Security Industry Regulation Bill: deliberation

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE
28 September 2001
SECURITY INDUSTRY REGULATION BILL

Chairperson: Mr M E George

Relevant Documents
Security Industry Regulation Bill [B12 - 2001]

SUMMARY
The Committee expressed concern over the unlimited powers vested in the director of the Security Regulation Authority and the inspection team that would monitor and inspect the security industry.

The Committee suggested that there be a code of conduct provided for employees of the authority and that the framework should be expressly provided for in the Act.

The Chair assured members that it was not the intention of the Bill to single out foreign investors and displace them from the country. He assured the insurance industry that the Bill was not intended to interfere with their business in any way. The Bill was merely a regulatory measure aimed at streamlining an industry that is fraught with endemic exploitative practices.

MINUTES
Security Industry Regulation Bill
Chapter 3 Registration As Security Service Provider
Clauses 20, 21 & 22
The Chair stated that the Bill was not meant to harass foreign investors and force them to leave the country. The Committee respects and would want to preserve foreign interests but the security of the country is of paramount importance.

Mr Maziya (ANC) observed that Adv Gaum (NNP) seemed keen to advocate the vested interests of investors in the security industry given his vocal objection to the immense powers given to the monitoring authority.

The Chair disapproved of Mr Maziya's remarks and said that there was nothing wrong with a member crusading for the interests of a Clause of the public in the Committee. After all, he noted, members are nothing else but the servants of the people.

CHAPTER 5 MONITORING AND INVESTIGATION
Clause 31 - Inspection of Security Service Providers
Adv. Gaum (NNP) suggested that a safeguard clause be introduced under Clause 31(1) to the effect that all firms be treated fairly and reasonably. This would forestall the possibility of some firms being harassed unfairly.

The Chair said that Adv. Gaum's stated that the Authority's inspectors would, at all times, be expected to act with credibility.

Adv. Gaum (NNP) insisted that it is not uncommon for some officials to abuse power in the name of self-serving pursuits.

Ms Van Wyk (UDM) appealed to members to refrain from reading fault in the legislation. The Bill itself is a safeguard and that what should be addressed is the fact that some board members of the Authority were themselves operators in the security industry. Such people, she added, would be inclined to unfairly single out business rivals.

Mr Kgauwe (ANC) said that Clause 31(1) appears to vest unchecked powers in the hands of the director which seems open to abuse. It is untenable for excessive powers to be vested in one individual. There must be checks and balances mechanisms to guard against any such abuse.

The Chair said that there seems to be a problem with the interpretation of Clause 31(1). He said that inspectors would not just sit around to await specific directions from the director to go and inspect. To the contrary the inspectors will at all times carry out inspection duties but where there is a specific complaint then the director would give specific instructions to the inspectors.

Adv Kok promised the Committee that the Clause would be re-drafted to correct any ambiguity.

Mr Gaum insisted that although re-drafting might help to clear some ambiguity, the problem of excessive powers still posed the danger of abuse to harass particular firms by subjecting them to unfair inspection.

The Chair asked if the firms are operating legally, what is the problem with constant inspection?

Mr Gaum replied that such inspection is nothing but harassment, which would in the end disrupt the firm's business and put it into disrepute.

Ms Lenzie from the Secretariat for Safety and Security said that the legal advisor has given an indication that the offending Clause will be rephrased to correct ambiguity and that the director's powers should be addressed in this effort as well.

The Chair said that the ambiguity should be addressed but he cautioned that there was no problem with the powers of the director. In addressing the ambiguity no adjustment should be made on the powers of the director and hence no such undertaking to adjust should be made to the Committee.

Clause 32 - Powers of Inspectors relating to Security Service Providers
The Chair observed that there were no instructions from the director under Clause 32 and Ms Van Wyk agreed with the Chair that the Clause makes no mention of the director.

Adv Kok stated that Clause 32(1) should be read in a broader category. The Clause does not cover the security industry alone but extends coverage to companies and firms with in-house security structures as well. Such structures where they exist would be subjected to regular inspection under the Act.

Mr Gaum (NNP) suggested that the powers of the inspectors in Clause32 (1)(b) should be curtailed. What happens to inspectors who abuse their powers? He suggested a clause to the effect that inspectors should conduct a reasonable and fair inspection.

The Chair asked Mr Gaum why he does he have this fear for the inspectors?

Mr Gaum replied that there was great danger that law-abiding citizens could fall prey to the vindictive activities of some disgruntled inspectors. It is important that their powers be checked to avoid a situation where personal whims are camouflaged as lawful activities.

The Chair said that if the inspectors do not carry out their duties effectively the firms would disregard the law and thereby propagate exploitation.

Mr Gaum agreed with the Chair that the security industry has not been operating within the law and that there has been unchecked incidences of exploitation, but he insisted that the law should not create another loophole to be exploited by ill-mannered inspectors.

Mr Kgauwe (ANC) said that he understood Mr Gaum's concerns and suggested that a code of conduct be introduced to counter the possibility of abuse of office by the inspectors.

Adv Kok stated that Mr Gaum's concerns are already addressed in Clause 32(1)(b) where inspectors are required to use necessary means which is a stricter test than that of reasonableness.

Mr Gaum conceded that if the code of conduct were introduced as suggested, he would abandon his objection to the inspector's powers.

Adv Kok said that Clause 9(c) already caters for the introduction of the code of conduct but that his office could expressly include it in the Bill if that were the desire of the Committee.

The Chair stated that the Committee needs express provisions in the Act on the code of conduct. The Act should provide for the basic framework and leave the details to be supplied by the Council of the Authority.

Mr Gaum suggested that the word 'appears' in Clause 32(c) be followed by 'reasonable' to give it clarity and some objectivity.

The Chair, however, protested that the test of 'reasonable' is as much a subjective test as 'appear'.

Mr Maziya (ANC) said that in any business one must be able to apply words and phrases that would enable him to work.

Mr Kok stated that it was not possible to introduce a strict test in this case since that would make the work of the inspectors impossible. The test of it 'appears' though subjective is deliberately meant to allow the inspectors to carry out the inspection with minimal restrictions.

Mr Gaum (NNP) said that Clause 32(1)(c)(iii) unlike Clause 33 (1) b (v) makes no provision for the issuance of receipt after a seize of items. For purposes of consistency the latter provision should require the issuance of a receipt as well.

Adv Kok said that a receipt would be issued as a matter of course and that this will also be covered in the code of conduct regulations.

The Chair said that for purposes of consistency a provision for the issuance of the receipt should be expressly made in Clause 32(1)(c)(iii) as well.

Mr Gaum, again queried the Constitutionality of Clause 33 (b)(ii).

Adv Kok replied that the rationale of the Clause is to cover the current gaps such as where some firms are registered for services other than security but they unofficially carry out security activities outside the legal provisions to avoid the consequences of the law.

Mr Gaum asked whether such searches were not an invasion to personal privacy.

Adv Kok replied that most of the Bill is an invasion to personal privacy but that it was within the spirit of the Constitution (Section 36) which exempts actions that are in the interest of public utility.

Mr Gaum said that he accepts the explanation but asked whether in this case the action is justifiable.

Adv Kok said that there can be much debate on the issue but that on his side, he was satisfied that the provision is justifiable and one that was in the interest of the public.

Mr Kgauwe (ANC) said that the Clause was concerned about the security of the individual and that the inspectors have a right to know the activities of a given firm.

Mr Gaum (NNP) said that he would reserve his position at this point. He said that the text of 'reasonableness' be introduced under 32(1)(f).

Mr Kgauwe (ANC) objected that the provision is already catered for where the director must have reasons to suspect untoward activities before going for an inspection.

Ms Van Wyk protested that most of the objections being raised by Mr Gaum would be covered by the code of conduct and that Mr Gaum himself had given such an undertaking.

Mr Gaum also suggested the text of 'reasonableness' be included under 32(1)(g)

Mr Kgauwe sought an explanation as to the police powers being given under the Criminal Procedure Act in Clauses 40,41,44,45,46,47,48,49 and 50. He felt that only the Minister of Safety and Security is vested with the powers of arrest.

The Chair wanted to know to what extent if at all, the powers given under the Criminal Procedure Act (CPA) impinge on the Constitutional powers of the Police.

Adv Kok explained that the powers given under the CPA do not contradict the Constitution but that the inspectors will be acting as peace officers. Inspectors by the very nature of their work have been vested with more powers than those granted to the ordinary citizens.

The Chair said that the Committee should be careful not to create another police force. The inspector's powers must fall short of giving full powers of the police force.

Mr Kgauwe asked about the jurisdiction of the inspectors.

Adv Kok replied that as peace officers the inspectors have a national jurisdiction and that they are on duty 24 hours.

The meeting was adjourned.