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SAFETY AND SECURITY PORTFOLIO COMMITTEE
2 May 2001
SECURITY INDUSTRY REGULATION BILL: HEARINGS
Chairperson: Mr M E George
Chamber of Mines submission
Public hearings commenced on the Securities Industry Regulation Bill. Mr Dirk Lambrechts, the Confederation of Employers of South Africa, The South African Transport and Allied Workers Union, Telkom and the Chamber of Mines of South Africa made presentations to the committee about their views on the Bill and the effect it would have on them. The arguments put forth by the presenters were either for or against regulation of the industry. Many security service providers were in favour of non-regulation or minimal regulation of the industry. The South African Transport and Allied Workers Union made a distinct plea on behalf of the employees of the industry for proper regulation of the industry. The Chairperson felt that Telkom's concerns on how the Bill affects them were unfounded. The Chamber of Mines of SA engaged in a lengthy argument against the regulation of in-house security.
Submission by Mr Dirk Lambrechts
Mr Lambrechts emphasized that he was in Parliament in a personal capacity and represented no party or organization with a vested interest in the bill. Mr Lambrechts inform the committee that he was currently lecturing Security Industry Management and Criminology at the University of South Africa.
Mr Lambrechts suggested alternatives for certain terms within the bill. Specifically, Mr Lambrechts referred to use of the term "security service" in the Bill as conflicting with its use in the Constitution. The term "security service" in the bill refers to the private security industry whereas in the Constitution it refers to the SAPS and the SANDF. Furthermore, Mr Lambrechts suggested that the name of the Bill be changed to the Asset Protectors Bill and that the word "security" in the Bill be replaced with the word "asset".
Mr Lambrechts recommended that security service providers should have the same legal powers as the police and that these powers be expressly provided for in the Bill. The basic powers Mr Lambrechts referred to inlcuded inter alia the protection of people and property, the prevention of crime and the investigation of offences. Mr Lambrechts also suggested that provision be made in the Bill for the Minister to decide from time to time to extend further powers of the SAPS to security service providers such as search and seizure powers. Mr Lambrechts stated that this was especially relevant since the security service industry has more members than the SAPS.
Mr Lambrechts referred to S v Kidson 1999(1) SACR 338(WLD) and S v Dube 2000(1) SACR 53(NPD) to substantiate his argument. In the Kidson case one private individual bugged another and the court decided that it was not punishable. In the Dube case a private person undertook an undercover operation and once again the court decided that it was not wrongful. Citing these cases, Mr Lambrechts felt it plausible that if private individuals can perform such activities then why not extend such powers to security service providers as well.
In conclusion Mr Lambrechts also suggested minor technical changes to be made to the Bill.
Mr R Zondo (ANC) felt that security service providers should not be given the same powers as the SAPS since there is no mechanism to guarantee that these powers are not abused by service providers in future.
Mr Lambrechts responded that the definition of a 'security service' in the Bill already provides that security service providers perform some of the functions of the SAPS and that these functions be codified in the bill.
Mr O Kgauwe (ANC) asked how the protection of people would be included by utilizing the term 'asset' instead of 'security'.
Mr Lambrechts stated that the definition of 'asset' could include people.
The Chair disagreed and stated that the meaning of words could not be changed to suit various needs.
Mr Lambrechts conceded that an alternative to 'asset' could be used since his was only a suggestion.
Adv A Gaum (NNP) raised the following issues:
(i) The use of the word 'asset' creates confusion.
(ii) The reference to S v Kidson is irrelevant as new laws dealing with bugging and tapping are in place.
(iii) Extending the powers of security service providers to that of the SAPS would not be feasible.
Mr Lambrechts stated that most of the powers of security service providers exist at common law and that his suggestion was that these be codified in legislation. At present bugging and tapping is only allowed where the police have obtained a court order to do so. Mr Lambrechts argued that this requirement is superfluous considering the precedents that were set in the abovementioned cases.
Adv P Swart (DP) asked whether it could be accepted that there is agreement on the rest of the Bill other than the issues that were raised and Mr Lambrechts said that there was.
Confederation of Employers of South Africa (COFESA)
Mr Hannes Venter, National Co-ordinator of COFESA stated that COFESA is registered with the Department of Labour and has 5000 direct members and 120 000 members through the federation.
Mr Venter stated that COFESA's members are victimised by the Security Officers Interim Board - computers and documents are regularly confiscated and many of their members are forced to close down as a result of such actions. Mr Venter emphasized the need for a system that is grass-roots active.
Mr Venter highlighted that COFESA members are regularly in daily contact with the SAPS and recommended that local security service providers register with the local SAPS station commander. In essence, COFESA expressed the view that the industry does not need regulation and highlighted their concern that small business would be regulated out of the industry. To this extent, Mr Venter stated that COFESA felt it necessary that small business be given special consideration when regulating the industry.
Adv Gaum asked to what extent COFESA would have the powers of the inspectors of the Security Officers Interim Board curtailed.
Mr Van Wyk (COFESA) stated that COFESA'a concern was that the Bill would provide inspectors with the same powers as police officers.
Rev Meshoe asked whether COFESA felt that the industry should not be regulated at all.
Mr Van Wyk felt that regulation would hamper small business from entering the industry.
The Chair asked whether COFESA did not want the industry to be regulated at all. The Chair commented that if the inspectors of the Board are misusing their powers this may impact upon the future of the Board.
Mr Booi asked COFESA to elaborate on circumstances where COFESA stated there was an abuse of power.
Mr Venter stated that in most instances, inspectors do inspections without giving prior notice. He added that inspectors also victimise security service providers if they are affiliated to COFESA.
Adv Gaum asked on what grounds COFESA based their argument that the industry should not be regulated.
Mr Van Wyk stated that in the past the industry was over regulated and commented that if a civilian has powers of arrest he saw no reason for the regulation of a security persons powers.
South Africa Transport and Allied Workers Union (SATAWU)
Mr Jerry Ngcomo and Mr Nicholas Majiya presented. In essence, SATAWU agrees with industry regulation, as it would provide impetus for transformation. SATAWU's main concern is that worker representation in the industry is not forthcoming. Furthermore, SATAWU stated that workers rights have been overlooked in the past, as employers took advantage of a poorly regulated industry. SATAWU highlighted its view that where worker's rights have been infringed in the past restitution should be payable to such individuals. At present employers are merely fined where rights of workers are infringed. SATAWU stressed that future regulation should place emphasis on employee rights.
SATAWU also made specific recommendations on the Bill. For detail please refer to the attached document.
Adv Swart asked who should deal with labour relations, the Department of Labour or the Board.
Mr Ngcomo stated that the problem with the Department is that it lacks capacity. SATAWU accepts that the Board is at present competently dealing with the issue of labour relations but that in the future the National Bargaining Council should perform this function, thereby diminishing the Board's role.
Rev Meshoe asked how SATAWU envisages restitution be paid to employees.
Mr Ngcomo stated that currently where an employer commits a breach the Board merely imposes a fine of R500. Mr Ngcomo added that the leniency of sanctions has allowed many businesses to operate for short periods of time, declare bankruptcy and leave workers unpaid. SATAWU recommended that workers also be entitled to claim against the insolvent business.
Mr Booi asked for clarity on the tribunal court that is being referred to in the submission. He also asked what role the National Intelligence Agency (NIA) should play.
Mr Ngcomo stated that a tribunal court could ensure that workers rights were upheld. SATAWU suggests that the court be linked to our justice system. SATAWU calls for the involvement of the NIA to prevent security firms from engaging in espionage activities, as was the case in the past.
Mr Kgauwe (ANC) asked whether the Bill does not adequately address the needs of workers.
Mr Ngcomo emphasised that SATAWU wholeheartedly supports the regulation of the industry. It was merely felt that the rights of workers should be given more attention especially since workers contribute towards the financing of the Board.
The Telkom contingent comprised of Mr A Barendse, Mr P Ross, Mr K Mtlotana and Mr F Slabbert.
Telkom's main concern was how the Bill affects the functioning of non-security enterprises. Telkom supports regulation but requires certain exclusions and amendments to be made to the Bill. Telkom felt that some of the terminology in the Bill would impact negatively on Telkom's statuts. Telkom commented that superficially the Bill may not appear to affect non-security industries but on closer inspection it might require Telkom and other non-security industries to register as a security service provider. Telkom submits that it is a public company providing a telecommunications network and therefore should be excluded from the provisions of the Bill. Some of the definitions in the Bill are onerous and would negatively impact on Telkom's business and operational functions. Telkom therefore submits that the Bill should mainly apply to organisations whose purpose is to provide security.
Please see attached document for Telkom's presentation.
Adv Swart asked if Telkom's main concern was that they are not a security company and that the Bill was therefore not applicable to them.
Mr Ross stated that Telkom does not do investigating and monitoring for everybody. Telkom would only do it if requested to do so by the appropriate authorities ie SAPS.
The Chair stated that the mere fact that they do investigating and monitoring is a concern in itself. Who is to keep a check on Telkom if they overstep their bounds? Telkom is the only non-governmental organisation that is allowed to perform such activities.
Mr Mtlotana stated that Telkom is a statutory institution. Their main aim is to give effect to government's objectives. Telkom does not feel that it should not be accountable but that it should. not be regulated as a security service provider.
Mr Booi pointed argued that security work is security work no matter what the guise and that it would be impossible to allow Telkom to perform the abovementioned functions without being regulated.
Mr Mtlotana stated that Telkom is not trying to escape regulation completely but that Telkom should not be regulated in terms of the Security Industry Regulation Bill.
Adv Swart asked for clarity on whether they are currently performing any of the security services defined in the Bill.
Mr Slabbert conceded that some of the definitions do cover some of the work undertaken by Telkom. However, Mr Slabbert added that Telkom's operations do not necessarily impact negatively on the rights of individuals.
The Chair felt that the Bill did not affect Telkom and that their concerns were misplaced.
Chamber of Mines (COM)
Mr Anton Van Achterbergh, assistant legal adviser to the Chamber of Mines, presented.
The Chamber of Mines is an employer's organisation and membership to it is voluntary.
Ninety percent of its members comprise employers in the mining industry.Security requirements of its members comprise of both in-house security and contracts to outside companies.
COM stated that in-house security should be excluded from the provisions of the Bill as in-house regulatory frameworks are already in place and would benefit marginally from the provisions of the Bill. COM believes concerns about the protection of rights of employees are well founded but that COM is actively involved in collective bargaining processes in addition to the industry being strongly unionised. COM stated that if in-house security was included in the Bill, a clause in the Bill should allow for automatic exemptions in certain circumstances.
COM raised a further concern that the Bill would create a duplication of the regulation function as the industry is already regulated by other pieces of legislation. Instead of creating additional regulatory frameworks, COM suggested that existing frameworks be strengthened. Aside from these concerns, COM states that it supported the objectives of the Bill.
For detail on the COM presentation, please refer to the attached document.
Adv Gaum stated that although employers may be adequately regulated by existing legislation he had concerns about the roles of security aspects.
Mr Achterbergh's view was that security aspects are not adequately regulated at present. Minimum standards must be established to provide for this. In-house security has existing internal mechanisms in place and it is necessary that regulatory measures not be duplicated.
Adv Swart enquired about the following issues:
(i) Larger security firms have codes of conduct for in-house security but what about the smaller firm;
(ii) Is the duplication referred to total duplication or only partial;
(iii) The wording of the Bill requires a shareholder of a company to be registered as a security officer would the same apply to foreign shareholders?
(i) Minimum codes of conduct could be provided for but exemptions should apply to larger companies which have existing measures in place.
(ii) Most of the envisaged functions have been catered for. Departments dealing with labour issues are also performing certain functions.
(iii) Circumstances will arise where shareholders are not SA citizens but appropriate exclusions require formulation.
Mr Booi asked if it was correct to assume from the presentation that the mining industry was adequately regulated and how COM viewed the Bill as relevant to other industries?
Mr Achtenbergh stated that the COM's main concern is that in-house security is excluded from the Bill, otherwise the Bill was relevant to other industries.
Mr Zondo (ANC) asked whether COM had studied international trends with regards to in-house security.
Mr Achtenbergh conceded that COM had not.
Mr Gaum stated that COM is asking neither for an exclusion nor exemption of in-house security and suggested that the regulation of in-house security also be an option.
Mr Achtenbergh stated that it would difficult to determine the extent of in-house security regulation that would be acceptable.
The meeting was adjourned.
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