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SAFETY AND SECURITY PORTFOLIO COMMITTEE
22 May 2002
PRIVATE SECURITY INDUSTRY LEVIES BILL: DELIBERATIONS
Chairperson: Mr M E George (ANC)
Documents Handed Out:
Private Security Industry Levies Bill [B11-2002]
Memorandum on Section 49 by Adv Kok (Appendix)
The Committee deliberated on the Private Security Industry Levies Bill. After length debate on Clause 2 of the Bill the Committee accepted the Bill. Committee members expressed their disappointment with the actions of the SAPS Secretariat for not attending and briefing the Committee at the last meeting.
Adv Kok presented a memorandum to put into perspective the challenge to Section 49, following the decision by the Constitutional Court on Section 49.
Mr M E George led the discussion and It was agreed that the Committee would deal with every clause individually before voting on it.
Adv Kok explained to the Committee that this Clause primarily dealt with definitions and that the printing error in Clause 1 will be deleted.
Adv P S Swart (DP) stated that this matter was discussed in the previous meeting and that discussion could proceed.
Mr M E George (ANC) added that there would be no consequential changes to the draft bill before it goes to Parliament.
The Committee therefore accepted Clause 1.
Adv Swart (DP) indicated that the DP have looked at this clause at great lengths and discussed its implications for small and large companies. They concluded that they cold not accept the bill.
Mr E T Ferreira (IFP) stated that on the issue of gross income they could not accept this Bill.
Rev K R J Meshoe (ACDP) asked why people who are better trained and qualified are charged more levies.
Adv Kok answered that someone who performs a more sophisticated service will inevitably charge more.
Ms A Van Wyk (UDM) agreed that the system should not penalise people who have the proper skills, as it was not the main idea of the Bill.
Mr George (ANC) noted that this matter was discussed at length at the previous meeting and there was no consensus. Clause 2 holds all the fundamental aspects of the Bill and disagreeing on this Clause is disagreeing on the central issue of the Bill.
A Member (ANC) stated that the ANC accepted all the clauses in the Bill.
Adv Swart (DP) urged the Committee to reconsider looking at income as the main determinant of levies. He said that it should be kept in mind that the only priority of this Bill is to focus on imposing levies and empowering authorities to do their work. It must be mentioned that the bulk of the authorities' work is to ensure optimal service provision.
Mr George (ANC) asked if Adv Swart would agree that the bulk of the larger successful companies employ the most people.
Adv Swart (DP) thanked the Chairperson for supporting the issue of levies being issued on the basis of numbers. He concluded that the ANC should consider Net Income, as only then will the DP reconsider their stand on the issue, as the proposed clause is an unfair system to impose.
Ms A Van Wyk (UDM) noted that the Committee should keep in mind the original Bill and currently they want to ensure that people are capable of doing their work. It is thus an insult if a person who is better trained is penalised instead of receiving incentives to give a better service.
Ms Van Wyk concluded that this Bill would ultimately protect those fly-by-night companies who earn less money and have poorly trained personal something that this Committee tried to avoid. This made it difficult for the UDM to support this Bill.
Mr A J Botha (DP) said that the form of taxation that the government is trying to impose would never stand the test of time. Secondly, that the regulation on ensuring quality and the recruitment of smaller companies would never realise, as government is penalising successful operators.
Mr George noted that the issue is not income tax and that the levies were not a matter of taxation.
Mr Ferreira (IFP) stated that sometimes they support bad policies in the hope that it would become less bad. He agreed that the issue of gross income does not make sense.
A Member (ANC) stated that they will not be changing their vote although they were very sympathetic to those who disagreed with the proposed Bill.
Rev Meshoe (ACDP) asked if the Committee could vote on this issue in order to save time.
Adv Swart noted that this was not a policy issue and that Clause 2 was just a one sided way of obtaining levies. He requested that in order to get consensus, the ANC should break for a 5-10 minute caucus and debate on this issue.
Mr George (ANC) agreed that after the five-minute break the ANC would be called upon to make a decision regarding this clause.
Mr George (ANC) noted that the ANC decided to put the Bill forward for finality and that they are formally convinced that gross income mentioned in Clause 2 would not have any negative repercussion to any party. They accepted the entire clause and Bill.
Mr Scheepers (NNP) stated that the NNP supports this clause.
Adv Swart (DP) said although he differs from his colleagues, it would be in the best interest of the Committee to carry on with proceedings.
The Committee agreed with the content of Clauses 3 to 4.
Adv Swart remarked on the suspension of companies but stated that although he was not fully satisfied with the content, he would not vote against Clause 5.
The Committee agreed on the content of Clauses 6 to 10.
Mr George decided that each clause should be voted on individually and then on the entire Bill.
Clause 1 was accepted. Clause 2 was accepted by the ANC but not by the DP, IFP, ACDP and UDM. All parties unanimously accepted Clauses 3 to 10.
The Committee therefore accepted the Bill.
The Chairperson read the motion of desirability and signed the Bill on behalf of the Committee.
He said that even during disagreement it must be noted that they have learned from this experience and that disagreement is paramount for any developing country.
Having concluded their consideration of the Bill, Mr George expressed his disappointment with the actions of the SAPS Secretariat for not attending the last meeting. It is a great matter of concern as only Mr Solomon presented the Committee with a formal apology for not attending. A letter of apology from the other members of the delegation was only received during the meeting and there was not sufficient time to go through the document.
Adv Swart (DP) suggested that Mr Rasegatla should address the Committee to clear up any possible misunderstandings.
Mr M S Booi (ANC) mentioned that there was no excuse for not attending and presenting. Furthermore, the reason and timing for not attending the previous meeting was inappropriate and not done in a formal manner.
Mr George (ANC) appealed to the Committee that the message to the Secretariat should be that they take their work more seriously as they are at the centre for making laws. Moreover, the Committee would like to assist them and help direct them to move forward.
Mr George commented on the verdict on Section 49 of the Criminal Procedure Act, 51 of 1977.
Adv Kok explained to the Committee that the new Section 49 limits the power of the police in using potentially lethal force in effecting the arrest of a suspect. The Constitutional Court accepted this interpretation of Section 49(1).
Adv Kok therefore suggested that it was possible to consider that the new Section 49 would overrule the current state of the law.
Mr Booi (ANC) suggested that the Chairperson of Safety and Security should interact with the Chairperson of the Justice Portfolio Committee, to guide the participation of the Committee and to ensure the correct interpretation of the law.
Mr George said that Section 49 was thus far an embarrassment to Government because years have past since 1999 and it has not been implemented as yet.
Mr George proposed that in order to stop any further delays, the SAPS Secretariat should present at the next meeting as this matter could not be carried over to the next year.
Adv Swart (DP) suggested that the Committee should consider a meeting with the newly elected minister of Safety and Security, as it is important to cultivate a relationship with him.
Mr George welcomed the suggestion and stated that he has already spoken to the Minister and that a meeting will be scheduled for as soon as possible.
The meeting was adjourned.
MEMORANDUM TO INTERVENING PARTIES
The above prognosis do not however fully deal with all the eventualities, as a new section 49 is also on the cards, and the President of the Constitutional Court requested legal argument on the constitutionality thereof. It is however unlikely that the new section will be found to be unconstitutional, although it does pose certain unique interpretation problems. The problem with the new section is that it limits the authority of the police to use lethal force in an arrest situation unless it basically amounts to self-defence or limited crime prevention. This is exarcebated by the clear evidence from Hansard that the key parliamentary movers of this section (including the chairman of the Portfolio Committee of Justice) do not understand the section to have such limiting effect.
It is very important to point out that the new s.49 curbs the powers of arrestors more than what is constitutionally required, as the powers contained in the second proviso of the judgement in Govender (paragraph 24 of the judgement p.284) are not contained in the new s.49. It is for this reason that the Commissioner stated in his replying affidavit that he could not agree to any curtailment of powers of an arrestor that is not necessitated by the constitution. The judgement in Govender authorises the use of a fire-arm or similar weapon when the person authorised to arrest has reasonable grounds for believing that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm. This clearly points to the commission of a crime in the past. The new s.49 does not cover this and in fact the arrestor's powers are therefore less than what the Supreme Court of Appeal considered constitutionally necessary.
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