creates access and promote economic empowerment in its proper context without enriching few individuals.
We therefore demand the immediate removal of the financial burden on the employee should drastically be removed.
Monitoring and investigation
Inspection of security providers
32 (2) include a worker or the representative concern
35 (1) (d) (e) to be linked to the Skill Development Act and the Memorandum between POSLEC and SIRB.
A mechanism need to be found to create a process of transferring some of the Authority's functions once the National Bargaining Council is established. More importantly the enforcement of the conditions of employment. As it stand now in terms of the current Bill, there will be duplication of functions and funds between the two institutions in which this will have negative a negative financial impact to employees as they will be expected to fund the authority and the national bargaining council once established.
Lastly, we fully support the advice given to the Minister for Safety and Security by the Security Officers Interim Board and its submission to the portfolio committee.
COMMENTS BY THE CHAMBER OF MINES OF SOUTH AFRICA ON THE SECURITY INDUSTRY REGULATION BILL (as introduced in the National Assembly on 23 February 2001)
16 March 2001
The Chamber of Mines is an employer’s organisation registered in terms of the Labour Relations Act. Members of the Chamber employ about 90% of all the employees employed in the South African mining industry. Security at mines forms an integral part of the business of all mines and the members of the Chamber have been involved in security issues at mines for many years. Some Chamber members make use of in-house security services, while others make use of contract security services.
There are three issues of principle emanating from the draft Bill on which the Chamber would like to comment. These are, first, the inclusion of in-house security services under the ambit of the proposed legislation; secondly, the duplication by the Authority of the functions of other statutory bodies and government departments; and, thirdly, the cost of running the new authority and its sub-structures. These three issues are dealt with below.
1. Proposed inclusion of in-house security services under the Bill
For the reasons set out below the Chamber’s members are totally opposed to the inclusion of in-house security services under the ambit of the proposed legislation.
The purpose of the current legislation is to regulate the standard of contract security services to the paying public. The Chamber is strongly of the view that this should be the focus also of the new Bill. Employers making use of in-house security services do not require statutory protection, while their employees are adequately protected by current legislative and other provisions. (This aspect will be discussed below.) There is also a considerable difference between in-house and contract security concerning the nature, type of work, status and financial reward. Furthermore, the authority offers very little, if any, benefit to the in-house security employee and his employer.
The mining industry, like all other industries in this country, is already subject to many laws that regulate not only numerous aspects affecting the commercial part of its business, but also the employment relationship with its employees. These include the Labour Relations Act, the Basic Conditions of Employment Act, the Skills Development Act, the Employment Equity Act, the Mine Health and Safety Act, the Compensation for Occupational Injuries and Diseases Act, the Occupational Diseases in Mines and Works Act and the Unemployment Insurance Act. In addition, the mining industry, like many other industries, has various collective agreements with trade unions that additionally regulate all aspects of the terms and conditions of employment and have their own mechanisms for enforcement of those agreements. There is thus no need to regulate minimum standards and conditions of employment in the industry any further. In fact, further legislation dealing with this matter will merely create confusion and be counter-productive. The most important consequence for industry being regulated as proposed will be that the cost of being in business will be increased (an aspect that will be dealt with below), thereby jeopardising rather than preserving or creating jobs in the industry.
The Chamber is aware that clause 1(2) allows for the Minister to exempt any service, activity, practice, person or entity from any or all of the provisions of the Bill. The possibility of an exemption under this provision is not sufficient to address the Chamber’s concerns. This is because exemption is not automatic and is at the discretion of the Minister, who must also consult the authority. The authority has clearly indicated in the past that it wanted to include all in-house security services. It is unlikely to support the exclusion of Chamber members in the future because this would undermine its power base and its access to income.
If, notwithstanding the Chamber’s protestations, it is still decided not to exclude in-house security services from the Bill, the Chamber would request two things. First, that section 1(2) be amended to provide that in respect of in-house security services, the Minister must exempt such services from those provisions of the Act for which the Minister is satisfied that there are measures in place that ensure the objectives of the provisions will not be prejudiced. Secondly, in the "Money Bill" that will be presented to Parliament to regulate the payment of moneys to the authority by security service providers and security officers, provision should also be made for full or partial exemption from the obligation to pay monthly amounts to the authority to the extent that security service providers and security officers concerned derive no direct benefit from the authority.
2. Duplication by the Authority of the functions of other statutory bodies and government departments
In its endeavours to eliminate various iniquitous practices in the private security industry, it is proposed that the functions and powers of the authority be extended to perform various functions currently being performed by other statutory bodies in government departments. In particular, clause 3(n) envisages for the authority to ensure that compliance with existing legislation by security service providers is promoted and controlled by active monitoring and investigation of their affairs. The Chamber is strongly of the view that this is undesirable and out of place.
If there are problems with the enforcement of statutory provisions by the relevant statutory bodies of government departments, the correct solution to the problems is to address the enforcement problems within the relevant statutory bodies in government departments and not to task another body to duplicate those functions. Problems with the necessary manpower and resources to ensure compliance should be addressed within the relevant bodies in government departments and not by having to staff and fund an additional body to duplicate the functions of the original bodies and departments.
In addition, practical jurisdiction problems will arise between the authority and other statutory bodies and government departments which clearly have the potential to create a legal mess.
Furthermore, some of the proposed areas of enforcement relate to areas which require specific expertise and experience that the authority does not possess and will therefore have to be "brought in" or developed. In addition to the cost problems of buying in or developing such expertise, it is doubtful whether the required number of appropriately competent persons would be available to the authority in the light of similar problems currently being experienced by various other enforcement agencies and departments.
Some of the areas of duplication (specifically envisaged in the discussion document previously circulated by the interim board) include:
enforcement of minimum employment standards;
implementation of affirmative action measures;
the use of independent contractors and sub-contractors;
restitution of moneys to employees; and
approvals for acquisitions and mergers of security businesses.
3. The costs of running the new authority and its sub-structures
Because of all the additional functions the authority wishes to perform, a vast structure will have to be set up. It is further proposed that this structure be funded mostly from within the private security industry. The cost of such funding will be high and various increases and current fees will have to be proposed (such increases were specifically proposed in the discussion document previously circulated by the interim board). Not only will the financial costs be high, but, as has been mentioned before, it is going to prove particularly difficult to find appropriately qualified and experienced persons to perform all the functions.
One of the proposals by the interim board was for the monthly fee payable by persons performing security services to be increased. This is of particular concern to the Chamber. Particularly in the case of in-house security services, these fees will have to be paid by the employer. One of our members estimated that the proposed financial arrangements proposed by the interim board in its discussion document would have cost its security division annually more than R2m in increased costs. The consequences on the business of the security division of such an increase should be self evident and will also hopefully be of concern to the Portfolio Committee. An unintended consequence of the increased monthly registration costs would be that unscrupulous employers would use unregistered or under-trained persons to provide security services to avoid additional costs.
The Chamber regrets that its comments are relatively negative. That is a consequence of addressing only the areas of concern to the Chamber. The objectives which the interim board wishes to achieve are laudable. However, it should not cover the in-house security industry and in some instances the means proposed for achieving those objectives cannot be supported. Unfortunately, the Chamber’s members are left with the impression that in its efforts to protect employees providing security services and the general public and creating the perceived required infrastructure to do so, the interim board has lost focus of the legitimate concerns and needs of employers and businesses in the private security industry. This unbalanced approach will in the long run be to the detriment also of those persons the board wishes to protect.
The Chamber would appreciate an opportunity to discuss with the Portfolio Committee its views set out above and request that it be given an opportunity to do so when the public hearings on the Bill are scheduled.
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