The Committee discussed the definitions clause in the Working Draft of the Bill which contained various proposals from the public hearings. The Committee looked at changes made to: ‘locksmith”, ”security service“ and an new clause dealing with the exemption advisory committee and discussed the options provided for each definition.
Members sought clarity on the extent to which regulation of the private security industry would be regulated. It was explained the definitions of security service, security officer and the security service provider the scope and the areas the Bill would cover.
The Committee heard there were two options with regards to the definition of “security service”. Option A read: protecting or safeguarding cash or goods with a high value when being transported from one point to another. There were submissions on the word "other valuables", deleted from the sentence and substituted with the words "goods with a high value". This would give an indication of the goods that would be transported but the emphasis was with the protection and the safeguarding of the goods and cash. Option B was more specific about the type of goods. Members voiced discomfort with the use of the word "valuables". The word was too general and was the contested area in the first place.
There was a long discussion on the options dealing with the ”exemption advisory committee” as Members believed a set of conditions had to be specified for when it was appropriate to exempt. Members said it was important that the exemption advisory committee was clear on why there was a need for exemptions and under what circumstances. The concern was that the Minister's exemption powers were too undefined and this power had to be limited.
The Chairperson requested the state law advisors to first look at the amended definitions, particularly the ”exemption advisory committee”.
Mr Theo Hercules, State Law Adviser (SLA), Office of the Chief State Law Advisor (OCSLA), said "locksmith" meant a person who, for the benefit of another person engaged in any activity or business which was related to the designing and managing master key systems; installing, maintaining, repairing and changing the combinations of safes, vaults and safety deposit boxes; maintaining key code records; and cutting and duplication existing keys. The new definition included the function of duplication of keys.
The Chairperson reminded Members that one concern emerging from the public hearings was that "locksmith" did not cover key cutters. The change now addressed the issue; she asked if Members were satisfied.
Mr M George (Cope) sought clarity on whether people cutting keys were now included in the Bill. He knew a business in King William's Town that specialised in cutting keys. Was the Committee now requiring that such businesses be subjected to all the laws regulating the private security industry.
The Chairperson cited an example of the office keys and said those were supposed to be security keys that could only be copied or duplicated at a cost. The reality of the matter was that the person in King William's Town could duplicate such keys. This was the reason that key cutters should be registered as well. It was only the registration that they would be subjected to. The Committee should consider this point that the Locksmiths Association of South Africa raised as they knew the industry well.
Mr Hercules pointed out the Bill required any person opening, closing or engaging with locking mechanisms of any nature by means of a specialised device, in any matter, that they be registered.
Mr D Stubbe (DA) asked how far would the issue around registration be taken.
Mr George said the person who arranged his security at home was an engineer and not into the business of operating as private security. Was such a person required to be registered?
Ms Jenni Irish-Qhobosheane, Secretary of Police, Civil Secretariat of Police (CSP), replied the issue raised could not be considered under the definition.
The Chairperson clarified that the question involved a person who did not trade in cutting keys, but could do the job when and if required.
Mr Sisa Makabeni, State Law Advisor, explained the definitions of ‘security service’, ‘security officer’ and the ‘security service provider’ - in both the Principal Act and the Amendment Bill - complemented each other. All the definitions linked to the person being remunerated for the service. One would have to cross-reference the definitions in order to get a complete picture of what was regulated.
Mr V Ndlovu (IFP) commented that the Bill did not say what the official had just explained.
Mr Makabeni explained the definition of a ‘security officer’, and said this was a person employed by another or an organ of state who received a reward, fee or benefit for rendering a service. Meanwhile the ‘security service provider’ was a person rendering a security service to another for remuneration, reward, fee or benefit. Both definitions referred to a ‘security service’, which was defined as a person performing the function of cutting keys. So in all the cases the definitions complemented one another.
The Chairperson asked if this meant that one could not read the definitions in isolation. She sought clarity on whether her understanding was correct in that any person not regularly performing security service for an income was not a security service provider.
Mr Hercules replied this was indeed correct as the person was not in the business of providing such a service; it should be related to what the business did.
Mr George clarified that his initial question was about an engineer; most engineers could do the job of cutting keys, and were doing it for money. Would the engineers be included in the definition?
Mr Hercules replied the Principal Act regulated security service. It was important that Members restricted themselves to that; the Bill sought to regulate the activity, business and also the profession.
The Chairperson clarified that engineers providing the service as part of their business should register only that part of their business. The Bill would not say engineers who could do key cutting should register. This was not what it said.
Mr Hercules said “security service”, according to the Amendment Bill, related to manufacturing, importing, distributing or advertising of monitoring devices as contemplated in the Regulation Interception of Communication and Provision of Communication-related Information Act (RICA) of 2002. The amendment emanated from the South African Police Service (SAPS). Section 44 of the RICA Act, empowered the Minister to lift certain equipment that should be prohibited as far as the manufacturing of it, and PSIRA in that regard would not be committed to registering security businesses responsible for the manufacturing. This was in alignment with the new RICA Act.
He said another amendment related to retaining an aspect of the Bill that sought to do away with security training or instructions to service providers.
The Chairperson commented that the Private Security Industry Regulatory Authority (PSIRA) indicated in the beginning that deleting this aspect from Bill would have been a mistake.
Mr Hercules said another amendment to the definition of “security service” related to paragraph (j) that substituted paragraph (h) in the Principal Act. This clause involved installing, servicing, repairing, distributing or transporting of security equipment. Quite a few comments at the public hearings were received on “distributing and transporting of security equipment”. The proposal was to delete the amendment; but that would no longer be necessary as the status quo remained, but the clause would specify “installing and repairing of security equipment”.
The Chairperson reminded members that in the public submissions there was an issue with Transnet and courier services having to register with PSIRA. By deleting the ‘distribution’ aspect this would no longer be applicable.
Mr Ndlovu said he did not understand the deleted part of the section.
The Chairperson said deletion only applied to distributing or transporting security equipment.
Ms Irish-Qobosheane explained that installing was covered in the Principal Act. When for an example the ADT came and installed it was still regulated but the distributors were now excluded.
Mr Ndlovu sought further clarity on what was being deleted; the document indicated that all of the line dealing with installation and distribution was being deleted.
The Chairperson explained that there were three documents that Members needed to look at during these deliberations – the Principal Act, the Amendment Bill as introduced, and the Working Draft of the Bill. This always made it difficult working with amendment bills.
Ms Irish-Qobosheane suggested that for deliberations, the Committee use the 2001 PSIRA Act, and insert all the amendments into the Act so that Members could be able to read what the amendment looked like.
The Chairperson said that could be done from Tuesday 13 November 2012 onwards.
Mr Hercules said there were two options with regards to the definition of ”security service“. Option A ought to read: protecting or safeguarding cash or goods with a high value when being transported from one point to another. There were submissions on the phrase "other valuables", deleted from the sentence and substituted with the words "goods with a high value". This would give an indication of the goods that would be transported but the emphasis was on the protection and the safeguarding of the goods and cash.
The Office of the State Law Advisor had been specific with regards to Option B, and it read "transportation of cash, valuables and precious metals or jewellery representing a high value on a public road, except when transported by a person at his or her own account, or by the South African National Defence Force or in the case of transport by escort of the service.
Mr George said Option B was better but the word "valuables" made him uncomfortable. This was too general and was the contested area in the first place. Deliberate misinterpretation should be dealt with at the crafting stage of legislation. The state law advisors needed to rethink the use of the word valuables; this made the Bill broad and open to any interpretation.
Mr Ndlovu explained that if the word "valuables" was replaced with "goods with higher value" in option A, and then deleted completely in Option B it would be easy to understand, especially so, if the goods with higher value were mentioned instead of putting a general word.
The Chairperson asked if the definition was in line with the Reserve Bank as per the instruction of the Committee.
Ms Irish-Qobosheane replied Option B was the definition given by CROW (the Reserve Bank Crime Project). Option B was what the Reserve Bank and CROW worked from.
The Chairperson asked why SAPS was excluded from the definition; were they never going to transport goods with higher value?
It was noted that SAPS was not excluded.
The Chairperson requested that a redraft around this aspect be prepared for the Tuesday 13 November meeting.
Amendment of section 23
Mr Hercules said there was an addition to paragraph (g) that the Minister might on good cause shown and on grounds which are not in conflict with the purpose of this Act and the objects of the Authority, subject to Section 23A(4), exempt any person in respect of certain categories of a security service from the exclusion referred to in subsection (1)(a) or (6). He said Section 23A(4) related to the functions of the advisory committee.
This also influenced an amendment to paragraph (h), and ought to read by the addition after subsection (7), the Minister should take a decision within 90 days of receipt of the application for exemption contemplated in subsection (7), and in the case of refusal provide the applicant with the reasons within 30 days of the date of receipt of a request for reasons. The Minister should publish the details of any exemptions granted in the Gazette. These proposals were in alignment with the Promotion of Administrative Justice Act but most of the reasoning behind it related to the insertion of the new advisory committee.
The Chairperson commented that in order for this to make sense the state law advisors needed to go to the clause on the exemption advisory committee.
New clause: Insertion of section 23A on Exemption Advisory Committee”
Mr Hercules took the Committee through an insertion of a new clause on ”Exemption Advisory Committee”. There were two options that were presented for consideration. Option A specified that an exemption advisory committee, consisting of PSIRA, Civilian Secretariat of Police (CSP), Department of Home Affairs (DHA), South African Police Service (SAPS), Department of Trade and Industry (DTI), and the State Security Agency (SSA), be established. The representative of the CSP should be a legally qualified person and should chair the committee.
The exemption advisory committee should make recommendations to the Minister in respect of exemptions. The Minister might prescribe terms of reference regarding procedural matters and the factors to be considered in relation to the function of the exemption advisory committee. He said the aim of the proposal was first the establishment of the committee and as well as the composition.
Mr Hercules said there could be difficulties with regards to the composition of the advisory council. Option B proposed a different composition. It would consist of a representative from PSIRA, CSP, and SAPS. The Minister might appoint representatives of at least two other departments or government bodies where the exemption impacted on their respective functions. The representative of CSP should be a legally qualified person and should chair the exemption advisory committee.
The committee should make recommendations to the Minister in respect of exemptions, and also prescribe terms of reference regarding procedural matters and the factors to be considered in relation to the function of the committee.
The Chairperson explained a number of submissions claimed that the Minister's exemption powers were too undefined. The Committee had then made the recommendation to look at the role of the “exemption advisory committee” that would assist the Minister, but which also helped to open up transparency. She said there were a couple of things missing from the clause in the Working Draft.
Mr George said the options did not bother him, but the issue of exemption did, as it was still too open-ended. He preferred that the clause specified conditions. Making a law and allowing someone powers was not ideal. If this was contextualised it would spell out the specific conditions in which the exemption would apply. This was too broad; it did not matter if an exemption advisory committee was set up. This was what worried too many people.
Mr Ndlovu said when the ministry made an exemption, it did not refer this to Parliament. There could be a minister who was a dictator in the future. The principle needed to be captured in a manner that would limit the minister's power. Grounds for dictatorship should be avoided at all cost.
The Chairperson clarified that what the Members were trying to establish were the reasons for an exemption. It was important that the committee was clear on why there was a need for exemptions and under what circumstances.
Ms Irish-Qobosheane replied the purpose of inserting the section on regulations was to address this aspect of the Bill – that under what circumstance exemptions would or not be considered. This gave some basic criteria for how exemptions would be considered.
The Chairperson interjected and asked for a particular example where circumstances could lead to the granting of an exemption.
Ms Irish-Qobosheane gave the example of an exemption made the previous week that legal services gave an opinion on and the Minister signed off on. The company’s fundamental function was not security service, but had within its branches a function that could be deemed as falling under the Act. The company indicated it did not want to register under the Act, and it then applied for an exemption. The entire board of the company did not have to comply with PSIRA; it did not make sense to hold responsible a board of the holding company for security services, which was not its core function.
Mr Ntuthuzelo Vanara, Senior Parliamentary Legal Adviser, Parliament, replied anyone could apply for exemption.
The Chairperson said Members understood that but wanted examples. If there were no examples, the law advisors needed to go back and work on that. If it was not necessary to have exemptions, then the clause should be taken out, but it was important to motivate why it was necessary to have exemptions in the Bill. This was the concern before even the two options were discussed.
Mr Ndlovu said if there was no example it was fine, but the delegation needed to go back and work on it. It was proper to give clarity on exemptions. In politics there were friends and foes, and exemptions were a wild world that anyone could use. The state law advisors needed to be very clear on what they were talking about.
The Chairperson commented that the section that dealt with exemptions sought to address the only issue of citizenship. The delegation was not giving the Committee the necessary guidelines. The section only dealt with the issue when it affected non-citizens. Even the response by PSIRA was incorrect, as it did not cover the whole Act. This was the reason the Committee proposed that DHA be involved. It might be a special case of a permit that was granted to a person for a specific reason. This was the reason the Committee also proposed that DTI be involved. It could be because of a certain trade agreement.
She said there were no problems with the Options but that section 6 should be followed by a sub-clause dealing with regulations – to be made on the section – submitted to the Committee, six months after the promulgation of the Act, for adoption. Members wanted to know that the amendment would not undermine the principal objective of the Act. She preferred Option A because if one looked at citizenship, DHA and DTI could not be excluded.
Mr Stubbe suggested that NICOC – as opposed to State Security – be included in the options as it provided estimates.
Mr Ndlovu agreed and said NICOC encompassed all departments in the security establishment. He said he supported Option A as well, as it made a provision for DHA.
The Chairperson requested that future department annual reports include the number of exemptions granted and refused.
The Chairperson said when the Committee met again on 13 June, the Department of Police would be given an opportunity to present an update of what transpired in the meetings with DHA, DTI and National Treasury. The Committee requested that the document be prepared in the format that was agreed on in this meeting. She had had discussions with the Minister and he had promised to make available Major General Jacobs, SAPS Head of Legal Support, to assist the technical committee with the drafting. The technical committee going forward would include the legal representatives from PSIRA, Parliamentary and State Law Advisors, the Council, and the Secretariat of Police. The team would be coordinated and be led by the Secretarariat of Police.
The meeting was adjourned.
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