The South African Police Service (SAPS) technical team took the Committee through a working document of the Private Security Industry Regulation Act from section 16. The Committee debated, discussed and thrashed out proposed amendments, deletions and insertions to the Bill as following dialogue from previous meetings into the consideration of this Bill.
Under chapter 3: regulations as security service providers and the section dealing with categories of security businesses, the Committee questioned response security, timelines around the tabling of notices in Parliament, capturing of in-house security, that the categories were covered in the definitions and sought detail on security advisors.
Under the renewal of registration, the Committee debated, particularly, the implementation of the process of renewals, bringing in the processes of administrative justice, to prevent a one-sided approach and the obligation of PSIRA to remind security service providers as Members were concerned that the obligation for renewal would be placed on the security service providers with no obligation for PSIRA to execute.
Around the suspension, withdrawal and lapsing of registration, Members agreed the section was too broad, affected the whole company and there were concerns about the impact on employees of suspending a licence when the investigation was still running. Members thought the section would be open to litigation but at the end of long discussion, there was consensus that crux was that there were disqualifying criteria and if a company was found guilty on those criteria that they would lose their license to operate.
Under chapter 5: monitoring and investigation and the appointment of inspectors, the Committee conversed around the intention of the section and payment of consultants given PSIRAs history of appointments. Members thought the section was too wide and the Committee suggested the technical team relook at the previous draft of this section because it gave good direction on the need for a specialist inspection, for a specific period of time, in writing and according to certain criteria for the funds therefore. The team was to redraft this and come back to the Committee on this issue.
For the powers of inspectors relating to security service providers, the Committee questioned the difference between private dwellings and business premises in the obtaining of a warrant for inspection and seizing of items. Members felt “private dwelling” was not detailed enough and were concerned about the rights of inspectors and possible interference in a criminal case to be handled by the SAPS.
Under chapter 6: general provisions and regulations, Members queried the timeframes for the issuing of guidelines and regulations, undergoing of obligatory training and the regulation of uniforms.
A lot of discussion was held around security services rendered outside the Republic. Members debated the application of the Act to non-South Africans deployed to another country, that the onus was on the individual being deployed to inform PSIRA, how PSIRA would regulate this section, checking of criminal records, the length of time to inform PSIRA and reference to other Acts in this section.
The team then reread this version of the working document of the Bill of page one through to the section dealing with annual reports, where the Committee had begun today’s meeting. From this reading discussion was held on two main areas- (1) appointment and functions and of the secretariat where Members considered the number of members on the secretariat, functions of this secretariat, level of appointment and salaries and lines of accountability. The second issue debated was the delegation of powers and duties by the director.
The Chairperson was very uncomfortable and unhappy with the fact that the executive director from PSIRA was not present and that she received an apology on the day of the meeting dealing with their own legislation. She asked the representative present from PSIRA to phone the executive director to inform him that he must be at tomorrow’s meeting. She did not want a situation where PSIRA turned around and said that the Committee did not hear from them. When the Committee dealt with legislation from the police, people from that environment were present throughout the process and the Committee expected the same from PSIRA. She said received records of the meetings of the technical committee to monitor the presence of those involved and again the Council and executive director were absent during those meetings. The simple fact was that the Committee would not pay for the flight and hotel accommodation of people who were not prepared to work. It was important because the technical team needed to be informed by PSIRA on some matters. She would write a letter to the Minister on this regard as it was not on.
Gen Phillip Jacobs, SAPS Head: Legal Support and Crime Operations, noted the technical team had redrafted this section in line with the Committee wanting to look at monthly and quarterly reports in terms of the Public Finance Management Act (PFMA) and number of meetings of the Council to read 16 (3) “The Minister must table in Parliament a copy of the annual report, financial statements and the audit report on those statements as required by the Public Finance Management Act” with an insertion under (4) to read “The director must publish, including on a medium accessible to the public, the annual report, financial, statements and audit report on those statements once tabled in Parliament”.
The Chairperson felt that “on a medium” made it sound like it was only in electronic format.
Gen Jacobs replied that they could make it “in a medium”.
The Chairperson agreed so that it covered the possibility of newspapers etc.
Gen Jacobs noted that sections 17, 18 and 19 were then deleted from the Act because they related to issues from the PFMA which would now regulate the Authority.
Chapter 3: Registration as Security Service Provider
Gen Jacobs explained the team had taken out all the different colours to make for easy reference. The text highlighted in yellow were issues they had to come back to while all the other text amended were in red font and the proposal was to focus on the section highlighted in yellow.
Obligation to register and exemptions
Gen Jacobs noted 19 (5) where there was one too many “after” in the subsection. He proposed deleting the second “after” to make for easier reading. The subsection would then read “The Minister may, after taking into consideration the recommendations of the Exemption Advisory Committee referred to in section 20A, by notice in the Gazette exempt any- (a) security service provider or security service provider belonging to a category pr class specified in the notice, either generally or subject to such conditions as may be specified in the notice, from the operation of any provision of this Act; or (b) service, activity, practice, equipment, person or entity from any provision of this Act, as long as it does not prejudice the achievements of the objects of this Act”.
The Committee was satisfied with this amendment.
Application for registration
Gen Jacobs noted 21 (1) “An application for registration as a security service provider must be made to the Authority in the prescribed manner and must be accompanied by – (b) the application fee as determined by the Council (bA) a certified copy of a valid identity document of a person referred to in paragraph (a); (bB) a design, sketch or photograph of the security service provider’s insignia, emblem, title or symbol whether on a uniform, vehicle or otherwise; and (bC) a colour sketch or photograph of the security service provider’s uniform”.
The Chairperson and Committee was satisfied that the amendment covered the Member’s concerns about uniforms not be adequately scrutinised.
Categories of security businesses
Gen Jacobs noted this was an entirely new section inserted per the Committee’s request. 21A (1) “The Authority may register a security business meeting the requirements in sections 21 and 23 under any one or more of the following categories- (a) guarding; (b) close protection; (c) response security; (d) assets in transit; (e) event security; (f) manufacturers, importers and distributors of listed equipment defined in the Interception of Communications and Provision of Communication –related information, 2002 (Act No 70 of 2002); (g) private investigators; (h) security training; (i) electronic security; (j) locksmiths; or (k) security advisors (2) The Minister may, by notice in the Gazette, determine additional categories of security businesses (3) The Authority must determine training standards in respect of the categories referred to in subsection (1) (4) A notice referred to in subsection (2) must be tabled n Parliament for notification.
Mr D Stubbe (DA) asked if the closed protection referred to VIP protection also under 21A (1) (b).
Gen Jacobs responded that this was correct.
Mr V Ndlovu (IFP) questioned what response security was under 21A (1) (c).
Gen Jacobs explained this was like basic home security providers responding to alarms.
Mr Ndlovu asked when a notice referred to in 21A (4) must be tabled in Parliament.
Gen Jacobs said the team would align the wording to link to the period that was generally used for tabling in Parliament.
Mr G Lekgetho (ANC) sought detail on security advisors under 21A (1) (k).
Gen Jacobs said there were normally advisors looking at the enterprise or business to identify gaps and what types of security were needed. This was also usually related to the costs involved with the number of options given to the company, what was needed and what was affordable etc.
The Chairperson asked if in- house security was being captured in this section for instance a mining company having their own security company.
Gen Jacobs understood that this section outlined the categories needing to be registered.
The Chairperson reframed her question for example if de Beers had their own security arm would they have to register with PSIRA?
Ms Irish-Qhobosheane, Secretary of Police, replied that in-house security was covered earlier in the Act but such a security arm would also have to register their guarding.
Ms M Molebatsi (ANC) asked if this included cash-in-transit (CIT).
The Chairperson thought this was assets in transit.
Gen Jacobs replied that it was and this was covered under the definitions.
The Chairperson asked if all these categories were now covered in the definitions as they would most probably have to be defined.
Gen Jacobs was not sure if this was really necessary because basically the same list of categories were in the adopted Mercenaries Act without a definition for each and every one. He thought the normal dictionary meanings would pertain but the team could look at problematic categories which might need some explanation so a definition could be inserted for them.
The Chairperson was comfortable with this but wanted to be sure the problematic categories were included in the definitions.
Renewal of registration
Gen Jacobs noted the team decided it was wise to retain this section in the Act given all the benefits of renewal highlighted to the Committee. This would also be addressed in the transitional provisions to ensure that there was no obligation in terms of regulations until a policy decision was made. A number of amendments were made to this section: 22 (1) The Minister nay prescribe procedures in respect of the renewal of registration by registered security service providers and the conditions and requirements for the granting of such applications (2) (a) The registered security service provider must apply for the renewal of the relevant category of registration within the period determined by the Minister by notice in the Gazette (b) Different periods may be determined in terms of paragraph (a) in respect of different categories of security businesses for registration (c) If an application for the renewal of registration has been lodged within the period contemplated in subsection (2), the registration remains valid until the application is decided (3) An application for renewal of a registration contemplated in subsection (1) must, in addition to any requirement in terms of this Act, be accompanied by – (a) a certified copy of the existing registration certificate; and (b) such other information as may be prescribed (4) The registration of any security service provider, who fails to apply for the renewal of registration before the end of the period determined by the Minister in terms of subsection (2), lapses, subject to compliance within section 26 (5)”.
The Chairperson questioned 22 (1) “The Minister may prescribe procedures…”- the “may” should be a “must” and she wanted the team to move away from the term “prescribe procedures” toward “regulate”. She reminded Members there was a long discussion on this issue talking about the advantages and disadvantages of having renewals.
Mr Ndlovu sought elaboration on 22 (4) as he wanted to know what the subsection really meant.
Gen Jacobs said it meant that if the Minister decided on a period in which the renewal had to take place and the security service provider did not renew within that stipulated period, at the end of that period the registration would lapse meaning the business could not continue until application for registration started from scratch. This subsection was to really enforce the idea of renewal.
Mr M George (COPE) thought they would have to deal with how to implement the renewals because this was where there had been a big failure and why there were so many unregistered security companies and officers. Without a properly crafted plan for implementation, this subsection would just be words on paper.
The Chairperson indicated some of these issues would be dealt with in the transitional arrangements. She added that the administrative justice obligation of PSIRA to complete these renewals in a certain period of time needed to be considered otherwise it would be a one-sided approach where the obligation for renewal would be placed on the security service providers with no obligation for PSIRA to execute.
Mr Ndlovu asked why PSIRA was not included in this subsection or if they would be addressed in another paragraph. He felt there should be some obligation for PSIRA to remind security service providers to renew similar to the process of renewing a TV licence.
Ms Irish-Qhobosheane said a period for the application of renewals would need to be looked at because there was a problem of backlogs at the central firearm registry where renewals were just not being dealt with.
The Chairperson asked the team to draft something in line with the administrative justice process in relation to PSIRA.
Gen Jacobs mentioned the reference to section 26 (5) in 22 (4) did relate to administrative justice procedures but he had heard the Committee and would look at the obligation of PSIRA.
The Chairperson thought Gen Jacobs was correct but the section still did not address the obligation of PSIRA to come back to the service provider to inform them about the outcome of the renewal. She asked that this either be inserted in section 22 or added to section 26.
Requirements for registration
Gen Jacobs noted 23 (1) “Any natural person applying for registration in terms of section 21 (1), may be registered as a security service provider if the applicant is a fit and proper person to render a security service, and – (c) had complied with the relevant prescribed training requirements in respect of any particular category referred to in section 21A (h) is not currently employed in the public administration”. He noted public service was changed from public administration because it was a wider concept. There was proposed insertion under 23 (2) of (c) “such security business furnishes information on the nature, scope and activities of the security business with reference to the categories referred to in section 21A”.
Ms D Kohler-Barnard (DA) noted the training requirements supposed to be prescribed in 21A as referenced in 23 (2) (c) was not there.
Gen Jacobs responded that section 21A was the categories while the training would be outlined in the section on the regulations.
Ms Kohler-Barnard queried this because if it fell under regulations, the Committee had asked to see the regulations and she had still not seen them. She was weary of this because it was inevitably the regulations would slow down the actual implementation of legislation so she was very keen to see the regulations and the training prescribed in them.
The Chairperson thought 23 (2) (c) should refer to section 21 (3) so that the entire section was not referenced but just the specific part dealing with training. She noted it was clear the Committee did have a problem with the regulations as they had been carried through the discussions on the principle Act. She asked PSIRA if the regulations were there.
The PSIRA representative indicated the regulations were there and he thought some of the regulations were sent via email to the Chairperson.
The Chairperson hoped they were sent to the Committee secretary and not to her personal email because that it did not mean it would reach the Committee.
Gen Jacobs did send the regulations to the Chairperson’s email address unfortunately.
The Chairperson requested they be sent to the Committee secretary to make copies for the Members.
Ms Irish-Qhobosheane indicated they had hard copies present and would give them to the Committee secretary.
Suspension, withdrawal and lapsing of registration
Gen Jacobs noted 26 (1) The Authority must suspend the registration of a security service provider if there is a prima facie case of – (a) improper conduct in terms of this Act; or (b) the commission of an offence referred to in the Schedule; - (i) pending the conclusion of an investigation or enquiry by the Authority into improper conduct; or (ii) pending the conclusion of the criminal investigation by the State into the offence of that security service provider; or a determination by the prosecuting authority or the finalisation of criminal proceedings in regard to the offence (1A) The Authority may suspend the registration of a security service provider if – (a) the security service provider fails to comply with the obligation to pay the levy in terms of section 4 of the Levies Act; and (b) the security service provider fails to comply with any other provision of this Act”. He explained the team made the differentiation between the “must” and “may” and had rearranged the section. They might still another insertion to bring in the process of administrative justice as per the last discussion with the Committee on this section and observations made by Members.
The Chairperson asked if 26 (1) (i) and (ii) were not too broad as the business licence of a company was being suspended not like a state official and the suspension of the licence affected the lives of thousands of people and she was worried about this. She did not have a problem with a prima facie case where the national prosecutor had decided to prosecute but could they really suspend the business licence while the investigation was going on.
Mr George asked what happened if the investigation was done and no wrong doing was found by this company. He felt they were opening themselves to litigation if companies lost money and jobs were lost and he was concerned about how this could be avoided
Ms Kohler-Barnard agreed these subsections were way too broad. She asked if the criminality had to be against the entire company or against one director.
The Chairperson was well aware that the Committee had asked for the differentiation between “must” and “may” but it was not the intention of the Committee to be this broad. The Committee’s line of emphasis was more that the company licence must be automatically suspended after they had been found guilty in a court of law like with SAPS members found guilty on criminal acts. The Committee did not want PSIRA to have the discretion after a finding by a court of law to decide on whether the company was to be suspended or not. This was the intention of the Committee and she asked that the team relook at this section.
Ms Kohler-Barnard highlighted there were also potential problems with 23 (1A) (a) and how PSIRA would be proved that a company did not pay the levy.
The Chairperson said that subsection spoke more to the payments of individual security officers.
The PSIRA representative indicated this was correct.
The Chairperson did not really see a problem with 23 (1A) (a) because there was a “may”.
Mr Ndlovu thought this paragraph must be very clear in distinguishing between the director and company employees as people must not suffer when taking action if only one director had committed a wrong doing.
The Chairperson said the problem was that it was the individual who registered the company and there were requirements around the individual. While the individual officer at the company might not lose its accreditation, the company might get shut down. This was the same as with financial institutions. She agreed that more clarity was needed though.
Mr George said they must be sure they do not make people suffer only to later discover there was no case otherwise they were opening themselves to litigation.
The Chairperson thought the technical team got the drift of what the Committee wanted. The crux was that there were disqualifying criteria and if a company was found guilty on those criteria that they would lose their license to operate.
The Chairperson noted they did not deal with the changes made to 26 (9).
Gen Jacobs noted the changes made to 26 (9) were as per the Committee’s request to read “The Authority, through the Council, must report any suspension or withdrawal of registration made in terms of subsection (7) and any upliftment of suspension of registration made in terms of subsection (8) to the Minister within 30 days of the suspension, withdrawal or upliftment”. There was also the inclusion of 26 (10) “The Authority must include any report referred to in subsection (9) in its annual report”.
The Committee was happy with these amendments.
The Chairperson also noted they did not discuss changes proposed for section 30 (4) and (5). She urged Members to not leave it up to her to check that these issues were covered.
Gen Jacobs proceeded with 30 (2) “An appeal committee contemplated in subsection (1) is appointed by the Minister [delete for every appeal] and consists of - (A) a person with not less than five year’s experience as an attorney, advocate or magistrate, who is the presiding officer, and may also include (b) two other persons if [delete it is] considered appropriate by the Minister (2A) (a) An appeal committee is appointed to function on a part-time basis for a period not exceeding three years on such terms and conditions as determined by the Minister (b) A member of the appeal committee may resign by notice in writing to the Minister (4) The procedure in connection with the lodging and prosecution of an appeal in terms of this section must be prescribed by the Minister through regulations (5) The amounts payable by an appellant to the Authority in respect of the reproduction of records and related matters in the lodging and prosecution of an appeal must be prescribed by the Minister through regulations (8) All costs related to the appeals procedure must be borne by the Authority”.
Ms Kohler-Barnard asked if the actual appeals process would be seen in the regulations and if certain determinants in the appeals process would be seen in the regulations or the Act.
Gen Jacobs responded that the appeals process was pertained in the regulations.
Chapter 5: Monitoring and Investigation
Appointment of inspectors
Gen Jacobs noted a proposal under 31 (5) (a) “The director may appoint any person, who is not in the full-time employment of the Authority, to assist an inspector with a particular inspection” (b) Any appointment made in terms of subsection (5) (a) must be included in the annual report referred to in section 16A”.
The Chairperson asked Members if they were satisfied this was enough. She did not have a problem with what was drafted under this section but she was concerned about the history of appointments in PSIRA with ridiculous amounts. She wondered whether these appointments should at least be reported to the Minister.
Mr Stubbe said it might be clearer if they could determine which type of inspections might need assistance and on what grounds.
The Chairperson asked PSIRA to respond to that question.
The PSIRA representative was not aware of any situation where expertise was used outside of the employment of PSIRA besides when they used the police.
The Chairperson asked what the intention of this subsection.
Ms Irish-Qhobsheane thought they intention when the legislation was drafted was that they may need forensic or auditing computer skills for investigation into a company which the inspectors may not have. PSIRA may or may not have made use of this provision but it was the intention.
Ms Kohler-Barnard said the issue here was payment of consultants. She understood the need for a forensic consultant but thought the cost of such services should surely be predetermined somewhere as it could not just be made up. She asked if this was so or was it just wishful thinking on her part.
Mr Ndlovu suggested inserting something along the lines of “consulting with the Minister” in this subsection to determine the scope.
The Chairperson understood the need for this section even thought it was not being used by PSIRA, and she was not surprised at that either, but this section was extremely wide. She highlighted a consultant was hired last year to draft the annual report and it was most probably the worst the Committee had seen and they were made to understand that same consultant was now a researcher. She felt such an appointment should be reported to Council and even to the Minister. The aim was not to get the Minister involved in each and every one of these appointments as that would be impossible but some form of responsibility was needed. It should be explicit to say in writing with some sort of set fee.
Ms Irish-Qhobosheane said the team would look at recommendations made by Committee and the Auditor-General earlier in the year on a presentation of the use of consultants in SAPS to include in this section.
The Chairperson noted the section was redrafted but the previous draft was looking better as it was specific in saying the appointment was for a particular inspection with specific expertise. She asked the team to relook at that.
Mr Stubbe noted that PSIRA could not arrest but if they wanted to seize computers should that not be done through proper policing.
The Chairperson responded that it must be through a warrant obtained from court.
Mr Stubbe suggested the section be drafted to say that after a warrant was obtained then they could make use of a specialist to assist.
The Chairperson understood that but they might need a specialist before a warrant was obtained to give information which could then be used to obtain that warrant. She suggested the team relook at the previous draft of this section because it gave good direction on the need for a specialist inspection, for a specific period of time, in writing and according to certain criteria for the funds therefore. The team was to redraft this and come back to the Committee on this issue.
Code of conduct for inspectors
Gen Jacobs noted 32 (4) “The Authority must include information on any penalties imposed under subsection (3) in the Annual Report”.
The Chairperson had a note that this section be moved to the section on the annual reports but if the team was comfortable with it here it could remain.
Gen Jacobs thought it was function to have this section here.
Mr George questioned the penalties under this section and asked if it had to stipulate how much had been collected in penalties.
The Chairperson replied it would be included in the financial statements contained in the annual report. She cautioned about being too specific although nothing was stopping the Members from asking those questions when they appeared before the Committee. Because penalties changed all the time they would be in the regulations.
Powers of inspectors relating to security service providers
Gen Jacobs noted the new insertion under 34 (1) “In order to carry out an inspection of the affairs of a security service provider or another person contemplated in section 33, an inspector may at any reasonable time- (a) without prior notice, subject to subsection (6), enter any premises…”. Section 34 (6) stated “An inspection of private dwellings may only be carried out when authorised by a warrant issued by a competent court”. Under 34 (3) (b) “and matters incidental thereto” had been deleted so the clause read “An inspector may use the powers in terms of this subsection only to serve the purposes of this Act”.
Ms Kohler-Barnard suggested the references to subsection 6 in 34 (1) (a) be specific to say 34 (6) to absolutely pinpoint the reference.
Gen Jacobs noted the reference was within the same section.
Mr George asked if 34 (6) as it currently stood defeat the aim of “without prior notice”. By the time they went to court and obtained a warrant, the people would already know about the inspection.
Gen Jacobs explained that it would be an exception if a private dwelling was involved as it would normally be business premises but a warrant was needed before inspecting a private dwelling.
Mr Stubbe said this was correct.
Mr George heard this but the way the subsection was drafted did not make it sound that way.
The Chairperson noted the section said that a warrant was needed to inspect a private dwelling and a warrant would also be needed if they seized computers etc.
Mr Stubbe added section 34 (1) referred to business premises which may be entered into without prior notice at any reasonable time while 34 (6) referred specifically to private dwellings where a warrant was needed.
Ms Kohler-Barnard thought the phrase “private dwelling” was not detailed enough as it could be anybody’s house. She asked if the intention was that some evidence was hidden in a private home or that the security company was guarding the dwelling adequately or running a business from it or what? She did not understand this provision at all.
The Chairperson said the entire section should be read for full understanding of the provision. She highlighted 34 (3) (b) which made it clear that “An inspector may only use the powers in terms of this subsection only to serve the purposes of this Act” so if it was done for any other reason they were liable and would be sued.
Ms Kohler-Barnard asked what rights the inspectors had to take action if for instance firearms were found. Could they shut the house down, order everyone out or seize it? She felt this would be possible interference in a criminal matter which the SAPS should be running.
The Chairperson reiterated the entire section should be read in order for understanding. Section 34 (3) (a) made it clear the inspector was a peace officer in the Republic of SA so they had certain rights and none of what they would do would be wrong but criminal investigations would be conducted by SAPS.
Gen Jacobs agreed. He highlighted 34 (2) “Any person from whose possession any item contemplated on subsection (1) has been removed, or otherwise to the satisfaction of the director or an inspector proves a right of ownership or possession in respect thereof, may during normal office hours be permitted by the director or inspector to investigate or examine the item in question, or extracts from any such record or document, under circumstances necessary to protect the integrity of any such record or document, under circumstances necessary to protect the integrity of the item in question (3) (a) An inspector in respect of any provision of this or any other law applicable to security service providers is deemed to have been appointed a peace officer by the Minister of Justice on terms of section 334 of the Criminal Procedure Act…”. These subsections spoke to the powers of an inspector and which they may exercise.
The Chairperson emphasise that Members needed to read the entire section for understanding as it was clear what the inspector may or may not do, what they may or may not inspect, what they could look for etc. She felt the section was specific but was concerned about the fact that inspectors could remove items without a warrant and she asked the team to look at inspectors least having a warrant to remove items from the premises of a security company. If the warrant was not necessary it was fine but an opinion was needed in order to be sure.
Chapter 6: General Provisions
Gen Jacobs noted the team had divided this section between those powers which “may” be exercised and those which “must” be exercised. 35 (1) “The Minister may make regulations relating to any matter which – (A) in terms of this Act is required or permitted to be prescribed; and (b) generally is necessary or expedient to prescribe for the attainment or better attainment of the objects of this Act or performance of the functions of the Authority (1A) The Minister must make regulations to – (a) the requirements in respect of the infrastructure and capacity necessary for a security business to render a security service; (b) the registration by the Authority of security service providers, including the procedures in relation to the suspension, withdrawal and lapsing of registration; (c) the procedures in respect of renewal of registration and the conditions upon which such applications are to be granted; (d) the obligatory undergoing of security training by security service providers; (e) ensuring the quality of training as contemplated in section 4 (k) or any other law, in respect of security service providers and prospective security service providers; (eA) guidelines in respect of insignia, emblem, title or symbol whether on a uniform, vehicle or otherwise; (f) the registration and identification certificates of security service providers; (g) the types of uniforms, insignia, emblem, title, symbol, distinctive badges or buttons which may not be supplied to, used or worn by, a security service provider… (lA) the types of information which security service providers must furnish to the Authority when rendering a security service outside the Republic”. A new insertion had been made: (sA) “minimum standards applicable to security service providers responsible for the safe transportation of cash or goods with a high value, including precious metals or jewellery; (sB) minimum standards for the provision of security services at national key points as referred to in section 1 of the National Key Points Act, 1980 (Act No. 102 of 1980)”. Proposed deletion of (u) “generally, any matter which is necessary or expedient to prescribe for the attainment or better attainment of the objects of this Act or the performance of the functions of the Authority”- this subsection was shifted to the beginning of the section so it was superfluous in this place. (2) “Different regulations may be made in terms of subsection (1) or (lA) with reference to different categories or classes of security service providers (3) Regulations made in terms of subsection (1) or (lA) may, in respect of any contravention thereof or failure to comply therewith, prescribe as a penalty a fine or imprisonment for a period not exceeding five years (4) The Minister must, after consultation with the Council, issue guidelines or policies in relation to the governance of the Authority (5) Any regulations made under this section must be tabled in Parliament for notification” [instead of “for consideration”].
Ms Kohler-Barnard asked if 35 (2) and (3) should not have a timeframe by which guidelines, policies and regulations were issued as the subsections were very open ended.
Mr Stubbe questioned 35 (1A) (d) and where security service providers were to undergo the obligatory security training.
Mr George was happy with 35 (1A) (eA) but he had observed and was worried about guards not looking presentable for example at a hospital. He asked how that would be regulated as it sometimes gave respect to a security company. He felt it would be good if security guards at important places like hospitals looked presentable.
The Chairperson added that part of the legislation was to issue the security officers with enough uniforms etc. She said the Member’s point was not ridiculous but was actually correct. She highlighted many unscrupulous security companies were extracting the uniforms from the mediocre salaries of security guards and these were issues to be regulated and inspected and highlighted problems with PSIRA.
Mr Stubbe asked if 35 (1A) (g) was a repetition of 35 (1A) (eA).
The Chairperson understood the difference was that the one clause spoke to minimum requirements while the other spoke to what was required.
Ms Kohler-Barnard thought they could not lose sight of the fact that they were dealing with private security. If an entity such as a hospital or whatever thought the guards did not look up to scratch, the company could be fired or be spoken to. She said not everything needed to be controlled by government and not everyone was. She cautioned against micro managing the business.
The Chairperson did not know why the Member raised the issue as they were not legislating for that. The history of the Act showed the exploitation within the private security industry of specifically the guards and there still was this exploitation. She raised the example of the guards at the Bishop Lavis College without enough uniforms to wear so it was part of what was inspected.
Gen Jacobs said time frames could be included to broaden the scope of the regulations under 35 (1A) (lA). In terms of the obligatory security training discussed under 35 (1A) (d), for firearm training, for instance, there was accredited training service providers which provided firearm training and there were a lot of prescripts in the regulation relating to obligatory training that must be undergone.
The Chairperson wanted an explanation for section 35 (1A) (d) because there were many questions around this subsection.
Gen Jacobs explained that something like firearm training was needed and there were accredited training service providers which provided such training. There were also some SSETA requirements on the level of training for specific types of security guards so this provision allowed the Minister to determine the levels of training to be undergone by security service providers.
Mr Stubbe asked if that meant that the personnel of a company registered to provide security underwent training because he read the subsection to mean that security service providers were also to undergo training. He thought clarity was needed around the different ways this subsection could be interpreted.
The Chairperson thought the subsection was currently too wide and maybe needed to make reference to a specific type of security service. She thought both 35 (1A) (d) and (e) needed to be relooked in order to make it clear.
Mr Lekgetho asked if the obligatory training was detailed elsewhere other than in the Act.
The Chairperson said it would be detailed in the regulations.
The Chairperson welcomed the new Member to the Committee Mr Setlamorango Thobejane (ANC) and she was looking forward to his input.
Gen Jacobs noted the Committee raised the issue of lights used on private security vehicles previously. The team had looked at the regulations under the Road Transport Act and it was clear from these regulations there were extensive provisions and this was once again a compliance matter for the Act to enforce what was not allowed. He suggested the Committee ask the Department of Transport to align these provisions with the new and not the old Act from 1987 as there was nothing wrong with updating regulations for present circumstances.
The Chairperson said what the team was saying was it was unnecessary to regulate on this matter as already regulated for. She wanted PSIRA to implement this and regulate it as they were not doing that.
Gen Jacobs added if these provisions were not being complied with it was an offence and a complaint lodged would have to be followed up by Road Traffic.
Provision of information [proposal to delete “to Authority”]
Gen Jacobs noted 36 (3) “The Authority must inform the Registrar as defined in section 1 of the Firearms Control Act, 2000 (Act No. 60 of 2000) at the time of any new registration, suspension, sale, transfer, liquidation, merger, lapsing or termination of the registration or ownership of a security service provider or any other material change or reason that would necessitate the licensing, relicensing or disposal of firearms in the possession of such security service provider (4) The Registrar mentioned in subsection (3) must, at the written request of the director, submit a list of all firearms registered to a particular security service provider, to the Authority within 30 days of the request being made (5) The Authority must report to Parliament in respect of information provided by the Authority to the Registrar in terms of sub-section (3)”.
Security services rendered outside Republic
Gen Jacobs noted 36A(1) Any person who, within the Republic, recruits, trains, hires out, sends or deploys any other person to provide a security service outside the Public must- (a) provide to the director on a quarterly basis such information as may be prescribed regarding such recruitment, training, hiring out, sending or deployment or nature o the security service within the prescribed time limits; and (b) comply with the provisions of this Act (2) A person referred to in subsection (1) may not engage in any activity, or render any assistance,, that is prohibited in terms of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act or the Regulation of Foreign Military Assistance Act of 1998 (3) Any person who – (a) is employed by another person from outside the Republic, and (b) is deployed from the Republic to perform armed guarding services outside the Republic, must at least two weeks before the deployment inform the Authority of such deployed in the prescribed manner (4) The information referred to in subsection (3) must be submitted by the Authority to the State Security Agency within seven days of receipt of the notification”. “State Security Agency” had replaced “Service” as per the Committee’s request in previous discussions. The team had also looked at the legislation referred to in this section as the Committee previous suggested- it was noted the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (2006) had not been put into operation and there were even requests from one of the United Nation’s (UN) committees for the SA government to indicate why this Act had still to be operationalised. Presently the Regulation of Foreign Military Assistance Act was in force. The advantage of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act (2006) was that it defined “security services” which was not defined in the Foreign Military Assistance Act (1998) and filled the gaps of combating mercenary activities and would assist in some of the issues looked at in this section of the Act. He did not know the reasons for the non-implementation of this legislation. He had copies of the legislation if Members were interested even though the Committee did not seek a briefing on it.
Mr George sought clarity on security officials employed in SA who were not South African but where then deployed to a foreign country and if they also needed PSIRAs authority.
The Chairperson thought the same rules should apply if the person was operating inside from South Africa.
Gen Jacobs responded that the intention was really to address any person who was being deployed from SA needing to submit this information. The added problem was that firearms were made available and was one of the areas to look at system to check that permits were being issued to the right people. The profile of these deployments showed they were well-trained with a background in the special service and although they were involved in private security the profile showed these could well be mercenaries. The mercenary problem had largely been curbed because these people were involved in formal security to combat anti-piracy on the ships.
Mr Ndlovu questioned section 36A (1) and (2) referred to the entity or to an individual.
Mr George wanted to hear from Gen Jacobs, not as a General but as an advocate, why that the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act had not been implemented.
The Chairperson said this was not for Gen Jacobs to say and he did indicate they he did not know the reasons. He President had not enacted the Act which was the bottom-line. The Committee could enquire why it had not been enacted and encourage their counterparts in defence to follow up on it but Gen Jacobs was in no position to respond to it.
Mr Lekgetho was interested to follow up on this Act and for it to be work shopped if possible.
The Chairperson said if Members were interested they could read up on the Act but thought the Committee had enough work as it was.
Mr Stubbe pointed out 36A (3) (b) because his concern was still that the onus was on the individual and not the company to inform the Authority. He asked how they would relay this to people on the ground and thought it would be very difficult to regulate. He asked how this would be done and if the process was easier than he foresaw.
The Chairperson noted that “may” must be a “must” under 36A (1) (a).
Gen Jacobs responded that the definition of person applied to an individual as well to an entity/company. Turning to the question on 36A (3) (b), he noted there were issues around anti-piracy and maritime security where firearms were required and for the permits required, some background information on the applicant was needed which could serve as a means to cross-check where PSIRA had been informed. It was not presently regulated but they needed to find ways to do so and enforce this. He felt a legal obligation was needed to ensure that people reported as there were ways to determine who was involved in this type of security.
Mr Stubbe agreed that the maritime activity and taking firearms out of the country could be monitored but he still had a problem with how they would regulate people who were simply invited to work in the private security service in another country.
Ms Molebatsi asked if they would also check criminal records.
Mr George was concerned that two weeks to inform the Authority was too late for someone going outside the country and by the time that PSIRA looked at the information submitted, the person would already been gone. This was under 36A (3) (b).
Ms Irish-Qhobosheane clarified that PSIRA was not regulating these people but purely informing sate security on these people. The intention behind this section was for state security to be aware of people being recruited to work in private security outside the country. There would not be criminal record checking because PSIRA was not actually regulating the activity. The intention was also to inform people that if they were being recruited they had a reporting obligation.
Gen Jacobs thought the Members should take into account that actual mercenary activities were addressed under other legislation while the PSIRA legislation dealt with a reporting obligation which was asked to be inserted when the mercenary legislation was debated in the Defence Committee to at least tighten the control over this type of activity.
The Chairperson noted 36A (3) (b) did say “at least two weeks” so it could be dealt with before that time.
Mr George agreed but was concerned the timeframe could be exploited by those with wrongdoing in mind.
The Chairperson said they should be mindful that this was not for PSIRA to regulate or to decide on but to provide further information and assistance to State Security. She urged Mr Stubbe to have a look at the two Acts referenced in this section because it would provide more clarity. She noted some Members were part of the Ad-Hoc Committee which dealt with the legislation at the time and was perhaps more au-fait with the intention and understanding behind the issue.
Ms D Chili (ANC) asked if the foreigners were also recruited to do security work inside the country and if this was so, why this because it was so difficult for South Africans to get tenders as security companies.
The Chairperson noted the Bill was not addressing ownership at this stage but already made provision for some non-South Africans not being allowed to do certain activities but the question could be responded to.
Gen Jacobs noted the concern was that SA was being used as a base and it needed to be addressed. He said this did not relate to foreign ownership as it related to shipping companies recruiting private security.
Offences and penalties
Gen Jacobs noted 38 (2) (d) “any security service provider who – (i) allows the use of any insignia, emblem, title or symbol whether on uniform or vehicle or otherwise, or (ii) allows the use of any uniform, which corresponds or can be confused with any uniform, insignia, emblem, title, symbol used by the South African National Defence Force or the South African Police Service, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine or to imprisonment”.
The Chairperson asked if Metro Police would be covered by this or not?
Gen Jacobs thought it could be inserted because there was an obligation of the Minister on behalf of Metro Police as well.
Mr Ndlovu and the Chairperson highlighted that the wording on 38 (1) (b) needed to be amended to make for easier reading.
The Committee agreed with the inclusion of Metro Police under this section.
Gen Jacobs noted 38 (3) (i) “commits an act which is calculated to hinder, impede or obstruct any investigation in terms of this Act or the Levies Act; is guilty of an offence and – (i) in the case of a natural person, on a first conviction of a contravention referred to in paragraph (a), (e), (f), (g) and (h) s liable to a fine or to imprisonment for a period not exceeding not exceeding five years, or to both a fine and such imprisonment, and in the case of a juristic person, to a fine; (ii) in the case of a natural person, on a second or subsequent conviction of a contravention referred to in paragraph (a), (e), (f), (g) and (h) is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment, in the case of a juristic person, to a fine (iii) in the case of a natural person, on a conviction of a contravention referred to in paragraph (b), (c), (d) [(e), (f), (g) (h) had been deleted and shifted up to ensure a stiffer penalty] or (i) is liable to a fine or to imprisonment for a period not exceeding 24 months, or to both a fine and such imprisonment, and in the case of a juristic person, to a fine”. He noted this section was aligned to the construction used in the DNA legislation.
The Committee was happy with these amendments.
Gen Jacobs moved on 38 (3A) “Any person who fails to comply with the provision of section 36A (1) or (3) is guilty of an offence and is liable – (a) in the case of a natural person, on a first conviction, to a fine or to imprisonment for a period not exceeding 10 years, or both a fine and such imprisonment, and in the case of a juristic person, to a fine; or (b) in the case of a natural person, a second or subsequent conviction to a fine or imprisonment for a period not exceeding 15 years, or to both a fine and such imprisonment, and in the case of a juristic person, to a fine”.
Mr Stubbe asked if this was not too stiff a penalty and if it was realistic.
The Chairperson noted the court would still make the final decision.
Gen Jacobs thought it was a rather stiff fine even for a first offence but it was important to look at the message being sent out at the seriousness of the penalty.
The Chairperson asked the team to see if it was in line with two Acts spoken about earlier in the discussion and come back on this.
Mr Ndlovu emphasised the section did say “not exceeding ten years” so it could be five or even two years.
The Chairperson did not think it was a problem either because the court still decided but the team needed to have a look at and come back to the Committee on it.
Extra- territorial application for Act and jurisdiction
Gen Jacobs explained the team had seriously looked at this section and could not see its purpose and the recommendation was to actually delete this section 39.
The Chairperson asked if they had spoken to the state law advisors and if they were happy with its removal.
Mr Sisa Makabeni, State Law Advisor: Office of the Chief State Law Advisor, indicated he was happy.
The Committee also agreed with the removal of this section 39.
Delegation of powers by Minister
Gen Jacobs noted the recommendation to delete section 41 as discussed in the Committee's last meeting.
The Committee agreed with this deletion.
Schedule: Table of Offences
Gen Jacobs noted the inclusion of “Any offence in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2000 (Act No. 70 of 2002)” and “Any offence in terms of the Intelligence Services Act (Act No. 65 of 2002). The Committee had also asked the team to look at other offences so there was the insertion of “Any offence of trafficking in persons as defined in section 1 of the Prevention and Combating of Trafficking in Persons Act, 2013 (Act No. 7 of 2013)”, “Any offence of torture as defined in the Prevention and Combating of Torture of Persons Act, 2013 (Act 13 of 2013” and “Any offence referred t in Part I or Part II of Schedule I to Implementation of the Rome Statute of the International Criminal Court Act 2002 (Act No. 27 of 2002).
The Chairperson thought the inclusion of the Prevention and Combating of Trafficking in Persons Act also addressed some of the concerns raised by Mr Stubbe around the section dealing with security services rendered outside the Republic.
Gen Jacobs mentioned the team was busy preparing the transitional provisions under section 44 and new transitional provisions for the amended PSIRA Act. A rough draft of the transitional provisions was constructed which the team would elaborate on today to submit to the Committee tomorrow.
The Chairperson asked if they had considered that the transitional arrangements which were in the principle Act but which had lapsed be taken out.
Gen Jacobs advised they should be left in as with the National Prosecuting Authority (NPA) and Directorate for Priority Crime Investigation (DPCI) legislation for record purposes.
The Chairperson highlighted the reference to the trafficking in persons for sexual purposes under the table of offences should refer to Act 7 of 2013. Also the reference to the Explosives Act should refer to the new one.
Gen Jacobs said that that one was not enforced yet.
The Chairperson asked the team to check the date for the trafficking in persons for sexual purposes. She asked why the Explosives Act had not yet been enforced.
Gen Jacobs said the regulations for that Act were published twice for public comment and were quite bulky with the English version being over 400 pages but from a legal point of view they had been ready for three or four years but it was a matter of implementation and the concern about the functional terrain.
The Chairperson noted the Committee stressed implementation plans and the Department came with grand plans only for the Committee to hear ten years down the line that the legislation had not been implemented. She asked that the team look at the DNA schedule which also referred to the Explosives Act.
The Committee proceeded to go through the entire Bill from page one to check that everything was in order.
From this reading, the only issues were that:
▪ The definition of “National Commissioner” be removed from the definitions under Chapter One
▪ Inserting of a comma between “uniform” and “standards” under 3 (a) (d) under Objects of Authority in Chapter 2
▪ Insertion of “and” at the end of 4 (l) before leading onto (m) under Functions of Authority in Chapter 2
▪ Full stop and not comma at the end of 8 (3A) under terms and conditions of office, vacation of office and payment of remuneration and allowances.
▪ Change of “may” to “must” under 9 (1) (c) under Functions of Council and chairperson.
There was discussion on the appointment and functions of secretariat under chapter 2: 12A (1) “The Council must, in consultation with the Minister and after following a transparent process, appoint a full-time secretariat consisting of not more than three persons (2) Persons to be appointed to the secretariat must successfully undergo such security clearance check conducted by the State Security Agency, as may be determined by the Council (3) The Council must determine the terms and conditions of appointment of the secretariat”.
Mr Stubbe noted this was not a full-time Council so why would they need a secretariat with three full-time personnel. He asked if this was thought about.
The Chairperson said this was discussed and the secretariat needed to prepare documents and reports etc for the Council but she asked the team to motivate why three persons were needed.
Gen Jacobs clarified the section stated there would not be more than three persons so it could be less but the number would be determined by the need and workload.
Mr Stubbe felt an exact figure should be outlined as PSIRA would appoint three persons for four meetings in a year to do the admin work which he did not think was necessary.
The Chairperson said Members needed to be realistic as the secretariat would not only prepare for the meetings but prepare monthly and quarterly reports to go to the Minister etc.
Mr Ntuli (PSIRA) questioned if the chairperson was part-time and three members were full time - under whose command were these members? He was concerned about the issuing of directions and operations not being clear.
Mr George understood the directors sat in the Council meetings. He thought there was a problem with Council meetings alone.
The Chairperson clarified that the Council could call anyone to account and the executive director could attend Council meetings by invitation to address issues the Council might have. The problem currently was that the Authority was running the Council and not the other way round. She understood that the secretariat would do preparation for Council meetings but she did not believe enough time was spent on this issue.
Mr Stubbe thought it was not necessary to have a full-time secretariat for the Council. He thought they could easily be incorporated into the personnel structure and could do work on behalf of the Council. It was not the job of the Council to prepare the documentation to go to the Minister or the PFMA but the director’s office which needed to do that.
The Chairperson said the point was that it must go through the Council. She had already raised the point asking if this was not a function which could be conducted by the Authority itself for the Council. She felt the issue needed to be looked at further.
Mr Lekgetho agreed a permanent secretariat would bloat the Authority and rather that they should be required when there was a need.
Mr George’s problem was that the information was with the part-time members who would just be glorified clerks running around. He suggested they do away with this and that the executive-director give a full report to the Council and if the Council was not happy they could call the executive-director in. He thought the secretariat could easily be undermined by the directors.
Mr Ndlovu noted it had been said the Council was not full- time therefore the secretariat had to prepare the paperwork, agenda etc for the Council and the Committee did not want the directors to influence the secretariat as there might be items the director did not want to come to the Council. If this was going to go through the director, the Committee would need to rethink why they came up with a secretariat in the first place.
Mr Stubbe thought the director and his personnel, not the Council, should prepare the reports and present them to Council who then needed to okay it or send it back to the director if they were not happy.
The Chairperson thought the entre situation needed to be rethought and whether it served any purpose.
Mr Thobejane thought section 9 (b) might inform discussion on the matter functions and role of the Council. He highlighted the use of the word “oversight” in relation to functions of the Council.
The Chairperson thought Members should spend a few minutes on this issue as it was important to consider. Currently the Council chairperson was no longer full-time. To operate fully the Council needed information, an agenda and someone who informed. She asked the Secretary if they put in that the executive-director’s office was to provide the Council with secretarial functions whether or not that would address the issue.
Mr Nthuli noted the challenge was part-time members were busy with other work and would only be focused on the Council during meetings. It was a challenge that the documents prepared by the staff of the director, wittingly or unwittingly, bluffed the members. He thought that because this was a parastatal, the organogram would talk of a company secretary with competent, professional skills not biased to the Authority.
The Chairperson’s only concern was that this still happened even though at that time, the chairperson of the Council was full-time. She noted the Committee had asked the technical team to look at arrangements and support given to other part- time councils like with the parastatals but they had never had come back on this. She asked for an indication if the team had looked at this.
Gen Jacobs could not respond.
The Chairperson was not pleased as the Committee had asked them to do this before. She was concerned about adding another layer of management even if it was just the company secretary but they could not legislate for an executive-director who lied to the Council either and there had to be consequences for an executive-director who misled the Council.
Mr George liked that the Chairperson thought like him sometimes. He also added that the Committee could not legislate for a dishonest executive-director. He was concerned about a conflict of interest and that if they wanted to solve the problem, they needed to look for a situation which did not create another problem.
Mr Stubbe thought the annual report and audit by this Committee would assist the Council with oversight. He also agreed that they could not legislate for dishonesty and if the chairperson of the Council did not pick it up, it would be picked up somewhere.
Ms Kohler-Barnard had seen numerous boards and entities which had a board secretary responsible for putting together the documents needed. This was literally a staff member not dedicated 24 hours a day to this particular job and to suggest the Council might need three people was absolutely unacceptable. She mentioned the Industrial Development Council (IDC) who was totally dysfunctional at a stage and had to earn every single inch the Committee gave them. She felt PSIRA, with its disastrous AG report, had not earned more staff and to throw more staff to them at this stage would lead to the same situation of people who did not bother to come to Committee meetings.
The Chairperson understood the emotions around the issue but they needed to look at what were the functions of the Council and chairperson of the Council and what was needed for these functions to be carried out. She believed at least one person was needed to send out the minutes, draft the agenda and gather, summarise and compile reports. This person would not be an ordinary secretary but someone a bit better qualified but not necessarily a company secretary either. She thought there should be reference to this person under the section dealing with the chairperson of the Council as currently there was not because the chairperson should direct that person. She reiterated the technical team was to look at what happened under other part- time councils. She noted the intention of the Committee was never to have three people and would force the Council to appoint their minds when making appointments which had not happened in the past either. She suggested the Council appoint this person who was under the leadership of the Council, not under the leadership of the executive-director but the funding for the post could still come from the staff component of the Authority as separate funding as not needed for the position similar to the arrangement with the judge of the Hawks who was funded through the Secretariat. She asked the technical team to relook at this issue today as the Committee wanted clarity on the issue tomorrow. They were to go back to the functions of the Council and the chairperson as well to link this person with the leadership of the Council and chairperson of the Council as the way it was currently drafted meant the secretary was not reporting to anybody.
Mr Lekgetho totally agreed. He also said the records of PSIRA from the AG needed to be improved. They needed to have someone independent funded by PSIRA also to advise where possible.
The Chairperson did not think this person would play that role but that was when the Council would call in the executive-director, the director for inspections or any other director. This person needed to be administratively strong and capable of drafting certain documents on behalf of the Council
Mr Ndlovu thought there was agreement that a person was needed to coordinate the Authority and the Council although the purse of this person would come from the Authority. The Council and not the Authority would be in charge of this person to ensure that Council sat with the right documents. This person also needed to be independent from the Authority.
Mr George agreed. He emphasised that this secretary needed to be managed because he could not do what he liked.
The Chairperson clarified that team needed to look at the reporting lines and she had said before that this person would not act on their own but the instructions would come in writing through the Council always acting through the mandate of the Council so that the person was not roaming around doing their own thing. The Committee made it clear three people were not needed and were looking at a more senior person but they should not be a deputy-DG or something like that. The person would even be known as the secretary to the Council.
Mr Thobejane highlighted 12A (5) questioning how they would marry the concept of the secretariat being employed by the Council but funded by the Authority.
The Chairperson explained the challenge was that the Council was the accounting officers of the Authority. However the technical team needed to look at section 12 in total and come back to the Committee on this.
She noted there was currently a secretary to the Council chairperson but what should now be done was to say that person would be secretary to the entire Council and not just the chairperson. The Committee already knew that secretary was paid a huge amount of money. They were to specify a level at which the secretary be appointed even if it meant that person re-apply for their position. The team was still to report to the Committee on this tomorrow.
Gen Jacobs continued with the reading as of section 13: committees to assist Council.
Adding reference to the PFMA under section 13 (4)
Ms Kohler-Barnard questioned section 14 (3) and if it was advisable for the director to be dishing out duties to the staff as she feared this person would then just be a figure head.
The Chairperson said this was a general provision of delegation of powers as in all legislation. For instance, with the Secretary of Police present at this meeting, she would have power to delegate duties to her staff for things to be done in the office while she was away.
Mr George disagreed and was not happy with 14 (4A) as he felt the fixed establishment should be done by the management not the Council especially since they only met four times a year.
The Chairperson understood the Member’s concern but the reality was that the Council was the accounting authority of this body unless they did away with the Council completely as the Member was suggesting.
Mr George said the more they spoke the more they were gradually pushing the Council out.
The Chairperson said the whole section needed to be read because Council did not decide on the fixed establishment alone but the Department of Public Service and Administration (DPSA) were also involved.
Mr Thobejane added that in any organisation, the approval of the organogram needed to be approved by the accounting authority which in this case was the Council.
Mr George thought the Member was missing his point.
The Committee urged the Mr George to read 14 (2).
The Chairperson said this section outlined the director did establish the administrative structures and divisions necessary for performance but the final nod needed to come from the Council as the executive authority.
Mr George said the section was not being read in that way.
The Chairperson agreed that this section 14 could be cleaned up as the first part was interpreted as the Council having carte blanche in determining salaries and levels etc. while the second part of the section made it clear it must be done in conjunction with DPSA. She thought the second part of the section be bumped up to make the section clear and prevent it sounding almost contradictory.
Mr Lekgetho agreed but highlighted 14 (3) –he felt the delegation of powers and duties should not be left to any staff member, as the subsection read, but a reasonable and fit and proper person.
Ms Irish-Qhobosheane clarified this was a clause in almost all legislation as the director could not do everything. Annually, a delegation of authority was signed off as in all government departments.
The Chairperson added that hopefully in the future everyone in PSIRA would be fit and proper people but it clause was a technical requirement that gave the executive-director to delegate certain powers and responsibilities through Council for agreement.
Gen Jacobs continued the reading as of section 14A: disqualifications for appointment as director and deputy directors.
Under this section, Mr Thobejane asked if they were not supposed to mention an unsound minded person that should not be employed.
Gen Jacobs was sure this was covered by the fit and proper provision or requirement.
Gen Jacobs continued with the reading as of section 16: finances of Authority.
Under this section, the Chairperson asked if this covered an earlier recommendation of monthly financial reports.
Gen Jacobs thought there was a provision where they split the annual and monthly reports.
The Chairperson was also worried the investment fund was not covered here either. She thought that they should maybe shift everything related to finances under one section.
Mr George wanted some checks and balances to ensure the Authority did not just come to Parliament because they had not done their work.
The Chairperson thought the way it was drafted currently in terms of the PFMA and that Parliament must actually vote for that money and Treasury must agree it was appropriate for them to have that money, covered that concern. She emphasised the need for monthly financial reports and she was concerned not everything was in one place in the Act. She also wanted it stated that the investment account must be audited by the AG.
Ms Molebatsi asked if there was an explanation on how this investment account came about.
The Chairperson said that last year, the Secretary of Police explained the investment fund was a fund started in the very first PSIRA when there was a threat by the private security industry that they did not want to be regulated and they would not pay. The investment fund was then established as a way for PSIRA to run their affairs if they did not get the funds. The question was how much longer this investment fund was needed or whether it should be kept by Treasury and not the Authority and these were issues to be looked at. The fund was needed at that point in time and it could still be argued it was needed for the current court case impacting on the incoming funds but the bugger issue was how this fund was controlled which was where the shortcoming was and that until two years ago, the Committee did not know of the fund’s existence.
Ms Molebatsi said the biggest issue was how to know whether there was not a similar thing happening in one corner.
Mr Stubbe asked if PSIRA were allowed to have an investment account in terms of the PFMA or other Treasury regulations.
Ms Irish-Qhobosheane said National Treasury was looking into the matter and had referred it to the accountant-general. Treasury would come back to them on this issue,
The Chairperson thought it was important to get this information from Treasury sooner rather than later. In the meantime, since there was such an account, she requested the team make a provision for the account to be audited by the AG and be reported upon on a monthly and quarterly basis. She explained it was discovered two years ago that PSIRA had this investment account even though they pleaded bankruptcy every March for the Minister to bail them out in terms of paying salaries. It was discovered more than R40 million was currently in the account and the Committee was worried about what came in and what went out as they had not seen statements on the account.
Mr Stubbe asked who was to receive these reports on the investment account.
The Chairperson replied the Minister must get it but Parliament could request it as well as Parliament was supposed to get quarterly in any case according to the PFMA.
She wanted the representative from PSIRA present to make a call and find out what PSIRA’s head of communications was earning and come back to the Committee with this amount.
Gen Jacobs noted he had read through the entire Bill up until where the discussion began this morning on section 16: annual report.
The Chairperson noted there were very few matters outstanding. The one thing was that the Committee needed to hear the transitional arrangements.
Gen Jacobs said a document had need drafted but the team would like to refine it and would present it to the Committee at tomorrow’s meeting.
The Chairperson suggested to Members that the transitional arrangements be presented first, discuss it, and then go back into the Bill from page one which would allow the Committee to check that everything was in the transitional arrangements. This would allow the team to clean up the Bill completely by the end of tomorrow so that the Committee could vote clause by clause in the meeting next week Tuesday.
The Committee agreed.
The meeting was adjourned.
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