Criminal Law (Forensic Procedures) Amendment Bill [B9B-2013]: adoption of NCOP Amendments; Private Security Industry Regulation Amendment Bill [B27B-2012]: deliberations

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05 November 2013
Chairperson: Ms A van Wyk (ANC)
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Meeting Summary

The Committee deliberated on an amendment to the Criminal Law (Forensic Procedures) Amendment (DNA) Bill proposed by the National Council of Provinces (NCOP). After a short discussion and caucus, Members from all parties agreed to adopt the amendment which would see a member of the Department of Correctional Services being added to the Ethics Board.

The Committee deliberated on the Private Security Industry Regulation Amendment Bill (PSIRAB). Questions were raised over provision for the Minister to intervene should there be a deadlock in discussions at the council.  Members discussed the clause listing the duties of the council and the secretary. Some duties would be spelt out more explicitly.

Members discussed the appointment of the director of the council, as stipulated in Clause 14.  There was some disagreement over the provision that this person must be a South African citizen. The sub-clause stipulating the need for security clearances and forbidding members of the council having financial interests in the industry should be split. A provision was needed to oblige the council to follow the stipulations of the Public Finance Management Act (PFMA).  Members asked for a new sub-clause 17 (5) to stipulate that the council should be the accounting authority.  Terms used should be consistent with the PFMA. Provisions relating to the submission of the Annual Report should be included for clarity, even if they were prescribed in the PFMA.

The Civilian Secretariat for Police re-introduced a proposal contained in the original Bill, relating to restrictions on foreign ownership of security companies. This was said to be necessary for the security of the country. Opposition Members objected strongly to this clause for several reasons.  It would be very difficult to prove ownership, given modern shareholding models.  The proposal was described as unconstitutional, allowing the Minister to expropriate companies.  It was based on related legislation that had been published only the previous day.  Members had not been given the opportunity to discuss this proposal, as it was being introduced only at a late stage.  The legal team was tasked to prepare the transitional arrangements which would regulate the proposed clause.

Members raised some concerns over the control of firearms. Apart from the discussions described above, Members were in agreement with all clauses. The meeting was adjourned after discussion on Clause 34 of the Bill.

Meeting report

Deliberations on NCOP's Proposed Amendments to DNA Bill
The Chairperson announced that the technical team had been delayed. She proposed that Members consider the Criminal Law (Forensic Procedures) Amendment (DNA) Bill in the meantime. She asked the Content Advisor to inform Members of a proposed amendment from the National Council of Provinces (NCOP), after which she would give Members a chance to caucus on the proposal.

Ms Nicolette van Zyl-Gouws, Content Advisor, said that the NCOP had proposed an amendment that would take the number of representatives from the public sector from three to four. This representative should come from the Department of Correctional Services (DCS).

The Chairperson said that the Select Committee had considered the concerns of the Human Rights Commission (HRC). This body might be called up when needed. The inclusion of the DCS was needed. The DCS had an important role to play in the taking of samples from serving prisoners. Many cases would come from convicted prisoners claiming innocence and requesting that their samples be expunged.

Mr M George (COPE) asked if the Select Committee on Constitutional Development was aware that the Committee had called the DCS. It was thought it would be enough for the DCS to be involved in the transitional period. He asked what DCS would be doing once all samples had been gathered. 

The Chairperson said that there had been agreement on the lack of capacity of DCS to take the samples, but they did have the capacity to serve on the Board. The suggestion of the Select Committee was that DCS did have a role to play on the board, especially when it was thought that DNA evidence might prove the innocence of someone serving a prison sentence. The Ethics Board would act only if and when issues arose.

After a brief adjournment, Members from all parties agreed to accept the proposal made by the NCOP.

Deliberations on Private Security Industry Regulation Amendment Bill
The Chairperson announced that the voting on the Private Security Industry Regulation Amendment Bill (PSIRAB) would take place the following day.

Ms Jenni Irish-Qhobosheane, Secretary of Police, said that the team had looked at provisions regarding foreign ownership.

The Chairperson said that a Bill had been published the previous day dealing with ownership issues..

Major-General (Gen) Philip Jacobs, South African Police Service (SAPS), said that the long title of the PSIRAB had been amended. 

Mr V Ndlovu (IFP) noted that there had been some repetition.

The Chairperson said that the repetition would be removed.

Clause 1 – Definitions
Gen Jacobs read the definitions that would be inserted or amended.  These were the definitions of 'Civilian Secretariat', 'company', 'Levies Act', 'locksmith', 'Minister', 'National Treasury', 'Public Finance Management Act', 'security business', 'security officer' and 'security service'.

The Chairperson noted the agreement of Members.

Clause 2
Gen Jacobs read Clause 2, which would substitute section 2 of the Private Security Industry Regulation Act of 2001.

The Chairperson noted the agreement of Members.

Clause 3
Gen Jacobs read Clause 3, which would substitute section 3 of the Act.

The Chairperson noted the agreement of Members.

Clause 4
Gen Jacobs read Clause 4, which would amend section 4 of the Act.

The Chairperson noted the agreement of Members.

Clause 5
Gen Jacobs read Clause 5, which would amend section 5 of the Act.

The Chairperson noted the agreement of Members.

Clause 6
Gen Jacobs read Clause 6, which would amend section 6 of the Act.

Mr George referred to the sub-clause which made provision for the Minister to intervene in the event of a disagreement between council members.  As there were five members, there should be a means of reaching agreement by a vote.

Gen Jacobs said that the provision was in place as a mechanism for cases where there was a deadlock developing.  When this might happen was not explicitly described, but the intervention of the Minister was better than that of an outside mediator.

The Chairperson said that the secretary of the council would draft rules regarding voting.  The best possible policy position should be achieved without having to decide by a vote.  She was comfortable with this arrangement, which mirrored agreements with other councils.

Gen Jacobs said that the Minister could instruct that a meeting be held to resolve a tricky issue.

Clause 7
Gen Jacobs read Clause 7, which would amend section 7 of the Act.

The Chairperson noted the agreement of Members.

Clause 8
Gen Jacobs read Clause 8, which would amend section 8 of the Act.

The Chairperson noted the agreement of Members.

Clause 9
Gen Jacobs read Clause 9, which would amend section 9 of the Act.

The Chairperson noted the agreement of Members.

Clause 10
Gen Jacobs read Clause 10, which would amend section 10 of the Act.

Mr George noted that a member of the council could be dismissed for missing three meetings.  He asked if this applied to meetings within a calendar year.

The Chairperson said that the Bill spoke to three consecutive meetings, irrespective of the calendar or financial years involved.

Mr G Thobejane (ANC) asked if the roles and duties listed should be specifically assigned to the secretary or to the council in general.

Mr Ndlovu felt that the chairperson was a member of the council.  There would be a deputy chairperson, in the absence of the appointed chairperson.

Mr George had not seen any provision for research.  Members had debated this at length.

The Chairperson felt that research might fall under the provision for 'relevant advice'.

Ms M Molebatsi (ANC) had not seen any responsibilities listed for the dissemination of documents.

Gen Jacobs said that the duty of disseminating documents could be inserted, although he felt that this was part of normal administrative duties.  It might be better to refer to the Chairperson.

The Chairperson suggested a clause be added to cover other duties as assigned by the chairperson.  This person would call the meetings.

Mr D Stubbe (DA) said that 'any other task' was an example of over-regulation.  The wording was showing a lack of trust in the council.

Mr Ndlovu said that there was no chairperson without a council, and vice-versa.  The chairperson spoke on the authority of the council.

The Chairperson said that sub-clause (b) already covered this matter.

Mr Thobejane agreed that his point was covered. 

Mr Stubbe concurred that the Clause be left as is.

Clause 11
Gen Jacobs read Clause 11, which would amend section 11 of the Act.

The Chairperson noted the agreement of Members.

Clause 12
Gen Jacobs read Clause 12, which would amend section 12 of the Act.

The Chairperson noted the agreement of Members.

Clause 13
Gen Jacobs read Clause 13, which would amend section 13 of the Act by providing for the chairperson appointing additional councillors.

The Chairperson noted the agreement of Members.

Clause 14
Gen Jacobs read Clause 14, which would amend section 14 of the Act.

Ms Molebatsi asked if the 'approval' contemplated in Clause 14 (1) was from the Minister or Parliament.

Mr George said that the council was charged to make an appointment of a director, in consultation with the Minister.  Two spheres of government were being conflated.  Parliament had its own oversight role.  He asked why Parliament should still be involved.

Ms D Kohler Barnard (DA) said that there was a restriction on the appointment of persons other than citizens of the Republic.  She asked if this could be taken up as a constitutional challenge.  She was not sure if Parliament could legislate on something that was in conflict with the Constitution.  It was common practice for appointments to such councils to go through the Portfolio Committees.

The Chairperson said that the wording should be changed to provide for the Minister making the appointment of operational people, and then informing Parliament.  Such persons should be appointed with regard to their qualifications and experience, but this provision had disappeared.

Mr Sisa Makabeni, State Law Advisor (SLA), said that it was up to Parliament to decide who should serve on councils.

Gen Jacobs said that the main issue was a concern related to security.  A permanent resident normally held the same rights as a citizen.  There was a precedent for setting a higher qualification at senior levels.

Mr George would not compromise on the head not being a citizen.  Some companies were completely foreign-owned.  The qualification should remain as 'South African citizenship', and not 'permanent residence'.

Gen Jacobs resumed reading the clause. 

Mr George was worried about sub-clause 15 (a).  He did not think it was practical to expect the written delegations made by the director to be approved by council.  Emergency situations might arise, and the council might have to be called to resolve this.

The Chairperson said that this discussion had been held at length.

Mr G Lekgetho (ANC) wanted clarity on the provision forbidding staff members from having financial interests in any company, and the requirement for a security clearance. 

The Chairperson said that the issue of security clearances had been discussed at length as well.  There were different gradings of clearance.

Mr Stubbe suggested that the way the clause was worded implied that if there was no need for a security clearance, the official could have interests in the industry.  This sentence must be split, as these were separate issues.

Ms Irish-Qhobosheane said that a person could act on behalf of another.  The council had to agree on the limits of power that could be delegated.  This was what was meant.

The Chairperson said that this provision had to be included.  The director could not have unfettered discretion.  She wondered if the application of the Public Finance Management Act  (PFMA) should not be made more explicit, applying to both the council and the authority.

Gen Jacobs agreed that this would bring more clarity. 

Clause 15
Gen Jacobs read Clause 15 that would insert a new section 14A.

Mr Thobejane asked for clarity on what was meant by the requirement for a council member to be of 'sound mind'.

The Chairperson explained that this was in line with the definition of being a 'fit and proper' person.

Clause 16
Gen Jacobs read Clause 16.  Section 15 of the Act would be repealed.

Clause 17
Gen Jacobs read Clause 17, which would substitute section 16 of the Act.

The Chairperson requested that a new sub-clause (5) be inserted, to specify that the council would be the accounting authority.

Mr Stubbe disagreed with this suggestion.

Mr George did not think it practical that the council, as accounting officer, would meet only four times a year.

The Chairperson said that according to the PFMA, the Council could fulfil this role.

Mr Thobejane thought better wording would be 'accounting authority,' rather than 'accounting officer.'

Mr Stubbe said that it would be best to use the same terms as contained in the PFMA.

Clause 18
Gen Jacobs read Clause 18, which would insert a new section 16A.  This dealt with the requirements for the Annual Report.

The Chairperson asked if the section needed to be included, as it was a copy of the provisions of the PFMA.

Ms Irish-Qhobosheane agreed, but felt it better to list the provisions for clarity.

The Chairperson said that the roles of accounting officer through the director must be in line with the PFMA.

Clause 19
Gen Jacobs said that Clause 19 would repeal sections 17, 18 and 19 of the Act.

Clause 20
Gen Jacobs read Clause 20, which would amend section 20 of the Act.

Ms Irish-Qhobosheane proposed that the clause in the initial Bill be re-inserted.  The Minister should be given the discretion to allow companies with less than 100% South African ownership to operate in key areas.  This would be addressed in the transitional arrangements.

Mr Stubbe said that companies were trading on the stock exchange, and this decision could simply be writing them out of business.

Mr George had pushed for this in the 1990s.  The situation could have been dealt with then, but it was now virtually impossible, given the new ownership models.  It would not help passing a law that was unenforceable. 

Ms Kohler Barnard agreed that there had been wide consultation and public hearings on this matter.  This proposal was basically giving the Minister the right to expropriate companies.  This would never be constitutional.  It would be inexcusable to put forward another Bill as the basis for this clause.  She was astounded that this provision was being brought back at the last minute.

The Chairperson had made it clear on several occasions that this issue was still on the table.  The industry was unhappy, but the security of the country had to be considered.  The important question was on how this would be done, and this would be captured in the transitional arrangements.  The Minister had published the related draft legislation only the previous week.

Mr Ndlovu agreed that the Chairperson had been saying that something was coming, and this was it.  He asked where this proposal came from.  Members had discussed this before.  Members had to satisfy themselves that this proposal was correct.  It was impractical to look for companies with a 51% shareholding.

The Chairperson said that the Secretary was not speaking for herself.  The transitional arrangements had to be taken into account.  She asked how far these arrangements were.

Ms Irish-Qhobosheane said that the team should be able to work on the arrangements during the afternoon.

The Chairperson instructed the team to complete the drafting and forward it to Members by e-mail before the end of the day.

Mr George supported the proposal in principle, but needed the document for interaction.

Mr Stubbe wanted to know what had happened to trigger this.  The matter had been discussed in depth.  The definition contemplated a 'fit and proper' person, and there was no reference to shareholding.  He wanted to see the concept put forward by the Minister.   Members could not work in this way.

The Chairperson would provide the document.  She was not asking Members to accept anything at this stage.  Funding would not be split.  There had not been public participation when the Bill was presented, and the Private Security Industry Regulatory Authority (PSIRA) had been tasked to negotiate. 

Mr Lekgetho agreed that there were challenges.  He wanted to know what the current ownership ratio was. 

The Chairperson said that there was currently no limitation on ownership.  Members would revisit this proposal the following day.

Mr Thobejane objected to Mr Stubbe speaking in Afrikaans.

The Chairperson apologised for not translating what Mr Stubbe had said.

Gen Jacobs continued to read Clause 20.

Mr George did not think there should be further discussion on this clause, as it related to the proposal but forward by the Secretariat.  The Minister would be given powers over matters related to trade and foreign affairs.

Mr Thobejane suggested that 'may' should be changed to 'must' in 20 (a) (c). 

Mr Makabeni replied that this was standard drafting.

Mr George said that all security companies should be registered.

Gen Jacobs said that 'may' did give discretion, but 'may not' meant that the action could not be performed.  He agreed with SLA that 'may not' was appropriate.  Members agreed.

Clause 21
Gen Jacobs read Clause 21, which would insert a new section 20A.  This made provision for an Exemption Advisory Committee. 

Ms Molebatsi asked what 'Service' was contemplated in (2) (d).

The Chairperson replied that this was SAPS.  It was defined elsewhere in the Act.

Clause 22
Gen Jacobs read Clause 21, which would amend section 21 of the Act.

The Chairperson noted the agreement of Members.

Clause 23
Gen Jacobs read Clause 23, which would insert a new section 21A into the Act, prescribing categories of security businesses.

The Chairperson noted the agreement of Members.

Clause 24
Gen Jacobs read Clause 24, which would substitute section 22 of the Act.

The Chairperson noted the agreement of Members.

Mr Lekgetho said that 22 (2) (a) was making it the responsibility of the Minister to check the validity of licences.  Companies should take the responsibility for renewing their licences.

The Chairperson said that the provision was already in the Act, but had yet to be implemented.  All the Minister had to do was set a date.

Clause 25
Gen Jacobs read Clause 25, which would amend section 23 of the Act.

Mr George asked what was meant in ( c) (h).

The Chairperson said that this dealt purely with employment.   Certain departments, such as Defence and Police, specifically prohibited their members from joining private security  companies.  Other departments might have similar regulations.

Clause 26
Gen Jacobs read Clause 26, which would amend section 26 of the Act.

The Chairperson noted the agreement of Members.

Clause 27
Gen Jacobs read Clause 27, which would amend section 28 of the Act.

The Chairperson noted the agreement of Members.

Clause 28
Gen Jacobs read Clause 28, which would amend section 30 of the Act.

The Chairperson noted the agreement of Members.

Clause 29
Gen Jacobs read Clause 29, which would amend section 31 of the Act.

The Chairperson noted the agreement of Members.

Clause 30
Gen Jacobs read Clause 30, which would amend section 32 of the Act.

The Chairperson noted the agreement of Members.

Clause 31
Gen Jacobs read Clause 31, which would amend section 34 of the act.

The Chairperson noted the agreement of Members.

Clause 32
Gen Jacobs read Clause 32, which would amend section 35 of the Act.

Mr Benjamin Ntuli, Councillor, PSIRA, said that the intention of the provision for searches of private dwellings was needed.  There was a tendency to retreat to private dwellings.

The Chairperson said that a warrant would be needed.

Gen Jacobs said that it would be an exception to find a private house used to store documents.

Mr Ndlovu said that any searches of private homes must be conducted with a warrant.

Mr Makabeni agreed, and this had been confirmed in court cases.

Clause 33
Gen Jacobs read Clause 33, which would amend section 36 of the Act.

Mr Stubbe presumed that the reporting on firearms would be governed by regulations. He wondered if security companies could fulfil the terms of this legislation.

The Chairperson said that PSIRA would have to account for all companies registered and authorised to use firearms associated with their type of work.  When a company was de-registered, SAPS should be informed in order to recover firearms. The registrar should supply information on the number and type of firearms in use.  It was a simple process.

Mr Manabela Chauke, Director of PSIRA, was comfortable that PSIRA could fulfil this function.  Structural arrangements would be made in order to pass on the information.  This would ease the process.

Mr George wanted to see a situation where the authority could have real-time records of the firearm inventory of any company. Even SAPS could not do this. There was a public perception that the private security industry had more firearms than SAPS. 

The Chairperson thought that this requirement was captured.  There would be nothing stopping PSIRA from asking for updated information.

Mr George asked to what extent SAPS would co-operate. Once given a firearms licence, the authorities should be informed.

The Chairperson said that this provision was there.

Mr Thobejane felt that PSIRA should report to the Minister, and the Minister should be accountable to Parliament.

Gen Jacobs replied that there had been cases where businesses had been transferred.

The Chairperson said that this must be part of the Annual Report of PSIRA. The information must be captured correctly. The Committee could still ask for a report at any time.

Mr Thobejane wanted to see a scenario where the Minister would be the custodian of the law.

The Chairperson asked for the legal team to have a look at the wording.

Clause 34
Gen Jacobs read Clause 34, which would insert a new section 36A. This would address security services rendered outside the Republic.

The Chairperson noted the agreement of Members.

Clause 35
Gen Jacobs read Clause 35, which would amend section 39 of the Act. Another 'or' was needed in sub-clause (d) (ii).

Mr Thobejane queried the use of 'or' in sub-clause (c) (iii).

The Chairperson decided to halt the meeting. The Department needed to work on the  transitional arrangements.

The meeting was adjourned.

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