Private Security Industry Regulation Amendment Bill: public hearings (day 1)

Meeting report

Private Security Industry Regulation Amendment Bill: Public Hearings
MJ Hood and Associates (for clients) submission
Mr Martin Hood, Attorney, MJ Hood and Associates, said that he was representing SSG Operation Risk Services (Pty) Limited, a company that operated out of Cape Town and Mozambique and provided maritime security, as well as Nicholls Steyn and Associates, who specialised in security solutions and had an Indian national as an owner, and Events Security Services, who provided security for large events in Cape Town.

He said that in the current situation, there was distrust between the Private Security Industry Regulatory Authority (PSIRA) and the private security industry. This was because of an “us and them” attitude displayed by PSIRA, caused by a lack of consultation and good faith and a display of incompetence.

Mr Hood said that there were some constitutional issues with the Bill, and that the private security industry had no say in the drafting. The Bill of Rights enshrined the rights of all people, including permanent residents, and it would be unconstitutional to exclude permanent residents from operating in this field. 

He congratulated the legislators on good intentions of the Bill, and particularly on the promotion of crime prevention partnerships between the state and the private security industry, and the efforts to cut down on crime. However, selected categories of properly-trained security officers should have more power, to search and arrest, if this partnership was going to work efficiently.

Some unintended consequences could arise because the Bill gave too much power to the Minister, and because it was creating a framework that barred entry into the industry. Parts of the industry did not need to be regulated, such as the car guard industry, which was already quite organised and would not benefit from regulation. This industry provided careers for many disadvantaged people and over-regulation would stifle it.

Mr Hood said that the Indian national who owned Nicholls Steyn applied for an exemption, and it took four years for the Minister to make one decision. He asked how long it would take to make other decisions, and submitted that the Minister did not have the capacity to handle such exemptions.

He submitted that the long-term effects of the Bill would be potential disinvestment from South Africa. The biggest security companies in South Africa were foreign-owned companies, including G4S, ADT and Chubb, the largest armed response company in the country, and the Bill would contribute to their disinvestment and a loss of jobs.

He said that the intention of the legislature should be to state what one could do, not what one could not do. The Bill needed to be more precise.  All legislation needed to be scrutinised by Parliament in an open democratic society and there was a need to minimise unspecified powers of the Minister. All proposed amendments needed to be concise, there needed to be a full understanding of the unintended consequences and the financial consequences. The Bill must be constitutional, should not bar entry into the industry, and should seek to redress past discrimination.

Mr Hood said the rationale and purpose was the most problematic part of the Bill. It had been suggested that foreign ownership was a threat to South Africa, but this was unfounded and unjustified. If there was any foreign ownership limitation, no doubt the Bill would be challenged. Electronic companies that manufactured security equipment would not make their stock locally owned. Some security companies were listed on stock exchanges, and their shares were publicly traded.

He said the changed definition of security services would include such people as board members of Transnet and would create unnecessary registration of such people.

Mr Hood said that the amendment relating to firearms was of concern, because the Central Firearms Registry record was inaccurate and problematic, and would not be able to provide PSIRA with details in thirty days. He would hesitate to put this into the Bill unless it had a better timeline.

He finally said that an amendment should be made to allow industry representation on the Council of PSIRA, to open the lines of communication.

Discussion
Mr M George (COPE) said that Mr Hood talked about giving powers of arrest to security officers. He asked if Mr Hood had looked at the Constitution, and asked how this suggestion was going to work.

Mr Hood said that there must not be confusion about the difference between power of arrest and force of arrest. He was suggesting that, provided they had been subjected to the right training, security officers should have the power to search. Currently they only had civilian rights. He was suggesting that there should be limited power granted to security officers, to work in conjunction with SAPS, but not to act as the police. If there was going to be a partnership between the two, they needed to have improved but limited powers.

Mr George said that the salaries of security officers were good and that the talk of low salaries was incorrect, while the average salary of other industries was distorted by the high earners.

Mr Hood said that he could only speak from experience about salaries being low, but said it was an issue not necessary to debate.

Mr George asked how Mr Hood suggested the improved partnership between private security and SAPS should be done.

Mr Hood said that it would only be improved if there was mutual trust.

Mr V Ndlovu (IFP) asked for elaboration on the loss of jobs as a result of foreign ownership and what Mr Hood meant when he said that companies had no control on their stocklisted shares.

Mr Hood said that there would be a withdrawal of industry participation. He said that he believed that what the Bill was suggesting was certainly a forced disposal of an asset, not expropriation. If the Bill dictated foreign ownership limits, it would result in job losses and disinvestment.

Ms D Sibiya (ANC) asked for elaboration on the statement that the Minister should not have such broad powers.

Mr Hood said that the Bill needed to specify, in precise terms, the powers of the Minister, not have this phrased in broad, unspecified terms. This would help to avoid conflict and legal disputes.

Ms M Molebatsi (ANC) said that this public hearing was addressing the lack of communication between the drafters and stakeholders. She asked at what stage of the process further consultation should be done. She asked for an alternative recommendation, if Mr Hood was saying that the requirement for 51% local ownership would not be well received.

Mr Hood said that this process helped with the consultation, but that the regulatory body of PSIRA needed to regulate, and needed to give and take feedback from the industry. The Firearms Act was achieving certain matters, but PSIRA was not communicating with the industry. Any decision made by any regulatory body needed to be explained. It would help if there was broader representation on the Council.

Mr G Lekgetho (ANC) said that the private security industry was profit driven. He asked why there were apparently many criminals joining the industry.

Mr Hood said that he did not have an issue with ex-offenders being allowed to enter the industry. There was a sufficient time period and requirement for rehabilitation before they could do so. Foreign nationals might have criminal backgrounds and there was a need for both local and foreign police clearance.

The Acting Chairperson said that the rights of citizens were not the same as those of permanent residents, and what the Bill required was not expropriation.

Mr Hood said that he conceded that it was not expropriation as such, but that it was also not a free market economy, and it could force the value of businesses down if they were forced to sell.

The Acting Chairperson said that if companies such as Phillips and Siemens were affected, this was not intended, and this point would need to be considered further. She asked for differentiation on what Mr Hood was saying regarding these companies.

Mr Hood said that he had no mandate to represent Phillips or Siemens but suggested that there would be an overlapping with arms control legislation. The regulation of imports of  security equipment was an important point.

Locksmiths Association of South Africa (LASA) submission
Mr Johan du Preez, Vice-Chairman, Locksmiths Association South Africa (LASA), noted that LASA was particularly concerned with the proposed definition of a locksmith in the Bill as it felt that it was not correct. The definition would allow people to undercut registered locksmiths, because they would not have to register and would not be accountable to PSIRA, but could still operate in a locksmith’s discipline. The proposed definition would create loopholes that could be exploited by unscrupulous operators who did not want to register their business with PSIRA.

He said that modern key cutting was easier to do than in the past, but key cutters had been excluded from the proposed definition. This would exclude a large part of the industry from having to register. Key cutting and key duplication needed to be regulated, in order to reduce or control criminal activity resulting from unauthorised key duplication. Electronic locking mechanisms had not been covered by the proposed amendments and, as they formed a big part of the locksmith industry, needed to be included in the definition.

LASA proposed a new definition for a locksmith to be included in the Bill (see attached presentation for full details). This proposal was drawn up by persons who were currently in the industry and understood the industry and its challenges. It covered the areas of key-cutting and electronic locking mechanisms that were previously overlooked and would prevent exploitation and undercutting from unregistered persons.

Mr du Preez said that LASA also had issues with the proposed training requirements set by PSIRA as they were not practical and would result in people looking to other fields for employment opportunities. It proposed that key cutter standards should be accepted as the minimum requirements for registration with PSIRA.

Discussion
The Acting Chairperson said that reference was made to problems with registration requirements, as the trade took three to five years to train specialists. She asked for elaboration on this issue.

Mr Du Preez said the Bill could not divorce the two separate entities. He explained that locksmiths had a clear career path and a special set of skills programmes, with an initiation into key cutting, before moving into other disciplines. Training took three to five years, but LASA’s proposal would allow registration to take place at the beginning of this period.

Mr Ndlovu asked Mr Du Preez to elaborate on the part of the memorandum that indicated that the industry’s small businesses were struggling financially.

Mr Du Preez said that it was very difficult to train someone for three to five years and then not use them effectively if they could not register. People would be likely not to complete courses because they could only register at the end of training, and could not be used effectively before then. Using the key cutter standard as the minimum requirement would allow for registration at the beginning of the training.

The Acting Chairperson asked if registration was still a problem, or if it was resolved.

Mr Du Preez replied that it was in the process of being resolved.

African Policing Civilian Oversight Forum (APCOF) submission
Mr Sean Tait, Coordinator, African Policing Civilian Oversight Forum, explained that this Forum (APCOF), was a network of state and civil society African practitioners active in policing reform and civilian oversight over policing in Africa. Its objectives were to create and sustain public confidence in the police, develop a culture of human rights, integrity, transparency and accountability within the police, and to promote good working relationships between the police and the community.

He said APCOF motivated for an overhaul of the systems by which individual security guards were held to account for criminal misconduct, as there was an increased blurring of private and public policing practices and spaces but limited regulation of private policing. The South African public enjoyed substantial legal protection from abuse by South African Police Services (SAPS), but there was little comparable protection in relation to the private security industry. This was because there were few centralised channels through which the public could complain, and there was no consistent information on the nature of private security company abuses, except through reviewing court cases, if indeed the matters were pursued to that level.

Mr Tait said that the current regulatory environment focused almost exclusively on the regulation of employers, the registration of employees, enforcement of minimum working conditions and ensuring training standards were met. There was little oversight over the conduct of security officers and officials, and instances of misconduct were dependent on charges being laid and being brought to court.

He said that PSIRA had a code of conduct to which all private security employers and employees were bound. Although PSIRA was tasked with enforcing this code of conduct, in practice it had a limited capacity to do so, as well as few sanctions, and in fact it tended to focus its efforts elsewhere, including checking registrations and labour obligations. PSIRA had a poor collection of evidence, which resulted in minimal information for SAPS to prosecute security officers.

Mr Tait said that APCOF recommended that the private security industry, through PSIRA, submit itself to scrutiny and reporting and become legally obliged to submit all cases of death, rape or torture as a result of security guard action to an independent, external facility. It recommended that all investigations should be subject to audit and further investigation by an external oversight agency and that the industry should be required to provide public reports on such investigations.

Discussion
Mr Ndlovu asked for further elaboration on the comment that there was no consistent and thorough information coming through on the nature of private security company abuses, and the fact that redress for individual misconduct was dependent on individual charges being laid. He asked if PSIRA should be doing further investigations into complaints.

Mr Tait said that investigations were reliant on an individual laying a charge or complaint. The only information about abuses was gleaned from court cases or court reviews. The remedies were not available to marginalised members of society. This was a gap within the current regulatory framework. Oversight and accountability should be brought into sharper focus. Whilst the Bill was trying to achieve this, it was not addressing the actions of private personnel. PSIRA did not have the capacity and resources to prosecute offenders for more serious offences.

The Acting Chairperson asked if APCOF thought that the current legislation did not provide enough oversight.

Mr Tait said that there was increasing utilisation of private security in what used to be the police’s sphere. Public spaces were being guarded by security officers, and there was an increasing prevalence of partnerships. Instances of abuse by the police were recorded and investigated, but there was no similar mechanism for the private industry. It was important to be able to know what the situation was with private security, as currently it was not known whether people were injured or died through actions of security guards, or if there was any other form of serious misconduct being perpetrated by them.

 The Acting Chairperson asked PSIRA how many security officers had been deregistered in the last financial year.

A representative of PSIRA said that 160 security officers had been deregistered for not abiding by the code of conduct. However, these instances could have involved a variety of offences, as the code was very broad..

The Acting Chairperson said that other representatives invited to give submissions were not present, but their written submissions were available.

 The Acting Chairperson asked PSIRA to make available to Members copies of the code of conduct for security officers, and the regulations around locksmiths and their registration.

The meeting was adjourned.