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SAFETY AND SECURITY PORTFOLIO COMMITTEE
14 March 2001
SECURITY INDUSTRY REGULATION BILL: BRIEFING
Chairperson: Mr George
Security Industry Regulation Bill [B12 - 2001]
This Bill provides for the registration of security officers and for the inspection of security service providers. The definition of ''security service'' has been broadened to include categories such as private investigators. This is significant because security service providers must register in order to provide the service. Broadening the definition increases the categories of people that must register and thus increases the categories of people that will be regulated in terms of the Bill.
However, clause 20(3) of the Bill sets out a transitional arrangement. It gives the Minister the power to phase in categories of service providers which were not regulated by the Act in the past but will now be subject to regulation in terms of the Bill. Thus not all categories of security service providers will be immediately covered.
There will be a security industry regulating authority to exercise effective control over the practice of the security service providers. This Authority will be accountable to the Minister.
Present at the meeting was Mr Rasegatla (from the Secretariat), Mr Soman (Legal Director: Secretariat), and Advocate Kok (from the Department). The briefing was made by Mr Soman and Advocate Kok. In a short introduction Mr Rasegatla commented that the Bill differed slightly from the policy document distributed to the members last year.
Summary of presentation
History of the Security Industry Regulation Bill - Mr Soman
In 1999 Cabinet directed the Department to draft a policy on the security industry and in accordance with this mandate the Department drafted guidelines.
Cabinet wanted the security industry regulatory body (the Authority) to be independent from the security industry itself.
Research was conducted to draw up the policy document and an industrial analysis of the security industry was done.
The research showed that the security industry is a significant contributor to the SA economy. However the existing Act is outdated and a mandatory code of conduct is necessary.
The recommendations they made include:
- expanding the definition of ''security services'' (to include private investigators for example). Thus categories which are not under the current regulation will now be regulated by the Bill.
- Registration is confined to citizens.
- There can be suspension of applicants who are under investigation for a scheduled offence.
- There must be full disclosure of any past membership to the SADF and the SAPS for example.
- The Authority be given powers to ensure that the industry acts in the national interest. The Authority can exercise provincial representation.
The future regulatory authority will be independent from the industry. However there is still provision for the industry to make an input. The Authority will be accountable to the Minister. The Chairperson of the body is to be appointed by the Minister. Members will be appointed annually and the members will be subject to a full security clearance by the National Intelligence Agency.
They decided not to regulate mergers and acquisitions.
In terms of the Bill the regulatory authority has improved powers to effect regulation and the Schedule to the Bill has also been expanded.
The Bill - Advocate Kok
Generally the Bill provides for the registration of security officers and inspection over the service providers.
The present Bill may be too comprehensive therefore the Bill gives the Minister the power to make certain exemptions.
Definitions and Interpretation - Chapter 1
Security service - The definition of ''security service'' is the basic foundation of what the Bill is going to regulate. Many technical changes have been made to the old definition to plug gaps which the definition in the old Act did not cover.
Sometimes an entrepreneur calls himself a ''labour broker'' and not a ''service provider'' for example. This is done to avoid being made subject to the regulations. The new draft stops this from taking place. The definition plugs loopholes which existed in the old Bill.
Ultimately the Department would like to cover even small things like housesitting.
Security service provider - The Bill provides a system in which all ''security service providers'' must be registered as such to provide the security service. Therefore one must know what a ''security service provider'' is. There can be two groups of security service providers.
It can be either:
1) a person providing the services (a person providing the service would be a security officer), or
2) a body providing the services (security businesses comprise all that are not security officers).
Both must be registered.
In terms of the definition of a security service provider there must be remuneration. If not then that provider is exempt.
Security Industry Regulatory Authority - Chapter 2
Clause 5(4) deals with the governance of the Authority. This subclause gives the Minister the power to issue guidelines to the Authority as to how it must perform its functions. The clause explicitly states that the Authority must follow the Minister's guidelines. Thus the Minister retains control.
In addition to the Authority there is also a Council. The Council is the governing body of the Authority, the decision-making body of the Authority.
Clause 10 deals with the accountability of the Council. It states that the Council is accountable to the Minister for the performance of its functions. Clause 11 (Ministerial supervision of Authority) also supports Ministerial power. It provides that in certain circumstances the Minister has the power to take over a function of the Authority and the Council.
The problem with independence of the Authority is that there can be a lack of expertise in the Authority. Therefore provision is made for the Council to appoint committees (experts from the industry) to assist the Authority. This is done in clause 13.
The funds which the Authority consists of is set out in clause 16. The levying of funds must be done in terms of a money bill and must be presented to Parliament by the National Treasury.
The provisions on financial statements and bookkeeping (found in clause 17) are normal provisions found in a Bill.
Registration as Security Service Provider - Chapter 3
Clause 20 provides that one must register as a security service provider in order to be able to render such a service for remuneration.
Clause 20(3) provides that the Minister can phase in the categories of service providers to whom the Bill will be applicable to. Not all the categories will be immediately covered because this will be impractical. The Minister will phase in categories of service providers. The transitional provision is quite an important one.
Clause 22 deals with the requirements for registration. The applicant registering must comply with the listed requirements. It is aimed at ensuring the integrity of the registration of the security service provider.
Clause 23 deals with registration and clause 25 deals with lapsing, suspension, and withdrawal of registration. Through these clauses the public is protected from unethical practice in the security industry.
Proper Conduct and Appeal - Chapter 4
Clause 28 sets out the proceedings against a security service provider where there has been improper conduct. Appeals against decisions are possible and are provided for in clause 29. The way the appeal must be conducted must still be debated in the committee.
Monitoring and Investigation - Chapter 5
Security officers cannot assume the role of police officers. This means for example that they cannot arrest people the way a police officer would. Security officers will have to exercise their right to make a citizens arrest (when arresting private individuals) in terms of the Criminal Procedure Act because they do not have the authority to make police arrests.
Clause 30 provides for the appointment of inspectors. Inspectors have extensive powers to inspect security officers. Granting inspectors these powers is justifiable in terms of the Constitution because there must be proper inspection and control of security services. If any malpractice is found then the Inspector must ensure that it is ''nipped in the bud''.
Clause 32 sets out the inspectors powers relating to security service providers while clause 33 sets out the powers of inspectors relating to other persons.
General Provisions - Chapter 6
Clause 34 gives the Minister the power to make regulations. Initially the Council was given the power to make the regulations but this has been changed.
Clauses on the preservation of confidentiality (clause 36) and the limitation of liability (clause 39) are normal clauses to be found in such a Bill. The last clause before the short title (clause 43) are the transitional provisions.
The Chairperson commented that the presentation did not highlight where the Bill differed from the policy changes.
Mr Rasegatla said that the policy and the Bill were both approved by Cabinet. Whether the Bill differs from the policy is really a matter of interpretation. He said that if the committee wished they would go through this in their next presentation.
Advocate Gaum (NNP) commented that the Bill grants the Minister extensive powers. He asked why this was the case.
He also asked for an explanation as to why security officers do not get peace officer powers.
Finally, he referred to the initial draft where the Council was given the power to make regulations. He asked why they changed this by giving the Minister the power to make regulations. He suggested that the Council could make the regulations in consultation with the Minister (instead of the other way around).
Mr Soman replied that the initial draft gave the Council the power to draw up the Regulations but Cabinet instructed the Secretariat to make the change. The reason for the change is that in the normal course of things it is the Minister who makes regulations and not the Council.
Advocate Swart (DP) referred to clause 4 of the memorandum of the Bill (Financial Implications for the State) which states that there are no financial implications for the State. yet clause 16 of the Bill deals with funds of the Authority. He asked who would pay the CEOs for example. He also asked why a reference was made to a money bill in the presentation in respect of funding for the Bill.
General Viljoen (FF) asked a similar question. He asked for a comment on the financial implications of the Bill. He wanted to know exactly what it would cost the State.
Mr Soman replied that the Authority will be self-funded. The only implication for the State is the remuneration for the Chairperson of the independent Authority and the matters relating to the appeal procedure. The Authority will be funded through fines, subscriptions, and registration fees.
The Chairperson asked the Department to look at the costing of the Bill and report on this to the Committee. He wanted them to look not only at the cost for the State but also for the private industry (example what will it cost them to register and so forth).
Mr Vadi (ANC) asked why the term of office was limited to a one-year contract. He said that this time was too short as the person needed to acquire skills unique to that position. After one year the person may just have acquired those skills and then the persons contract is over.
Mr Rasegatla replied that they are aware that experience must be gathered. The Minister will not necessarily change members each year. The point of making a one-year contract is as an intervention strategy for the Minister to remove people if is necessary without finding it difficult to do so.
Mr Ndlovu (IFP) asked about the practical implementation of the Bill. If there was going to be a head office in Pretoria, how would they exercise control over the industry in all the provinces?
Mr Soman replied that the head office in Pretoria would regulate the industries. Offices can be established in the provinces to make this easier.
At this time Mr Soman said that someone else from the panel would take over answering the rest of the questions which had been asked. No-one on the panel had anything to add.
Before adjourning the meeting, the Chairperson chastised the Secretariat and the Department for being unprepared. He said that not all of the questions had not been answered, nor had the Department brought briefing documents with them, nor had the differences between the Bill and the policy document been highlighted. He said that the next time they came before the committee they would have to be better prepared.
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