SAPS Egypt & Nigeria Cooperation Agreement; Private Security Industry Regulation Bill: briefing

NCOP Security and Justice

29 October 2001
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
29 October 2001
SAPS CO-OPERATION AGREEMENTS WITH EGYPT AND NIGERIA; PRIVATE SECURITY INDUSTRY REGULATION BILL: BRIEFING

Chairperson:
Mr A Mokoena

Relevant documents:
Briefing on Co-operation Agreements between the South African Police Services and Nigeria (Appendix)
Private Security Industry Regulation Bill [B12B–2001]

SUMMARY
The Department of Safety and Security briefed the committee on co-operation agreements between the South African Police Services and the Republics of Egypt and Nigeria. It was abundantly clear that the committee supported the idea of co-operation between our respective countries in the fight against organised crime.
The Committee was also briefed on the Private Security Industry Regulation Bill. As much as the Bill had been the topic of intensive discussion in the latter weeks it seemed that the Committee was convinced that the major concerns had been addressed. Members did not engage in much discussion on the Bill.

MINUTES
Co-operation Agreements between the South African Police Services (SAPS) and Egypt and Nigeria
Mr Danie de Jager (Department of Safety and Security) briefed the Committee on the agreements. The agreements were concluded due to the realisation that organised crime cannot be combated in isolation. The agreements with Egypt and Nigeria were signed on the 20 July 2000 and the 14 March 2001 respectively. For all intents and purposes the agreements are identical, as they are similar in respect of their essential content.

The agreements provide for co-operation between SAPS and the respective law enforcement agencies of the aforementioned countries on various facets of policing. It was interesting to note that provision had also been made exceptions where the refusal of assistance would be condoned. For example, where the request is detrimental to the country on whom the request is being made or where the request imposes an excessive burden on the resources of the requested state. It came to light that similar agreements had also been concluded with Russia, France, Hungary and China.

Discussion
Mr L Lever (DP) referred to the Nigerian 419 scams and asked if electronic surveillance, that it, cellphone tapping, would be allowed under these agreements. What are the practical implications?

Mr de Jager pointed out that from a practical point of view cellphone tapping would be difficult, as cellphone companies in Nigeria do not possess the capacity to tap cellphones. From a legal point of view the Department of Justice would have to become involved. As much as the provisions of the agreements are broad, they are not broad enough to cover the invasion of privacy argument that would result from the tapping of cellphones. While appreciating the contentious nature of the issue, Mr de Jager observed that the assistance would only go up until a certain point.

The Committee adopted the briefing document without further discussion.

Private Security Industry Regulation Bill
Adv Kok: Chief Legal Adviser to the Department, briefed the Committee on the Bill. The briefing included explanations on amendments to the Bill the reasoning behind the amendments.

Chapter 1: Definitions
Clause 1: Definitions
The Chair referred to the definition of " security service provider" and asked whether a company not registered with the Authority would still have to abide by the requirements of the Bill.
Adv Kok stated that any security service provider would be acting contrary to the Bill if it were not registered with the Authority. If however a company does not fall within the definition of a "security service provider" the Bill would not cover it.

Chapter 2: Private Security Industry Regulatory Authority
Clause 2: Establishment of Private Security Industry Regulatory Authority
The Chair asked if it was really necessary to expressly provide in the clause that the Authority’s head office is situated in Pretoria. What happens when they move office?

Adv Kok stated that he personally felt it unnecessary that it be provided for in the Bill. He confirmed that the Bill would have to be amended if the Authority is to move offices.

Clause 4: Functions of the Authority
The Chair made a reference to Clause 4(z) and questioned the provision that allows the Authority to raise finance from other sources. What are the other sources? Could funding be raised from illicit sources?

Adv Kok stated that it refers to loans etc. He emphasised that the accountability clause, that is, Clause 10, would not permit funding to be sourced by illicit means.

Chapter 3: Registration as Security Service Provider
Clause 20: Obligation to register and exemptions
The Chair asked for clarity on Clause 20(3).

Adv Kok explained that the provision provides that where a security service provider is not registered, any contract that it enters into is void.

Clause 23: Requirements for registration
Mr T Taabe (ANC) asked whether a manager who does not have a shareholding in a security company has to register as a security service provider.

Adv Kok confirmed that such a manager would have to register. The requirement to register was a policy decision based on the control over the integrity of persons performing management and executive functions.

Adv Kok also noted that foreigners are excluded from the industry because one of the requirements to register as a security service provider is that you have to be a South African citizen or have permanent resident status. Foreigners are allowed to invest in the industry as long as they do not exercise any form of control, that is, management or executive functions.

Chapter 4: Proper conduct and appeal
Clause 28: Code of conduct
The Chair referred to Clause 28(2) and asked if the provisions were not too harsh.

Adv Kok stated that it was a policy decision to provide for the code of conduct to be applicable to employees of in-house security service providers as well. He made mention of companies like Anglo-American and Telkom that these provisions would apply to.

Chapter 5: Monitoring and Investigation
Clause 31: Appointment of inspectors
The Chair asked for clarity on Clause 31(5).

Adv Kok said that the provision had been included in the Bill as a matter of practicality to allow for the Authority to acquire experts if the need should arise. Certain inspections might require expertise in the field of information technology, bookkeeping etc.

The meeting was adjourned.

Appendix :
BRIEFING TO THE SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS ON:

The Agreement between the Government of the Republic of South Africa and the Government of the Arab Republic of Egypt; and
The Agreement between the Government of South Africa and the Government of the Federal Republic of Nigeria;

Chairperson, ladies and gentlemen,

In keeping with the ever increasing realization that crime, and more specifically organized crime cannot be combated in isolation, the Department for Safety and Security has entered into negotiations with a number of countries, with the view to concluding agreements designed to foster co-operation between the South African Police Service and the Police Services in those countries.

In this regard, agreements in respect of Police Co-operation with the Arab Republic of Egypt and the Federal Republic of Nigeria were concluded during sessions of bi-national commissions and signed on 20 July 2000 and the 14 March 2001 respectively.

Both agreements, are for all intents and purposes identical, and do not differ in respect of the essential content thereof. For this reason, and with the Chairperson’s permission I propose to deal with the essential provisions of both agreements together:

In essence, the agreements provide for the Parties to co-operate with each other in the prevention, detection, suppression and investigation of crime, as well as to assist each other in the area of training.

Without unduly restricting the manner in which the Competent Authorities of the Parties will co-operate, the Parties have undertaken to exchange information not only in respect of crimes and criminals, but also to exchange amongst others working experiences, legislation, and scientific and technical literature and data related to their functions.

The Agreement, in addition, provides for the execution of requests by one competent authority at the request of the other.

The Agreement also provides for the refusal of assistance in circumstances:

-where the execution of the request is deemed to be detrimental to the sovereignty, security, public order or other essential interests of a Party, or where it will be in conflict with its domestic law or international obligations; or

-where the act in relation to which the request was made is not punishable under the domestic law of the requested state; or

-where the request imposes an excessive burden on the resources of the requested state.

The Agreement, also provides for the execution of requests to be subject to such conditions as the Requested Competent Authority may deem necessary.


Although the agreements provide for the prompt and full execution of requests, provision is made for the requested competent authority to suspend the execution thereof if, for example, it could hamper a criminal prosecution or an investigation.

The Agreements, in addition provide for a limitation on the use of information, documents and other data, provided in terms of this agreement and precludes the receiving competent authority from, without the consent of the providing authority, utilizing it for a purpose other than that for which it was provided.

Similarly such information may not be shared or disclosed to a third party without the prior consent of the providing authority.

Unless otherwise agreed, each of the Parties shall bear their own expenses, incurred from the Agreements.

The Agreement also provides for the competent authorities to, where necessary, convene working meetings and to consult each other in order to discuss and improve co-operation.

It may be mentioned Chairperson that the Agreements I have discussed are not unique and that similar bi-lateral agreements have already been concluded with the Russian Federation, the Republic of France, the Republic of Hungary and the People’s Republic of China.

In addition to the above, it may be mentioned that a multi-lateral agreement relating to Police Co-operation has also been concluded between 12 countries in the Southern African region and that agreements pertaining specifically to the illicit trafficking in drugs have been concluded with Brazil, Argentine and Chile.

In conclusion Chairperson it must be mentioned that the agreements are not designed or in any way intended to amend or affect the laws of the state Parties. The agreements merely creates a firm foundation upon which co-operation can be based and enhances and bears testimony to the respective Governments’ commitments to assist each other in the fight against crime.

Both agreements are technical co-operation agreements and supplement the Bi-national Commissions existing between South Africa, Nigeria and Egypt.

In view of the technical nature of the agreements and the provisions relating to costs emanating from the use of the agreements, the agreements do not require ratification, however, in terms of the Constitution the agreements have to be tabled in Parliament.


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