Budgetary Review and Recommendations Reports: Department of Police, & Independent Police Investigative Directorate; Private Security Regulation Amendment draft Act deliberations

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24 October 2013
Chairperson: Ms A van Wyk (ANC)
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Meeting Summary

The Committee adopted, with amendments, the Budgetary Review and Recommendations Reports on the Department of Police and on the Independent Police Investigative Directorate, after having summarised once again the content of those reports. Amendments in the Reports centred on grammatical and language correction. The Reports were adopted.

The Technical Team continued to take Members through the previous draft of the Private Security Industry Regulation Act. This whole Act was being redrafted to incorporate the Private Security Industry Regulation Amendment Bill, which had been tabled, but not finalised, in 2012. The Committee continued from section 35, which was where the last meeting had ended. It was noted, under section 35, that the amendments made in the regulations under section 35(1)(eA) would prohibit the emblem of any private security service provider from resembling those of the South African National Defence Force (SANDF) or the SAPS. Section 36 drew a distinction between sanctions for natural and juristic persons, but the offences would not be specified separately. Section 39 related to South Africans committing offences in other countries but the team wanted more time to consult and draft the new clause. Section 41 allowed the Minister of Police to delegate certain duties, including powers to the National Commissioner. The Committee was not happy with this, and asked that it be examined again, despite the fact that it was in the Act already. The point was made that this delegation generally did not happen, but the Chairperson retorted that the Committee was not in favour of a clause that allowed political power to be transferred to a Police Commissioner. Section 43 was welcomed, as it would repeal arrangements that were no longer necessary, and the Chairperson said that this Committee preferred a defined cut-off date for transitional arrangements.

The Technical Team then presented the new version – entitled 23-10 – and began to take the Committee through the latest changes, made in line with the Committee’s earlier discussions. Members were satisfied with the new definitions for ‘locksmith’ and specifications on the manufacturing of interception equipment. Under section 3 it was noted that no definition of ‘national interest’ were inserted, given the heated debates on this when the Protection of State Information Bill was drafted. Section 4 had been extensively restructured to set out the functions of the Private Security Industry Regulatory Authority (the Authority), and section 5 dealing with governance noted the Acts under which it must perform. Members were annoyed that section 6’s redraft failed to take into account specifications discussed previously by the Committee, and the Technical Team was asked to redraft this section. The content of section 6A should also appear before section 6(1). The Committee was also not happy with the presentation on section 9, which dealt with the functions of the Council, and stated that the Council could publish rules in the Government Gazette. The Committee felt in principle that no entity should be able to publish rules in the Gazette without the oversight of the Executive. Members also asked the Team to have another look at section 10, which seemed to be inconsistent on the question of monthly or quarterly reports. The Public Finance Management Act (PFMA) required quarterly reports only, but the Auditor-General was in favour of monthly reporting, particularly in light of the poor audit results in the last year. Amendments to section 11, on Ministerial supervision, were accepted. Members wondered, in relation to section 12, whether the Minister would necessarily have to call meetings in writing, particularly given that the Council would not comprise full-time members, and the Committee asked for a redraft.  The Technical Team indicated that it needed more time to work on sections 12A, 13, 14, where the Committee wanted qualifications to be specified, and 15, where the Committee had asked earlier for the deletion of some subsections, and 16A, which contained a number of repetitions. Members questioned why some of the matters it had earlier identified were not yet incorporated into section 21. The Committee expressed annoyance with the Technical Team for not having expedited the investigations that it needed to do on the regulations, and reminded the head of the Technical Team that she was expected to report weekly on progress. Outstanding amendments were to be incorporated into a clean draft and presented in the following week.

Meeting report

Budgetary Review and Recommendations Report on the Department of Police
The Chairperson reminded Members that the Budgetary Review and Recommendations Reports (BRRR) had been circulated earlier but although Members had had a chance to study them, there had not previously been a chance to submit amendments. Those now suggested centred mainly on grammatical changes regarding, for example, which pronoun, either ‘it’ or ‘they’, to use when referring to the Department of Police, abbreviating South African Police Service to SAPS and the use of the definite article (the) when referring to it, e.g. The SAPS. Amendments were generally submitted by Ms D Kohler-Barnard (DA), Ms M Molebatsi (ANC) and Mr D Stubbe (DA).

Ms D Kohler-Barnard (DA) raised concerns with the layout of the report, which was shared by some other Members. She felt that the coherence of the Report could be improved.

 The Chairperson assured the Committee that the layout of the Document would be corrected by Parliament before it was published and therefore Members need not concern themselves with that now.

Members agreed to adopt the BRRR with all the new amendments.

Budgetary Review and Recommendations Report on the Independent Police Investigative Directorate
The Chairperson summarised that issues within the BRRR on the Independent Police Investigative Directorate, as was the case with the BRRR on the Department of Police, also revolved around grammatical changes, such as the capitalisation and extension of certain terms like KZN needing to be written out as Kwa Zulu-Natal, NPA written out as National Prosecuting Authority, lT written out as Information Technology, and similar changes.

The only note-worthy technical change that was made was on page 12 under ‘Arrests’ where the name of the Mozambican Taxi Driver beaten by South African Police Service officials was corrected to reflect “Emido Macia”.

Mr J Moepeng (ANC), apparently a member of the Committee (who had never attended a meeting before as he had not known he was a Member) suggested that in future Members should personally receive copies of the Reports, make grammatical changes on their own, and forward these to the Chairperson and Secretary of the Committee. He felt it tedious to do so in meetings. He then set out some grammatical changes on page 3 of the Report. He also commented that he felt the report was inconsistent as terms like ‘over-spend’ and ‘under-spend’ were used continuously and inconsistently at different points in the Report. He suggested Reports be written according to the National Treasury format.

The Chairperson responded that the Committee usually followed a procedure in which only four members would assist the Secretary in editing the Report. However, due to time constraints, seeing that the Committee only completed hearing the annual reports for its entities on the previous Friday, it had been impossible to do this, and this approach was adopted as the most practicable in the circumstances.

Members adopted the BRRR, with the grammatical and technical changes.|

Private Security Industry Regulation Act (draft)
Commissioner Philip Jacobs, Head of Legal Support, South African Police Service (SAPS) presented the amendments made to the Private Security Industry Regulation Act, incorporating the Private Security Industry Regulation Amendment Bill published in June 2012. He would continue to outline some of the changes, and then take Members through the new document (see attached document for details).

The Committee had convened with the technical team heading the Private Security Industry Regulation Act (PSIRA) on a previous date and had already started discussing the amendments that were to be made on the Act. He suggested that he start where the Committee stopped during its last meeting.

Section 35
The amendments made on the Regulations, under section 35(1)(eA) focussed on prohibiting the emblem of any private security service provider from resembling those of the South African National Defence Force (SANDF) or the SAPS. Should there be contravention on this, a fine could be imposed, or imprisonment not exceeding 5 years. He said, (but did not expand upon) that paragraph 2 was deleted.

The Chairperson then also made a grammatical contribution to the clause.

Section 36
Commissioner Jacobs discussed amendments related to the punishment of natural and juristic persons in section 36(1)(a). These amendments clarified the difference between punishments meted out to either juristic or natural persons and also took into consideration whether offences were committed for the first time.

The Chairperson asked whether the team was going to specify the offences under each of the paragraphs.

Commissioner Jacobs replied in the negative, as that would require a complete redrafting of the Act.

Section 39
Commissioner Jacobs noted that section 39 dealt with the punishment of individuals within South Africa who had committed offences in other countries. He said that although the amendments had been discussed with the Committee, the task was a complex one and the SAPS drafters wanted more time for consultation among the technical and legal teams.

The Chairperson said that she believed the Committee should allow the PSIRA team to do so, as she felt it was necessary to amend that clause. She suggested some further grammatical changes.

Section 41
Commissioner Jacobs highlighted, under section 41, a point that allowed the Minister of Police to designate certain of the duties conferred upon her/him by the Act, and noted that the reference to section 1(2) was being deleted. A clause was inserted that allowed the Minister to delegate duties to the National Commissioner of Police.

The Chairperson raised a concern on this point. She was not happy with the new clause that allowed the Minister to delegate these particular executive powers, under the PSIRA, to the National Commissioner, as she believed that he/she had nothing to do with the Regulatory Authority.

Commissioner Jacobs disputed this and said that it was also stated in the original wording of the Act. As an experienced veteran of the SAPS, he noted that delegation of executive duties to the National Commissioner by the Minister was, in fact, possible, although it did not generally happen in practice.

The Chairperson advised that the clause should be looked into and investigated further by the Technical Team of the PSIRA before the Committee took a decision on it.

Commissioner Jacobs noted, to the Chairperson, that the Minister was designate some of her/his executive duties to the Deputy Minister, and this was why he believed it was possible for the designation of power to be directed to the National Commissioner as well.

Mr V Ndlovu (IFP) then asked the Chairperson why this issue was being raised if delegation of executive duties from the Minister to the National Commissioner had never occurred in the past.

The Chairperson responded that that was exactly the reason why she advised Commissioner Jacobs to rework the clause. The Committee did not want a clause that allowed political power to be transferred to a Police Commissioner. The issue would not be discussed further at this point; she reiterated that it must be re-worked by the Technical Team.

Section 43
Commissioner Jacobs said that section 43 mentioned a repeal of laws relating to the previous Security Officers Act of 1987. The section mentioned all of the transitional permissions necessary to transfer arrangements from the previous Act of 1987, to the current PSIRA and further to the amended PSIRA.

The Chairperson welcomed this and highlighted the need to repeal transitional arrangements that were no longer necessary. She also emphasised the fact that the Committee was known for insisting upon the finalising of transitional arrangements within a certain period of time, and therefore urged the Commissioner to keep in mind cut-off dates and times when considering these arrangements.

The Chairperson then closed proceedings with regard to the current PSIRA Act, and directed the attention of the Committee to the new version, incorporating the new proposed amendments (see attached document for details), which were to be presented by Commissioner Jacobs.

Latest version of PSIRA Act, entitled 23-10 (see attached document)
Commissioner Jacobs mentioned that the amendments to section 1 were as follows:
- On page 7, the definition of ‘locksmith’ had been reworked.
- On page 10 there previously appeared a duplication of the definition of ‘security business’ however this had since been deleted and the original definition had not changed.
- On page 12, under the definition of ‘security services,’ the specifications on manufacturing of interception equipment had been amended
- On page 13, points (k), (l) and (lA) had all been amended as per the instruction of the Committee.
- On page 14, the deletion of subsection 1(2) was highlighted in red

Section 2
Commissioner Jacobs noted the deletion of Chapter 2, subsections (1) and (2), all highlighted in yellow.

Section 3
In section 3(3), the phrase had also been deleted. All of these amendments related to the establishment of the Authority and the Objects of Authority.

On pages 15 to 16, under Objects of Authority, subsections (3) (a-q) had been deleted. The new amended sub sections had been inserted on pages 16 to 17.

The Chairperson interjected here and asked Commissioner Jacobs whether the team had looked at inserting a definition of ‘national interest’ as was previously discussed by the Committee.

Commissioner Jacobs said that the drafters had taken this matter into consideration and a reference was made to the Protection of State Information Bill, where the definition of ‘national security’ appeared, but no definition of ‘national interest’. On further consultation with the Chief State Law Advisors, it was decided not to include the phrase “national interest” due to the fact that a heated debate had accompanied this during the deliberations on the Protection of State Information Bill.

Section 4
He noted that, under the section on Functions of Authority, a phrase was inserted in both subsections (4)(b) and (c). Much of subsection (4) had been restructured; (e) to (ii), from pages 18 to 21, had been deleted and the new insertions (e) to (m) made on page 22. The most notable of these were that, under (f) the Authority must establish and manage offices for the Authority in every province, and under (i) the Authority must, in the prescribed manner, establish a complaints office to receive, process, refer or deal with complaints regarding unlawful or unethical conduct by security service providers.

In addition, the Committee had also asked the Team to consider the reworking of (e), which would be reported on in the following meeting.

Subsection (n) which stated that the Authority must generally perform any act that contributes to the attainment of its object, had been deleted as the Committee felt that the statement was too broad.

Section 5
On page 23, under this section that dealt with the Governance of Authority, subsection (4) was amended, by deletion of a phrase, and replacement, which stated that the Authority needed to perform its functions under this Act, the Levies Act and the Public Finance Act. In addition, a new insertion was made to subsection (5) (5)(a) regarding guidelines made by the Minister in the Government Gazette.

Section 6: Council
Commissioner Jacobs presented the new wording for section 6 on page 24, which related to the qualifications of those appointed as members of the Council.

The Chairperson reprimanded him on the new wording. Although the subsection did include the specifications that were discussed by the Committee, which were to state that members appointed to the Council were to hold expertise in the fields of Law, Finance and Governance, it failed to take into consideration the other concerns raised by the Committee – that these appointments were to be reported to Parliament as a matter of courtesy.

These sentiments were echoed by Mr Stubbe and Mr Ndlovu and the Chairperson thus instructed the Team the return to the Committee on this issue.

New section 6A
Commissioner Jacobs then noted the new Section 6A which related to the character of the type of candidate elected to council.

The Chairperson recommended that the content of section 6A be placed before section (6)(1), as the character of individuals should be taken into consideration before their qualifications.

Sections 7 and 8: Disqualifications and Term of Service
Commissioner Jacobs then continued to present Section 7 on page 24 and its amendments which related to the disqualifications for appointment as a councillor.

He also outlined the new wording for section 8, on page 25.

The Committee was happy with these amendments as they had already been discussed at a previous meeting.

Section 9: Functions of Council
Commissioner Jacobs presented Section 9 on page 27 which related to the Functions of Council and Chairperson and included a clause that allowed the Council to publish rules in the Government Gazette.

The Chairperson was not happy with this and expressed her concern to the Civilian Secretary of Police and Member of the Technical Team, saying that she did not feel it was advisable for the Council to have the power to do this, as whatever consequences arose from publication in the Gazette would be returned to the Minister.

The Civilian Secretary said that even though she felt that there was nothing wrong with Council formulating rules on governance, she did acknowledge that the wording of the clause was inappropriate and may have to be reworked.

Commissioner Jacobs assured the Committee that the Team would look at this matter again and return to the Committee with new amendments.

The Chairperson then assured the Committee that no amendments would not be passed giving an entity the power to publish rules in the Gazette without the oversight of the Executive.

Section 10: Accountability of Council
Commissioner Jacobs continued onto Section 10 on page 29. The amendments included the requirement of the Council to submit both monthly and quarterly financial reports to the Minister in terms of the Public Finance Management Act (PFMA). However the PFMA only required a quarterly report be submitted and not a monthly report, so the wording may have to be changed.

Mr Stubbe said it was merely the Committee’s idea to have monthly reports was included and that, if the PFMA did not require a monthly report, this could be removed.

The Civilian Secretary stated that the Auditor-General (AG) required monthly reports from the Minister.

The Chairperson then suggested both reports should be included but that the wording should be changed, to specify whether it was the requirement of the AG or the PFMA in relation to reports. She further emphasised that monthly reports may be advisable, especially due to the fact that the findings of the AG on the Annual Report of the Authority expressed several concerns.

A discussion then ensued between Mr Stubbe, Mr Moepeng, Rev W Thring (ACDP), The Chairperson and Commissioner Jacobs with regards to the structure of Section (10)(b). The beginning of the section stated that the points within it were related to quarterly reports, but on closer inspection some points related to monthly reports. It was decided that this whole section should be restructured to distinguish exactly what types of reports were contemplated.

Section 11: Ministerial Supervision
Commissioner Jacobs presented the revised section 11 and its amendments were accepted by the Committee.

Section 12: Meetings and Conflicts of Interest
Commissioner Jacobs continued onto Section 12 on page 32, which included a statement requiring any meeting called by the Minister to be done in writing, as well as setting out the manner in which meetings were to be called by councillors.

The Chairperson asked whether it was necessary to bind the Minister to call meetings in writing. The Council was a part-time one and the members were not always required to attend meetings, although the Chairperson would need to. These sentiments were echoed by Mr Moepeng, Rev Thring and Mr Stubbe.

The Secretary concurred that the Minister did not always convene meetings in writing and that special meetings were often called by his secretarial team.

The Chairperson then advised Commissioner Jacobs to return to the Committee with a re-draft, and to specify how meetings were called by councillors.

New Section 12A: Secretariat and section 13: Committees to assist Council
Commissioner Jacobs then drew the attention of the Committee to Section 12A on the Secretariat, on page 34, but noted that the technical team require more time to rework this section, as well as section 13 (Committees to Assist Council).

The Chairperson granted the Technical Team permission to do this.

Mr Moepeng then raised an issue with regards to the restructuring of the section on Secretariat as he felt it was too condensed and not coherent.

The Chairperson concurred and requested that Commissioner Jacobs and his team restructure it and return to the Committee on it.

Section 14: Staff of Authority
Commissioner Jacobs then continued onto Section 14 on page 35, which did contain amendments, but again said that he felt the wording of this section may have to be reworked. This section dealt with the manner in which staff members were to be appointed.

The Chairperson noted that qualifications were not mentioned in this section.

The Civilian Secretary replied that the Technical Team felt it was not necessary to do so as the Public Administration Management Bill (PAMB) would set out the compulsory qualifications of any person appointed to work in any government entity. She further pointed out that a footnote, which was included as part of the amendments, alluded to this.

The Chairperson acknowledged this but advised that qualifications should be mentioned in the wording of the section as well.

Mr Stubbe then asked how appointments would be made if the Chief Executive Officer (CEO) were to resign.

The Chairperson advised that there would be a transitional period in which arrangements and appointments would be made to fill the post, while the Director assumed the responsibilities of the CEO.

Commissioner Jacobs then presented the amendments under the same section, to subsection 7 on page 37 which related to the fixed establishment and the number of grading posts.

The Chairperson asked that the wording of this section be worked and that the Team return to the Committee on this issue.

New section 14A: Disqualifications for appointment as director and deputy director
Commissioner Jacobs set out the new section 14A, with which the Committee expressed satisfaction.

Section 15: Delegation of powers and duties by Council
Mr Stubbe drew attention to subsection (15)(1) on page 38, which dealt with the delegation of Powers and assignment of duties by Council, and said that the Committee had previously discussed removing that subsection. He asked why then it still stood.

Commissioner Jacobs said that he did have a note regarding that deletion, but that the Technical Team had not yet had time to look into the matter and that they would do it in due course.

The Chairperson then urged the Team to look into that as she felt it was a matter of concern.

Section 16: finances and section 16A: Annual Report
Commissioner Jacobs then presented Section 16 under Finances of the Authority on page 39, and its amendments, which found approval from the Committee.

He noted that there were quite extensive amendments in Section 16A under Annual Report but did not elaborate on them.

The Chairperson then advised Commissioner Jacobs to return to the Committee with regard to section 16A, as she noticed that it contained many points that were repetitive.

Sections 17 to 19 deleted
Commissioner Jacobs noted that sections 17, 18 and19 were all deleted, due to the fact that all of them were being replaced by the provisions made by the AG and the PFMA.

Sections 20 and 20A: Obligation to register and exemptions and Exemption Advisory Committee
Commissioner Jacobs noted the amendments made to Section 20 and 20A, which were accepted by the Committee.

Rev Thring, however, felt that the wording of subsection (5) on page 45 should be changed and simplified as he felt the meaning may be too broad.

The Chairperson concurred and recommended that Commissioner Jacobs and the Team take that into consideration and return to Committee on that issue.

Section 21: Application for registration
Commissioner Jacobs presented section 21 and pointed out that it dealt with the required submissions a security enterprise would need to make when registering with the Authority, specifically a representation of the insignia that would appear on the uniform, vehicles and other merchandise.

The Chairperson emphasised that a point that was discussed by the Committee, but that the Team had not added to the amendments, was that an application for registration with the Authority would also require a representation of the actual uniform of the enterprise, not only the insignia. She further emphasised that the Team must add this to the requirements and return to the Committee with new wording at the following meeting.

Pages 48 to 50: Clauses 22 to 25
Commissioner Jacobs then skimmed over pages 48, 49 and 50, claiming that no amendments were made. However, the Chairperson stopped him, and identified amendments which were discussed by the Committee and which were supposed to have been made to those pages. She then asked the Team whether those amendments had been considered.

The Secretary replied that the Technical Team was awaiting regulations, so that it could get finality on which clauses were to use the words either ‘must’ or ‘may’, and the Team was intending to work on those amendments on the following day.

The Chairperson was unimpressed by this and reprimanded the Team for not making use of the internet as this would have made the task simpler and more efficient. She then advised the Team to skip these amendments for the moment, but return to them later. She noted that the Civilian Secretary, as leader of the Team, would be held responsible for reporting to the Committee, on a weekly basis,  which members were making contributions in the meetings and which were not. She asked that a clean draft be presented at the next meeting.

The meeting was adjourned.


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