Private Security Industry Regulation Amendment Bill: Preparatory meeting

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22 October 2013
Chairperson: Ms A Van Wyk (ANC)
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Meeting Summary

The Committee had, during the latter part of 2012, started deliberations on the Private Security Industry Regulation Amendment Bill [B27-2012]. There had been substantial problems with it, as the Private Security Industry Regulatory Authority (PSIRA) had tried to draft it alone, and the Committee then wrote to the Minister requesting that a technical team, under the guidance of the Civilian Secretariat for the Police Service, be appointed to redraft it, taking into account all the consultation processes, including discussions with the Committee. The Committee had been particularly concerned that there had not been consultations, despite the fact that the Memorandum on the Objects claimed there had, and had also requested a translation of the Bill. A team from the Civilian Secretariat would be attending on the following day to take Members through the Bill. This meeting was a preparatory meeting to highlight what changes had been made, whether the Committee’s previous suggestions were taken into account, and highlight issues on which the Committee wanted more explanation.

At the outset it was noted that the highly-contested clause in the original version about ownership of private security companies had been removed, although the Chairperson stated that there may be amendments proposed to re-insert something. The Committee Researcher took the Committee through the new version. Definitions of “artisanship” had been suggested, but they were not included, and this, as well as the apparently conflicting versions of ‘security business” would be questioned. It was suggested that a tighter definition of “security officer” was needed, and there were also concerns about what was included under “security service”. It was suggested that a closer look was also required for “security equipment”. Under clause 2, the reference to the head office being in Pretoria was deleted, and the committee would ask why. They would also question whether clause 3 was appropriate, given that other legislation dealt with empowerment, and who would fund the awareness campaigns. Under clause 4, greater clarity was required n the split of functions between Authority and Council, and this impacted on a number of other clauses. The Chairperson was not any longer to be full-time and this had implications on other organisational functions. Members asked to see an organogram and wanted a number of questions answered on related issues, and on the provincial offices. Similar questions were raised in relation to clause 5, 6, 9 and 26. The designation of councillors’ experience would be questioned, in clause 6. Members briefly debated whether it was appropriate to disqualify non-South Africans from serving on the Council although they could be service providers. Last year, the Committee had considered grouping together the clauses dealing with terms and conditions of office, vacation from office and payment of remuneration and allowances and would need to consider whether they still should be together, as they were currently listed separately, but Members indicated that they wanted more detail on other points, such as regularity of meetings, replacements, and terms of office, whether five or three years. They questioned the removal of time limitations from clause 10, and said that the committee needed to go carefully through the Bill to check for any inconsistencies or unenforceable provisions. A new clause 12A was inserted to set out the duties of the new secretariat. Further explanation was needed on clause 16(1)(b), and 16A(c), including whether the contents warranted a separate clause or could be subsumed elsewhere. It was noted again that clause 20(2)(c), dealing with ownership, had been deleted, but there were inconsistent references to exceptions. More discussion would be needed on whether the Authority “may”  or “must” suspend registration, under clause 26, and more discussions would also be needed on which word was appropriate for other requirements. “may” to “must”. Corrected wording was suggested for clauses 30, 32 and 35, and more clarity was needed on clause 39. In the Memorandum on the Objects, there was currently a reference to the White Paper on Peace and Security, but the Committee would need to enquire as to its status. Other progress reports would be needed on the consultation with key stakeholder departments, the outcome was and if there were any outstanding matters. 

Meeting report

Private Security Industry Regulation Amendment Bill [B27B-2012] and draft Act [B-2012]: Preparatory meeting
Chairperson’s opening remarks

The Chairperson noted that the Department of Police (the Department) and the Civilian Secretariat for Police Services (the Secretariat) would be joining the Committee on the following day to go through the Private Security Industry Regulation Act(PSIRA).  

She highlighted that from the public hearings on the Amendment Bill and from the Committee’s discussions with the Department, it was clear that the drafters had not done proper consultation on the ownership issue. The Bill now in front of the Committee did not touch upon questions of ownership. This did not, however, mean that it might not be submitted again, as a further amendment, a few years down the line. The changes highlighted in the Bill were the changes the Committee had requested.

The Chairperson said the Committee would move through the legislation page by page, and the Committee’s Researcher would specifically highlight any instances where the Members had requests for the Bill and these had not been included.

Chapter 1: Definitions
Ms Nicolette Van Zyl-Gous, Committee Researcher, highlighted that “artisanship” was excluded from the definition of “locksmith” . This was a concern as the Committee had said that artisanship or internship of trainee locksmiths should be included, as the artisans were required to perform the tasks associated with the locksmith. The Committee further indicated that if this was not dealt with in the definitions then it should be incorporated in the clause dealing with regulations. However, neither of these had been done.

She noted that clause 1(1)(d) should read  “cutting keys and duplicating existing keys” and not “cutting keys otherwise than by and duplicating existing keys”. The wording “otherwise than by” should be deleted.

The Chairperson said she would raise the issue of artisanship with the Department on the following day. She reminded Members that locksmiths had made a presentation explaining that part of their training was actually to duplicate keys. If this was not covered in the Bill, the trainees would be acting illegally. The Committee would ask the Department why they had not given attention to this issue.

Ms Van Zyl-Gous then noted there were two definitions for “security business”, one means, “subject to subsection (2), any person who renders a security service to another for remuneration, reward, fee or benefit, except a person acting only as a security officer”, and another, “means, subject to [section(2)], clause 20(5), any person who renders a security service to another for remuneration, reward, fee or benefit, except a person acting only as a security officer”.

Mr V Ndlovu (IFP) asked why there were two definitions.  

The Chairperson said that question would be put to the Department the following day, to get clarity and reach an agreement.

Ms Van Zyl-Gous felt the definition of “security officer” should be tightened as it was unclear what was meant by a security officer. Currently the definition stated that a security officer was any natural person – who, firstly, was employed by another person, including an organ of state, subject to clause 20(1)(a) and (b) of the Act, and who receives or is entitled to receive from such other person any remuneration, reward, fee or benefit, for rendering one or more security services. The second definition was a person who assisted in carrying on or conducting the affairs of another security service provider, and who receives or is entitled to receive from such other security service provider, or any other person, any remuneration, reward, fee or benefit, as regards one or more security services.

However, security officer could also mean, according to (b) a person “who renders a security service under the control of another security service provider and who receives or is entitled to receive from any other person any remuneration, reward, fee or benefit for such service; or under (c), a person “ who or whose services are directly or indirectly made available by another security service provider to any other person, and who receives or is entitled to receive from any other person any remuneration, reward, fee or benefit for rendering one or more security services”.

The Chairperson said it was clear that the drafters had not applied their minds to this definition as it was a duplication. This would also be raised at the next meeting.  

Ms Van Zyl-Gous noted that under the definition of “security service”, in  subsection (e), the Committee had some concerns about the regulation of the provisions for the manufacturing of interception devices as contemplated under clause 1 of the Regulation of Interception of Communication and Provision of Communication and Provision of Communication related Information Act (RICA) of 2002. The Committee noted that it was not actually possible to regulate something which was prohibited, and furthermore questioned whether this issue was not already sufficiently covered under the RICA.

Mr D Stubbe (DA) asked whether, in principle, something that was covered in another Act should merely be inserted with a reference to that Act, rather than repeating everything again.

The Chairperson suggested that Mr Stubbe should raise this. She reiterated that the Committee was going through the Bill now, in order to isolate the problematic areas.

Ms Van Zyl-Gous recommended that the Committee ask the Department why the text under the definition for “security service” subsections (g) and (h) was highlighted in blue and what that meant. These subsections were not new, as they were already in the previous version of the Bill.

Mr Stubbe thought there should be a definition for “security equipment”, as it could include radios and the interception of radios.

The Chairperson clarified that there was a definition for “security equipment” and asked Members if they were satisfied with it as it referred to “security equipment in terms of this Act”.  

Mr Stubbe felt there was a need for a closer look at the definition. It included metal detectors, which he thought was not needed here.

The Chairperson asked if Mr Stubbe was suggesting that it be examined now, or on the following day.

Mr Stubbe thought the Members could come back to it later.

Chapter 2: Private Security Industry Regulatory Authority
Clause 2: Establishment of Private Security Industry Regulatory Authority

Ms van Zyl-Gous noted that clause 2(2) stated that “head office of the Authority is situated in Pretoria” was accompanied by a footnote which stated this was proposed for deletion.

The Chairperson suggested the Committee ask the Department tomorrow why this was proposed for deletion.  

Clause 3: Objects of Authority
Ms Van Zyl-Gous highlighted that clause 3(g) referred to  “promote the empowerment and advancement of persons who were historically disadvantaged through unfair discrimination in the private security industry by encouraging (i) ownership and control of security businesses by such persons; and (ii) equal opportunity employment practices in the private security industry”. Although the Civilian Secretariat for Police (the Secretariat) had condensed this, the Committee still questioned whether it should be in the Act. This could be engaged on tomorrow.

The Chairperson said the question was whether explicit provision should be given to this, since there was already other legislation that promoted equity empowerment. She noted the provision might, however, have been included before the other legislation had been proposed.

Ms Van Zyl-Gous turned to clause  3(h).This referred to: “promote awareness amongst the public and the private security on the functions and role of the Authority and the industry”. The Committee questioned the cost implications of awareness campaigns. The Secretariat should clarify what was envisaged for this section, and whether the Private Security Industry Regulatory Authority (PSIRA) was expected to carry the cost of the awareness campaigns. She reminded the Committee that PSIRA said at a meeting in the previous week that it had conducted over 400 awareness campaigns for the 2012/13 financial year, and this implied that PSIRA carried the costs of the awareness campaigns.

The Chairperson thought the wording of the subsection needed to be changed to “functions and role of the Authority in the industry” not “and the industry”. This would be also be checked tomorrow.

Clause 4: Functions of Authority
Ms Van Zyl-Gous highlighted that clause 4(b) required clarity, as to the split of functions between the Authority and the Council. This subsection outlined that the Authority should report to the Minister but the Committee strongly felt that the Council, and not the Authority, should be reporting to the Minister as the Minister appointed the Council. 

The Chairperson agreed and said it also raised the question whether Members still wanted the Council to have that much authority, or if it was preferable that the Authority itself start taking the responsibility.

The Chairperson noted the Researcher was being very helpful. She was seeing this version for the first time.

Ms Van Zyl-Gous turned to clause 4(f), which said the Authority should “establish and manage branch offices”. She thought it might be more appropriate and make more sense to state here that the Authority should manage provincial offices, as it did not really have branch offices.

Mr Stubbe thought there should be more specific reference to provincial offices in each province.

The Chairperson said she had forgotten about this point. It was actually correct. It also had to be specific on whether there should be offices in each province. She reminded Members that the national office was managing five provinces but only reported on three. She felt the experience from the meeting last week should inform the Bill.

Clause 5: Governance of Authority
Ms Van Zyl-Gous quoted clause 5(2), which said: “The Authority acts through the Council and all acts of the Council are regarded as acts of the Authority”. This also spoke to the lines of accountability between the Authority and the Council. She recommended that Members should seek clarity on the role definition between the Authority and the Council.

Mr Stubbe understood there was an Act for the Authority and an Act for the Council.

The Chairperson corrected him and said that in fact there was only one Act, but there needed to be a clearer definition of the responsibilities of the Authority against those of the Council. It may need to be reworded.

Mr Ndlovu asked what clause 5(2) meant, in saying: “the Authority acts through the Council and all acts of the Council are regarded as acts of the Authority”.

The Chairperson said this was part of the problem. She noted that when the process started in November 2012, the Committee recognised there were serious shortcomings in the Bill. It was also important to remember at what time in South Africa’s democracy this legislation had been proposed. If the roles of the Council and Authority were not clearly defined it might explain the challenges they were currently facing. She did not know what this subsection meant. It would be marked for discussion tomorrow.

Clause 6: Establishment and constitution of Council and appointment of councillors
Ms Van Zyl-Gous read out clause 6(2), which said: “in the appointment of members of the Council, consideration must be given to appointing persons who have amongst them knowledge and experience in respect of at least, finance, law and governance”. The Secretariat had included the words “at least” from the previous version of the Bill, but this did not actually answer the concerns raised by the Committee. The Committee’s concern was not that each member of the Council must have knowledge in finance, law and governance but that each Council member ideally should have a different speciality.

The Chairperson thought the solution might be to go to clause 6(c) which related to the three additional councillors, one of which must have knowledge and experience in law, one of which must have knowledge experience in finance and one of which must have knowledge and experience in governance.

Mr M George (COPE) wanted to know if there were other bodies with a council who also acted as the Chief Executive authority.

The Chairperson said that was the crux of what the Committee needed to have answered. She noted that one of the recommendations made by the Committee when this process started in November was that the Committee no longer wanted to see a full time Chairperson at the Council. This also had consequences for the governance of the Authority. The Council should be more of an oversight body, without direct influence. The past experiences would also have to be taken into account.

Ms P Molebatsi (ANC) asked if the Council oversaw the Chairperson or did the Chairperson oversee the Council.

Mr Stubbe asked if there were any alternatives on the table around the Committee’s proposals and for how it might look with a part-time Chairperson.

The Chairperson repeated that this was the first time that the Committee was going through this version, and she was not sure if the Secretariat or technical team had any proposals on the table. If not, then certainly something still was needed. The fact was that if there was a part-time chairperson, s/he could not be the accounting officer.

Mr Stubbe thought the organogram of the whole entity should be reviewed.

The Chairperson heard this point, and said the Bill would have implications for the structure, finances and organogram of PSIRA. It was also most likely that provisions must be included for a transition period as well.

Mr Stubbe asked if any suggestions made would then have to come back to the Committee for approval.

The Chairperson replied it was for the Department to include transitional arrangements in the revised legislation.

Mr Ndlovu suggested it might be better to have the organogram as soon as possible, for consideration with this Chapter, and to ensure that the Committee was not targeting personalities but positions.

The Chairperson heard the logic in this, but said the Committee could not determine the organogram. It could, however, ask the technical team to start looking at transitional arrangements already.

Clause on Disqualifications for appointment as councillor
Ms Van Zyl-Gous noted that the current version of the Bill required that only South African citizens, and not permanent residents, could be appointed as councillors. Questions were raised around the inconsistency, which insisted that a councillor must be South African, whilst other security providers could be citizens or permanent residents.

The Chairperson did not necessarily see a problem with this. The PSIRA was responsible for looking after the interests of the country. The Committee itself needed to be a clear on the differences between the Council and the Authority, and the service providers in the free market. The limitation did not related to who owned a company, but lay with the governance of this structure.

Mr Stubbe said the point could be argued that expertise might lie with the owner or board member of a big security firm. He felt there was an argument around why something that was acceptable in the industry might not also be acceptable for the Council that was meant to oversee the industry.  

Mr George asked what was meant by 6A “a member of the Council for the Authority must be fit and proper person…”.He questioned whether “fit” meant “mentally fit” or fit in some other sense. The past events in this industry showed the need to have precision; the vagueness had been dangerous.

The Chairperson said over and above this was the consideration that this was a regulatory authority, not a self-regulated authority. Previously, the Bill had allowed industry to be on the Board.

Mr Ndlovu agreed that it was undesirable to have outsiders on the Board as the Board was concerned with the security of the country. He also made the point that this Bill was not concerned with industries, but with the Council. An industry could be owned by anyone. The Council had to look after the safety of the country.

Mr Ndlovu quipped that he was also not sure what “fit” meant, and the Chairperson said that she presumed Mr George was joking, as the term “fit” in this context was understood, although she to quipped that perhaps running up and down would test this.

Clauses on Terms and conditions of office, vacation of office and payment of remuneration and allowances
Ms Van Zyl-Gous noted that during last year’s deliberations the Committee considered grouping these three provisions together, under a separate clause entitled “Removal from office”. The Committee needed to debate again whether it still wanted these grouped together, or separated, as the current version read.

She highlighted clause 8(3) saying that “a councillor vacates office when –
(a) he or she becomes subject to any disqualification referred to in clause 7;
(b) he or she has been absent from three consecutive meetings of the Council without leave of the Council;
(c) he or she is removed from office in terms of subsection (4);
(d) his or her written resignation is accepted; or
(e) he or she is no longer a fit and proper person as required in clause 6A.

Subclause 3A went on to say that when a councillor became subject to any disqualification referred to in clause 7 or was absent from three consecutive meetings of the Council, the Chairperson, vice-Chairperson or acting Chairperson contemplated in clause 12(10) must inform the Minister.

Subclause (4) said that a member of the Council may at any time be suspended or removed from office by the Minister for sound reason. Subclause (5) required the Minister to appoint a substitute for the unexpired portion of the term, with due regard to subclause (7).

It had been proposed that subclauses (3) and (5) form a separate clause. Subclauses 1, 2 and 6 would remain as they currently were.

Mr George had an issue with clause 8(b). He said that at last week’s meeting he was told by the  Chairperson that the council members had other jobs and responsibilities and so they were not holding regular meetings. Furthermore the Chairperson did not see anything wrong with this. In relation to clause 8(4) he felt a time period should be stipulated, like six months, for the Minister to find a replacement for a councillor if she/he ceased to hold office. The problem with appointments was that these could take longer than would be considered “reasonable”. 

Mr Ndlovu thought there was a need to stipulate dates for Council meetings – the Bill referred to “three consecutive meetings” and he thought that perhaps one meeting per quarter should be held. He also agreed with Mr George on the stipulation of a six month time frame for the Minister filling a vacancy, as this time would allow the Ministry to meet to make an appointment.

The Chairperson responded that the Bill was making provision for one meeting per quarter. She also agreed with specifying a time frame for the appointment. She felt this clause was written too widely and there should not be room for discretion.

The Chairperson also had a problem with clause 8(5), referring to the filling of the vacancy for the “unexpired portion of the former councillor’s term of office”. If this was a suitable person for appointment, the question was why they should not sit for a full term. This would allow for consistency. She also felt the five year period for the Council was too long.

Mr Ndlovu questioned the idea of continuity.

The Chairperson explained that there was a need to look at the individual, rather than tie it specifically to the Council.

Mr Stubbe commented that it had been a long time since the Committee had worked on the Bill, but his recollection was slowly returning. He was unsure if the idea of specifying one meeting per quarter could work. He concurred that five years was too long, and suggested a three year term, at most.  Looking at the proposal to regroup some of the subclauses into separate clauses, he asked if this document could be cleaned up so that the Committee could see how it would look in a revised format.

The Chairperson said this was would be done on the following day. This meeting was really held to refresh Members’ minds and to get clarity ahead of the following day’s meeting. The Department would indeed have to clean up the document after tomorrow.  

Mr Ndlovu said it was important to ensure that there was continuity.

The Chairperson clarified that Mr Stubbe agreed with not appointing a councillor for the remainder of the term, but his concern lay with the three consecutive meetings. She added, however, that a person making himself available for the position should know there were four meetings that he had to attend,  to ensure the Council was well governed. These meetings would be made known well in advance, and the person must ensure availability to attend. It was not possible to make a special dispensation for a person claiming that his programme was too full and he could only attend one of those four meetings in a year. She echoed the concerns about the timeframe issue, and felt that appointing someone for just the unexpired period did not make sense. The Members needed to decide if the Bill was clearer as it was currently written, or if certain subsections needed to be regrouped as the Researcher suggested. She noted the Committee had asked for the five year term, but asked Members to consider whether, with the benefit of hindsight, three years might be better

Mr George and Ms Molebatsi thought five years was acceptable.

The Chairperson noted that the problem with that was that, as the Bill was currently worded, the person could then serve an additional term. This could amount to ten years then. It was important to think about that also, because most of the authority now would be lying with the Authority.

Clause 9: Functions of council and chairperson
Ms Van Zyl-Gous turned to clause 9(c) noting it made reference to the Levies Act but perhaps the Public Finance Management Act (PFMA) should be mentioned there too.

She noted that in clause 9(2) the words “(The chairperson) (a) may, subject to ratification by the Council, exercise any power of the Council or fulfil any of its duties;” was proposed for deletion. She noted that during the last deliberations on this Bill, Members did not reach consensus on what would happen if the Council could not convene, and whether the Chairperson would be allowed to take his own executive decisions.

The Chairperson noted that if there was no longer a full-time Chairperson there would be justification to give the authority to the Council. She reminded Members that during the last Council term, decisions were ratified after they were taken. She thought this was a dangerous provision to have and strongly argued for its removal, as had been suggested.

Ms Van Zyl-Gous noted that clause 9(2)(e) stated that the Chairperson “may attend meetings of the senior management of the staff of the Authority”.  The question here was why only the Chairperson could attend these senior management meetings, and not other members of the Council.

Mr Stubbe thought this provision should be taken out completely as it could lead to undue influence.

Mr George agreed, especially if the Chairperson was no longer full-time.

The Chairperson pointed out that in clause 9(2)(d) it was stated that the Chairperson “must provide strategic direction to the director and the Council”. She thought the direction should be provided by the Council, and not by the individual.

Mr Stubbe agreed with this clause as the Council was meant to give direction and the Chairperson was the head of the Council. He suggested the wording could be changed so that it read that the Council must give direction to the Authority.

The Chairperson agreed it must the Council which provided strategic direction to the Authority, and obviously this would be through the Chairperson – she did not think this would have to be specified.

Mr Stubbe highlighted that this clause did deal with the functions of the Chairperson. He did not disagree with the Chairperson but felt the wording must be corrected.   

Clause 10(1A)(b): Accountability of Council
Ms Van Zyl-Gous turned to clause 10(1A)(b)(vii), which referred to “information for criminal complaints relating (sic) security service providers reported to the Service by the Authority”. She thought the clause should rather refer to criminal investigations instead of criminal complaints. Also the word “to” needed to be inserted for the clause to read “information for criminal complaints relating TO security service providers reported to the Service by the Authority”. The Service stated here was the South African Police Service (SAPS).

Mr George questioned the observations made which could lead to criminal complaints.

The Chairperson said this clause was specifically referring to observations which had been made and which led to a criminal investigation, so it was not excluding observations alone. She explained that many complaints were unfounded. This clause was referring to complaints which were well-founded and actually led to investigations.

Ms Van Zyl-Gous highlighted clause 10(1A)(b) (viii) which now referred to “a report in terms of the Public Finance Management Act to the Minister”. She noted that the word “monthly” had been removed, and Members could ask why the time provision was taken out.

Mr Stubbe could not understand why the time bound provision was simply taken out, because it was a requirement of the PFMA.

Mr Stubbe was further concerned about clause 10(1A)(b)(vi) which referred to “instances in which firearms were discharged by a security officer”– he thought it would be ridiculous to try to legislate around discharge of a firearm, because it was something which could not be legislated or controlled. He suggested that it would be necessary to go through the Bill very carefully to take out any wording which really did not make sense.

The Chairperson took his point but noted that this clause dealt with cases where death or injury occurred as a result of the discharged firearm.

Mr Stubbe withdrew his comment if this was the case, but still wondered how this would be checked.

The Chairperson said the problem was that a security provider needed to have a licence for using firearms, through PSIRA registration. Based on the certificate from PSIRA, the provider would then apply in the normal way for firearm licences through SAPS. She took his point on the need to go through the Bill carefully.

Insertion of clause 12A: Secretariat
Ms Van Zyl-Gous noted the insertion of the new clause 12A(1) which read: “The Chairperson must appoint a secretariat consisting of not more than three members”. The secretariat must perform administrative and secretary functions pertaining to the Council in terms of this Act. A member of the secretariat appointed by the Council may be paid, from the funds of the Authority, such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance”.

The Chairperson reminded Members the reason for this clause being inserted was that in the absence of a full-time Chairperson, the Secretariat must prepare for Council meetings.

Mr Stubbe asked if the members of the Council could be appointed at the level of a Director-General, or what other level.

The Chairperson said this point would be put to the technical team tomorrow.

Mr George wondered if it was not better for the Accounting Officer to sit on the Council.

Mr Ndlovu recalled why this clause was included – saying it was for the secretariat to act as minute-takers and book-keepers, to ensure that Council ran smoothly. These were the technical behind-the-scenes people preparing for meetings, who knew exactly what needed to be done.

The Chairperson thought the Committee could consider an alternate suggestion. The question was also where the secretariat would be housed. It might be said that the Council must provide the Authority with a full time secretariat, but she took the points of the Members and felt this needed to be discussed further, for clarity.  

Mr Ndlovu was hesitant about saying the Council must provide the secretariat. He felt the secretariat needed to be independent of both bodies.

The Chairperson took this point but also agreed with Mr Stubbe that there needed to be levels of knowing what happened with the Council’s salaries. 

New clause 16(1)(b): Finances of Authority
Ms Van Zyl-Gous highlighted the inclusion of clause 16(1)(b) “money that may be appropriated by Parliament where necessary, appropriate and justifiable”.

The Chairperson said the sentence did not make sense, so it needed to be explained tomorrow by the technical team. The Authority received funding through levies, fines and, as the Committee also heard last week, the Authority had an interest account of R40 million. 

Clause 16A: Annual report
Ms van Zyl-Gous turned to clause 16A(c) which referred to “a report on the activities of the Authority undertaken during the year, to which the audit relates, including matters referred to in clause 10(1A); and pertaining to the exceptions granted or refused and the reasons. She said this clause should be expanded, as there were cross references with other sections and provisions made.

The Chairperson said this should be referred to the technical team. The team consisted of the Secretariat but members of PSIRA too. She said clause 16A(c)(ii) should not be a standalone reference, but should be added under clause 10.

Mr Stubbe asked if there was there a timeframe for when the Annual Report must be submitted.

The Chairperson said it was dealt with under clause 16A(3) although the clause should be more specific. The timeframe must be according to PFMA requirements, similar to other government departments.

Ms Van Zyl-Gous turned to clause 16A(4), which said that the Director must publish the annual report, financial statements and audit reports on those statements, once tabled in Parliament. She suggested that Members ask where exactly these reports would be published and how they would be made publicly available.

The Chairperson said this should become clearer once there was more clarity on the preceding clauses.

Chapter 3: Registration as Security Service Provider
Clause 20: Ownership
Ms Van Zyl-Gous pointed out that clause 20(2)(c) which dealt with the ownership of private security companies had now been taken out.

The Chairperson noted this was the issue of foreign ownership.

Ms Van Zyl-Gous noted also that the provision saying that the names of the companies granted exceptions must be published in the Government Gazette, was removed.   

The Chairperson said there could not be no reporting on the exceptions unless the drafters could provide a very good reason as to why this subsection was removed. The Minister must be obliged to report on exceptions.  

Clause 20A: Exception Advisory Committee
Ms Van Zyl-Gous noted clause 20A(6)(b), and said that the word “the” needed to be deleted.  

Clause 26: Suspension, withdrawal and lapsing of registration
Ms Van Zyl-Gous noted clause 26(1) which presently said: “The Authority may suspend the registration of a security service provider if-“. She thought the Committee might consider changing the “may” to “must”.

Ms Molebatsi agreed.

The Chairperson said she tended to lean towards using “must” but the Committee would have to ask the drafters for their rationale.

Mr George was not convinced yet but it would be debated. It was important to remember there was a lot of litigation in this industry. He felt the implications of changing to the word “must” should be carefully considered.

Mr Stubbe agreed on that point.

The Chairperson explained there were some requirements which had to be reflected as “must” and requirements that could use “may” – there was a need for clear differentiation and something not overly-broad.

Ms Van Zyl-Gous turned to clause 26(1)(b), which stated that:  “the security service provider fails to comply with the obligation to pay the levy in terms of clause 4 of the Levies Act”. She suggested the Members look at stipulating a timeframe here, given the large numbers of registrations pending because of non-payment of fees. A timeframe of maybe 90 days could be considered.

The Chairperson agreed that this could be considered.

Ms Van Zyl-Gous also thought that clause 26(9) might need clarification. 

Mr Ndlovu noted the Committee came up with a timeframe. 

The Chairperson said the issue was about blurring of lines between responsibility of the Council and Authority and the technical team should look at this.

Mr Stubbe thought the function to inform the Minister lay with the Authority, and not the Council.

Mr George thought the change to the Council meant this responsibility automatically went to the Authority, as there could not be two groups of people responsible. The Council should report on issues of oversight to the Minister, while the Authority was responsible for the functions outlined in this section.

The Chairperson took these points but said clarity was needed from the technical team as to the line of reporting, and she quite frankly did not think that the technical team had looked closely at this point. Perhaps the solution was for the Authority to report, and the Council to present the Report to the Minister.

Chapter 4: Proper Conduct and Appeal
Clause 30: Appeal against decisions  
Ms Van Zyl-Gous noted that in clause 30(2) the phrase: “for every appeal and” had been proposed for deletion but the “and” needed to remain in the subsection.

Chapter 5: Monitoring and Investigation
Clause 32: Code of conduct for inspectors
Ms Van Zyl-Gous turned to clause 32(4), which read:  “The Authority must include any penalties imposed under subsection (3) in the Annual Report”. She suggested insertion of the words “information on” so that the clause reads “The Authority must include any INFORMATION ON penalties imposed under subsection (3) in the Annual Report”.

The Chairperson said this would allow for more detail than just the amount of penalties.

Chapter 6: General Provisions
Clause 35: Regulations
Ms Van Zyl-Gous noted that clauses 35(1)(eA) and (g) dealt with the guidelines for insignia, emblems, titles or symbols of security companies. It was suggested these two subsections be combined into one provision.

The Chairperson thought there was general agreement on this.

Clause 38: Offences and penalties
Ms Van Zyl-Gous pointed out that the clause 38 (3)(a-h) offences contemplated were more severe and carried a more severe penalty than the others listed, which were less severe and carried less severe penalties.

Clause 39: Extra territorial application of Act and jurisdiction
Ms Van Zyl-Gous noted that in clause 39(2)(b), the word “and” at the end of the clause should be replaced by the word “or”. The clause should then read “Any offence in terms of this Act is, for the purpose of determining the jurisdiction of a court to try the offence, deemed to have been committed- (a) at the place where it was actually committed; (b) at the place where the accused is resident; OR (c) at the place where the accused conducts his or her business”. This clause could also be engaged with, as it was a bit vague.

The Chairperson highlighted that there was a note which said “NB: Check clause with State Law Advisors”.

Memorandum on the objects of the Bill
Ms Van Zyl-Gous noted that paragraph 2.1 read: “The Bill seeks to give effect to the government White Paper on Peace and Security to strengthen the legislation and regulatory framework of the private security industry”. She suggested this clause be removed. The White Paper on Peace and Security was not yet completed.

The Chairperson said the Members should ask about the status of this statement tomorrow.

Ms Van Zyl-Gous provided a summary of all the issues needing clarity from the technical team. These included the progress report on the status of consultation of key stakeholder departments regarding the ownership issue, and whether the official translation of the Amendment Bill was done. She reminded Members that last year it was not done, so the Committee requested the Secretariat’s technical team to look at this.

The Chairperson said this was important. Before the meeting started to go through the Bill in detail, the Department and Secretariat’s drafters should brief the Committee on the consultations which took place, what the outcome was and if there were any outstanding matters. She reiterated that the hotly-debated clauses on ownership had been removed, so this was no longer an issue, but this did not mean the drafters may not come back with something else. However, at this stage, it was not part of the Bill.

Mr George was worried about the consultations. He said that the committee had been told that consultations had been done before, whereas they had not.

The Chairperson reminded Members about the problems with the Bill when it was first introduced, since PSIRA had tried to draft it on their own. The Committee then wrote to the Minister requesting that a technical team, under the guidance of the Secretariat, be appointed to redraft what was drafted and take part in the consultation processes. She took the Members’ concerns very seriously as it impacted on Parliament’s work. It was also a waste of time if a department did not do consultations as stated in the Memorandum. If this happened again, the Committee would have to apply its mind as to what it would do and whether to send the Bill back again.

Mr Ndlovu asked who would be leading the discussions.

The Chairperson replied that after the Committee’s intervention and letter written to the Minister, a technical team was appointed and this team would lead tomorrow from the Secretariat.

Committee Business
The Chairperson noted that the Budgetary Review and Recommendation Reports (BRRR) on SAPS and the Independent Police Investigative Directorate (IPID) would be distributed to Members during the day, for adoption on the following morning. She requested that Members go through the Reports carefully, as she would go through them page by page. Once the Reports were adopted the Committee would then start with the legislation. It would be breaking for the Medium-Term Budget debate at 14h00, and reconvening thereafter, as the Committee had permission to meet.

The meeting was adjourned. 


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