Private Security Regulation Amendment Bill: Transitional provisions

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

The South African Police Services (SAPS) and Civilian Secretariat for Police’s technical team continued to take the Committee through a working document of the Private Security Industry Regulation (PSIRA) Act with proposed changes. The Committee was dismayed and enraged by the non-attendance, yet again, of the PSIRA Executive Director, and the fact that the Committee had not received answers to outstanding questions posed at the meeting on the previous day, and resolved to write to the Minister. It would also be insisting that the Executive Director be present at the following meeting, that he bring the answers to questions posed earlier about salaries, and if he failed to do so, he would be summoned under Parliament’s power.

The legal advisers firstly took the Committee, in detail, through the section 44A provisions which were the transitional arrangements. Members noted that more clarity was needed on provisions such as insignia and uniforms, the appointments of councillors and the chairperson and the duration of these contracts. The provisions that were in dispute were considered one by one by the Committee after a short break, and then any re-wording suggested was done by the technical team over the lunch break, and was re-presented in the afternoon session, to the satisfaction of the Committee.

The legal advisers also took the Committee back through the provisions of the Bill that had been re-drafted after the meeting on the previous day. There was quite substantial discussion on section 9 dealing with the functions of Council, chairperson and secretariat. Members agreed to strengthen the wording in relation to the Secretariat, to make it clear that the incumbent was not a “secretary” as traditionally understood, but an official who fulfilled a number of senior administrative functions, including research, preparation of minutes and agendas, liaison between a number of bodies, and could also perform other functions assigned by the Council. Members also debated the revised sections 14 and 34. They asked the technical team to make the necessary revisions and it was noted that the legislation would be redrafted and presented for clause-by-clause deliberations in the following week. Hopefully, it could be adopted then.

The Committee also noted that it needed to consider the two amendments, both relating to the Ethics and advisory Board, under the DNA legislation, which were made by the NCOP. The South African Human Rights Commission had asked to be excluded from permanent membership on the Board as it feared this could lead to conflict of interest, and this was accepted as a valid point. The position of the Department of Correctional Services, and the need for a possible replacement on the Board would be debated.

The Chairperson expressed her sincere appreciation to the technical team and to members for their extensive and exhaustive work on the amending legislation.

Meeting report

Chairperson’s opening remarks
The Chairperson noticed the Executive Director and Chairperson of the Private Security Industry Regulatory Authority (PSIRA)were, once again, not present at the meeting and requested Members for input as to what they thought the Committee needed to do.

Ms M Molebatsi (ANC)recommended the Committee write a letter to the Minister expressing the Committee’s disgust.
Mr M George (COPE)seconded this proposal.

The Chairperson noted that the Committee would write a letter to the Minister.

Private Security Industry Regulation Amendment Act, 2013: Transitional Provisions
Gen Philip Jacobs, SAPS Head: Legal Support and Crime Operations, took Members through the transitional provisions.

Section 44A (1)said that in this section the “Amendment Act” meant the Private Security Industry Regulation Amendment Act, 2013.

He read out the provisions of subsection 44(2)(a), which said that any category or class of security service providers which was not obliged to be registered as such in terms of this Act, immediately before the commencement of the Amendment Act, would only become subject to the new Act when the Minister so determined, by notice in the Gazette. Paragraph (b)said that the Minister could specify different dates for different categories, but these must be published 180 days in advance of when they would apply.

Subsection 144(e)said that the Minister of Police must, within a period of two years after the commencement of the Amendment Act, make regulations, but only once the Regulatory Authority (PSIRA or the Authority)was in a position to effectively deal with the matters being regulated. He noted that at present there was no capacity within the Authority to deal with renewals.

Subsection (4)said that the Chairperson and councillors appointed before the Amendment Act came into force would remain until the expiry of their original term of contract, or until their services had been terminated. If they did not have security clearances to the required level already, they would have to obtain them. However, this was something that had already been done in practice.

Subsection (5)said that if the Minister re-appointed any councillor, that person should not serve in total more than seven years, and the councillor must contribute to requirements of section 6(3)of the Act. That related to having specific knowledge and legal requirements.

Subsection (6)specified that, from the date on which the Amendment Act came into force, the members of the Council may serve only on a part-time basis. Subsection (7)required the Secretariat to be appointed within six months of the commencement of the Amendment Act, but prior to that the Director must ensure that secretarial services were provided to the Council. Subsection (8)required that from the date of the commencement of the Amendment Act, the posts of the director and the deputy directors must be filled in accordance with section 14 and 14A. Gen Phillips noted that the posts were currently filled.

In terms of subsection (9)the Exemption Advisory Committee referred to in section 20A must be appointed before commencement of the Amendment Act.

Subsection (10)related to uniforms and insignia used by security service providers, which, provided they did not conflict with or were in contravention of any law, these may be used until renewal of registration. Any security service provider must be given a fair amount of time to phase out the use of a particular uniform or insignia that was not approved.

Subsection (11)said that an appeal committee, as contemplated in section 30(2A)of the Act, must be appointed before the commencement of the Amendment Act. Subsection (12)said that the fixed establishment of the Authority must be determined within 24 months of the commencement of the Amendment Act. Finally, subsection (14)said that the Authority, through the Council, must submit quarterly progress reports to the Minister on its readiness and progress in respect of the implementation of the Levies Act and renewal of registration”.

The Chairperson noted there was no subsection (13), and asked why.

Gen Jacobs responded that the putting into operation of the Levies Act might need to be addressed in (13). 

Mr George recalled that the Chairperson had asked the technical team to make changes to the section dealing with the Secretariat, following discussions on the previous day.

The Chairperson replied that the Committee would move on to those points, but asked Members for the moment to concentrate on the transitional provisions. She wanted more clarity on section 44A(4).

Gen Jacobs said that the Committee had asked the technical team to look at providing something similar to the Directorate for Priority Crime Investigation (DPCI)legislation. Because there were totally new processes, such as Parliament approving appointments of chairpersons and councillors, subsection (4)was saying that the current people would remain in their posts until their services had been terminated in terms of the provisions in this Act. The drafting was a proposal, and could still be refined if the Committee so wished.

Mr George also sought clarity on 44A (10). He noted the issues relating to uniforms and insignia had been raised by the Committee numerous times, and he did not see why the security service providers should be given a period of grace, for this was not something new.

Gen Jacobs responded that 44A(10)related only to uniform and insignia which were not in clear contravention of the law. It came out clearly in the Committee’s discussions that uniforms used by security companies would take some time to be phased out. However, this meant that PSIRA would have the ability to look at the uniforms to be used, and make a decision on whether they were acceptable or not. If the uniform was in clear contravention of the law, legal action could be taken. The subclause was to accommodate the implementation of the new requirement of PSIRA deciding on the uniform or insignia to be used. 

Mr D Stubbe (DA)returned to the section dealing with staff. The Committee did not have in mind that the chairperson remain in the position as, according to the organogram, the new director needed to appoint new staff but the old staff could reapply for the post. He understood the reapplication would be from the commencement of this Act, and asked if his understanding was correct. 

Mr V Ndlovu (IFP)asked what section 44A(5)meant, in simple English, questioning if there would be an entirely new Council or a continuation of the terms of the re-appointed councillors.

The Chairperson understood that if, for instance, a councillor had served six and a half years and the Minister was then appointing a new Council, that person would only be able to serve for another half a year. A new councillor being appointed could not serve any term that would exceed seven years, and this seven years included any time served before the commencement of the Amendment Act. The Committee had said that councillors should not serve for a period longer than seven years. That was why it had to be included here.

Mr George did not understand why the chairperson should stay in place until the Act had been passed.  

The Chairperson understood where Members were coming from, noted the issue of continuity, and said that the provision would also apply to the chairperson, whose term could also not exceed seven years. 

Gen Jacobs thought a distinction needed to be made between the Council, director and deputy-directors. Section 44A(8), similar to the DPCI legislation, made provision for the Minister, after the commencement of the Act, to advertise the posts to make re-appointments of director and deputy-directors. Presently, the Act stipulated the councillors were appointed for a period of three years. In future, the initial appointment would be for a period of five years but could then be extended up to seven years. Should the contracts of one of the councillors expire, but the Minister wish to reappoint that councillor for continuity or for his or her specialist knowledge, the total term could not exceed the period of seven years.

The Chairperson ruled that the Committee should take a 20 minute break, so that each Member could study the transitional provision sections (placed before them for the first time today)very carefully.
After that break, she asked Members to raise any queries on each subsection.

In respect of section 44A(2)(a), the Chairperson was concerned that it was not clear that all new applications were to be done according to this Act. The section spoke to current service providers but she felt it should explicitly state that all new applicants wanting to start a security business would also have to do certain things immediately, according to this Act.  

Gen Jacobs explained this subsection was mainly to provide a transitional period for the locksmiths who were not presently subject to application, although they would be under the Amendment Act. The locksmiths were not mentioned in the subsection and there were other issues, but it was mainly to provide for the locksmiths.

The Chairperson reiterated that she wanted the subsection to be clear that all new applicants, whether they were locksmiths, security service providers or training institutions, must apply under the new Act.

Gen Jacobs noted that the technical drafting team would make sure this came across clearly.

Mr Ndlovu asked the Chairperson to elaborate on her question, as he was not sure he understood her concern.

The Chairperson explained that 44A (2)(a)spoke to new applicants, like locksmiths, who currently did not have to register, but would be required to do so under the new Act. In principle, this was correct, but she just wanted it to be very clearly stated that all new applications would be done according to the new Act.

Mr Ndlovu asked if that would not be automatic, because the application was for a new business.

Gen Jacobs said it would be automatic, but to ensure legal certainty, this needed to be clearly provided for, to clarify that the new Act would apply for all new applications.

The Chairperson said it was not changing the content, but making the wording clearer.

The Chairperson asked why,  if 44A(2)(a)was basically for the locksmiths, (2)(b) was referring to different categories. Following on from the previous discussions, it seemed to make sense that this should be a provision only for the locksmiths.

Gen Jacobs responded that the important part of 44A(2)(b)was that a period of 180 days should be afforded from the date of publication until the cut-off date. 

The Chairperson agreed with the 180 day notice but asked if the rest of the sentence under (2)(b) was still valid.

Gen Jacobs said the “different dates in respect of different categories” could be removed from the subsection.

The Chairperson suggested it could be inserted as part of the requirement for renewals.
Ms Jenni Irish-Qhobosheane, Civilian Secretary of Police, agreed that it should be under renewals.
The Chairperson asked if the provision for different dates for different categories would become the new 44A(3), or would be inserted under renewals, while 44A (2)(b)would just deal with the 180 day notice period in reference to (2)(a).

Mr Ndlovu was confused as to what the 180 day period was for.

The Chairperson replied that, firstly, the Minister must publish in the Gazette 180 days before the commencement of the registration. For instance, for locksmiths, this notice would say that their process for registration would open in six months, to allow them time to get everything in order for the registration. Secondly, in regard to the renewal of registration, which had been in the principal Act but never implemented, the different categories of service providers applied, as did the 180 day period. For example, it would be said that from 1 March, all those in category X must renew. The subsection would be redrafted to make this clear.
Mr Ndlovu now understood.
The Chairperson added the Members would allow the technical team to work on this today. It was not a major change but the team should revert to check that Members were happy with the changes.

Ms Molebatsi suggested removal of the text of “as amended” under section 44A(3) so that the subsection read: “The Minister of Police must, within a period of two years from the commencement of the Amendment Act, make regulations under this Act”.

The Chairperson added that removal of the rest of the paragraph would emphasise making regulations for renewals at the same time, which should not be delayed. The enactment of the regulations could come into play at the time when the Authority was dealing with renewals, but she would not like to see that delayed, and wanted to ensure that, within two years, all regulations under the Act would be finalised.

Ms D Kohler-Barnard (DA) noted the Committee had been provided with the current regulations on the previous evening, and asked if there was really a need for that two-year period, as she feared that the Act would be delayed. She suggested wording of “up to two years”.

The Chairperson replied that the wording was already “within a period of two years” which meant it could not be longer than that.

Gen Jacobs explained that the publication of draft regulations in the Gazette depended on the time of year it was published. For practical reasons, the regulations could only really be published after January, to get the proper response. It might take six to eight months to get the first draft published, then a period for comment must be allowed. This was a process that could not be rushed.

The Chairperson thought it was very clear that it must be done within a period of two years. She felt it better to take a little longer and produce good quality regulations rather than rushing through regulations poorly drafted that would not address the problem.

She read out the wording of the new section 44A(3), reading: “The Minister of Police, must, within a period of two years, make regulations for this Act”. The rest of the paragraph would be completely removed.

Mr George had a serious problem with 44A(4). In terms of this subsection the Minister must appoint new councillors and a chairperson who would no longer be full-time once the Act was passed.

The Chairperson clarified that this was a transitional arrangement so there would not be a vacuum. There were proposals on how to improve this subsection and she thought maybe one of the ANC Members should raise those proposals.

Mr S Thobejane (ANC) suggested the removal of “until after the expiry of their original term of contract, or”,  under 44A(4).
The Chairperson noted the subsection would then read: “The chairperson and councillors who have been appointed before the commencement of the Amendment Act, shall remain in these positions until their services have been terminated in terms of the provisions of this Act: Provided that such chairperson and councillors…”.

Mr George thought the change addressed his concern, so he was satisfied.
Ms Kohler-Barnard asked if “Provided that regulations pertaining to the renewal of registration of security service providers must only be made once the Authority is in the position to effectively deal with the same” was being removed from 44A (3).

The Chairperson said it was deleted. The subsection was now saying all regulations and renewals must be in place within two years.

Ms Kohler-Barnard noted the PSIRA chairperson had stated in the annual report that his contract had been extended by two years. She asked if this was acceptable now, under section 44A(4).
The Chairperson clarified that the subsection said the chairperson and councillors who had been appointed before the commencement of the Amendment Act, should remain in these positions until their services had been terminated in terms of the provision of this Act. It was not saying that anybody’s contract was automatically to be extended,  but that it could be terminated, under provisions of this new Amendment Act.

Ms Kohler-Barnard said the Act gave clear indications on how a contract could be terminated. The chairperson’s contract had been extended for two years despite the horrendous findings by the Auditor-General, and she wondered if the Committee should be prepared to accept this.

Mr Ndlovu emphasised the Committee should concentrate on the legislation, not deal with the person. He wanted to understand what exactly was being removed from 44A(4).
The Chairperson clarified that the suggestion was to remove “until after the expiry of their original term of contract”, so that the subsection read: “The chairperson and councillors who have been appointed before the commencement of the Amendment Act, shall remain in these positions until their services have been terminated in terms of the provision of this Act: Provided that such chairperson and councillors must obtain a security clearance to the level required by the Minister of Police, if not yet acquired, before the commencement of the Amendment Act”. She also thought the team should check the spelling of “councillors”.
Gen Jacobs said it was the American spelling and would align it to the spelling in this Act.

Ms Kohler-Barnard saw the Chairperson looking frustrated but she was extremely unhappy. If the Committee agreed to this, it was effectively saying that the exact same team which had led two of the most disastrous audit reports ever seen in Parliament could work out their contracts, because “services terminated in terms of the provisions of this Act” could also mean until their contracts came to an end.

The Chairperson thought the Member should consider the change the ANC was proposing to this subsection. The Committee could not terminate contracts, as there were legal requirements around that as well. The subsection did highlight the Act going to be passed.
Mr Thobejane was worried that Ms Kohler-Barnard had not understood the ANC proposal and thought that it would address her concern.

Mr George also agreed that the Committee could not make laws for individuals; the law was providing for the future. The case of who was appointed was a matter for the Executive, and it should be left there. It was not the business of the Committee as to who was appointed, as long as the legislating sphere of government did make a law to govern appointments.
The Chairperson added that the Committee had made a provision that the appointments and CVs must come before Parliament so that this Committee could be satisfied that the appointments were reflecting the needs identified.

Mr Ndlovu felt the sentence “until their services have been terminated” under 44A(4) encompassed all concerns and captured what the Members were talking about.

The Chairperson thought there was general agreement on the change to 44A(4).

The Chairperson continued to the new section 44A(5) and said that this subsection was another check and balance because it said that the seven year limit of the contract, which the Committee had agreed to, must be in line with section 6(3), which spoke to the requirements of councillors.
Ms Molebatsi said the ANC suggested that the words should be added that any delay was to be reported to Parliament.
The Chairperson noted that Ms Molebatsi was mistakenly referring to the wrong section.

Mr Ndlovu wanted a further explanation on section 44A(5). He asked why the legislation was taking into account the previous time served by an ordinary member and if this time served before was prejudicial in the new appointment. 

Mr George cautioned that Members were not creating a new private security industry but amending an Act. He thought the way (5)was currently written was correct, because it was necessary to take into account previous time served.

The Chairperson said Mr George was correct. In addition, the Act was also now clear that no councillor could serve longer than seven years, and that applied to sitting councillors too. This was a transitional arrangement and the exact same provision was in the DPCI legislation, so it was not something new.

Mr Ndlovu disagreed on the principle, and thought that if this was a new Council with a new term, there was no reason to disqualify a former councillor because s/he had served a term before.
The Chairperson thought there was a misunderstanding. She clarified that a previous councillor qualified, and could apply and be appointed, but that person would not be appointed for the full seven year term, only for five years. There was an existing Council so this Act did not apply in a vacuum. This would deal with the question of continuity as not everyone’s terms would end on the same date. It would help prevent the previous problem, where for months on end there was no Council.

The Chairperson turned to section 44A(6), which now said that all positions would be part-time.
It did, however, refer to section 44A(4), which the Committee had just changed.

The Chairperson moved on to section 44A(7), and said the wording should read “the secretary for the Council” and not “the secretariat”.

Mr George noted there were many outstanding issues on the secretary when the Committee had met yesterday and asked when they would be dealt with.

The Chairperson responded that they would be dealt with it immediately after these transitional provisions.

The Chairperson noted that although section 44A(8) referred to a section 14A, there was no such section in the Act.

The Committee noted the error, but was otherwise satisfied with 44A(8)and (9).

Gen Jacobs wanted to clarify that the technical team was proposing that the content of section 44A (10) be dealt with through regulations because the powers of the Minister had been expanded.
The Chairperson was unsure if she was comfortable with deleting 44A(10).

Mr Ndlovu did not think that 44A(10)should be deleted because the uniforms and insignia had to change, and if no provision was made for giving security service providers a chance, he was not sure when they would be expected to change.
The Chairperson felt the technical team was not clear what it was doing with subsection (10). She wanted to know why the same subsection, in different parts, tried to deal with those who were, and then those who were not complying with the law. One or the other had to be addressed.

Mr George agreed that section 44A(10)could not be removed. He thought the Committee should request that the subsection was redrafted properly.

The Chairperson thought the team should get clarity on what they wanted the subsection to address.

Gen Jacobs explained the team wanted to address a transitional period for the phasing out of, for example, camouflage uniforms. The subsection was also linked to the renewal of registration. Whatever the argument, a period was needed for the proper phasing in of regulations relating to uniforms, because this would have huge financial implications for security service providers.

The Chairperson said that, rather than speaking of camouflage uniforms, she would rather look at phasing out people wearing the same uniforms as the metro police. The Committee was not speaking of those presently flouting the existing laws, as action should simply be taken against them immediately. The team needed to redraft the subsection to address the point about uniforms the same as the metro police, to make it clearer. She agreed with other Members that it was necessary to deal with it in the transitional arrangements, not the regulations only.

Ms Molebatsi asked if “at which time the use thereof may not be allowed” in 44A(10) meant there was a time when it would be allowed.
The Chairperson explained that, if for example, if a company was wearing a uniform similar to Johannesburg metro police, it was not against the current Act, but would be against the Amendment Act once it was passed. The security company would need a fair period of notice to change their uniforms. She did not think the use of “fair period” in 44A (10) was acceptable and thought a period should be specified.

The Chairperson moved onto the new section 44A(11).

Mr Thobejane thought subsections (10) and (11)should be swapped around, for better sequence.

The Chairperson clarified that this would be logical because then the appeal committee could be discussed following the Exemption Advisory Committee.

The Committee agreed to this.
Ms Molebatsi suggested, in relation to the new section 44A(12) that words be added reading: “any delay to be reported to Parliament by the Minister”. 

The Chairperson noted the section would then read: “The fixed establishment of the Authority referred to in section 14(1B)must be determined within 24 months of the commencement of the Amendment Act and any delay in this process must be reported to Parliament”.

The Committee agreed.

The Chairperson moved on to 44A(14). She suggested the technical team change the numbering, and then look at adding another section (which would be 44A(14)) that the Minister report on a quarterly basis to Parliament on the progress made in terms of the enactment of this legislation. This would give the Committee the chance to see challenges or problems of implementation in advance.

The Committee agreed. 

Rereading of the working document on the Private Security Industry Regulation Act [B-2012] 29-10
Gen Jacobs returned to the beginning of the new Act version that he had drafted after the meeting with the Committee. He would highlight the amendments, insertions and deletions following on from the previous day’s meeting.

Section 9
Gen Jacobs noted that discussion was held on section 9: Functions of Council, chairperson and Council. The team did look at wording for a number of other boards, but this was not very helpful. The team now proposed the insertion of 9(3), reading: ”The Council must appoint a suitably qualified person to act as Council secretary, who must be accountable to the chairperson and the Council to perform the following functions:
(a) prepare the agenda and all documents for the Council meetings;
(b) take minutes and keep records of all decisions of the Council;
(c) provide administrative support to the Council in the preparation of all reports and other documentation of the Council; and
(d) manage the correspondence and any other administrative matters of the Council”.

This proposed section took out the number of three persons for the office of the secretary and inserted a reference to a “suitably qualified person”.

Mr George had a problem, and suggested that with the duties listed under this proposed section, the secretary could not be full-time.

The Chairperson pointed out other councils appointed company secretaries who came at an even higher level than this section was suggesting. A university’s council might also meet four or five times a year, but that council’s agenda could be 360 pages long, and the documents associated with that agenda could be thousands of pages. She thought Members needed to be realistic on this matter. There was no longer a full-time chairperson so this secretary would be the link between Council and the Authority. The Council needed to meet for a minimum of four times a year. Once this Act was enacted, however, she believed that it would definitely have to sit more than four times, to prepare for all the matters that must be implemented. The Committee Secretary for this Portfolio Committee, for instance, was employed full-time and she did what this Council secretary would do.

Mr Thobejane thought the wording that the secretariat become a linkage between the Council and the Authority should be inserted. He also suggested current numbering should be rearranged under 9(3).
The Chairperson agreed. She also asked if the technical team had looked at what was in place with the appointment of the directors and deputy-directors, and the process of consultation with the Minister of Police and Department of Public Service and Administration (DPSA), so that the level was not determined by the Council but that there was guidance on that level.

Mr George wondered if there was any need for a secretariat at all. He thought the staff of the Authority could do the work. He was concerned about who would manage and be held accountable for the secretary, seeing that the Council only meet once a quarter.

The Chairperson said the secretary would account to the Council. She asked if he was suggesting a return to the full-time Council that applied at the moment.

Mr George asked how the Council would always know the whereabouts of this secretary.
Ms Irish-Qhobosheane explained that, from a theoretical point of view, the accounting officers of departments, the Directors-General, were accountable to the Minister, but the Ministers were not checking up on each Director General all the time. Often, the Minister spent limited time at the office, but that did not mean that the accounting officer could abscond. If the secretary was not doing his or her job, the Chairperson would be able to pick up on that, for correspondence would not be flowing. Accountability did not mean necessarily a physical presence all day, every day.

Ms Molebatsi gave the example of administrators in the Members Parliamentary Constituency Offices. Although Members were hardly there, they could be assured these administrators were in the office all the time working.

Mr George said a secretary could not be left unadvised and a Director-General or a Chief Director could not be compared to a secretary.
The Chairperson quipped that Mr George’s understanding of a secretary seemed to be falling within the old typecast one, and, if she did not know the Member as well as she did, she would think it was a sexist definition as well. The Act was not speaking of someone who typed out written letters or fulfilled a simple liaison function but rather someone who was in quite a senior position, who would sit in on Council meetings and compile reports. This was why she wanted the inclusion of consultation with the Minister of Police, Minister of DPSA and the Minister of Finance in determining the level of appointment. It would not be the traditional “secretary”.

The Chairperson also thought that there were more functions of this person that should be included under section 9(3), such as research, compilation of reports, dissemination of reports, communication between the Authority and Council, and communication between Council and the Minister.

Mr Ndlovu agreed with the need to strengthen this section; the current functions were more akin to those of a clerk than a secretary. If the section was strengthened, it would change the understanding of the type of person required.

The Chairperson again reiterated the functions mentioned earlier and agreed that the technical team must re-write the section.

Section 10: Accountability of Council
Gen Jacobs continued the reading of this section.

Section 14: Staff of Authority
Mr George sought clarity on what “through a transparent process” meant. He thought all appointments were supposed to be transparent, so he asked why it was being specified here.

The Chairperson said it simply forced the Authority to advertise so that the appointment was more transparent

Mr George agreed but he thought it was a general requirement in the country already.

The Chairperson noted there was nothing stopping the Act from stating it explicitly.

Section 34: Powers of inspectors relating to security service providers
The Chairperson asked if it was necessary to include the warrant, as it was not mentioned in the section.

Gen Jacobs thought there was sufficient provision that copies could be made when seizing of computers, for example. He thought that if the Authority had to apply for a warrant this could hinder the investigation, as, for instance, any delays in getting it might mean that by the time the inspectors had returned, the information could have been deleted.

The Chairperson questioned the situation with labour inspectors.

Ms Irish-Qhobosheane indicated that other inspectors did have the right to seize documents.

The Chairperson was concerned about the new section 34(1)(h)because it referred to “the document or object”.

Gen Jacobs used the example of a uniform which, if it was not seized immediately, could have been spirited away by the time that the inspector returned.

The Chairperson asked what the case would be if the object was a computer.

Gen Jacobs explained that usually with a computer, the hard drive was duplicated and the original was taken because it could be used as evidence. This would allow the company to continue its operations without interruptions.

The Chairperson wanted to ensure that the Act was setting out provisions that were in line with other legislative requirements. She asked for the opinion of the state law advisors on the matter.
Mr Thobejane highlighted section 13(4), relating to committees to assist Council. He wondered if “Any directives of the Council” should be excluded from the subsection, and if this should not become another subclause standing alone.

The Chairperson thought this made sense because the Council should not be allowed to interfere while the committee was doing the work. She asked the technical team to consider this point.

A PSIRA representative highlighted section 14(1)(b), because he thought “inherent responsibility” was missing from the criteria for the appointment of the staff of the Authority.

The Chairperson thought the subsection did address this point already, when it stated “with regard to their respective offices”. The term “offices” meant the position the person held, not a physical office.

Section 9
After the lunch break, Gen Jacobs presented the re-worked section 9: relating to functions of Council, chairperson and secretary. He noted that section 9(2)(f) now read: “must maintain a working relationship with the Civilian Secretariat to cooperate on policing and policy matters related to the private security industry.

A revised subsection (3) was tabled, reading: “The Council must, after obtaining the advice of the Department of Public Service and Administration and in consultation with the Minister, appoint a suitably qualified person to act as Council secretary, who must be accountable to the chairperson and the Council to perform the following functions:
(a) manage any administrative matters of the Council and any committee appointed in terms of section 13(1)or established  in terms of section 13(2), including:
(i) managing the correspondence of the Council;
(ii) providing administrative support to the Council in the preparation of all reports and other documentation of the Council;
(iii) preparing the agenda and all documents for the Council meetings;
(iv) taking minutes and keeping records of all divisions of the Council;
(v) facilitating and providing relevant advice on research required by the Council;
(vi) assisting the Council in the development of its annual plan;
(vii) facilitating the submission of reports and other documents of the Authority to Council; and (viii)facilitating communication between the:
(i) Council and the Authority;
(ii)Council and the Minister, and
(iii) Council and Parliament”.

He noted that 9 (2)(v)“on research” could be made wider. It was also possible, under 9(2)(vii) to include something about the development of rules and adherence to the Act. 

The Chairperson asked Mr George if he was happy that the secretary was now being kept busy.

Mr George agreed, but he thought the sequencing of the functions under 9 (2)(a)(i) through to (viii) should be rearranged, according to importance. He thought research currently under 9 (2)(v) could be switched around so that it appeared to be of more importance.

The Chairperson said this was one issue, but she asked if Members had any other functions to include under 9(2).

Mr George cautioned against the secretary being given the work of the Executive Director, as some of the functions now were also the responsibility of the Executive Director.

The Chairperson noted the Executive Director could not develop rules for Council.

Ms Kohler-Barnard suggested a catch-all clause at the end, because there inevitably would be a function to fulfil that it was not included under the list. Something all the lines of “any other legitimate task assigned” could be included.
The Chairperson asked the team to include this.

Mr Ndlovu asked if the proposed inclusion of “develop rules and adherence to the Act” would be added to 9(2)(vii) or would be a standalone clause.

The Chairperson responded that it would be inserted after 9 (2)(vii), to become the new (viii). She added to Ms Kohler-Barnard’s suggestion, by stating that it should clearly be set out that the “legitimate task assigned”  should be “by Council”. She also thought the earlier suggestion of Mr Thobejane on the secretary being the link or liaison between Council and the Authority needed to be included.
Ms Kohler-Barnard presumed the calling of meetings would fall under administrative matters. She thought “suitably qualified” under 9(3) was too vague because one person might think that matric made the person suitably qualified, whilst others might be thinking rather of a degree and ten years experience. This should be clearer.

The Chairperson said this was why DPSA would be involved, to determine exactly what type of person was needed in terms of the level and qualifications required. She had no doubt there would be criteria around this, but she did not think the Act needed to go into too much detail. 

Reworked transitional provisions
Gen Jacobs read the reworked transitional provisions, which the technical team had worked on during the lunch break.

He noted the new wording for section 44A, as follows;
” (1) In this section “Amendment Act” means the Private Security Industry Regulation Amendment Act, 2013
(2)(a) Any category or class of security service providers which was not obliged to be registered as such in terms of this Act, immediately before the commencement of the Amendment Act, will not be subject to the provisions of this Act or the Levies Act until such date as the Minister may determine by notice in the Gazette”

He then noted that the following (b), detailed below, was a new insertion:
”(b) From the date of commencement of the amendment Act, all new applications for registration must be made in accordance with the requirements of the Amendment Act
(c)A notice contemplated in paragraph (a) may specify different dates in respect of different categories or classes of security service providers and must be published at least 180 days before any such date specified therein”.

He noted that 44A(2)(b)and (c)could be switched around.

The Chairperson suggested, with the agreement of the Committee, that the present numbering was quite logical.

Gen Jacobs continued with the reading of 44A(3), as follows:
”(3) The Minister of Police must, within a period of two years from the commencement of the Amendment Act, make regulations that must be made under this Act, as amended by the Amendment Act
(4)The chairperson and councillors who have been appointed before the commencement of the Amendment Act shall remain in these positions until their services have been terminated in terms of the provisions of this Act: Provided that such chairperson and councillors must obtain a security clearance to the level required by the Minister of Police if not yet acquired before the commencement of the Amendment Act
(5) Should the Minister re-appoint any councillor who is serving at the time when the Amendment Act commences, the total period of the contract of such a councillor may, when the original appointment is taken into account, not exceed seven years and such councillor must contribute to the requirement of section 6(3)of the Act
(6) Subject to subsection (4), from the commencement of the Amendment Act, all members of the Council may only serve on a part-time basis
(7) The secretary for the Council must be appointed within six months of the commencement of the Amendment Act, 2013, and until the appointment of such secretary, the director must ensure that the necessary secretarial services are provided to the Council
(8) As from the date of commencement of the Amendment Act , the post of the director and the deputy directors must be filled in accordance with section 14 and taking into account section 14A of the Act, but the current incumbents of the respective posts will continue to hold office until the respective posts are filled in terms of section 14
(9)The Exemption Advisory Committee as contemplated in section 20A must be appointed by the Minister before the commencement of the Amendment Act
(10) An appeal committee as contemplated in section 30(2A)of the Act must be appointed before the commencement of the Amendment Act”.

The Chairperson asked if “appeal committee” should not be in capital letters as “Exemption Advisory Committee” was.

Gen Jacobs said that he would check elsewhere in the Act for alignment.

He continued with the reading of section 44A(11):
”(11) A regulation that prohibits the use if any uniforms, insignia, emblem, title, symbol, distinctive badge or button used by security service providers which was not in contravention of the Act must provide for a reasonable period, which period may not be less than 18 months from the promulgation of such regulation, for the phasing out of the use of the particular uniform, insignia, emblem, title, symbol, distinctive badges or buttons”.

Gen Jacobs noted the wording could not refer to phasing out something that was a contravention of the Act but the issue was now addressed and the regulations would be linked up.

The Chairperson thought this subsection was much clearer and addressed the Members issues. The Committee agreed.

Gen Jacobs continued with the reading of section 44A (12):
“(12) The fixed establishment of the Authority referred to in section 14(1B)must be determined within 24 months of the commencement of the Amendment Act and any delay in the process must be reported by the Minister to Parliament
(13)The Authority, through the Council, must submit quarterly progress reports to the Minister on its readiness and progress made in respect of the implementation of the Levies Act and the renewal of registration
(14) The Minister must report, on a quarterly basis, to Parliament on the progress made in the implementation of the Amendment Act”.

Mr Thobejane thought there should be alternative differentiation under the transitional provisions section 44A(3)(viii) and the subparagraphs (i) to (iii), as they could not both use roman numerals.

The Chairperson noted this was a technical change for the team to clean up. She also asked the team to look at the tenses used so that there was consistency.

Mr George asked who was going to determine the level of the secretary.

The Chairperson replied that this would be done by DPSA together with the Minister. She pointed out that this was stated in the relevant subsection.

Process for the Amendment Act
The Chairperson explained the process to take the Amendment Act further. The Committee would meet again on Tuesday morning.

Mr Ndlovu thought the Committee was going to talk about the Long Title.

Gen Jacobs responded that the Long Title of the Act itself had been amended, but it would be addressed and checked again in the Amendment Bill.
The Chairperson added in order to complete the Long Title, the technical team needed to include the aspects discussed during today’s meeting. She asked that this be e-mailed to the Committee Secretary, preferably long before Tuesday’s meeting, so that Members could look at it.

The Chairperson noted that on Tuesday, the Committee was intending to vote on the Bill, clause by clause, so she wanted the Bill cleaned up before then. She asked Members to deal with this in their caucuses tomorrow. If everything was correct, the Committee could also adopt the Bill.

Mr Ndlovu asked when the PSIRA Bill would be debated in Parliament.
The Chairperson did not know, as it depended on the programme committee. If the Committee adopted the Bill on Tuesday, it would still be debated in this term of Parliament.
Mr Ndlovu asked this because he heard the House may be prolonged.

The Chairperson said the debate of the Bill would be decided by the programme committee but the Committee would adopt it on Tuesday, the Report would then get sent to the House and there was a three day period to be adhered to before debate.

The Chairperson thanked the technical team, especially Gen Jacobs, and the time that he took out to assist the Committee with this legislation, as also expressing her appreciation to the Civilian Secretary of Police, and the staff of the Secretariat, the state law advisors and PSIRA’s officials present.

She again expressed her discomfort with the fact that the Executive Director of PSIRA was not here. It was unfortunate that this Committee had had to sit for hours on end to deal with legislation now, because if the correct process and consultation had been done last November by PSIRA, as it claimed, the Committee would not have found itself in this position. This added even more to the fact that it was unacceptable for the Executive Director to absent himself. The Secretary of Police, a far more senior official, was now having to spend her time cleaning up the mess created by PSIRA. She thanked the one Council representative of PSIRA who was present and for his contribution.

Other Committee business
DNA Bill
The Committee had a further meeting scheduled for the following week on Wednesday. There was one minor proposal of the NCOP on the DNA Bill, which the Committee needed to consider, and she was just waiting for the Speaker’s office and NA table staff to refer it officially to the Committee to finalise the change. She asked the Committee Secretary to follow up on this. This meeting should take no longer than half an hour or an hour at the most. She enlightened Members that the South African Human Rights Commission (SAHRC) had said that it did not want to be included permanently on the Advisory Board of the Minister as this could give rise to a conflict of interest, and the NCOP had agreed to that, and removed the reference to the SAHRC. She noted that there was merit to the SAHRC position, and it necessitated a minor change only. However, the Committee needed to discuss whether a substitute was needed for its representation – such as a human rights specialist or activist – or whether simply to drop the number of representatives on the advisory board, although this might create an imbalance. Members could also meet with their counterparts in that respective Committee to get an understanding of the argument,  to deal with it on Wednesday morning.

Mr Ndlovu asked if it was only the SAHRC matter to which amendments had been made.

The Chairperson said there was also a proposal for the inclusion of Department of Correctional Services (DCS) on the board, and the Committee needed to discuss this point. The DCS was not anxious to be on the board, raising issues of capacity and saying that the involvement of Correctional Services on the DNA Bill was in the transitional period. The Committee needed to consider and decide if DCS needed to be included in the advisory board.

PSIRA Annual Report adoption
The Chairperson noted that the Committee had not yet been able to adopt the PSIRA Annual Report as yet because of outstanding information, which was requested on the previous day, about the  salary of the Communications Officer of PSIRA.

A PSIRA representative said he spoke to the Executive Director the previous evening, who had said that he had asked the Chairperson but had not received any reply.

The Chairperson said it was a straightforward but important question that had been asked, and she could not understand why the Executive Director was unwilling to give an answer. She had made it clear that she would be writing to the Director, today, to instruct him that he must be present on Tuesday when the Bill was adopted, and to come with the answer on the remuneration. He was also expected to give the number of posts, names of individuals who were filling those posts, and the salaries of those individuals, as the Committee needed that information in order to prepare its own Committee Report on the PSIRA Annual Report. She started to get suspicious when people did not want to answer questions.

Mr George asked if the Chairperson or the Executive Director was supposed to give this information.

The Chairperson responded that the Authority was the accounting officer, but Parliament could call anyone to account before it. The Committee had posed this question to the Executive Director and there was no reason for him to check with the Chairperson whether he could give the information, so this was “absolute nonsense”. She reiterated that the Executive Director would be sent this letter, and that he had to be present and prepared to deal with the issue.

The Chairperson said that the Committee’s draft Report on the PSIRA Annual Report would be e-mailed to all Members by Friday. She urged Members to go through it, so that it could be adopted soon and tabled to the House as well.

The Chairperson noted that she did not take kindly to the disregard and disrespect of the Committee shown by PSIRA.

Mr Thobejane, in light of the frustrations of the Committee, suggested it should send a message up front to the Director that Parliament had the power and right, through the Speaker, to bring that person before them to answer questions. He was sure it was stated, in the Constitution, that Parliament could call any citizen of the Republic to report to it if it was decided that person had information which had a bearing on the work of Parliament.

The Chairperson agreed and said that when the letter was drafted it would set out clearly that if the Executive Director was not present, he would be summoned to appear before Parliament on this issue. She was seriously concerned about this question, because when the Committee had asked about the PSIRA researcher, it was told that the representatives did not have the information with them at the hearings on the Annual Report. Subsequently, the Committee got a written response to say the researcher was earning more than R1.65 million a year, yet for the past two years that person had been “identifying a research topic” - merely looking into the title for the research! The junior researcher’s salary was R259 000 a year. At the same time, the Committee was told that PSIRA could not fill critical posts because there was no money, yet the researcher was getting over R1 million and doing nothing. This was simply not acceptable.

Mr George noted that the attitude of PSIRA in Bishop Lavis was horrible, especially that of the chairperson and the executive-director. The Committee had warned them, and said it would be reported yet the office’s attitude still persisted. Their predecessors had behaved in exactly the same way and a stop had to be put to this.

The Chairperson said once the legislation was passed, it would put a stop to that.

She indicated to Members that she had written to Minister about the researchers, on behalf of the Committee, asking for an explanation by the end of the week, as she was not sure that the Minister was aware of this appointment. That was another reason for tightening up on the legislation, since appointments were simply being made all over the place without going through the appropriate avenues. She asked the representative of PSIRA who was present today to relay the Committee’s dismay to the Executive Director. 

The Chairperson wanted to express her appreciation to the Committee researchers, Content Advisor and Secretary and most of all, to the Members themselves. This had been a long year, and the Committee had just come out of intense Annual Report hearings that had seen the Committee sitting literally from 8am to 7pm, and now had proceeded straight into tiring and time-consuming legislation. She appreciated the commitment and positive contribution of Members and the putting aside of what might political differences they may have, to draft and craft legislation that was to the benefit of the country.

The meeting was adjourned.


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