The Portfolio Committee together with the Technical Committee led by the Secretary of Police deliberated on the latest changes made to the Private Security Industry Amendment Bill. They deliberated from Clauses 1 to 10, paying particular attention to Clause 5: Governance of Authority.
The Portfolio Committee expressed dissatisfaction at the drafting of the amendments by the Technical Committee especially the lack of clear roles for the Director and the Chairperson of the Authority. The Committee also raised questions in the areas of a fit and a proper person in the appointment of councillors, the signing of minutes being extended to the vice-chairperson and the part time nature of the current council. The Technical Committee was asked to use the recess period to look at the matters raised.
Mr Amichand Soman, Director: Legal Services, Civilian Secretariat for Police, read out the latest changes made to the Private Security Industry Amendment Bill:
Clause 1: Definitions
This was defined as the Civilian Secretariat for the Police Service established in terms of section 4(1) of the Civilian Secretariat for the Police Service Act, 2011 (Act No 2 of 2011). The Committee was satisfied with this amendment.
The change introduced ‘and’ into the definition and a deletion of the words ‘otherwise than by’.
The Committee queried the footnote to this paragraph on the same page which proposed that the cutting of keys otherwise than by duplicating keys be dealt with in regulations as it could have implications for provisional registration which the Act did not provide for currently. For instance the Act did not provide for provisional registration in terms of apprentices. The Chairperson said that the Technical Committee was confusing issues. The first issue was that the cutting of keys had not been included in the original definition of locksmith and the second issue was that the locksmiths said that the training requirements for locksmiths were not dealt with properly in the Act. The footnote was not related to the definition of cutting keys and so it had to be removed. The Technical Committee agreed to remove the footnote.
Under paragraph (e) on page 12, “manufacturing, importing, distributing or advertising of monitoring devices contemplated in section 1 of the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992]” had been deleted.
The Chairperson said that the deletion of this was not necessary because the Technical Committee had been sent by the Committee to look at the whole issue of a “security officer” under paragraphs (a)(ii), (b) and (c) showing the difference between them.
Mr M George (ANC) said that the Technical Committee should go back and consider the provisions carefully and then report back to the Committee with clarity on their difference.
Clause 3 Objects of the Authority
Mr Soman said that there were two options for the Committee to choose from. Option A had more divisions than Option B which was a reworked version.
The Committee settled for Option B which set out the primary objects of the Authority as regulating the private security industry and the exercise of effective control over the practice of the occupation of security service providers in the public and national interest.
Clause 4 Functions of the Authority
Mr Soman noted that there were two options.
The Chairperson said that Option B read easier but said that there was no provision relating to the role of the Council with regard to the numerous functions of the Authority. Should it not be the Council reporting to the Minister on these issues?
Mr M George (ANC) added that the roles of the Director and the Chairperson were not clear; something he said would cause problems.
Committee Members preferred Option B and requested the Technical Committee to look at it in terms of the role of the Council, specifically clause 4(b) requiring the Authority to report to the Minister on any matter concerning the objects of the Authority; and 4(c) requiring the Authority to advise the Minister on any matter deemed by the Authority to be necessary or expedient requiring consideration by the Minister. The Technical Committee was asked to look at the role of Council and its interaction with the Executive Authority, as well as remedies for when Council and when the Authority are dysfunctional.
Clause 5 Governance of Authority
There was an insertion of clause 5(2A) applying the Public Finance Management Act to the Council. In clause 5(4) there was a deletion of the word ‘and’ and an insertion of the words ‘and the Public Finance Management Act’ for the provision to read: ‘The Authority must otherwise perform its functions in terms of this Act, the Levies Act and the Public Finance and Management Act and in accordance with such guidelines and policy directions as may be issued by the Minister from time to time by notice in the Gazette.’
There was an insertion of 5(6) which read: ‘Whenever the members of the Council are unable to agree on the material financial, governance or operational issue which cannot be resolved by the Council, the Minister must mediate between the parties.’
Ms D Kohler-Barnard (DA) asked if it was necessary under 5(2A) to indicate that the Public Finance Management Act applied since it was considered standard procedure.
The Chairperson replied that the Committee had requested the Technical Committee to put it there because it was not being taken seriously.
Mr M George (ANC) said that there was a contradiction between clause 5(1) [the Authority being governed and controlled by the Council] and (2) [acts of the Council being regarded as acts of the Authority] and clause 4 (on the functions of the Authority). He added that the Council was currently part-time and giving it that much power was dangerous especially with ‘all acts of the Council’ being regarded as acts of the Authority.
Mr Soman said that the provision had been looked at in terms of the accounting principles under the Public Finance and Management Act.
The Chairperson added that currently the Authority was not governed by the Council in terms of 5(1) and (2) although it should be.
Ms Qhobosheane said that legally the Authority included Council but the provision would be looked at and Council added into the process to address the contradiction.
The Chairperson said that the problem was with 5(2) and that although public entities had to be looked at, she said that this was a special kind of animal and that it was not the same as dealing with SABC licences because what was being dealt with in this case had to do with firearms, security and abuse of power amongst others. She added that if Council was taking all executive decisions, then there was no reason to appoint four people at the same salary scale.
Mr George said that giving the Council that much power was dangerous especially the ‘all acts of the Council’ being regarded as acts of the Authority. The Council was being put in a dangerous situation especially in the event that it did something completely illegal, also bearing in mind that this was a part-time council. Issues being dealt with involved companies with a lot of money and the many things that go into the security industry and giving such power to a part-time council had to be considered.
Mr Soman said that the provision was not a new introduction as it had existed in the principal Act. The provision had been looked at in terms of the accounting responsibilities under the Public Finance and Management Act and the structure of the institution. Section 9 of the principal Act also set out what actions could be carried out by the Council.
The Chairperson said that the Authority was currently dysfunctional and responsibility had to be apportioned.
Mr Soman said that the Council was the accounting authority in terms of the Public Finance Management Act with regard to financial and governance matters. Clause 10 had been inserted to provide for accountability of the Council. The Council would be accountable to the Minister for the performance of its functions. The Council would be under an obligation to supply the Minister with information and particulars as might be required by the Minister, in connection with the functions of the Authority or any other matter relating to the Authority.
Ms Jenni Irish-Qhobosheane, Secretary of Police, added that in terms of public entities, it is the Council that was accountable even in the case of a dysfunctional Authority.
The Chairperson asked if the intended provision was to read: ‘All acts of the Authority are to be regarded as acts of the Council.’
Ms Qhobosheane said that the Council had to act as a juristic person and in the event of illegal decisions, the Council would have to be held accountable. In the performance of its functions such as firing an employee, suing or being sued, it had to be a juristic person and this could not be taken away.
Mr Theo Hercules, State Law Advisor, Office of Chief State Law Advisor said that in case of a dysfunctional Authority, the Minister would exercise the supervisory powers under clause 11. This clause also applied to dissolution of the Council and appointing another for the proper functioning of the Authority.
The Chairperson said that this sounded good in theory but the reality is that the Council had met only twice in the last financial year. This was a part-time Council and having a full-time chairperson would not be the answer. Cutting and pasting from other pieces of legislation was not going to solve the problem either.
Ms Qhobosheane said that where the chairperson was absent or unable to perform his/her functions or in the event of the office being vacant, section 12(9) required the vice-chairperson to act in his stead until a chairperson is appointed by the Minister. The relevant provision provided that: ‘When the chairperson is absent or is unable to perform functions as chairperson or whenever the office of the chairperson is vacant, the vice-chairperson must act as chairperson during such absence or incapacity or until a chairperson is appointed.’
The Chairperson said that the Act taken in its current form, the vice chairperson was the acting-chairperson of the Council because the chairperson was absent. She stressed that absence meant absence from work and that it did not require the Minister to appoint a chairperson because the vice-chairperson would automatically assume his role.
Ms Kohler-Barnard said that clause 12(9) was a loophole because the chairperson could simply absent himself, even for a period of five years, and not do anything but still get a full salary. This was something that would be legal according to the provisions of the current Act because the vice-chairperson would assume his/her office.
Ms Qhobosheane replied that this provision had to be tightened to address the suggestion of a de-facto chairperson who was not acknowledged as absent.
Mr George, agreeing with the Chairperson, said that acknowledgment was immaterial in this sense because absence meant absence.
The vice-chairperson of the Council said there was a disparity between practice and what the law intended. By way of analogy she said that where a chairperson was incapacitated, who would the chairperson report to for the vice-chairperson to assume the role? An incapacitated person and one that was absent would still both give instruction to the vice-chairperson to assume the role of chairperson and this caused confusion in the accountability.
The Chairperson said that people needed to take up their responsibilities and execute them. She was fed up with officials not taking responsibility. If a chairperson put in sick leave for a number of days, that would make him unavailable to perform his duties (this being a full-time position). If the Authority acted on the instructions of the absent chairperson, then that Authority would be wrong in its actions.
Mr George responding to the vice-chairperson’s argument said this was bordering on corruption since it meant that the chairperson could be absent for as many days as s/he liked. South African labour laws set the total number of sick-leave days. According to the argument presented, it seemed that an absent chairperson could give authority while still absent and past the stipulated number of sick-leave days. This was facilitated by the fact that there was no record for the number of days a chairperson was absent.
Mr George said that this kind of situation required the vice-chairperson to write and inform the Minister that the vice-chairperson was in charge because the chairperson was absent on sick-leave and that once the chairperson returned, the Minister would be notified. It also required informing the Director that the vice-chairperson was now acting chairperson and all instructions would be coming from the vice-chairperson until further notice. The vice-chairperson’s argument seemed to make something easy difficult.
Ms Kohler-Barnard asked if the current apparently absent chairperson had filled in a sick-leave form as required and handed it to the appointing authority (in this case the Minister)?
The vice-chairperson of the Council replied that there was currently no leave form procedure to be followed. The nature of the arrangement was that the chairperson was appointed by the Minister and that other members of the Council were not privy to the details of the contract (which included the terms and conditions as well as reporting requirements). This confusion had to be clarified because it was a matter of legal authority.
The Chairperson said that the question as to whether the current chairperson had put in a sick-leave form would have to be put to the Minister. Ms Qhobosheane was asked to follow this up and confirm if the Minister had received such a form and if not, to ensure that it was filled in and sent so that the Authority could go on with its functions. The vice-chairperson had to take up the responsibility of the chairperson and she needed no letter from the Minister.
Mr V Ndlovu (IFP) asked what would happen if a person on sick-leave gave instructions to the Director for the execution of certain functions? Who would the Director listen to?
The Chairperson said that as had already been said, clause 12(9) would have to be tightened to address this anomaly.
Clause 6 Establishment and constitution of Council and appointment of councillors
Mr Soman said that clause 6(2) had been amended to read ‘In the appointment of members of the Council, consideration must be given to appointing persons who have experience in respect of finance law.’
The Chairperson in response to this said that the Technical Committee had been explicitly asked to use the words ‘at least’ in the drafting. The Technical Committee had to redraft this.
Clause 6A Requirements for appointment as councillor
Clause 7 Disqualifications for appointment as councillor
Mr Soman said that the Technical Committee had considered deleting clause 7(c) [is not a fit and proper person to hold office as a councillor] since clause 6A was referred to almost the same point in spelling out the requirements for appointment as a councillor, but it decided to maintain it as a disqualifying clause.
The Committee did not see any relevance of the repetition because a person that was not a fit and proper person could not be said to be properly appointed.
Mr George, on a separate note, said that security clearance should not form part of the disqualification but should rather be included in the requirements for appointment as a councillor.
The Technical Committee was asked to consider clauses 6, 7 and 8 again and report back to the Committee.
Clause 9 Functions of the Council and chairperson
Mr Soman said that clause 9(2)(a) [The chairperson – may, subject to ratification by the Council, exercise any power of the Council or fulfil any of its duties] was to be deleted. Clause 9(2)(f) was also amended to read: ‘must maintain a working relationship with the Civilian Secretariat to cooperate on policing and policy matters related to the private security industry.
The Chairperson proposed that the signing of minutes of meetings of the Council should be extended to the vice chairperson to cater for emergencies. She asked the Technical Committee to apply its mind to the clause and get back to the Committee.
In conclusion, the Chairperson said that the Committee would schedule a meeting in 2013 at which the Technical Committee would present the changes made to the Bill. The recess period was an opportunity for the Technical Committee to look at the whole principal Act and also attend to issues raised by Committee Members.
The meeting was adjourned.
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