Security Industry Regulation Bill: deliberations; Section 49 of the Criminal Procedure Act: briefing

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Police

13 June 2001
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Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE

SAFETY AND SECURITY PORTFOLIO COMMITTEE
13 June 2001
SECURITY INDUSTRY BILL: DELIBERATIONS; AMENDMENT OF SECTION 49 OF CRIMINAL PROCEDURE ACT

Chairperson: Mr George

Documents handed out
Comments on Section 49 of the Criminal Procedure Act (contained in the minutes)
Security Industry Regulation Bill [B 12 - 2001]
Security Industry Regulation Bill (as approved by Cabinet) [the earlier version]
Briefing by the Secretariat on the Drafting of the Money Bill relating to the Security Industry Regulation Bill (see Appendix)
Draft Security Industry Levies Bill [Money Bill]

SUMMARY
The Draft Security Industry Levies Bill : The Secretariat is working on this accompanying Bill which will be presented to National Treasury on 22 June 2001 for scrutiny. As it is still unofficial, the Secretariat did not brief the Committee on it. There is uncertainty as to whether the Public Finance Management Act will be applicable to the Money Bill or not.

Section 49 of the Criminal Procedure Act: The Committee is unhappy with the way in which section 49 limits the power of the police in using potentially lethal force in effecting the arrest of a suspect. Its effect is that a person cannot shoot someone unless that person poses a threat. The Committee noted that this does not make sense as one cannot stop thieves by shooting at them if they are running away with your property. They stated that the legislature must help the police to do their job and strengthen them.

Security Industry Regulation Bill:
The Committee changed the name of the Bill to Private Security Industry Regulation Bill. The categories of ''locksmiths'' and ''polygraphist'' have been provisionally excluded from the definitions section of the Bill. The Committee agreed that private investigators should be covered by the Bill. The issue is to what extent they should be covered. The Department and the Secretariat were asked to look at this and draft proposals. If the definition is drafted to limit application to private investigators, it must be done in such a way that it does not leave loopholes.

MINUTES
Draft Security Industry Levies Bill
Two representatives from the Secretariat for Safety and Security were present. Mr Soman made the presentation (see document).

This draft Bill has been submitted to the legal advisors of the National Treasury for consultation. Several meetings have been held with members of the Secretariat, SAPS and Treasury to discuss the draft. An official draft Bill is expected to handed to National Treasury by 22 June 2001. As it has not been submitted to Cabinet yet, the Secretariat did not brief the Committee on the Bill.

Discussion
The Bill is still in its drafting stage. As it has not been presented to either the Safety and Security Ministry or the Finance Ministry the Secretariat questioned the appropriateness of briefing the Committee on the contents of the draft Bill.

The Chairperson replied that the Committee simply wanted to know how far the Bill is from completion. The Bill affects the Security Industry Bill and the Safety and Security Portfolio Committee will have to work together with the Finance Portfolio Committee on this. He asked if there are any legal aspects in the Bill about which the Committee should be concerned.

Adv Kok replied that there was currently different opinions as to whether the Public Finance Management Act (PFMA) applies to the Money Bill or not. The Chief of Finance for the Safety and Security Department is of the opinion that the PFMA will not be applicable. It will be very cumbersome to the new Authority to make the PFMA applicable. A bureaucracy will have to be created for the PFMA to apply.

On the other hand there are those who are of the opinion that it is a levies bill in the nature of a tax. As it is state money that is being dealt with, the PFMA is applicable. They say it cannot be stopped from being applicable unless the PFMA is amended. It is a difficult legal question.

The Committee suggested that perhaps it should request the Finance Portfolio Committee to make explicit provision in the PFMA for this Bill.

Adv Kok said that the decision whether state funds will be used or whether levies will be used is a policy issue. Currently the Bill says that levies will be used. If the committee decides on state levies then a Money Bill will not be necessary. It is a technical issue.

Adv Gaum asked what the difference between state funds and levies was? He also asked which clause in the PFMA said that the PFMA must be applicable to this Money Bill.

The Chairperson queried whether a levy automatically meant a tax. He said that the Secretariat need not answer these questions then but they must come back to the Committee with the full set of issues.

Mr Soman said that they would have to resolve this matter with the National Treasury. The legal officer from Treasury says that the PFMA is applicable. Treasury is insisting on inserting certain provisions in the Money Bill. Whether this is right or wrong they do not know.

Amendment of Section 49 of the Criminal Procedure Act (CPA)
The Chairperson said that he had asked for a presentation on this section so that the Committee could better understand the issues. The section deals with the use of potentially lethal force in effecting the arrest of a suspect.

Presentation
Adv Kok, Chief Legal Advisor on behalf of SAPS, presented the following document to the Committee:

Section 49
1. Section 7 of the Judicial Matters Second Amendment Act, 1998, will, when promulgated, amend section 49 of the Criminal Act, 51 of 1977.

2. The new section provides that where an attempt is made to arrest a suspect and the arrestor encounters resistance or flight on the part of that suspect, such force as may be reasonable necessary and proportional in the circumstances may be used by the arrestor in order to effect the arrest and to overcome the resistance or prevent the flight. This general rule embodies the normal principles relating to the use of the minimum force necessary in the circumstances. Members of the SAPS are familiar with these principles.

This general rule applies without qualification when the force used cannot be classified as ''deadly force".

3. The power to use reasonable force in these circumstances is, however, limited by a proviso whenever the force used is potentially lethal (''deadly force"). The use of deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, may only be used if the arrestor believes on reasonable grounds -

(a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;

(b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or

(c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.

4. The effect of the new section is to restrict the use of deadly force as defined in arrest situations to situations where there are reasonable grounds which lead the arrestor to believe that the force is necessary to prevent death or grievous bodily harm. This includes future death or grievous bodily harm, for example in the case of a known serial killer - but not in the case of someone who cannot reasonably be believed to pose such a risk in future. The new section does not allow the use of deadly force in respect of a fleeing suspect, however serious the offence involved, unless one or more of the further circumstances set out in the proviso are present.

5. The use of deadly force in arrest situations is justified only if the circumstances as set out in the proviso are present.

6. Even if caught red handed, a criminal who has committed a serious crime and who cannot be caught or overpowered must be allowed to escape if he or she does not pose the physical threat required in terms of the new section. This would include murderers or others who have perpetrated violence but who can nevertheless not be shown to pose any physical threat as required by the new section. This would also include participants in organised crime who cannot be shown to pose the physical threat required.

7. This would in some instances leave the police and private citizens without any option but to allow a criminal to flee - even if caught red handed.

8. The question whether the new section would practically leave the police without the option of using dogs to catch fleeing suspects and even of shooting at the legs of such suspects, where the criteria of the proviso are not met, has lead to a strong difference of opinion. According to Mr De Lange (Chairperson of the Justice Portfolio Committee), the new section would not exclude shooting at the legs or using dogs, because this would in his opinion not constitute ''deadly force". Other lawyers have expressed different opinions. The same arguments would be applicable to shooting at the tyres of a vehicle used by the suspect, although it can be assumed that a vehicle moving at high speed would surely exclude the power to shoot, in view of the obvious risk of harm to the suspect.
In this regard the following quote from the recent decision of the Supreme Court of Appeal (the Govender decision), is relevant and seems to be in conflict with the opinion of Mr De Lange:

"[20] Tennessee V Garner dealt with the use of deadly force in the sense that the plaintiff's son in that case was killed. But would any other test have been logical or valid if the son had been injured and not killed? The firing of a shot at a suspect is potentially fatal, and the lawfulness of the act does not depend on the more or less fortuitous result thereof. The question, whether the suspect posed a danger of the kind described, would be, in my view, equally apposite in the wounding of a suspect."

9. In the recent Govender decision the Supreme Court of Appeal has interpreted the current section 49(1) in the light of the Constitution and the decision would by necessary implication, in our opinion, also put the fortuitous killing of a suspect (covered by the current section 49(2)) beyond constitutional reproach. The decision allows, with the possibility of some exceptions, the use of potentially lethal force also in those circumstances where no imminent or future physical harm is present, as long as
''…the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm..."

10. Although the police and private citizens are not, in terms of the judgement, allowed to shoot at criminals like burglars and even car thiefs who have not used or threatened violence, the decision allows the use of potentially lethal force against fleeing suspects suspected of having committed crimes like robbery and rape, even if they pose no future threat of serious bodily injury.

ANNEXURE "A"
The Govender decision (present legal position in terms of the existing section 49)
[24]
The words ' ... use such force as may in the circumstances be reasonably necessary to prevent the person concerned from fleeing ... 'in section 49 (1) (b) of the Act must therefore generally speaking (there may be exceptions) be interpreted so as to exclude the use of a firearm or similar weapon unless the person authorised to arrest, or assist in arresting, a fleeing suspect has reasonable grounds for believing

1 that the suspect poses an immediate threat of serious bodily harm to him or her, or a threat of harm to members of the public; or

2 that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm.

(For easy reference, the crucial part is bold printed and underlined.)

ANNEXURE "B"
The new section 49
The power to use reasonable force in these circumstances is, however, limited by a proviso whenever the force used is potentially lethal (''deadly force"). The use of deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, may only be used if the arrestor believes on reasonable grounds -

(a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm;

(b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is
delayed; or

(c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.


Adv Kok commented that Adv de Lange (Chairperson of the Justice Portfolio Committee) interprets the new section 49 to mean that one can shoot at the legs of the burglar. If the person then dies, the shooting is justified because the person did not use deadly force when he shot.

However the new section 49 contains no provision that says that one can shoot at someone who committed a violent crime where the person is no threat at the present moment. Adv de Lange maintains that one can shoot because the person who committed the crime poses a future threat (but that is his argument). Adv Kok pointed out that the new clause does not explicitly state this.

Adv Kok said that the new section 49 is clumsily worded. The provisions are not clear. The Appellate Division interpretation of the old version is much clearer and easier to understand than the new version. The new version will require judicial interpretation.

Discussion on clause 49
Adv Gaum (NNP) asked if there is a Constitutional Court judgement on section 49. He also asked what had sparked the amendment.

Adv Kok replied that there is not a Constitutional Court judgement on this. The amendment was sparked because there was a case six years ago (and there have been other cases since then) where the court gave an indication that section 49 would be unconstitutional.

In the Raloso case the Appellate Division overrules this, saying the clause is constitutional by implication. If the Department had been certain of this ruling, they would not have brought in the amended section 49. They brought it because they were worried about the constitutional implications. There is no constitutional court decision. Currently there is pending legislation.

Adv Gaum asked if the offence must be in progress in order for someone to be able to use potentially lethal force in terms of the new section 49.

Adv Kok referred to Annexure B of the document, saying it is not always a requirement for the crime to be in progress.

Rev Meshoe (ACDP) asked if the new section 49 is still necessary in light of the constitutionality ruling of the old section 49.

Adv Kok replied that deciding if the new section 49 is still necessary is a policy decision. If the Department had been sure that the old section 49 would be declared constitutional by the Appellate Division, they would not have amended section 49.

Rev Meshoe asked if police see someone running, must they first find out if someone was injured. How does a policeman make the decision, how does he know if someone had been harmed?

Adv Kok replied that this is the big problem. This problem not only relates to the new section 49. It also stems from the judgement of the Appellate Division.

An ANC committee member remarked that politicians must look into this or South Africa will be seen as a joke of a country. What should a person do if he sees a thief stealing his car? Just let him drive away?

The Chairperson said that a person cannot shoot someone unless that person poses a threat. This is a serious problem as you cannot stop thieves by shooting at them if they are running away with your property. This does not make sense. The police cannot stop to check if a victim was hurt because by that time the criminal would have escaped. Criminals have no respect for life or for property. He said that it is good to have human rights but one must not go overboard with it. Some criminals deserve to be punished.

The Chairperson then (referring to the Criminal Procedure Act and the Domestic Violence Act as examples) asked why laws which affect the police are being discussed and finalised by the Justice Portfolio Committee alone. He said the Justice Portfolio Committee does not even check to see if implementation is possible before they make the legislation. Before the Safety and Security Portfolio Committee passed the Firearms Ac, it went to the Registry to check that the legislation would be able to be implemented.

Rev Meshoe said that the legislature must help the police to do their job. They must take proactive steps to strengthen the hands of the police.

Adv Swart (DP) commented that the old section 49 was also limited.

Adv Kok said that in international jurisprudence there are precedents of specific exceptions where use of force may be applied more freely. Some countries in Europe may use force when "cultural heritage items" are in danger. Certain countries view housebreaking at night as a potentially dangerous crime where the power to arrest the perpetrator can include the power to use potentially lethal force. These are options which the Committee must explore. He said that he had a document that looked at how other countries such as Canada, the US, England and the Netherlands dealt with these issues. This document could be made available to the Committee.

Deliberations on the Security Industry Regulation Bill
Name of the Bill:

Ms Van Wyk (UDM) asked why the word ''private'' was dropped from the title and suggested that it be reinserted. Adv Swart supported this since in SA the common term referred to is ''private security''.

Adv Kok said that it made no legal difference, it is only longer. The Security Officers Interim Board did not like the longer title but they had given no real reason.

Ms van Wyk said that the fact that the Board wanted to drop the word ''private'' for no real reason made her very nervous.

Adv Gaum and Mr Ferreira (IFP) also agreed that they must add the word ''private''.

The Committee agreed to amend the title to the words ''Private Security Industry Regulation Bill''

Preamble:
Adv Kok said that the Security Officers Interim Board likes the Preamble set out in the Bill that Cabinet had approved (prior to it being changed by the State Law Advisors). He noted that the changes made by the State Law Advisors were purely technical. Legally there is not really a difference.

The Chairperson noted that the Preamble in the Bill that Cabinet approved is far longer. Adv Swart agreed saying that it was too cumbersome and the changes make no difference to the Bill. He said that a Preamble should be easy to read and understandable. Adv Gaum also agreed.

Ms van Wyk noted that the difference between the two was that the original preamble provides for the new Authority's independence.

The Chairperson said that he did not understand how the Department, the Secretariat and Cabinet could have approved the first preamble. It was so long it looked like a memorandum.

The committee agreed to maintain the current Preamble (as adjusted by the State Law Advisors).

Definitions: Chapter 1

Heading: ''Definitions and interpretation''
During the public hearings, there was a request that ''and interpretation'' be removed. The Chairperson asked for a comment on this suggestion.

Adv Kok said that he agrees with the comment. There is no need to include ''and interpretation''. The Secretariat said that they had included this in the heading because the definition of ''the Act'' includes regulations. This is not a definition. It relates to how to interpret some phrases.

Adv Swart said that definitions in an Act means that this is the way the word is seen in the context of that Act. It means almost the same thing as interpretation.
Mr Gaum added that an Act can never contain interpretations, the Act must be interpreted by the Courts.

The committee agreed to delete ''and interpretation''.

''locksmith''
T
he issue here is whether this group should be included in the Bill. Mr Soman said that they had brought in certain activities of locksmiths. They are not brought in totally (for all activities). The definition is intended to limit the activities which will be regulated.

The Chairperson said that the definition seemed to cover most of the work of locksmiths. They are including all locksmiths.

Adv Gaum asked which activities were excluded.

Mr Soman said that these are listed below in subclause (d).

The Chairperson asked what the concern was about locksmiths that caused the Department and the Secretariat to include them in the Bill. What aspect regarding locksmiths needs to be regulated in terms of security?

The Secretariat said that sometimes locksmiths provide a security-locking service as part of a security service. They wanted to include this in the Bill but did not know how to do so.

Adv Swart said that in this instance the locksmith would be included by virtue of the company that was providing the security service. Therefore it is unnecessary to include ''locksmiths''.

The Chairperson again asked what they want to address with its inclusion.

Adv Kok said that it is a policy choice. They widened the scope from the guarding industry to other aspects of security. They can take out more than locksmiths, they can also take out private investigators.

Ms van Wyk said that locksmiths add nothing to the preamble. She disagrees on the point about private investigators. They must be regulated because they can break constitutional rights. If one was going to include locksmiths, then why not also include manufacturers of locks?

Adv Gaum said that if locksmiths are going to be regulated it has the potential to push up prices of basic services which the poor need.

Adv Swart said that they should make their intent for regulation clear. The reason cannot be because there may be a criminal amongst locksmiths who they want to catch. The purpose of this Bill is not to catch criminals, it is to regulate. If they are trying to catch criminals then they would have to make legislation to regulate crowbar manufacturers for example because crowbars can be used to break open a safe.

The committee agreed that the Department must bring a good reason to include this. For now, it is provisionally excluded.

''person''
Adv Kok said that the Security Officers Interim Board prefers the longer definition in the Bill which Cabinet approved. It lists six entities which are included under the concept of person. The State Law Advisors changed this definition by listing only two entities. They did this because the Interpretation Act already includes the rest and so they were avoiding being repetitive. Both definitions are correct.

Ms van Wyk said that she prefers the original draft because one cannot expect laypersons to refer to other Acts. Adv Gaum agreed that they should make it easy for laypersons to understand.

Adv Swart said that they should either say ''legal person'' and not list anything or list everything. He did not think that they should only list two.

Adv Kok said that they cannot only say ''legal person'' because that excludes a business trust, a foundation, and it excludes a natural person.

The committee agreed to the long definition as in the Bill originally approved by Cabinet.

''polygraphist''
Many submissions are against the inclusion of this definition.

Adv Kok said that if they have problems with 'locksmith' then there are more problems with 'polygraphist'.

Ms van Wyk asked if polygraphists are not regulated by psychiatrists.

Adv Kok replied that they are moving toward regulation by the Medical Council. Currently they are not regulated by anyone.

The Committee agreed to take out polygraphist unless the Department can come with a good reason to retain it in the Bill.

''private investigator''
Adv Kok noted that some private investigators (those responsible for guarding people) will in any event be included.

Adv Swart asked if there was a way to include private investigators only in respect of certain functions that they do.

The Chairperson pointed out that the Security Officers Interim Board opposes their inclusion.

Adv Kok said that he agreed that the definition is extremely wide. It is a policy decision. The Committee can either go the wide route or they can determine which activities will be regulated. The latter option will be difficult.

Mr Soman said that the policy is designed to include members of the private investigative industry who have the potential to infringe the rights of others. It is wide.

The Chairperson commented that if one starts limiting then it creates loopholes. If the formulation is wide, then loopholes are generally covered. Even if the provision is wide, the court will still not act on a point which is not relevant to the issue.

Mr Gaum said that all agree that private investigators should be covered. The Department and the Secretariat must look at the definition again.

Ms van Wyk said that there is no question that private investigators must be in the Bill. The Board's comment on it being too wide is ironic in light of the fact that they want to include locksmiths. The Board cannot decide what should be in and what should be out. The Committee should decide on policy. She agrees with Mr Gaum that they must re-look at the definition.

Adv Swart referred to Telkom's proposal in respect of amending the definition of private investigator to exclude business intelligence operations. He said that Telkom has a valid point. In-house investigations should be excluded.

The Chairperson said that all agreed that private investigators should be in the Bill. The question was to what extent. The Department and the Secretariat must look at this. Even if they limit the definition they must ensure that it does not leave loopholes. In respect of Telkom, the question was to what extent that was practical.

''property''
An ANC committee member suggested that this be worded to include electronic data.

The Committee felt although there would be no harm in adding the words, the definition already encompassed the concept. Therefore they left the clause unamended.

''security equipment''
Adv Swart asked why it was defined and why was it such a narrow definition.

Adv Kok replied that the Security Officers Interim Board had proposed this specifically in respect of armoured vehicles used by cash-in-transit companies. Criminals always target certain companies because they know that they do not use proper equipment. The definition is to ensure the guarding industry maintains proper standards. They have not covered armoured vehicles explicitly.

The Chairperson asked why there was a list as this creates the risk of leaving important items out. They should rather say ''any equipment''.

Mr Soman said that the definition does not exclude other equipment.

Mr Gaum suggested a catch-all clause that does not exclude other things. Adv Swart agreed.

Adv Kok said that another reason for defining ''security equipment'' is because the definition of ''security service'' makes a reference to ''security equipment''. Therefore they defined equipment. The ''security equipment'' definition is to extend the scope of security service. In respect of ''security service'' there are two questions to be asked:
- does one want to regulate the activities of those installing equipment?
- if the answer is yes then one must look at the definition of ''security equipment''.

The Secretariat said that there must also be regulation because companies have more equipment than the police.

The Chairperson said that they would deal with this when they deal with ''security service''.

''security officer''

This definition sparks off the in-house security debate. Consequently the Chairperson said that they will come back to this definition. later

''security service'' - this also has a bearing on in-house security.
Adv Kok said that it broadens the scope of what a security service is.
All agreed on subclause (a).
Adv Kok said that the application of ''security service'' is limited by the definition of ''security service provider''. A person is only a ''security service provider'' when there is remuneration for reward or benefit.

Adv Swart referred to subclause (i) and asked why the person installing security equipment was regulated. If you bought a security system at a shop and installed it, are you included in this definition? That is taking the definition too far. It should only apply if that is the sole business of a company.

Ms van Wyk asked if subclause (b) affected a person getting burglar bars put up in the backyard. She suggested they scrap the part after ''defined in this section''.

The Chairperson said that they should leave this clause for the time being. The meeting was adjourned.

Appendix:
BRIEFING TO THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY
SUBJECT: PROGRESS ON THE DRAFTING OF THE MONEY BILL RELATING TO
THE SECURITY INDUSTRY REGULATION BILL
13 JUNE 2001

1. In terms of the Security Industry Regulation Bill which was approved by Cabinet, provision was made for the imposition of levies by the envisaged Security Industry Regulatory Authority on Security service providers and for the collection of those levies. This provision was consistent with the policy document on the regulation of the security-industry which recommended that the independent regulatory authority will continue to be funded through levies payable by security service providers.

2. The State Law Advisors, during the process of certification, advised that a separate Money Bill was required in terms of section 77 of the Constitution, 1996. This section requires that a Bill that appropriates money or imposes taxes, levies or duties must be a Money Bill and which must be introduced by the Minister of Finance in terms of section 73 of the Constitution.

3. A draft money bill was subsequently prepared and submitted to the legal Advisors of the Department of Finance and several meetings were held between members of the Secretariat, SAPS and the Department of Finance to discuss the drafts. This was followed by written comments from the Security Officer's Interim Board and the Department of Finance.

4. The drafting Committee has almost finalised the Bill and has accommodated, as far as possible, the comments of the Board and the Department of Finance.

5. The draft is expected to be finalised by the 22nd of June 2001 and submitted to the Department of Finance for the necessary legislative processes.

6. The drafting Committee is mindful of the urgency of the finalisation and introduction of the Bill and this urgency has also been communicated to the Department of Finance.

7. Once the Bill is certified by the State Law Advisor and introduced by the Minister of Finance, this Portfolio Committee will need to deliberate on future processes with the Parliamentary Committee on Finance.

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