Private Security Industry Regulation Amendment Bill: foreign ownership provision withdrawn

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13 November 2012
Chairperson: Ms A van Wyk (ANC)
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Meeting Summary

The technical committee reported back on its meetings with National Treasury and the Departments of Trade and Industry, Home Affairs, and State Security. These consultations indicated that the Amendment Bill required more research and better understanding of international treaties and the rights of permanent residents. The Bill would not be withdrawn but the provision on foreign ownership of private security companies would be withdrawn, with there being an option for a future amendment about this if the processes were properly executed. Also National Treasury indicated that the previous cost implementation plan would have to be withdrawn and it would work with the technical team on a new one to comply with the Public Finance Management Act.

The SAPS Head of Legal Support and the State Law Advisor took the Committee through the new Working Draft of the Private Security Industry Regulatory Authority Amendment Bill, showing the incorporation of proposed changes the Committee had suggested.  The meeting covered Clauses 1 to 38. Further changes were suggested during the briefing to ensure clarity. The financial aspects of the PSIRA Act needed to be aligned with the Public Finance Management Act. There was discussion on PSIRA’s attempt to have a flexible structure regarding deputy directors. The Committee ruled that PSIRA needed to determine the exact staff structure before the proposal was submitted as it could not have the Authority changing it as it pleased. There were also concerns about the provision requiring South Africans leaving the country having to submit information to PSIRA if they were to be employed as a security service provider outside of the country. Also discussed were the regulation of firearms if there was a change of ownership or suspension and security officers’ uniforms looking too similar to police uniforms.

Meeting report

Opening remarks
The Chairperson requested the technical committee give feedback on the consultation processes that it had with various departments.

Ms Jenni Irish-Qhobosheane, Secretary of Police, Civil Secretariat of Police (CSP), said that the technical committee had been asked to deal with two issues: the consultations with departments and to look at the exemptions that had been made by the Minister in the private security industry.

She said that consultations had taken place with the Department of Trade and Industry (DTI), the Department of Home Affairs (DHA), the National Treasury (the Treasury) and the Department of State Security. The technical committee had met with representatives from DTI on 9 November , including the Deputy Director General responsible for international cooperation, and a written copy of the meeting had been submitted to the Chairperson. The meeting lasted for three hours and the main focus was on the issue of limiting foreign ownership of private security companies. The DTI supported it and understood the rationale behind it but raised certain difficulties regarding existing bilateral and multilateral agreements and an agreement with the World Trade Organisation from 1995 which was signed with more than 150 countries. It could not rule out the possibility but the Amendment required significantly more research and would have to be linked to properly understanding and addressing these international agreements. The DTI would be prepared to work with the technical committee on this Amendment as it was not impossible but problematic and needed a lot of work.

There was a meeting with the Director General of State Security who was also concerned with the Amendment and indicated that it required more research on the issue of foreign ownership but he would be happy to be on the technical committee with the DTI.

The technical committee met with the Head of Legal Services and the Head of Immigration Policy from the DHA. They were given copies of the Bill and responded by having discussions with Major General Philip Jacobs, SAPS Head of Legal Support and members of the legal technical team. In terms of section 22 of the Constitution, freedom of trade was restricted to South African citizens only but section 23 of the Private Security Industry Regulatory Act, 2001 extended rights to permanent residents. Whether rights could be taken away after they had been extended needed to be looked at. There were important examples in court cases. In the Union of Refugee Women and Others v Director of PSIRA of 2006 the court stated that permanent residents had the same rights as citizens save for those which a law or Constitution explicitly prescribed for citizens. In Khosa and Others v Minister of Social Development in 2004 the court stated that permanent residents did not have the same political rights and the rights to choose a trade freely. The DHA felt strongly that the refugee issue was clear but that the permanent residents issue was not and needed a legal team to look at it, as it would be taking away ownership from permanent residents. The DHA also raised the matter of corruption with fraudulently acquired permanent residency. There was a need to align the position of the Bill with section 28 of the Immigration Amendment Act to withdraw registration. The DHA indicated that it had taken permanent residency away from a number of people in the last year, including security officers who had fraudulently acquired it.

She said the technical committee had consulted with the Chief Director from the National Treasury who was responsible for the Department of Police budget. He had asked for a follow up meeting which would involve the head of Treasury’s public entities section as the costing for implementation needed to be aligned with section 8 of the principal Act and with the Schedules on public entities in the Public Finance Management Act (PFMA). There were two models under the PFMA regarding the funding of public entities. The first one said that the public entity would fund itself but Treasury would assist if there were specific requirements, that had to be properly motivated. The other model said that the public entity would receive funds from levies and other incomes but Treasury would assist with funding. There needed to be an agreement on which model was going to be used. In relation to the current Bill, the costs needed to be specifically related to the implementation of the Bill itself and not to general funding. The previous costing structure had been withdrawn and a new one would be discussed with Treasury at a workshop this weekend.

The Chairperson said that the Committee was going ahead with the Bill but without reference to ownership, because there were other issues that needed to be tightened up. If it agreed to the issue of citizenship, it would be included with a specific understanding. This section would require additional involvement of different departments, renegotiation of international treaties, more detail and better processes. The Bill was not being withdrawn. These issues could be brought back as Amendment Bills in the future.

Mr M George (COPE) said that there were two fundamental issues in the Bill. The first was that of ownership. The technical committee said that the DTI had said, in principle, that it had agreed but that more research was needed on international agreements. Parliament was serious and not a gambling place. PSIRA had been inappropriate and unacceptable in their actions and should have consulted the DTI before. It was very clear that it was never consulted and the other departments had also not been consulted. PSIRA must begin to do the work seriously. DHA spoke about the second issue, citizenship and permanent residents having different rights and it differentiated between permanent residence that had been acquired fraudulently. Treasury said it wanted to withdraw the initial cost implementation plan. PSIRA expected money to be given to them. He said the fundamentals of the Bill had been taken out and asked what the Committee was going to deal with in taking it forward.

Mr V Ndlovu (IFP) said that it seemed as if the real issues within the Bill would be deferred while the Committee would deal with other issues. He was unhappy because the Bill had said that PSIRA had consulted people before. He said that the Committee must define ‘consulting’. PSIRA made the Committee have to work harder because of what had happened at the beginning of the process of the Bill. It was not the only Bill in its legilative programme. If the process had been done correctly, it would have been finished long ago. Treasury was saying that the cost implementation plan must be withdrawn meaning someone did a very bad job by telling Parliament what PSIRA should get. Funding and money was a fundamental issue and the Committee was going back to square one without a proper cost implementation plan.

Ms M Molebatsi (ANC) said that the Committee was misled about consultation on the Bill. It was given a long list of organizations that were said to have been consulted, which was not the case. The Committee did not have the information which was unfortunate as it defended the Department of Police in front of presenters.

The Chairperson said that there were other issues in the Amendment Bill that needed to be addressed. The Committee was reviewing the principal Act, taking into consideration the Amendment Bill.

She expressed to PSIRA in the strongest possible terms that the Committee and Cabinet had been lied to in terms of the consultation process. This would form a part of the report, stating that the Committee was unhappy with PSIRA. PSIRA had no credibility with the Committee as it had misled Parliament, wasted its time and cost it money. The Committee still respected taxpayers’ money even if PSIRA did not. It cost money to advertise for submissions and public hearings on the Bill. The Committee still had other work to do including PSIRA’s Annual Report and the Dangerous Weapons Bill. The consultation matter would require a separate report to Parliament. The Treasury was not a bottomless pit for somebody’s greed. Parliament would fail in its duties and responsibilities if it did not take these issues to task.

Mr Ndlovu said that the Committee should separate the report to Parliament from the Bill.

The Chairperson said she would ask the Parliamentary Law Advisor how to best deal with the process and then the Committee could make a decision on that.

She had received a letter from the Acting Secretary to the National Assembly. There had not been an official translation of the Bill and it could not go ahead until there was one. The translation process must happen as the Committee continued the process so that the translation would be ready by the time the Committee was ready to submit the Bill to the National Assembly.

Mr George said that he was concerned that the Committee was wasting its time. PSIRA should work out its issues with the Council and the Department of Police. He did not understand why PSIRA did not want to work with the Department from the beginning.

The Chairperson said the point was that it needed to be done, but that the responsibility remained with PSIRA. The principle was important as PSIRA were allowing other people to do its work for them.

Mr Theo Hercules, State Law Adviser (SLA), Office of the Chief State Law Advisor (OCSLA), said that his office would assist with the process.

The Chairperson said that was fine but the principle remained. The Committee could not allow that people got paid but other people did their jobs.

Ms Irish-Qhobosheane said that the other outstanding issue was that of the Minister’s exemptions.

The Chairperson said the issue of the Minister’s exemptions would be dealt with when the Bill reached the appropriate clause.

She thanked Gen Jacobs for making himself available to assist in the process and noted he would not be available every day.

Private Security Industry Regulatory Amendment Bill Working Draft (13 November 2012)
Gen Jacobs took the Committee through new Working Draft 1 (the Bill and subsequent suggested changes had been incorporated into the Act, as suggested at a meeting the previous week). Gen Jacobs said that Mr Hercules would assist him to ensure that there was continuity and that the document was the principal Act itself with the amendments inserted into it. He would start with the proposed amendments that had been discussed at the previous meeting.

Definitions - Locksmith
Gen Jacobs said that the definition of a locksmith had changed to include cutting keys under paragraph (d).

Definition – Security Service
Gen Jacobs said that under the definition of security service and paragraph (e), the Regulation of Interception of Communication and Provision of Communication-related Information Act, 2002 was inserted to ensure manufacturing was not affected by the prohibition by recommendation of the South African Police Service.

He said that paragraph (lA) was inserted so that paragraph (m) would also apply, regarding cash or valuable goods being transported.

The Chairperson said these issues were dealt with last week and the Committee was satisfied with the definitions.

Section 23 – Requirements for registration
Ms Irish-Qhobosheane said that there was a section in the principal Act which dealt with general authority but that it had put it under definitions. The Committee may want to move it elsewhere in the Act. The Amendment Bill had placed exemption in Section 23 under sub-section 23(7), 23(8) and 23(9). The Committee had also asked for examples of exemptions that had been granted. Examples included two directors of a company requesting exemption to register with the Authority because they were non-operational directors, one person from a company being a non-executive director and board member and seven non-executive and non-operational members of a board requesting exemption. The exemptions were granted in these three cases which allowed the people to be exempt from the training required to register.

The Chairperson said that they were saying that the piece should be moved away from definitions and asked if the Committee could agree with this.

Mr George asked why the Act required board members who had nothing to do security to register in the first place. All of the examples used were board members and the Act should be changed.

The Chairperson said that Mr George raised a different principle but it needed to be looked at.

The Committee agreed to move this away from definitions and asked the technical committee to address the issue about board members requiring training.

Section 8 –Terms and conditions of office, vacation of office & payment of remuneration & allowances
Gen Jacobs said that Section 8 presented two options. Option A said that the councillor was appointed on a part-time basis for a period not exceeding three years, on such terms and conditions as the Minister may determine, and Option B said the councillor was appointed for a period not exceeding three years on the Minister’s terms provided that members of the Council served on a part-time basis.

The Chairperson asked for an explanation on the difference.

Gen Jacobs said that the second option made it clear that members of the Council must serve on a part-time basis and he preferred the second option.

Mr George asked what type of people would be on the Council and how this would be regulated.

The Chairperson said that this was already in the Act.

Mr Hercules said that this was in Section 6 of the principal Act. The Council was appointed by the Minister in consultation with Cabinet. This was the prescript for appointments.

The Chairperson said that this was the political answer but Section 7 detailed the disqualifications for an appointment as a councillor and Mr George was asking for the qualifications.

Mr George said that it said what people must not be, but it should say what people must be.

The Chairperson asked the Committee if there was a general agreement with Mr George that persons must be qualified. The Committee agreed.

She said that the Committee was happy with Option B in Section 8 and said the technical team would look at qualifications for councillors.

Gen Jacobs said that the model of the Directorate of Priority Crime Investigation (DPCI) head could be looked at in terms of qualifications.

Section 6 – Establishment and constitution of Council and appointment of councillors
Ms Irish-Qhobosheane said that there was a concern with Section 6 of the Act that dealt with the composition of the Council. If one or two people resigned, it was a lengthy process to replace them and the Council could not continue. She wanted it changed to at least three additional Council members from just three to allow for more if needed.

Mr D Stubbe (DA) said that it was easy to say more people would be better, but there was money and budgets involved. The three additional Council members were fine.

The Chairperson asked what the current requirement was.

Ms Irish-Qhobosheane said it was three.

Mr Stubbe said it was the Chairperson, vice-Chairperson and three additional members and it should be kept like that. If there were vacancies, they should be filled.

Ms D Kohler-Barnard (DA) said that one submission had said that a member of the industry should be on the Council and asked if that had been addressed.

Ms Molebatsi said that that would be a conflict of interest.

Mr Ndlovu said that someone in the industry could not regulate the industry itself.

The Chairperson said that the principal Act talked about an advisory board. This had not been established and needed to be. This advisory board made provision for members from the industry. Five members would not make a difference and it was difficult to get people who were interested to serve on boards. The clause would stay as it was and the Committee should be alerted when an advisory board is put in place.

Section 8 –Terms and conditions of office, vacation of office & payment of remuneration & allowances
Gen Jacobs said in paragraph (6) of Option B, the word Council was taken out and replaced with Minister and the Minister of Finance was included. This had not been discussed with the Committee, but fitted in with what it had been saying.

The Chairperson said that she would support this.

Mr George said that the workshop that the technical committee had to have with the Treasury was still to come. If it was assumed that funds would only come from levies, then the Council would play a more important role. He was not sure if he supported this.

The Chairperson said that because of part-time council members, the Council should not have the right to remunerate their own meetings and this should fall to the Minister.

Mr Stubbe asked what committee the Council appointed and if it was an advisory board, which was not a committee.

Ms Irish-Qhobosheane said that the clause needed to be read in conjunction with other issues that were still going to be addressed regarding advisory committees. She would come back to it – but the list was in Section 13 of the principal Act.

Mr Hercules read through Section 13 of the principal Act and said that the Council may appoint one or more committees consisting of one or more councillors, or one or more councillors and one or more other persons, or one or more other persons to advise or assist the Authority on any matter referred to it by the Council and to report on that matter to the Council.

The Chairperson said that the Committee needed to separate the two issues of how the committees were chosen and how they got remunerated. She said the Committee agreed with the change in paragraph 6 in Option B of Section 8.

Section 9 – Functions of Council and chairperson
Gen Jacobs said that there was an insertion into Section 9(2)(f) to include crime prevention, partnerships relating to crime prevention and related policy matters relating thereto. He said that the sentence was not elegant.

The Chairperson said that the Committee agreed in principle but that the sentence needed to be reconstructed and brought back.

Section 10 – Accountability of Council
Gen Jacobs said Section 10(b) on the accountability of the Council had been changed to include the number of security providers and officers registered, details of training, number of firearms and more.

The Chairperson said that the training institutions were missing.

Mr George said that the things listed were very important but the issue of the capacity of the Council and the Authority would have to be looked at again.

The Chairperson asked Members to do what they did when they dealt with legislation. They needed to discuss the principles not draft legislation. Sean Tait of the African Policing Civilian Oversight Forum in his submission spoke about the absence of accountability and this addressed it.

Mr Stubbe said that 10(b)(v) about the discharging of firearms was very vague and he asked who would report the discharges as it was not functional and would not work because they would not be able to keep tabs on discharges.

Ms Kohler-Barnard said that it was so vague that it would include security officers at training and practice ranges discharging their weapons.

Mr George said he thought that there was a law that dealt with discharging firearms and did not see a problem if this was linked to the law.

The Chairperson said that the wording must be looked at but the Committee agreed on the principle. Training institutions needed to be looked at and the transfer of companies, which would have an effect on this, needed to be looked at. All of this combined must also form part of the annual report to the Committee.

Ms Molebatsi asked if dormant companies would be included.

The Chairperson said that it must include all companies.

Mr George suggested that the Council could work with the DTI on this.      

Section 11 – Ministerial supervision of Authority
Gen Jacobs said that Section 11(c) had been changed involving appointing a Council and an emergency measure as required in the period whilst there was no appointed Council, to ensure continuity.

Mr Stubbe said that it was complicated because of interim appointments of a person or persons to ensure the continuity of the affairs of the Authority. He asked how people would be implemented if they needed security clearance first which would take time.

Gen Jacobs said that there was a possibility that a person who was vetted could be utilized in the situation. In the past, the Minister had to appoint former members of the Council and this amendment would help with the process.

The Chairperson said that the technical committee should go back and bring it into alignment with the Act dealing with Public Entities regarding the dissolving of Councils and take the security issue into consideration. Vetting needed to be included. The Committee agreed with it in principle.

Section 12 – Meetings and conflicts of interests
Gen Jacobs said Section 12(6) had been changed to exclude “or a deputy director” in line with other ranks. This suggestion to fill the gap in the Act came from PSIRA.

The Chairperson asked PSIRA for its motivation for this change.

Mr Manabele Chauke, CEO of PSIRA, said that previously the Council had advertised positions for deputy directors but the people who were coming through were not people that it was looking for because of the reference to the deputy director. The other issue was when the structure had to be taken to the Department of Public Service and Administration (DPSA), as it should not be confined when it redid the structure.

Mr Stubbe said that this did not make sense.

Mr George said PSIRA must say what the equivalents of the positions were if it did not get the people that they required when it advertised the post.

Mr Ndlovu said the paragraph talked about the attending of meetings, not the change in structure.

Ms Zelda Holtzman, Deputy Chairperson of PSRIA, said that she could also not understand it and said it would be withdrawn.

The Chairperson said that 12(5) already made a provision and if the issue was to remove deputy directors, this was the wrong place to motivate to do so. The amendment was removed.

Section 13 – Committees to assist Council
Gen Jacobs said that in Section 13(2), concerning committees assisting the Council, the word “must” was changed to ”may.” This was to help establish committees with different sectors, interests or disciplines.

The Chairperson said that the paragraph needed to be more specific as it was too broad regarding the committees.

Mr Stubbe said that “must” meant that permanent committees were needed where “may” would refer to one-off committees or only when they were needed.

The Chairperson said that Section 13(1) and (2) were conflicting. The Committee agreed with the principle but felt that it was wrongly worded.

Mr George said that there must be a committee to represent the industry.

The Chairperson said that they were all saying the same thing and that committees were not part-time. Section 13(2) could be taken out but a separate section could be drafted dealing with committees for different sectors. The committees would not be remunerated.

Mr Stubbe said that the remuneration from Section 8(6) and (7) may differ according to the changes and one could not say that these committees would not be remunerated.

The Chairperson said that Mr Stubbe was right and it needed to be looked at again.

Section 14 – Staff of Authority
Gen Jacobs said Section 14(7) referred to the fixed establishment, the number and grading of posts of the Authority being determined by the Council with the approval of the Minister. There was reference to the DPSA, and not public servants in the classic sense for which the DPSA were responsible, and that was why there was specific wording.

Mr George said that that the DPSA was qualified to deal with these functions and asked how the Committee could expect the Minister to deal with these functions.

The Chairperson said that if DPSA was not involved, then public entities needed to be. The funding model also needed to be sorted out before this amendment could be made. These two issues needed to be addressed before it was brought back.

Mr Ndlovu said that the Minister had to be there with the DPSA.

The Chairperson said that it needed to take a decision, and that was probably going to be public entities and the Minister of Police.

Section 16 – Funds of Authority
Gen Jacobs said that Section 16(2) involved the sorting out of finances with respect to the Levies Act and the PFMA.

The Chairperson said the Committee agreed with this insertion.

Section 14 – Staff of Authority
The Chairperson said that the document that the Committee was working from did not address everything. She presumed there was a mistake in Section 14 of the Act as no decision had been made on the issues of deputy directors but it had been slipped in to the section.

Mr Hercules said that only the highlighted parts were meant to be dealt with but the mistake was noted. The “deputy directors” should be bracketed in Sections 14(1), 14(2) and 14(3).

The Chairperson said that PSIRA wanted to take the three deputy directors out but this opened it up for any number of deputy directors. The other issue was that the Committee did not want the Council without the Minister.

Mr George said PSIRA only needed to provide its organogram to show its structure. He asked for a proper motivation for the removal of the deputy directors.

Mr Chauke said that it was to allow for the structure to not be limited in terms of other functions or if the DPSA wanted it to change its structure.

The Chairperson said that the DPSA was not involved in the Bill at all and if PSIRA wanted to extend its structure, it must be done with the permission of the Council in consultation with the Minister.

Ms Holtzman said that the principle of the amendment from the Council’s point of view was to help with oversight. The Council should be reporting to the Minister.

The Chairperson said that that was not being affected and it must remain. It should be tightened further.

Ms Holtzman supported this and said that oversight needed to be emphasized.

Mr George said the Committee said it was not rejecting PSIRA’s proposal, but it was difficult to accept or reject it, if it was not clear and there was no proper motivation.

Mr Chauke said that the principal Act limited PSIRA to three deputy directors but there could be more because of the other functions of the Authority.

The Chairperson said that PSIRA needed to determine the exact structure before the proposal was submitted as no blank cheques would given out. The Committee would return to this issue tomorrow. The technical committee must bring in the principle of consultation with the Minister and provision for broadening the structure of PSIRA with a process that was not open ended. The Council must have a say in this.

Mr Stubbe said that the PFMA needed to be included with the Levies Act.

The Chairperson agreed with Mr Stubbe and said that it must be included. The Committee accepted the changes regarding “his or her” but rejected the deputy directors being in brackets because of the lack of motivation.

Proposed Clause 16A – Annual Report
Gen Jacobs noted the insertion of a new clause, Section 16A about the Annual Report.

Mr Stubbe said that in the report, activities needed to be more specific and more could come into it to improve oversight.

The Chairperson said 16A(2) needed to be re-looked at to include all quarterly reports.

Mr Hercules said that he was sorry to take the Committee back but Section 16(2) was not correct as the introduced Bill had provided for a new Section 16 that was in alignment with the PFMA and the Levies Act.

The Chairperson said that was fine but the annual report must not only include reasons for refusals but also reasons for granting exemptions.

Section 17- Bookkeeping and financial statements and Section 18 - Auditing
Gen Jacob said that Sections 17 and 18 needed to be removed in accordance with the PFMA and the issues had been covered in Section 16.

Section 20 – Obligation to register and exemptions
Gen Jacobs said that the proposed amendments to Section 20 needed to be removed because of the issue of foreign ownership.

The Chairperson said that it could be removed because the Committee had already taken this decision. The technical committee needed to clean these sections and reproduce them at a later stage.

Mr George said that he thought the issue would show the consultation with the DTI but understood why it was being removed.

Gen Jacobs said that amendments to Section 21 and parts of Section 23 also needed to be removed for the same reason.

The Chairperson said that, with reference to Section 21(b), it should possibly read the Levies Act instead of the Authority but that the technical team needed to look at the wording to avoid future legal issues.

Ms Irish-Qhobosheane said that a fee was different to a levy so this needed to be re-looked at.

Mr George said that both the Council and the Minister must be involved, not only the Authority.

The Chairperson said that Mr George was correct as the Committee was told that the Treasury had agreed with it. It needed to be looked at technically to see if it should include the Minister of Finance or someone else.

Section 23 – Requirements for registration
Gen Jacobs said that Sections 23(5) and (6) needed to be cleaned up but that 23(7) referred to the Minister’s exemptions. Section 23(8) said the Minister must take a decision within 90 days of receipt of an exemption application and Section 23(9) said the Minister must publish the details of any exemptions granted.

The Chairperson asked if both the details of exemptions granted or refused would be published.

Mr Sisa Makabeni, State Law Advisor, said that only applicants who asked for details of refusals needed to be published.

The Chairperson agreed and said the Gazette was a public document.

Proposed Clause 23A – Exemption Advisory Committee
Gen Jacobs said that Clause 23A dealt with the Exemption Advisory Committee and included proposals and inclusions of representatives of departments including the National Intelligence Coordinating Committee (NICOC) but that it was referred to only as the State Security Agency because NICOC was comprised of a number of heads of agencies including the State Security Agency.

Mr Stubbe said that Directors General were part of NICOC but that the clause was fine if both SAPS and the State Security Agency were included, as previously they were not.

Gen Jacobs said that 23A(3) dealt with the Civilian Secretariat for Police being legally qualified and 23A(4) expanded to all exemptions with reference to the committee advising the Minister on exemptions. Section23A(5) and (6) dealt with the Minister prescribing procedural matters.

The Chairperson said that the Committee agreed with these amendments.

Section 26 – Suspension, withdrawal and lapsing of registration
Gen Jacobs said that Section 26 contained the amendments about suspension, withdrawal and the lapsing of registration. Section 26(1) referred to the Authority’s power to suspend registration of security service providers.

The Chairperson asked why the word “may” was used in Section 26(1).

Gen Jacobs said that it was a matter of indicating a power and a way of expressing the power that the Authority had in this regard.

Mr George said that with businesses, other stakeholders were involved. He assumed that the Authority was allowed to do proper consultation with other departments before suspending.

Mr Hercules agreed with Gen Jacobs’ reasoning.

The Chairperson said the Committee was not seeing that sort of action being taken, but agreed to leave it as “may”.

Gen Jacobs said that Section 26(2) contained a minor change to exclude the word “natural” which would broaden the applicability.

The Chairperson agreed with this amendment.

Gen Jacobs said that there were amendments in 26(5)(a) and (b) in terms of registration lapsing.

Ms Molebatsi asked for an example of the effect of registration lapsing.

Mr Chauke said that when registration lapsed, the applicant must apply again and could not trade before the new application was approved.

Mr George asked what would happen if the person had done everything required to reapply but the Authority took too long and the time lapsed.

The Chairperson said that the technical committee must look at this issue and put in a reference to the Promotion of Administrative Justice Act.

Section 30 – Appeal against decision
Gen Jacobs said that the words “for every appeal and” had been removed in Section 30(2) as this caused too much paperwork. SAPS was paying for the appeal process at the moment but the state law advisors said that it should be PSIRA paying. This was an issue for the funding model.

The Chairperson said that the Committee agreed with the issues.

Mr George asked if removing the stated words would enforce a standing committee.

Gen Jacobs said that there was a committee that dealt with appeals but the Minister had to appoint one to deal with every single one.

The Chairperson asked if an appeal committee could be looked at as a second standing committee of the Council and the funding could come from the Authority.

Gen Jacobs said that it could be looked at but renewals of the committee were needed from time to time.

Mr George said that he would not be worried if the Committee could appoint people from heaven but the private security industry was not clean and companies could utilize corruption. There was an issue with killing interest with standing committees.

The Chairperson said that it delayed appeals because the Minister had to appoint a committee every time. The Firearms Control Act also had an appeal committee. The technical team needed to look at these issues. She found it interesting that the section spoke about remuneration from the Minister but other sections did not.

Mr Makabeni said that the committees needed to be kept separate because of the issue of independence.

Mr Lekgetho said that he was concerned with many issues in this section.

The Chairperson said that the technical team needed to look at the funding model, the time periods and the whole section needed to be cleaned and tightened.

Ms Irish-Qhobosheane said that this appeals committee was different from the committee on the Firearms Control Act as it was not a full time committee and it appointed people from legal firms onto the committee so it did not have the same volume of work as full time committees.

Mr George said that Gen Jacobs’ motivation was about not being able to handle the volume of work.

Gen Jacobs said that it was not about the volume as it should not keep one person busy for a whole month but as the Act read, every appeal went to the Minister, causing administrative issues.

Section 35 - Regulations
Gen Jacobs said that an amendment in Section 35(1)(b) made general provisions relating to suspensions, withdrawals and lapsing of registration and that paragraph (cA) would fall away as it related to ownership.

The Chairperson said that the Committee agreed with the amendment but asked what impact paragraph (g) had on paragraph (f) concerning uniforms.

Gen Jacobs replied that there might be an overlap and the paragraphs could be combined as it was dealt with elsewhere in the Act.

The Chairperson said that there were concerns that private security uniforms and symbols were too similar to SAPS and that changes needed to be implemented because there were still problems despite it being on the books currently.

Gen Jacobs said that in Section 35, the insertion of paragraph (lA) concerned companies issuing information to the Authority when operating outside South Africa, the insertion of paragraph (sA) concerned the minimum standards applicable for transporting cash and other valuable assets and paragraphs (u)(3) and (4) lengthened penalties to five years.

The Chairperson asked if the issue of safeguarding of key points by foreign companies was being addressed.

Mr Stubbe asked for an example of a case where information needed to be issued by companies operating outside the country and if the type of information was listed somewhere in the Act.

Mr Lekgetho said that some police stations are guarded by security companies and this needed to be looked at.

Mr Chauke said that the National Key Points Act was being addressed by SAPS.  

The Chairperson said that the point was that PSIRA had a role to play checking if the companies were registered and reputable.

Mr Chauke said that the National Key Point Acts ensured these requirements and companies must be PSIRA-registered.

The Chairperson asked the technical committee to look at the obligations of PSIRA in respect to this Act.

Ms Holtzman supported this issue and it would also strengthen the Authority.

Ms Irish-Qhobosheane said that things could be put into the Act to help SAPS deal with National Key Points and the National Key Points Act.

She said that in terms of the type of information, it needed to be clear from the Minister before and should be prescribed in the regulations so that it was clear to everybody.

She said that there were initiatives within government regarding who was guarding government buildings and the issue was not just SAPS’.

Mr George asked what type of companies needed to submit information to the Authority, if it were companies who operated in South Africa but had headquarters elsewhere.

Gen Jacobs said that any companies that operated in South Africa, regardless of where their headquarters were, needed to be registered. He gave the example of a security service that delivered anti-piracy operations. It was a UK company and they did not operate in South Africa but deployed South Africans.

Mr George said that he understood the registration part but asked about information being submitted. He asked what would happen if the companies did not submit the information.

The Chairperson said that it had been answered and with registration, some of this information would already be required. There were laws that companies had to adhere to whether they were in South Africa or the UK.

Mr George said that magistrates and other people were concerned about prescribing sentences and penalties and asked if the technical committee was happy with it.

Mr Stubbe said that there should be a document to state exactly what was needed because it was currently open-ended.     

The Chairperson said that in paragraph (lA), “as prescribed in regulation” should be added.

Gen Jacobs used the example of Sudan. Once a person was performing security services in a country of conflict, then he or she would require permission from the National Conventional Arms Control Committee. This was an additional safeguard.

The Chairperson said the Committee had dealt with the openness issue by saying it must be prescribed in the regulations.

Section 36 – Provision of information to Authority
Gen Jacobs said that the amendments in Section 36(3) and (4) dealt with the change of ownership of security service providers in registering firearms. The argument was that if there were inspections, a request could be made about what firearms belonged to the company rather than having a whole database.

The Chairperson said that she was worried about Section 36(3) because of new registrations and suspensions and it needed to be strengthened. SAPS needed to be aware of businesses that were suspended.

Ms Irish-Qhobosheane asked the technical committee to look at persons who leave companies because their weapons get withdrawn but other people could use their competency certificates.

Mr George asked at what stage a person should report to the registrar and what happened in the critical period after they left a company. He asked if there was provision for them not get rid of weapons.

The Chairperson said that the time periods needed to be cleared up instead of using “as soon as possible”, the phrase, “At the time of suspension or change of ownership” should be used.

Mr George said that the Central Firearms Register should move in immediately so that they were able to know if there was wrongdoing.

The Chairperson asked the technical committee to tighten this up.

Ms Molebatsi asked what happened to the firearms in a company that had been suspended.

Mr Chauke said that he was unsure of what happened to the licences but PSIRA reported suspensions to the Central Firearms Register. He believed that the suspended people would have to deal with the person who authorized the firearms.

The Chairperson said that this issue needed to be looked at as PSIRA was working on its own and believed its responsibility ended with informing. Once PSIRA had informed the Central Firearms Register, it needed to ensure SAPS went to confiscate the firearms until the case was finalized. It needed to ensure that suspended companies did not have access to firearms.

Proposed Clause 36A Security services rendered outside Republic
Gen Jacobs said that 36A(1)(a) and (b) had been inserted about security services rendered outside South Africa. Sub-Clause 3 said that any person who was not a serving member of armed services and was providing armed guarding services outside of the country had to inform the Authority.

Mr Stubbe referred to 36A(3) and noted that there were young people working in the United Kingdom as security guards in department stores. He asked if PSIRA was attempting to regulate something that could not be regulated, what the reason was and how PSIRA would know if someone was going to be employed overseas.

Gen Jacobs said that the sub-clause was aimed at ex-soldiers who were deployed on anti-piracy missions. There was more involved than just the person, as there were firearms involved. One aspect that was not covered was persons moving through the country. The only reason why SAPS did not know about them was because they were foreign.

The Chairperson said that the concern was that the wrong people would be included and the Committee needed to ensure that it was covering who it wanted to cover. Unintended consequences needed to be looked at.

Mr Lekgetho said that people left the country with ill intentions but after the
Act dealing with mercenaries was brought into operation, people would know that sinister or mercenary missions were not allowed.

Mr George said that the sub-clause was only meant for honest people and should be kept as it was. There were problems during the Iraq War where South Africans were working for UK companies in Iraq. He did not know how it could be tightened.

Mr Stubbe said that there was a clear distinction between a mercenary and a security guard but asked how the Authority would legislate for them if they were overseas, if it did not even know that they were overseas.

The Chairperson said that employment in a prescribed manner should be included in the Bill. She asked what must happen with the information provided from clause 36A(1)(a). Must it be sent to the Department of Defence or NICOC?

Gen Jacobs said that he was in agreement on these issues as the reason for the amendment was related to the Foreign Military Assistance Act and this was only applicable for countries in armed conflict, and this was not the case.

The exclusion was there for military or armed services personnel. He used the Netherlands as an example where personnel of armed services were being deployed on ships. If they visited a South African port, the personnel and firearms would need to be regulated.

The Chairperson said the subsection was talking about maritime security but this was not mentioned explicitly.

Gen Jacobs said it previously mentioned anti-piracy but the state law advisers had advised it be taken out.

Ms Kohler-Barnard said that she was concerned with 36A(3) because if people had the job of guarding famous people, the job restricted them from giving out information and they would therefore not be able to submit it. She was worried about the unintended consequences.

Gen Jacobs said that he appreciated that it should not be too broad and would look at tightening it up or reverting back to anti-piracy only.

The Chairperson said that it should not be limited to anti-piracy, and not all employment information needed to be prescribed but unintended consequences needed to be guarded against.

Mr Makabeni clarified that there were two separate persons being referred to. South Africans leaving the country to be employed in another country as a security service provider who would be regulated by laws of that country, and foreigners who transited through South Africa to guard in another country or in international waters. The foreigners would have to comply with South African laws by virtue of transiting through the country. Persons deployed from South Africa would also have to comply with its laws.

The Chairperson said that the deciding factor was the deployment of people from the territory of South Africa.

Section 38 – Offences and penalties
Gen Jacobs said that Section 38(2)(d)  responded to the uniform issue and declared it an offence to use or allow to use uniforms similar to SAPS.

Mr Stubbe asked if the individual or the company was guilty if the individual was working for a security service, and how this would be implemented.

Gen Jacobs said that a security service provider was not limited to companies and could be an officer.

Mr George said there was a maximum of a five-year period of imprisonment for what was a very serious offence.

Gen Jacobs said that the Constitutional Court had covered this and the provision did not enforce a maximum or minimum, and the Court could enforce different periods.

The Chairperson asked if it was not starting at the wrong end of the stick, as registration should require this process and PSIRA needed to do this. She also asked how it would impact on metro police.

Gen Jacobs said that this was a big problem even though section 68 of the Police Service Act already enforced it. This Act would get PSIRA on board and would strengthen the legislative framework.

Ms Irish-Qhobosheane said that the wording needed to be changed to emphasise that the company who was providing the uniform would be punished as opposed to the guard.

The Chairperson asked PSIRA if there was provision in the principal Act that a registration requirement regulated uniforms and symbols to make sure they were not too similar to SAPS.

Mr Chauke said that there was regulations in the principal Act that dealt with uniforms and prescribed security service providers not to have similar uniforms.

The Chairperson said that the question was that in the registration process, did PSIRA require companies to not look similar to SAPS.

Mr Chauke said it did not.

The Chairperson said that this needed to be included and provided for because the Committee was starting from the other end of the stick. After this was included, the other regulations could be enforced.

Closing Remarks
The Chairperson said that the technical committee would make the changes that were agreed upon, clean up the Bill where foreign ownership was still reflected and the Committee would continue where it left off at the next meeting.

The meeting was adjourned.


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