Wording changes had been made to the South African Police Service Amendment Bill to reflect changes made during the latest deliberations. Some further amendments would be needed to the principal Act as a consequence of the adoption of the title National Head of the Directorate for Primary Crime Investigation. Members raised issues about the consequences of the downgrading of a member's security clearance and discussed issues related to the secondment of personnel from other Departments. The parliamentary procedure to remove the Head from office would no longer include the National Council of Provinces. The preamble to the Bill would be changed to recognise the need for both structural and operational independence. Members debated the situation where the offices of both the Head and Deputy Head might be vacant simultaneously. A proposal was tabled directing the Crime Intelligence Division to provide support to the Directorate for specific investigations. Members also debated the question of who should lead an enquiry into the removal of the Head from office, favouring a judge rather than any other legal person.
The Parliamentary researchers presented a summary of the reasons for the Amendment Bill. The public hearings were summarised briefly as were the Committee deliberations. It was highlighted where changes had been made to the Bill during the deliberation process.
Members noted that the authority of the Head had been emphasised. There were still questions about the location of the unit and some Members felt that not enough note had been taken about the general feeling by all substantive submissions that the Directorate should not fall under the Police. There were still reservations about the Head being appointed by a single politician with no parliamentary input. There was also discussion on the salaries for the Provincial Heads.
The Parliamentary Legal Advisers had studied the Bill and concluded that it had not met the requirements of the Constitutional Court in three areas. They recommended that the Head of the Directorate should report directly to the Minister and not the National Commissioner. When the Head reached retirement age, the Minister should not have discretion in awarding an extension. Any enquiry to remove the Head should be conducted by a judge or retired judge. Members raised questions over the location of the unit. There was still concern over the way in which the Head would be appointed, but the counter-argument was that it was not wrong for the Minister to do this, and the way in which it was done should be in accordance with policies approved by Parliament. The law advisers were satisfied that there was enough provision for structural and financial independence.
The South African Police Service Amendment Bill was adopted, with amendments. The DA abstained from voting on the Bill.
The Private Security Industry Regulatory Authority presented to the Committee on its budget, strategic plan and performance plan. Its main function was to ensure that the industry complied with legislative requirements. The Authority faced external and internal challenges, some of which had not changed in recent years. Four programmes had been identified: law enforcement, financial and administration, communication and training, and corporate services. Income was a major challenge as the Authority relied on fees and levies from members for its income. The industry had launched a court challenge to increased fees imposed by the Authority. The total budget for 2012/13 was R173 million, but there would still be a loss of R10 million.
Members challenged the Authority on the reasons for vacating a building it owned and moving to an expensive rented property. The explanation was that the structure had been poorly built and was in danger of collapse. Some Members were critical of the organisation while others thought that they were doing their best under difficult circumstances. Members wanted detailed staff figures in order to determine if a steep increase in salaries was justified. Members were also concerned about the level of bad debt and about firearm control in the industry.
Ms Jenni Irish-Qhobosheane, Secretary of Police, Civilian Secretariat for Police, said that there had been numerous changes to incorporate the proposed title of National Head of the Directorate for Priority Crime Investigation (DPCI). There had been a change in the clause about the remuneration of the Provincial Head of the DPCI, which would be not less than that of a Deputy National Commissioner (NC). In other legislation where a majority vote was required in the National Council of Provinces (NCOP), a two-thirds majority was not applicable.
Ms Carin Booyse, State Law Advisor (SLA), said that the person in office would be appointed on a contract basis.
The Chairperson was more concerned with the two-year extension for a person reaching retirement age whilst still in office.
Ms Booyse said the Bill had been amended to refer to the length of the contract. The wording would have to be reconsidered.
Ms A van Wyk (ANC) asked if the provision would address the requirements of the Public Service Act (PSA) as well as the contract that the Minister would conclude with the incumbent.
Ms D Kohler-Barnard (DA) said that many changes had been made regarding the terms of employment. She asked if these changes were in line with the provisions of the South African Police Service (SAPS) Act, as members of the DPCI would still be members of SAPS.
Mr L Ramatlakane (COPE) said that the current formulation referred to a minimum term of seven years and a maximum term of ten years. The current provision seemed to be quite open-ended.
Ms Irish-Qhobosheane said that the retirement age of sixty was consistent with the SAPS Act. There was a catch-all clause which would override other legislation. The provision for extension was only applicable where the person turned sixty while still on contract.
Ms Booyse said that options had been presented to the Committee. The concerns of Members had been covered in the options.
Ms Irish-Qhobosheane said this would be changed when the legal team cleaned up the Bill. A consequential amendment was needed to the SAPS Act.
Maj Gen Phillip Jacobs, Head: Legal Services, SAPS, said that the proposal was to insert a new paragraph. Sub-section 3 needed to be amended as there was a reference in the SAPS Act to the Head of the DPCI, which needed to be changed to the National Head.
Ms Irish-Qhobosheane said that some other changes would be needed in this regard.
The Chairperson was listening to what was being said, but Members did not have a copy in front of them.
Ms van Wyk said that parts of the amendments were not reflected in the Bill. Since the title of the Head had been changed, this would require consequential changes.
Mr Ramatlakane agreed. His difficulty was that Members could not apply their minds to something that was not committed to writing. The changes should have been made in the updated copy of the Bill presented to the Committee.
Ms Irish-Qhobosheane said that Members were correct. A cleaned-up copy would be presented to Members later in the day, incorporating these changes. The legal team had looked at legislation such as that for the Public Protector.
Ms Booyse said that the new proposal for the removal procedure for the National Head would only make provision for a two-thirds majority vote in the National Assembly. There would no longer be provision for a vote in the NCOP.
Ms Kohler-Barnard said that the reference was to “a Committee”.
Ms van Wyk said if this section were to be invoked, the Speaker would determine if the Portfolio Committee on Police, a joint Committee or an Ad Hoc Committee would be tasked with conducting the enquiry.
Gen Jacobs said that a change was needed in the provisions for security clearances. Where a member of the DPCI was to be transferred due to the loss of clearance, the transfer or discharge of the concerned member would now be made by the NC in consultation with the National Head.
Mr V Ndlovu (IPF) asked why the NC would still be involved in the process.
Ms Irish-Qhobosheane said such a person could be a SAPS member. If this member was to be redeployed within SAPS, the NC would have to find another position within SAPS for that person.
Mr Ndlovu said that the person would be under the jurisdiction of the National Head. It was not the business of the NC to decide where the person should go.
Ms van Wyk said all the issues regarding transfers and discipline had been decided. Security clearances had to be renewed from time to time. A member might fail a reclearance, and while not having committed any offence, could no longer be used in the DPCI and would have to be relocated within SAPS. This provision must not be seen as interference in the DPCI. The person concerned could no longer serve in the DPCI.
Ms Chairperson said that the wording would be better if it was the National Head in consultation with the NC.
Ms Kohler-Barnard said that there was overall coverage for members of other government departments or agencies to be seconded to the DPCI. If such a person had to be relocated, it would not be any concern of the NC. What was also not covered was the possibility of the National Head losing his or her clearance and needing to be replaced. It was a quagmire.
Mr Ramatlakane agreed with the change proposed by the Chairperson. The clause dealt with a number of issues, including downgrading or refusal of a clearance. Ordinarily one would say that the initial appointment was subject to a security clearance. The wording could be tighter. The downgrading of a clearance was a different matter to the refusal to grant an initial clearance. A person whose clearance had been downgraded could still be used in another section of the DPCI. It was easy to write catch-all phrases, but his clause needed to be reconsidered.
Ms van Wyk said it was important not to confuse issues. The requirement for a clearance on appointment had been dealt with earlier in the Bill. This clause was dealing with a serving member whose circumstances changed, and whose reclearance might be compromised. In terms of the National Head, the loss of a security clearance could be seen as a breach of contract and would be grounds for the termination of his or her contract. Personnel seconded from another department would remain the responsibility of their home department.
The Chairperson said that the definition of 'fit and proper' could include the requirement for a valid security clearance. She felt that the matter had been covered.
Ms Irish-Qhobosheane said that the clause would be reworded in accordance with the recommendation made.
Ms Kohler-Barnard asked if there was any provision for an individual to refuse to respond to a secondment request.
Ms van Wyk said there was a misunderstanding over what the meaning of 'secondment' was. That person would not become a permanent member of the DPCI. The Directorate would approach a Department with a request for a certain time period, who would nominate the most suitable person. This happened on a daily basis in all departments.
Ms Irish-Qhobosheane said that the Director-General (DG) of the Department concerned would identify a suitable person to satisfy the needs of the DPCI.
Ms Kohler-Barnard understood what was being said, but her question was not answered. The person identified might prefer to remain in their current organisation, and their future might be jeopardised should they refuse to take up the secondment.
Ms Irish-Qhobosheane said that such persons would not become SAPS members. If that person was unwilling, it should be an issue between the individual and his or her DG.
Mr Ramatlakane felt that this issue had been discussed earlier. Secondment was subject to an agreement with that person to be seconded to the DPCI. The person had the right to agree or disagree without any consequences. The provisions of the Labour Relations Act had to be considered. The person should not be victimised.
Ms Irish-Qhobosheane said that the protection requested already existed in labour legislation. The relevant clause of the PSA could be quoted. Provision had been made, as requested by Members, for policy guidelines to be tabled before Parliament within six months of the commencement of the Act. The SLA was happy to make a change to the proposed wording to make the clause a bit simpler to read. The clause providing for the retired judge and the Secretary of Police to promote public awareness of the complaints mechanism had been simplified.
Ms Kohler-Barnard said there was a clear definition of the Directorate and its mandate. This differed noticeably with earlier references to what should be investigated by the DPCI. The decision to classify a crime as a priority crime could be subject to confusion.
Ms van Wyk said that the provision for deciding on the need to investigate a specific crime should be worded to make provision for deciding whether it fell within the DPCI's mandate.
Ms Kohler-Barnard said that the phrase “operational independence” had been inserted. This was not what the Glenister judgement had said, which had called for adequate structural independence.
Ms Irish-Qhobosheane said that “operational independence” stemmed from the Organisation for Economic Co-operation and Development (OECD) report, and had been referred to several times in the judgement.
Ms V Bgcobozi, SLA, said that there had been a reference to operational independence.
Ms Kohler-Barnard said that there was no reference to structural independence. This might cause the Bill to fail the test of constitutionality. It was incorrect to only respond to certain parts of the judgement.
The Chairperson felt that adequate provision had been made for adequate independence, but suggested that the word 'structural' should be included in the preamble.
Ms Irish-Qhobosheane said that the word 'structural' would be included as suggested.
Mr Ramatlakane said that the Minister would appoint an acting Head should both the offices of National and Deputy National Head be vacant. He wondered what was meant by 'vacant', and how long an acting appointment could be. If the office was vacant, with the intention to appoint a replacement, provision could be made for an acting appointment until the post was filled. There was still no provision for one of the Heads resigning with immediate effect, and he asked what the legal position was in such a case. This situation did happen regularly.
Ms Kohler-Barnard asked how it would work when the National Head of the DPCI instructed a Provincial Commissioner to investigate a case. The Provincial Commissioner was subordinate to the NC, and might not respond to instructions from the DPCI.
Ms Irish-Qhobosheane said that all crime must be investigated, and it was unlawful not to do this. The question was whether the DPCI or SAPS would investigate a specific offence. There had been a lengthy discussion on the six month's notice clause. Many departments specified a notice period, and the six month period was the same as applicable to the National Prosecuting Authority (NPA). It would be a contractual issue should an incumbent wish to resign with immediate effect. The Minister had the discretion to reduce the notice period. In clause 12(b), the wording used in 12(a) could be used which referred to one of the incumbents not being able to perform his or her duties. It would be changed.
Ms van Wyk asked if the Department had any further proposals, as she was concerned that they would come back in the afternoon with more changes.
Ms Irish-Qhobosheane noted that an issue had been raised that morning.
Gen Anwar Dramat, Head: DPCI, SAPS, explained that the unit would not be able to carry out its duties effectively without intelligence support. There was provision for dedicated prosecutors. He proposed that the Head of the Crime Intelligence Service should make members available on request to assist with specified investigations.
Ms van Wyk said that one of the issues around the former Directorate for Special Operations (DSO, known as the Scorpions) was that they were developing their own intelligence capacity. This could not be allowed. She asked if the General's proposal would be for specified cases.
Mr Ndlovu once again said he could not engage the Department on hearsay. He asked if there was anything in writing. This had not been included in the Bill and was an entirely new matter.
Mr Ramatlakane said that the point raised by the General was a loaded provision. The outlook of the DPCI was a function, not a case-by-case operation. It would be a semi-permanent body. A lot of intelligence gathering would be needed. He saw this as a permanent function. He asked how this would function differently from the current Crime Intelligence structure, and what the consequences would be at provincial level. There might be two separate bodies not accounting to the same structure. Experience showed that that the structures could be used against each other, resulting in major tension. Once it became law it would have to be implemented. He asked why the provision was necessary. Perhaps the General was concerned that without such a provision in the Bill, such assistance would be denied to the DPCI.
Mr G Lekgetho (ANC) said that this provision would be for specific cases. In order to make the DPCI independent, intelligence support would be needed.
Rev K Meshoe (ACDP) asked if the provisions already made for secondment would not address the need raised by the General.
Ms van Wyk was not particularly concerned by the request, but by the use of the word 'dedicated' in the proposal. The provisions for secondment would not apply as it was within the same Department.
Ms Kohler-Barnard had a query about the removal of the National Head of the DPCI. A person with at least ten years legal experience would lead the enquiry, but there was no indication about where this person would come from. The provision was a bit 'flabby'. It was not clear if the person would act in an accusatory or defensive capacity.
Mr Ndlovu asked why persons with specific skills should not be permanently employed by the DPCI. The National Head would know what skills were needed.
The Chairperson said that DPCI would not have a crime intelligence structure, but would need the function to operate effectively. Members wanted to know exactly was being requested.
Gen Dramat said that provision was made in the Principal Act for intelligence support, and it was specified that this must be provided by the Crime Intelligence Division. Support might be needed in specific investigations. The Division supported the whole SAPS, but had their own priorities. The proposal would ensure that the work of the DPCI would not be sidelined.
Ms van Wyk asked what the removal of the word 'dedicated' would cause.
Gen Dramat felt that it could be removed.
Ms Irish-Qhobosheane said that an enquiry into the removal of the National Head would be led by a person practising as a lawyer for at least ten years. There might be delays if a judge was not immediately available, but a senior advocate might be readily available. The Minister would make an appointment. This person would not be taking sides, but would weigh up the evidence in terms of the Promotion of Administration of Justice Act. The Minister and the Head would make their own submissions to the enquiry.
Ms Kohler-Barnard asked what provision would be made for legal representation.
Ms van Wyk said that the Committee had made this amendment in response to the public hearings. Members had felt the need for a due process in this matter.
The Chairperson said the SAPS Act, in the event of a loss of confidence in the NC, made provision for a supreme court judge to lead the enquiry. This provision was a bit open.
Ms Kohler-Barnard also wanted an explanation. The Directorate was supposed to be independent. However, it seemed that the removal of the NC was treated with much more gravity than the removal of the Head of the DPCI. The Head would be subservient to the NC in terms of the rank structure of the DPCI. The Constitutional Court would rule on this, but she was sceptical.
Ms Irish-Qhobosheane said that the right of legal representation would apply. The term 'in practice' had a specific meaning. It would have to be someone who was working as a lawyer for ten years.
Ms Kohler-Barnard said that the wording was vague. A person could have worked in private practice as a lawyer some time previously, and then joined SAPS.
Ms van Wyk said that the Committee needed to take responsibility for this clause if there was a shortcoming.
Ms Irish-Qhobosheane said she would be happy to reword the clause.
Ms van Wyk asked the SLA for a definition of 'in practice'. It would need to be clarified.
Ms Booyse said the wording was for ten years experience, but did not mean that the person must currently be in practice.
Ms van Wyk suggested that the word 'currently' be included. This would exclude the possibility of a SAPS member leading the enquiry, and would imply a senior person.
Mr Ramatlakane said there was a clear need for a senior legal person. The clause shied away from calling for a judge to lead the enquiry. This aspect had not been raised during the earlier discussion. A serious legal mind should deal with such a procedure. Specifying that a judge should lead the enquiry would satisfy many of the concerns raised.
The Chairperson replied that in the case of an enquiry regarding the NC, a judge was specified. The current wording of the Bill allowed for too many interpretations. A senior legal person might be adequate. It might be hard to find a judge if needed. The process should neither be too cumbersome nor too open-ended.
Ms Kohler-Barnard asked why it was considered cumbersome to call in a judge to remove the Head of the DPCI, but not so for the NC. For a gloss of independence there should be a judge leading the enquiry.
Rev Meshoe said that using a judge would reflect the importance of the office. This would address the perception of independence.
Mr M George (COPE) cautioned against committing to a judge. This should be preferable, but there were many highly qualified Senior Counsels, some of who might have better legal insight than judges.
Ms Kohler-Barnard objected to what might be construed as criticism of judges.
Mr George replied that the personal conduct of certain judges left much to be desired, such as those that “drove into walls".
Mr Ndlovu said that the title of the Head had been changed to try to move away from the concept of subservience to the NC. The same procedure applicable to the NC should also apply to the National Head.
The Chairperson said that while the National Head of the DPCI had certain powers, the Constitutional Court (Concourt) had not said it was wrong for the DPCI to be under the NC. This was why a non-renewable term had been prescribed to reduce the influence of the NC on the National Head. She felt that Members were taking the issue too far.
Ms Kohler-Barnard had not received a response on the question of a conflict regarding investigation at a provincial level. A subordinate could not ignore an order from a senior officer.
The Chairperson said that it would be a crime itself not to investigate a crime. Powers must be exercised within the terms of the law. A NC might think that he had unfettered powers, but this was not true. The Constitution made it clear who could exercise which powers.
Mr Ramatlakane returned to his earlier proposal. He proposed that the enquiry should be led by a judge or a retired judge. Such a person would have credibility.
Ms van Wyk repeated that this was a Committee proposal. If Members felt that the provision needed strengthening, then they must do so. The object was to ensure that a due process was in place. She had no objection to tightening to the Bill, in accordance with Mr Ramatlakane's suggestion. Members must then accept that there might be a delay.
Mr George said that a Senior Counsel should not be ruled out, but the first choice should be a judge.
Ms Kohler-Barnard had not been able to find the clause where the Head of the DPCI would prevail if there was any dispute over the question of an investigation at provincial level, but there was no similar provision for a dispute between the Head and the NC.
Ms van Wyk understood that the clause did not refer to the Head instructing the Provincial Heads. If a matter was raised by a Provincial Head, the National Head could adjudge that the case fell outside the mandate of the DPCI and instruct the Provincial Commissioner to investigate as a normal SAPS operation. The NC no longer played a role in determining cases to investigate.
Ms Kohler-Barnard quoted the relevant clause. It referred to a dispute between the National Head of the DPCI and Provincial Commissioners, but the Head would outrank a Provincial Commissioner.
Ms Irish-Qhobosheane said that the dispute was about whether the DPCI would investigate a case or not. It was not a matter of the DPCI giving instructions to a Provincial Commissioner. The Head of the DPCI would determine cases to be investigated where in the past this decision had fallen to the NC. The NC could not interfere operationally or financially. A dispute mechanism had been put in place regarding the budget.
Ms Kohler-Barnard said it came down to determining if a specific case fell within the mandate of the DPCI. There could be some controversy. It would seem that the senior officer would prevail.
Gen Dramat said that the guidelines would prevail.
Ms van Wyk said that Gen Dramat was 50% correct. Parliament would have a say in the guidelines, but otherwise the Head would decide. There could be no dispute. If a Provincial Commissioner came to the Head, there would already be a case registered. The Head could decide if the DPCI or the normal SAPS would investigate, and the decision of the Head would be final. The NC had no role to play making such a determination.
Rev Meshoe said that a Provincial Commissioner could have an opinion. The NC could not have an opinion on the same matter.
Mr George said that it was a pity what was happening in the country. The term NC now carried a perception of a dubious person. What was also worrying him was the drafting of policies which would guide the work of the DPCI. The policy of determining cases should be clear. Life was not so simple. Many factors could determine behaviour. There was an impact on the independence of the DPCI. He was wary of having a NC who would seek to interfere with the DPCI. There was no way that members of the DPCI would not be subordinate to the NC.
The Chairperson wanted to proceed. She requested the SLA to consider the proposal made on the leader of the enquiry.
Parliamentary Researcher’s summary of submissions / debatable issues
Ms Nicolette van Zyl-Gous, Parliamentary Researcher, said that the Concourt had found that the state needed to establish an anti-corruption agency. It had found that the current legislation for the DPCI did not provide adequate independence. It based its opinion on three main aspects of the legislation, namely operational and structural independence, security of tenure and remuneration, and the accountability and oversight by the Ministerial Committee.
She said that 21 written submissions had been received, of which twelve were substantive. Eight organisations and/or individuals had been invited to make oral submissions. Specific concerns had been made regarding the mandate of the DPCI, its location, structural and operational independence, financial independence, judicial oversight, appointment and removal of the Head, and the lack of security and tenure for staff members. The report of the OECD had been considered.
Specific concerns had been raised concerning the mandate. The definition of 'selected offences' was too broad. This had now been coupled to the definitions contained in the Prevention and Combating of Corrupt Activities. Provision had been made for the Head of the DPCI to direct investigations. A new clause would ensure that there was no conflict with the rest of the SAPS Act.
The question of location of the DPCI had been discussed. The argument was between the placement of the unit and adequate independence regardless of its location. The Head had argued that there were advantages to remaining within SAPS, including the fact that the DPCI would only investigate serious crimes while the remainder of the SAPS would investigate all but the top slice of crime. The determination of the top slice would be decided by amongst other considerations, monetary value and extent of the crime, complexity, public interest and urgency. There also needed to be a good relationship between the DPCI and the general detective branch.
Security of tenure and remuneration had received much attention. Remedies had been made to the areas of weakness in the lack of criteria for appointment to senior positions, the lack of a minimum term, the retention of the Head beyond retirement age, the power of the Minister to appoint the Head, and the veto right of the Minister regarding the Deputy Head. Changes had been made to protect members of the DPCI from summary dismissal or disciplinary action, or from transfer out of the Directorate against the will of the Head. Provision had been made for minimum salary levels for the Head, Deputy and Provincial Heads. The clause relating to the removal from office of the Head had been substantially rewritten, giving Parliament control over the process rather than leaving it in the hands of the Minister, who could previously make a decision on purely subjective grounds.
The Concourt had found that the lack of independence was reflected in the absence of security of tenure and in the provisions for direct political oversight. The public perception of independence was important. To this end, the Secretariat and the retired judge would devise a plan to foster public awareness of the complaints mechanism. The Head would no longer act as a Deputy NC. The title was changed to National, Deputy and Provincial Head of the DPCI. The national Head would have more control over the staff of the DPCI. Financial independence had been bolstered by giving the National Head more control over the budget process, while funds would be earmarked for the DPCI.
DPCI would report as a separate programme within SAPS. Parliamentary oversight would be exercised over any regulations regarding remuneration and conditions of service. Parliament would have to approve policy guidelines drawn up by the Minister. Almost all powers had been removed from the Ministerial Committee. The National Head would determine which cases would be investigated. Judicial oversight would be increased. The retired judge who would hear complaints would fall under the Secretariat.
Rev Meshoe said that the Head would decide on investigations after consultation with the NC. During the earlier debate it was clear that the NC could not have an opinion on these matters. It was therefore not necessary for consultation with the NC. There was provision for a Provincial Commissioner to have an opinion. A public perception would be that the NC still could exercise an opinion. He asked if there was any harm in making a provision for reference to the NC.
The Chairperson agreed that such an addition would cause no material damage. It should emphasise that in the event of a dispute the opinion of the Head would prevail.
Ms Kohler-Barnard said it was difficult to ignore the fact that all the submissions had recommended that the DPCI be located outside SAPS. There was no reference to this. There was now a procedure to remove the Head, but there was nothing to cover the appointment. This was a political appointment by a single individual. There was no interview process and no Parliamentary process. While the Minister could still make the final appointment, it would be better for Parliament to have an input. There had been no focus on this issue. She agreed that there must be a provision that the opinion of the Head would prevail in a dispute with the NC. The salary proposals saw Provincial Heads being regarded as subordinate to Provincial Commissioners. She felt that this had to be revisited. She did not believe that ranks would disappear because of the new titles. There were massive implications regarding pensions and further service in the SAPS. Policy guidelines were still being created by a politician in the Minister. She felt that the Concourt judges would not accept this.
Mr George thanked the research unit for their work. The report was well balanced, except in its discussion on location. No other opinion had been advanced. The other arguments should also have been captured. He also had reservations on national priority offences. All crimes were reported to SAPS. He asked who would determine that the crime reported should be referred to the DPCI, and how this should be done. On finances, he asked how practical the procedure would be. The NC was the accounting officer and would administer the finances. He asked how the Minister would intervene if there was a budget dispute between the Head and the NC. Normally the accounting officer went to National Treasury (NT).
The Chairperson reminded Mr George that some of the issues he was raising had been resolved after lengthy discussion. She did not want to go back to issues which had been resolved.
Mr George said he thought there were laws in the country which prevented an employer from reducing salaries. There was a danger that the concept of three spheres of government would be flouted. He believed that the Executive was responsible for determining salaries. He asked what cases would lead to this procedure being invoked, and would certainly be challenged in court.
Mr Ramatlakane said that the researchers had captured the essence of the debate. There was still unfinished business regarding the location of the DPCI. Members had resolved to consider the issue over the preceding weekend, and Members had asked for an internal legal opinion on the issue of adequate independence. He had some points which he would raise in later discussion.
Ms van Wyk also thanked the researchers. The reduction of salary did not mean that there would be a cut in the middle of the contract. However, the Minister could determine that a lower rate might be set for a new contract. This would have to be approved by Parliament. It was a principle that certain functions were determined by the legislature and some by the Executive. Other salaries, such as that of the Public Protector, were debated in Parliament. Elections were held and Parliament was constituted. The Executive was formed which developed policies, implemented through the respective Departments. The Committee wanted to see the salaries tabled and debated in Parliament in concurrence with Cabinet. This would strengthen the perception of independence. Policy would come as a result of the DPCI tabling policies to the Minister, who would make his input and then submit the policies to Parliament. There had been exhaustive discussions on the Bill. It was now up to the legal team to make the proposed changes. There had been compromises on certain issues but the debate was being reopened. It was time to move forward.
Mr Lekgetho said any person looking at the current version of the Bill would say that adequate independence had been provided. He hoped that Mr Ramatlakane had sought a legal opinion on the Bill in consultation with his party. The question of the Head by one individual had been raised.
The Chairperson said that Mr Lekgetho was revisiting old issues. The legal unit had been requested to provide an opinion, not the individual parties.
Ms Sueanne Isaac, Parliamentary Legal Adviser, said that a draft response had been compiled and would be submitted later in the day.
The Chairperson asked the legal team to finish their work by 17h00. After a brief adjournment for lunch the Committee would hear a briefing from PSIRA.
Mr Ramatlakane had another issue that worried him about the concurrence with Cabinet on the appointment of the Deputy National Head. This needed to be discussed.
Opinion of Parliamentary Legal Adviser on compliance with the Glenister judgement
Mr Nthuthuzelo Vanara, Senior Parliamentary Legal Adviser, said that they had been requested to look into the Bill in terms of its compliance with the Glenister judgement. The issues identified in the Bill represented a significant improvement on the original amendment. Three issues still fell short of meeting the requirements of the judgement, and might make the Bill vulnerable to a Constitutional challenge.
Mr Vanara said that one pertained to the reporting line for the Head. These had not been clarified in either version. There was a danger in terms of Section 207 of the Constitution which dealt with the powers of the NC. In their view, if the Head of the DPCI were to report to the NC, it would compromise the structural independence of the DPCI. He recommended that the Head should report directly to the Minister. The judgement had not dismissed the need for political accountability, but did warn against undue political interference.
Mr Vanara said that the second issue related to the extension on the term of office for a Head reaching retirement age while in office. The Minister had the discretion to extend the term of office. This could easily leave the incumbent seeking a renewal to secure an extension. His recommendation that the discretion of the Minister should be removed.
Mr Vanara said that the final issue was the enquiry to remove the Head of the DPCI. They did not have a problem with the suggestion of a judge or retired judge. There was a problem with an unspecified legal practitioner. One would expect a process with integrity so that the outcome would be acceptable. Perceptions were important. The option of appointing an advocate with ten years service could be seen as the Minister appointing a proxy to remove the Head for reasons other then performance. A Senior Counsel could do the job, but the person should be nominated not by the Minister but by judicial channels.
Ms Kohler-Barnard was interested in hearing the reasoning around the location of the unit. The procedures for removing the Head ran to three pages, but the appointment was one line. She would also be interested in hearing their opinion on that matter.
Mr George welcomed the comment on the reporting line. The Concourt did not rule out political accountability, so he would have to accept the option of the Head reporting directly to the Minister. It was also a question that had been troubling him about the possibility of the Minister appointing a Head who would reach retirement age during his term of office. Parliament should rather make the appointment, and this should be a person with a reasonable expectation of serving a full term in office. The problem might never arise. A reasonable person would not appoint an old person given this restriction. The contract must specify that the person must retire at the age of sixty. His advice was to stick with a judge to lead the enquiry into the removal of the Head. The President would make the appointment. His main concern was the issue of the reporting channel.
The Chairperson cautioned Mr George on the possibility of discrimination on the basis of age.
Mr George said that there had never been a challenge to an age limit of thirty on SAPS recruits.
Mr Ramatlakane agreed with the first concern on the reporting line. This box could be ticked. There had been a lengthy discussion on the question of retirement age. There was such a provision in the PSA. The provision in this Bill could be removed and any arrangements in this regard should be in line with the PSA. There had also been a long discussion regarding the leader of the enquiry, and he suggested that they return to the proviso that this should be a judge or retired judge. There had been ongoing debate about the powers of the NC in Section 207 of the Constitution. He asked if the Parliamentary Legal Advisers had an opinion on the financial arrangements. The NC would be the accounting officer for DPCI funds. This was a similar situation to the chain of command issue.
Ms van Wyk had certain proposals. The proposed section 17CA(14) should be deleted completely, which referred to the Head having to leave office at the age of sixty. Sub-section (16) would the “The Minister shall” instead of “may” extend the contract for a maximum of two years. A further year could be added subject to the approval of Parliament. Section 17CA(17) would be amended by the deletion in (ii) of the provision that the term would not exceed the original term. This would be addressed in the contract and did not need to be repeated. Section 17CA(23), which would make provision that the National Head would not be involved in the management functions of SAPS. Her proposal was that an addition should be made that the Head would be directly accountable to the Minister.
Ms van Wyk proposed an amendment to the proposed section 17DA(2)(d)(ii). The reference to a senior practising advocate should be removed.
Ms van Wyk said that section 24 of the SAPS Act provided for the Minister to make regulations, including appointments and procedures. It should be abundantly clear that everything referring to Chapter 6 of the SAPS Act had to come to Parliament. This would include any appointment procedures on which the Minister might embark. The Minister could make a regulation, but Parliament would have to approve it. She believed the changes made went even further than the requirements of the Concourt. Any changes in the regulations would also have to be agreed to by Parliament.
Mr Ramatlakane said that regulations were normally an Executive function. He would like to know the precise wording.
Mr Vanara said that the Concourt was clear that an appointment by the Minister of an individual was not in itself illegal. There was a difference between being nominated by Executive and acting in accordance with the Minister's wishes. What was important was the checks and balances built into the process. If there was a deviation, it should be challenged. There was nothing untoward with the Minister appointing the Head.
Ms van Wyk said that section 18 of the Act provided that if the Minister changed any regulation, it must be submitted to Parliament for approval at least one month before promulgation. Section 19 said that regulations must be approved by Parliament. Section 24 discussed regulations regarding the DPCI.
Mr George was still concerned with an extension to the term of office.
The Chairperson said that Prof de Vos had raised an issue of bringing things through the back door, such as the Ministerial Committee. The PSA gave superiors a certain amount of discretion. Whilst Members wanted to make use of the provisions of the PSA, this degree of discretion might be used for the wrong purpose.
Mr George asked why the appointment of the judge to lead the enquiry would be appointed by the Minister in consultation with the Minister of Justice. He felt that the whole Cabinet should be involved.
Ms van Wyk noted that the Chief Justice would also be involved in the process.
Ms Kohler-Barnard said that the DPCI would not administer its own finances, even if funds were earmarked. Submissions had raised this issue. Large issues had been raised about the Ministerial Committee. While this had been rendered largely toothless, it might still be an issue for the Concourt. The Head of the DPCI would still be outranked by the NC. While the direct reporting line might go directly to the Minister, the NC remained in control of the SAPS. She asked if this exception to the Constitution could be allowed. The Head could now ignore the NC and Provincial Commissioners. She asked if this was not a contravention of both the SAPS Act and the Constitution. The Minister was not a member of SAPS, and there was a question over his ability to determine policy guidelines. This should rather be left to the DPCI.
Mr Ramatlakane referred to the proposed amendment to section 17CA(17)(ii). He asked if any other caveat would be inserted. He agreed with the proposal on the use of a judge or retired judge in the enquiry process. He proposed that the start of 17CA (18) should be “The Minister shall make regulations...” instead of “Whenever the Minister makes regulations...”.
The Chairperson said that Members were in agreement that the reporting line should be through the Minister.
Ms Kohler-Barnard presumed that this reporting line would be on all cases. She asked how the reports would be protected from political interference.
The Chairperson said that the legal system required some level of Executive involvement. Even the judgement accepted that principle. The level of involvement had to be controlled.
Ms van Wyk accepted the proposal regarding 17CA(18). Section 17CA(a) dealt with the contract and (b) with the provisions of the PSA.
Mr Vanara said they had applied their mind to the question of finances. The safeguards which had been put in place would provide for adequate independence. There was an accounting officer. The budget for the NPA fell under the DG for Justice and Constitutional Development. On the issue of public perception, the court would not ordinarily listen to a member of the public making wild accusations. Evidence would be needed to justify the perception held. A level of convincing was needed.
Ms Kohler-Barnard asked if twelve submissions in favour of locating the DPCI elsewhere were weighty enough for consideration.
Mr Vanara said that it was not wrong for DPCI to be located within SAPS. The question was adequate independence. Consequently, the location of the unit was a non-issue. He had not had the chance to read the submissions. Some issues were probably addressed in the Bill as amended. The issue of position was not a determining factor on independence. What was important was that there should be sufficient safeguards against undue influence. Even if the Head were to be made a DG, it would not ensure immunity from undue interference. The structures put in place would provide this protection. Section 206 of the Constitution gave the Minister the power to determine policing policy.
Ms Isaacs said that two issues had been raised by the Concourt regarding the Ministerial Committee. The first was of untrammelled power, and the second was the power of the Ministerial Committee to interfere with operations. The role it would play now would be a co-ordinating role. It would only meet as required and would have to report to Parliament. There was no longer a role for the Committee and she felt that the requirements of the judgement would be satisfied.
The Chairperson felt that it was time to do a clause-by-clause deliberation on the Bill.
Page 1 was accepted.
Ms Irish-Qhobosheane noted that 'structural' had been included in the Preamble. Members accepted this.
Clause 1: Amendment of section 6
Members agreed on clause 1.
Clause 2: Amendment of section 11
Members agreed on clause 2.
Clause 3: Amendment of section 16
Rev Meshoe needed clarity on 3(a). He queried the use of 'prevent'
Ms van Wyk said that the DPCI, like the SAPS, had a mandate to prevent crime from happening.
Ms Irish-Qhobosheane said 3(b) now included a reference to the NC as well as Provincial Commissioner.
Members agreed on clause 3.
Clause 4: Insertion of new section 17AA
Members agreed on clause 4.
Clause 5: Amendment of section 17B
Members agreed on clause 5.
Clause 6: Amendment of section 17C
Members agreed on clause 6.
Clause 7: Insertion of section 17CA
Ms Irish-Qhobosheane had received the proposals made by Members regarding the Head reaching retirement age. The Bill would be updated accordingly.
Ms van Wyk moved for adoption of Clause 7 with amendments.
Ms Kohler-Barnard was abstaining from voting. She would have to discuss the Bill with her caucus.
Clause 8: Amendment of section 17D
Members agreed on clause 8.
Clause 9: Insertion of sections 17DA and 17DB
Ms Irish-Qhobosheane noted an amendment to delete the reference to a legal practitioner.
Members agreed subject to amendments.
Clause 10: Amendment of section 17E
Members agreed on clause 10.
Clause 11: Substitution of section 17F
Ms Irish-Qhobosheane pointed out clause 11(c) which would insert a new 6A providing for the Head of the Crime Intelligence Division to make personnel available if requested.
Members agreed on clause 11.
Clause 12: Substitution of section 17H
Ms Irish-Qhobosheane pointed out that a lot of attention had been paid to the financial aspects.
Members agreed on clause 12.
Clause 13: Amendment of section 17I
Members agreed on clause 13.
Clause 14: Amendment of section 17J
Members agreed on clause 14.
Clause 15: Amendment of section 17K
Members agreed on clause 15.
Clause 16: Amendment of section 17L
Members agreed on clause 16.
Clause 17: Amendment of section 27
Members agreed on clause 17.
Clause 18: Amendment of section 28
Members agreed on clause 18.
Clause 19: Transitional arrangements
Members agreed on clause 19.
Clause 20: Amendment of Preamble
Members agreed on clause 20.
Clause 21: Repeal and amendment of laws
Members agreed on clause 21.
Clause 22: Short title and commencement
Members agreed on clause 22.
Schedules of laws amended or repealed
Members agreed on the Schedule of Laws Amended or Repealed.
Memorandum of Objects
Members agreed on the Memorandum of Objects.
Adoption of SAPS Amendment Bill
Ms A Molebatsi (ANC) moved that the SAPS Amendment Bill be accepted with amendments. Mr Ndlovu seconded the motion. Ms Kohler-Barnard abstained as a representative of the DA until further discussion with her party.
Report on SAPS Amendment Bill
The Chairperson read the report on the deliberations on the Amendment Bill. This had been a difficult Bill to process. A Bill had been produced that would stand the test of time. She would welcome the Bill being referred to the Concourt. She thanked all involved for their hard work. She appreciated the spirit in which Members had approached the deliberations. The Bill would be debated in the National Assembly later in the month.
Private Security Industry Regulatory Authority (PSIRA)
Ms Zelda Holtzman, Deputy Chairperson of the Council, Private Security Industry Regulatory Authority (PSIRA), introduced the delegation.
Mr Manabela Chauke, Director, PSIRA, said that the mandate was contained in the Act. The most important aspect was compliance with laws and the regulation of the private security industry. The challenges were similar to those faced by PSIRA the last time it had presented to Parliament. They had not been properly addressed in the past. A turnaround strategy had been presented, and the plan was still being implemented. The growth of the industry was still a challenge. Capacity of the industry and funding had not been addressed. Criminals were still infiltrating the industry. Their were plans to counter the challenges but not at the required scale. There were still a number of illegal or unregistered operators. There was a need to improve service delivery. PSIRA was not represented in some provinces. Greater control of firearms was needed. There was foreign involvement in the industry, which would be addressed by legislation. Some South African companies were still operating outside the country, especially in war-torn areas. Unfair labour practices were still present. The reputation of PSIRA had been damaged in the past but was being addressed.
Mr Chauke said there were also internal challenges. These included those relating to scope and footprint. Governance and management issues were being addressed. An internal audit committee had been established. PSIRA still had its earlier structure. Additional council members still had to be identified. Stakeholder relationships were being management as were finances. The funding model problem still had to be solved. Processes, systems, skills and capabilities were still a challenge.
He named some of the key areas. The first was a question on the progress of the PSIRA Amendment Bill. The organisation depended solely on contributions from the industry. There was no state funding. There would be a focus on performance. A new law enforcement and compliance strategy was needed.
There were seven strategic objectives. These had been reviewed at a strategic planning session. The objectives had not changed, but the plan to address them had been updated. The first objective was industry stewardship. Full understanding of the industry needed to be ensured so that it could be recognised as experts in the industry.
The second objective was stakeholder and customer relation management. Fruitful engagement was needed with all stakeholders.
Mr Chauke said that the third objective was financial management and funding. The organisation had to be financially stable and sustainable by increasing revenue and decreasing costs. The intention was to reach a break-even level.
The fourth objective was excellent service delivery. Compliance was needed with PSIRA legislation to ensure behavioural changes. The fifth objective was efficient and effective processes and systems. Adequate processes and systems were needed to carry out the mandate of PSIRA. The sixth objective was effective learning and development, and the seventh was creation of an enabling environment.
Ms van Wyk asked why the Deputy Directors were present.
Ms Holtzman explained that the Director was the Chief Executive Officer (CEO), and the heads of each programme were known as Deputy Directors.
Mr Philani Mthethwa, Deputy Director, PSIRA, said that Programme 1 was law enforcement. While the headquarters were in Pretoria, and there were some satellite offices, the organisation was not well represented in areas such as North West. There were four outcomes under this programme. The first was ensuring that PSIRA was an excellent regulator, and accessible to all. The second was to create a legitimate private security industry characterised by professionalism, transparency and trustworthiness. The reputation of the industry had been tarnished recently. Outcome 3 was ensuring that firearms were fully accounted for. There was no proper auditing of firearms in the industry. The primary responsibility lay with SAPS, but PSIRA also had to shoulder some responsibility. It was a particular problem when private firearms were used. The fourth outcome was to process cases efficiently. It took a long time for cases to be handled efficiently.
Mr Mthethwa listed the performance indicators and annual targets. The first performance indicator was the number of additional law enforcement officers appointed, and the target for 2012/13 was ten. New procedures were being followed. The next indicator was the percentage of inspectors trained on the Firearms Control Act, and the target was 100%. The number of inspections of security businesses would be increased from 2 800 to 3 240, increasing in the medium term. There were three new indicators. The number of inspections on security officers, rather than businesses, was planned at 19 440. Uniforms were an issue. While in different colours, each officer should wear a badge indicating the name of the company and the officer's name, and had to carry identification. The number of compliance publications would be four per annum. The target date for the completion of firearms audits would be in September of each year.
Mr Nick Ligege, Chief Financial Officer, PSIRA, said that Programme 2 was Finance and Administration. The purpose was to make the organisation financially stable and sustainable, and to ensure that adequate processes and systems were in place to execute the mandate. The four components were finance and administration, business information and technology, supply chain management, and internal audit. There were two outcomes. The first was to make PSIRA financially sustainable, and the second was to obtain cutting edge technology.
Mr Ligege said that the first performance areas were to develop an online account payment facility, and the target was to establish this by 31 March 2013. The next indicator was the percentage of revenue collected for billed accounts. The target was to increase this from the current 77% to 85%, with a further increase in the outer years. The next indicator was turnaround time for collection of accounts. The current systems were unable to provide this information. The target was to complete the process in fifty days. Frequency of reporting financial performance was important, and would be conducted monthly.
Mr Ligege said that the next indicator was a new one, and provided for conducting review of fines regulation. This should be done annually. The frequency of liquidity planning should be monthly. Compliance with Public Finance Management Act (PFMA) regulations was a new indicator, but was being targeted at 100%. The percentage of surplus / deficit was currently 5%, and the target was to remain within this bracket. The final indicator was the ratio of working capital management. The current ratio was 0.59:1 and the target was to increase this to 1.2:1.
Programme 3 was Communications and Training. There had been a number of cases reported in the media of security officers being involved in crime. There had recently been an issue with bouncers at nightclubs. The public learned about such incidents through the media rather than through PSIRA channels. Meaningful engagement was needed with all stakeholders. Full understanding was necessary in order to respond to the challenges. Different licences were needed for the different aspects of the industry.
Mr Chauke said that the components were communication and marketing, training and research. Training standards had to be improved. The first indicator was to improve the turn-around the time for the processing of course reports from seven to five days. The number of training programmes would be increased from thirteen to 22. A new indicator was the date of registration of PSIRA as a professional body in terms of the National Qualifications Framework Act was set as September 2012. The same target date applied to the promulgation of regulations for new training skills. Training was still being conducted according to old standards. Training should be standardised. The number of completed areas for research of high priority subjects was also a new indicator, and the target for the 2012/13 financial year (FY) was two research topics, increasing in the future. Finally, the frequency of issuing media statements was also a new indicator and the target was quarterly publications. There were no such regular publications at present and the only communication was on a opportunistic basis.
Programme 4 was Corporate Services. The purpose was to ensure that PSIRA had competent and skilled employees, and to ensure that there was a culture of learning and excellence. A new indicator was compliance to targets in the skills development plan, and the target was 100%. The turnaround time for the recruitment of employees was an unknown quantity at present, but the target was to have a three-month turnaround from the approval of the request. There was no change management plan, but this was being created and the target was 100% compliance. At present only members of the executive committee were subject to performance assessments, but this would be extended to all staff on a quarterly basis. Employee satisfaction surveys would continue to be conducted annually. The human resource retention strategy was to be approved by council by 30 September 2012. The final indicator was the conclusion of disciplinary hearings. The number of cases of corruption was increasing. The target was to complete procedures within 30 days.
Mr Ligege said that fees had last been reviewed in 2002. He listed some performance highlights for the 2011/12 FY. The audit would only be held in May. In a time of recession it was difficult to earn revenue. A number of the registered companies battled to pay the fees expected from them. Nevertheless, revenue had increased by 33% to R129 million. There had been a 20% increase in annual fees. A training fee had produced R16.4 million. There had been a 90% increase in fine income which had netted R10.7 million. Cases were being heard faster. Annual fee regulations had been implemented in January 2012.
Mr Ligege said there were some drawbacks as well. There was a legal challenge to the 2011 annual fee regulations. There were challenges in maintaining the going concern status. A projected deficit of R10 million was planned. There had been increased costs due to an unplanned office relocation.
Mr Ligege said that the annual fee was R4 250. There was a levy of R84 for each officer. The monthly business fee was R7 for each security officer. This was a way of saying that business must pay for security. PSIRA had tried to match growing expenses with growing revenue. Integrated business information systems were needed, such as those to check identities. A new logo had been designed but not rolled out due to financial constraints. Every identity card would have to be changed to reflect the new logo. Additional inspectors were being appointed.
Mr Ligege gave a breakdown of expenditure. For 2012/13, the total expenditure would be R173 million. Of this, Programme 1 (Law Enforcement) would take 38%, Programme 2 (Finance and Administration) 35%, Programme 3 (Communication and Training) 15% and Programme 4 (Corporate Services) 12%. It was expected that revenue would increase over the medium term. Fees had to be reviewed on an ongoing basis, not every ten years. The total capital expenditure would be R11.8 million, of which the major expenses were software (R6.7 million), computer equipment (R2.2 million) and office furniture (R1.0 million).
Mr Ligege said that one of the risks was legal action being taken by the industry, which was attempting to set aside the annual fee regulations of 2011. It was necessary to seek alternative funding.
Mr Chauke emphasised the need for alternative funding. PSIRA had come to the Committee the previous year in a technically bankrupt state. Operational expenditure was far higher than revenue. The funding of the Authority had to be reviewed. When the fees had been reviewed, the industry had gone to court to review the regulations. There was a claim of inadequate consultation, which had been refuted. There had then been an application to delay the increased fees until the application had been reviewed. NT had been approached for assistance without the fees being paid. This request had not yet been approved despite numerous meetings. The industry had to be billed for the year due to the uncertainty. These fees would have to be refunded should the court rule against the fee increase. Funding was addressed in the legislation.
Most regulators in other countries were partly state-funded. When going for as much revenue as possible there was a risk of collapse. Companies might close down if they could not run profitably with the fees, but PSIRA could not run at a loss either.
Ms van Wyk, acting Chairperson, asked why PSIRA had moved out of a building they owned in order to occupy a building with a high rental.
Mr George was depressed after hearing the presentation. The same challenges had faced the industry when he had been Chairperson of the Committee in 1999. Issues such as infiltration by foreigners and firearm control were still present. The private security industry had more firearms than all security agencies. The question was why it had taken so long to bring the legislation to Parliament. To say that there were unfair labour practices was a gross understatement. Some security officers had not been paid for months. The issue of capacity was a recurring theme. There were beautiful programmes, but he asked how they could be achieved without capacity. Systems were not there. It was illegal to budget for a deficit. Some of those employed as mercenaries in other states were employees of local companies. The fees were being challenged. Some companies had plenty of funds to keep the legal challenges going while PSIRA was already bankrupt. Something bad would happen as some of the firearms were already used for criminal activities. It was said that some firearms were rented out and could not be traced by SAPS.
Ms Kohler-Barnard thought that PSIRA was getting its act together for the first time. There was planning in place and there was huge intellectual capacity present. There had been some seriously dodgy practices in the past. It seemed that this was something of the past, and this was good news. She asked what the real revenue collection figure was. She asked if the 77% baseline quoted was realistic. By September 2012 PSIRA wanted to be registered as an entity. She asked if this was going to happen. Regulations were also due in September, and again she asked if this was a realistic target. She asked for a status update on the legal proceedings. She asked what happened to the head of human resources, who left before he was fired. There had been criminal accusations against him. She asked about the status of the office accommodation.
Mr Lekgetho said that in the 2010/11 there had been an unqualified audit compared to less complimentary reports in previous years. Some companies were blacklisted. He asked how many there were and if they were still operating. He asked if PSIRA issued firearm licences.
Ms Molebatsi asked how many inspectors were currently employed. She asked how many security companies were currently registered. She asked what topics were covered in training. She asked how PSIRA could ensure that blacklisted companies ceased to operate.
Mr D Stubbe (DA) asked if anything was received from NT. He asked how many employees were in each of the four Programmes.
Ms van Wyk said that it was concerning to see how the surplus had dwindled in recent years to the point where there was a current deficit of R23 million. There was no change in the situation. Costs for consultants had doubled. One spent according to one's income. She asked who the consultants were and what they had delivered. They had moved out of a building which they had owned, but were now renting a building at R1 million a year. The number of employees had only increased by five, but there was a major increase in salaries. Inspectors were not being appointed. Bad debt was at R20 million. The salary cost indicated significant increases of 34% in basic salaries in one year. Explanations were needed before there could be any thought of requesting government funding. Given the huge outstanding debts, she asked why the services of the debt collectors had been terminated. R3 million in bad debt had increased in one year to R20 million. Members had agreed that levies needed to be increased, but this made no difference if the levies were not being collected. It was alarming that stakeholder interaction was with SAPS and Intelligence. PSIRA was only now realising that it should also be improving its interaction with the industry. She asked if NT had agreed with the fee increases. Levies were a form of tax, and could only be imposed with the consent of the Minister. She asked if there was provision for inflation-linked increases.
Ms van Wyk asked why the logo had been changed. PSIRA had admitted that it could not afford to change it. It was important to get the figures of the number of staff in the programmes. There seemed to have been a change in who was responsible for communication and who for training in the Programmes 3 and 4.
Ms Holtzman emphasised that the Council had inherited a mess. The numbers had diminished. The Chair was indisposed and other members such as herself and Gen Dramat had full time jobs. PSIRA had been told the building was becoming a liability on safety grounds rather than an asset. Structural engineers had felt that the building was about to collapse at any moment.
There had been engagement with the Department of Public Works (DPW). There had been a leadership change in DPW at the time. Appointments had been made at the time when the issue over the SAPS buildings had been under scrutiny. Available buildings had been inspected which would accommodate PSIRA's needs. Head office had to be separate from the regional office. They had chosen the first choice building. Time had also been a factor. All NT guidelines had been followed, and the Auditor-General (AG) had been kept informed.
Ms van Wyk asked what the costs were and what the current state of the building was. She asked how PSIRA could have let it deteriorate to such a condition while still in occupation.
Cracks in the four-storey building had been discovered. These had been literally plastered over in the past. The internal wall had begun cracking. The problem was an old one, which had not been addressed adequately. The lift had needed to be replaced, but that would have compromised the structure of the building. The load-bearing walls might have been compromised. The engineers had conducted a structural survey. The design was poor from the outset, and it seemed that there had been no engineering oversight when the building was erected. The Ph balance of the cement changed in wet weather, causing the steel re-enforcement to expand. This was what caused the cracks. The safety of employees could no longer be guaranteed and the building should no longer be occupied. A large section of the building was used to store fingerprint records, and their combined mass was also causing stress. PSIRA had therefore moved the staff out. Two adjoining houses had been used for office accommodation. Council had decided to dispose of the building. It had been put on the market, but with a warning about the structural defect. The building would have to be demolished. Tenders had closed recently. There was only one interested party at present and the sale would have to be finalised. The building was still standing empty. PSIRA was currently paying R110 per square meter for a building of approximately 100 square meters.
PSIRA had not budgeted for a deficit, but one had been projected. The deficit of the previous FY would be reduced from R20 million.
Mr Chauke said the current collection rate was 77%. This was on current dues and not outstanding debt. The collection rate had in fact improved. There was not a cumbersome registration process, but there would be difficulties afterwards. There had been no review on the comments sent in by the public. PSIRA had requested that the guidelines should be made law. At present, there was already a judgement barring the collection of levies. PSIRA had filed a claim to overturn this ruling. There might be a hearing in November, but he hoped that a settlement could be made before reaching that stage. The trial of the former head of human resources had started. The majority of the witnesses from PSIRA had already testified in court. It might have been finalised, but as far as he knew the case was still proceeding.
Mr Chauke would need to get the detail of the blacklisted companies. PSIRA was still using a debt collector. The database had to be cleaned up. The collector would have to look into each debt and determine if the customer was still active, and what prospect there was of repayment. Some had to be written off. The next process was to try to trace the debtor. If this was not possible, a decision had to made about how to withdraw that company's registration. Updated numbers would be provided.
Mr Chauke said there were 43 inspectors. There were 25 000 registered companies, of which 9300 were active. The number of training programmes would be provided in writing. There were legal aspects, such as arrests and the compiling of affidavits, in which security officers had to be trained.
Mr Chauke said that PSIRA at present did not receive any money from National Treasury. He did not have figures on the staff complement to hand.
Ms van Wyk was not satisfied with this answer. This kind of question should have been anticipated. Answers must be provided before the end of the day.
Mr Chauke said that revenue from fines had increased due to the finalisation of fines, and in better enforcement. In 2008/09 there had been a process undertaken by PSIRA. A Ministerial task team had embarked on a job awareness programme. The Council had been formed in 2010. This process had made the salaries jump by about 47%. This was due to a combination of various factors, including provision for pension fund contributions. PSIRA was now busy with a final appreciation of how much debt could be collected. The court order said that PSIRA could not punish its members for paying at least the old rates.
Ms van Wyk said that this would not explain the increase in debt.
Mr Chauke said that there was not enough capacity to engage with stakeholders. Compliance forums should be set up in every province. The Minister had been approached with a request to renew the annual fees. An approach had been made to NT, who had not agreed to the increases. Consultation was needed, as was the concurrence of the Minister of Finance. A distinction was needed between annual fees and the levies. The previous Act had been used to raise the annual fees in the past. There had been consultation with NT although the consent of the Minister of Finance was not needed. NT had disagreed on a number of issues. The percentage was so high that the industry could not afford it, and was also above inflation. It was strange that no alternative had been put forward. NT had not supported the concept of a loan.
Ms van Wyk said that levies could only be raised with the consent of the Minister of Finance, as it was a form of tax. It must be determined if the correct process had been followed.
Mr Chauke thought that the logo had been changed in response to a suggestion from Parliament that the identity of the body should be changed. The estimated cost in rolling out the logo was R1.5 million.
Mr Mthethwa added that it was true that there were more firearms in the security agencies than in the security services. He could not name a figure. This was why PSIRA wished to conduct an audit. Some had gone missing. He could not say how many firearms under the old Arms and Ammunition Act had migrated to the Firearms Control Act. The role of PSIRA was to support SAPS in the management of firearms. PSIRA did not issue licences, but did support SAPS in providing training facilities. It was easier for registered members of PSIRA to obtain licences from SAPS. The renewal of registration was the answer to establishing the number of criminals that were in the industry. During the application process, fingerprints were taken and compared to SAPS registers. This could not be implemented due to financial constraints. Due to the lack of representation in some areas, a mobile service might be needed to go to areas where assistance was needed. There was some exploitation of security officers. The responsibility lay with the Department of Labour. Fines were issued, but only the Department could issue reparations. Any company tendering for new business needed a letter of good standing from PSIRA. If a security company needed a tax clearance, such a letter would be a requirement.
Mr Ligege said the seven objectives had been linked to programmes. The different departments needed to be linked to programmes. There were not more than 140 employees at the head office. In Gauteng, the outer provinces were also serviced.
Mr Stubbe needed numbers in order to do his calculations.
Mr Chauke said the entire complement was 220. Of these, 214 were permanent and 14 on contract. Six members were in HR, seven in IT, 11 in events, 29 in finance and facilities, 13 in debt collection, 152 in registration and seven in the director's office.
Mr Ligege said there were 140 people in head office, but they were looking to expand. There were a greater number of security companies in Gauteng.
Mr Stubbe requested a written answer on their full staff complement, levels of employment and salary scales. Members could then compare staff number to the salary budget.
Mr George asked if there were prospects of PSIRA winning the case. If there were not, then it was fruitless spending more money on the case. PSIRA could also be ordered to pay legal costs.
Mr Chauke said the case did not hinge on the fact that NT did not agree with PSIRA. The fees would not have been raised if PSIRA had not felt that they were justified. He could not speculate on winning the case, and was not interested in the result.
Ms van Wyk said that there were a number of issues to be answered. She would like to see a list of employees per programme, together with current and historic salary scales so Members could assess the increases. There had been no response on the question regarding consultants. More clarity was needed on the question of the building. The rental cost was double that of other Departments who were already facing questions of excessive rentals. She asked what was part of the deal of over R1 million per month, and with whom the contract had been signed. She wanted a report on progress with the case against the former human resources head. She wanted to know what outstanding debt there was and how much was to be written off. An answer was needed on training and the number of trainers. A progress report was needed on the implementation of the levy. She directed that the answers be provided by 25 May 2012. If Members were not satisfied then PSIRA would be recalled.
The meeting was adjourned.
- PSIRA Annual Performance Plan 2012/13
- PSIRA Strategic Plan 2012/13 - 2016/17
- Provision compliance to Constitutional Court Judgement after Deliberations by Police Portfolio Committee
- South African Police Service Amendment Bill as of 16 May 2012
- Private Security Industry Regulatory Authority (PSIRA) Strategic Plan 2012/17 presentation
- We don't have attendance info for this committee meeting
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