tittle goes here… response to comments on the private security industry regulation bill,2012...

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Response to Comments on the Private Security Industry Regulation

Bill,2012

November 2012

Response to Comments on the Private Security Industry Regulation

Bill,2012

November 2012

PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012

General Observations Response to SSG Operational Risk Services (PTY) Limited Response to the Locksmith Association of South Africa Response to African Policing Civilian Oversight Forum Responses to Salus Protection Services Response to the South African Intruder Detection Services Association Response to Control Risk SA (PTY) Limited Response to Security Alliance Response to American Chamber of Commerce Response to ADT Security Limited Responses to Gun Free South Africa Responses to Safer South Africa Foundation (SSAF)

Scope

Responses to Comments 2

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GENERAL OBSERVATIONS GENERAL OBSERVATIONS


• Examples of Companies Headquartered in SA and operating and/or having links outside the Republic

– Gold Fields Protection Services – Quemic – CORPS Defense Land Systems– SSG Specialist Maritime Services (PTY) Limited– Saracen International Limited– Dynamic Alternatives Group– SECMAG Pty Ltd– Sea Rangers Maritime Security Services



• Examples of Companies (Continued)

– Marrow Alert Security Intelligence– International Maritime Security– Maritime Risk Solutions– Safenet Security Services (Pty) Ltd– SecuroQuest– RFI Group– OGM International Ltd– Marine Pirate Busters– Spartasec Limited



• Examples of Companies Headquartered Outside the Republic operating and/or having links in the Republic

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– Spitfire Global Limited (Headquartered in the UK) – Black Pearl MSM (Headquartered in in the UK) – Bowline Defence Ltd (Headquartered in the UK) – AGEMA-Services GmbH (Headquartered in Germany) – Triton Risk MSS Ltd (Headquartered in Malta) – Neptune Maritime Security Ltd (Headquartered in the UK) – Henderson Risk Limited (Headquartered in the UK) – Ocean Marshalls Ltd (Headquartered in the UK)– AKTS NZ LTD (Headquartered in New Zealand)


SSG OPERATIONAL RISK SERVICES (PTY) LIMITED



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Responses to Comments

SUBMISSION RESPONSE

Distrust Between PSIRA and the Private Security Industry

• Historically, members of the Industry were part of the Board which proved ineffective due to conflict of interest

• Members of the Council should be independent from the private security with no financial interest in those companies (S 7(b) of the PSIRA

PSIRA is dysfunctional & does not effectively communicate with the industry

• This statement is false and unsubstantiated • See e.g. the 2012 the Annual Report of the PSIRA (page 40 on

PSIRA stakeholder engagements) • See also the list of bodies and persons consulted in the

Memorandum on the Objects of the Bill• Notices on the PSIRA website/SMSs are used for

communication purposes, among other things

Bill constitutes a bar to entry into the Private Security Industry

• The Bill does not constitute a “bar to entry”• The Bill is aimed at regulating foreign ownership and control

in the security interest of the Republic

Use of regulations should be discouraged and minimised

• The industry has to be regulated• The principle of legality requires that there is statute to

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COMMENT RESPONSE

Security officers’ powers should be expanded to arrest, search and seizure

• Public and Private policing should be distinguished • There is no evidence that the use of section 42(3) of the

Criminal Procedure Act No. 51/1977 does not work which makes provision for arrest by private persons without a warrant

Security officer definition may result in incorporating informal car guards

• Car guards have always been regulated • The definition of a security service includes car guarding ( see

section 1 of the PSIRA/2001)Note: security service means “protecting or safeguarding a person

or property in any manner”

Security service definition incorporates transporters of security equipment

• This will be revised in line with the submissions • This Bill seeks to include the protection or safeguarding of cash

or other valuables during its transportation from one point to another (which is usually carried out by the so-called CIT companies) in order to allow for the regulation of the standards of (See clause 1 of the Bill)

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COMMENT RESPONSE

Specific content on type of crime prevention partnerships/Bill does not define object of partnership

• This provision is aimed at supporting the Civilian Secretariat for Police and the SAPS

• The role of PSIRA is to “promote”, i.e. to advance the betterment of such partnerships

• This clause will be revised in accordance with the submissions to strengthen it

Ministers unfettered power to prescribe is in conflict with section 23 of the Constitution

• The Ministers’ power is not unfettered – he/she is guided by clause 11(g) of the Bill

• The guidelines are: 1) Good cause must be shown; 2) grounds must not be in conflict with purpose of the Act; 3) the objects of the Authority

• This provision will be strengthened in accordance with the Committee’s recocommendations

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COMMENT RESPONSE

Limitation of foreign ownership and control is unjustifiable

• This limitation is justifiable in accordance with the security interests of the Republic

• Security interests of the Republic are paramount to incoming foreign investments and not the other way round

• Foreign companies do not have a vested interest in security as they are only motivated to maximize their profits

• Any investment that could make South Africa vulnerable must be guarded against in a proactive manner

• Limitations are tampered by the right to apply for exemption to the Minister

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RESPONSE

• This is not the first time a State such as SA seeks to regulate foreign ownership and control

Examples

• USA: The National Defense Critical Infrastructure Protection Act of 2006 – seeks to limit the running of US ports to American companies

• Botswana: Security Guard Services for Citizens Order of 1998 - provides that “[o]nly persons who are citizens of Botswana or companies which are wholly owned by citizens of Botswana shall be issued with licences in terms of the provisions of the Control of Security Guard Services Act 28/1984

• Nigeria: The Private Guard Companies Act (Chapter 367) – provides that “[t]he Licencing authority shall not grant ant licence or approval under the provisions of this Act if any director of the company or the person applying for approval – is not a citizen of Nigeria”

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LOCKSMITH ASSOCIATION OF SOUTH AFRICA



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COMMENT RESPONSE

Definition of a locksmith is incorrect such as the exclusion of key cutters

• The definition of a locksmith does not include key cutters

• The specific provision is aimed at regulating locksmiths and not key cutters

• Note: key cutting will be included as a “security service” so that it reads “performing the functions of a key cutter including duplication of keys in any manner”

• Implications: dealerships and retailers will be required to ensure that key cutters are registered

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AFRICAN POLICING CIVILIAN OVERSIGHT FORUM



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COMMENT RESPONSE

The bill has an oversight deficit in relation to the conduct of private security officers

• Oversight is provided for in the Code of Conduct • A private security officer does not have any powers

over and above what ordinary citizens have • There is comprehensive and effective Code of Conduct

for Security Providers• Classic Example: the security officer who assaulted a

protester at the Goodman gallery was charged and convicted in terms of the Code of Conduct

PSIRA cannot criminally prosecute cases

• The mandate to institute criminal proceedings rests with the National Prosecuting Authority (NPA) in terms of the National Prosecuting Authority Act No. 32/1998

PSIRA lacks capacity in conducting inspections and investigators

• This statement is incorrect – see pages 36-39 of the 2012 PSIRA Annual Report on the inspections, investigations and fines etc.

Regulating security services outside the Republic confuses function between PSIRA and SAPS

• Section 39 of the Principal Act allows for the extra-territorial application of the Act

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SALUS PROTECTION SERVICES



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COMMENT RESPONSE

Regulating security services outside the Republic confuses function between PSIRA and SAPS

• This submission was dealt with above

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SOUTH AFRICAN INTRUDER DETECTION SERVICES

ASSOCIATION



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COMMENT RESPONSE

The object of of the crime prevention partnerships is not defined

• This issue has been addressed above

Who will fund the private security involved in crime prevention partnership?

• There is no envisaged funding involved • The Authority’s mandate is to “promote”• Recommendations in this regard will be considered for

the betterment of the application of this clause

Act is not clear if partnerships will be compulsory or voluntary

• The aim is to promote and not necessarily to impose any obligations

• The provision creates a basis upon which PSIRA can initiate and/or facilitate the necessary programmes in this regard

• The partnerships are between the private security industry and organs of state responsible for crime prevention

The PSIRA director should delegate his/her power and duties to a suitable and experienced person

• The aim is to provide for delegation of powers subject to the approval by the Council

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COMMENT RESPONSE

Proposed amendment of S 25(5)(b) is contrary to the Constitution and the Promotion of Administrative Act

• Administrative Justice is catered for in section 5(3) of the Principal Act

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CONTROL RISK SA (PROPRIETORY) LIMITED



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COMMENT RESPONSE

Clause 9 violates the property rights of companies (e.g. Control Risks) and is in violation with S 25 of the Constitution

• The use of the word expropriation is misplaced and misleading - Expropriation is a taking of private property or rights by the government for just compensation when it is for a public purpose

• The right to property is subject to the Constitutional limitation clause which is in line with a legitimate government purpose

Clause 9 read together with clause 11 in effect requires that 100% must be controlled by SA citizens

• This statement is inaccurate • There is a provision for exemption by the Minister in each of

the referred clauses

Discretion afforded to the Minister is vague

• This statement is incorrect – Clause 11(g) of the Bill provides a clear guideline on when exemptions may be granted

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COMMENT RESPONSE

Clause 9 will violate the SA-UK BIT

• The aim of the Bill is not to violate any International Treaty • If there is any contradiction with terms of any international

treaty, that will be cured through the exemption process provided for in both clause 9 and 11

The clause will have implications for a range of international companies especially in the electronic and IT industry

• The definition of a “security service” does not include the manufacturing of security equipment except for those classified under section 1 of the Interception and Monitoring Prohibition Act, 1992 and the Regulation of Interception of Communication and Provision of Communication-related Information Act, 2002

Note: the Bill will in no way affect the manufacturing of play stations!

There will be a loss of skills, capacity and result in technical support gaps

• This statement is unfounded• South Africans are even exporting security services beyond

the countries • In fact the exemption can allow up to 100% Ownership 24


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COMMENT RESPONSE

There is no transitional provision in Clause 11

• Legal drafters are attending to this submission in order to allow for a transitional provision to be included under clause 11

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SECURITY INDUSTRY ALLIANCE



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COMMENT RESPONSE

There was no engagement with the industry during the drafting of the Bill

• See the list of industry association consulted in the Memorandum on the Objects of Bill

Definition of “security service” extends to distributors and transportation

• This will be revised in accordance with the submissions

Valuables must be defined so that they do not conflict with the legislation of the South African Reserve Bank

• The provision is not intended to be in violation with the South African Reserve Bank Act

• The context within which this provision is phrased is intended to only cover the protection and safeguarding of such valuables

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COMMENT RESPONSE

There is no legal basis for precluding a person that is a permanent resident from participating in employment opportunities

• South Africa citizens and permanent residents do not have the same rights and privileges.

• Section 22 of the SA Constitution addresses the question of freedom of trade, occupation and profession

• Every citizen [NOT EVERY PERMANENT RESIDENT] has a right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law

Clause 12 may result in possible arbitrary suspensions related to payment of levies

• Already addressed to above

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AMERICAN CHAMBER OF COMMERCE



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COMMENT RESPONSE

All sectors are included in the companies that should comply with the the 51% local ownership requirement including manufacturers of electronic equipment

• This Bill does not intent to include all sectors – refer above• The Bill seeks to regulate the “rendering of security service”

component of such companies and the “security equipment” as defined

The vagueness of the of the Bill lends itself to interpretation – the exemptions have no detail on who qualifies or not

• The provision is clear • The exemption in clause 11(g) of the Bill requires the

following:- 1. Good cause must be shown 2. Grounds must not be in conflict with the purpose of the Act 3. Grounds must not be in conflict with the objects of the

Authority

There is no clarity regarding existing investments

• Transitional provisions will be inserted to give clarity

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COMMENT RESPONSE

It is not clear who will benefit if ownership is sold pursuant to the Bill/Act

• The intention is not to benefit any particular individuals • The paramount consideration is the “security interest” of

the Republic

What happens of support for foreign sources electronics is cut off by the Bill (new Act)

• This comment has been addressed above • Note: the application of the Bill/Act is clear

The Bill is not clear regarding whether ownership requirements for companies dealing with IT

• This comment has been addressed above• The Bill/Act provides what “a security service” is• Not all companies dealing with IT will be covered by the

Bill/Act

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COMMENT RESPONSE

The Bill might contravene the provisions of WTO General Agreement of Trade in Service (GATTS)

• This provision has been addressed above

• Note: Article XIV-BIS of the GATTS provides that “The Member State can take any action it considers necessary for the protection of its essential security interests”

The Bill presents negative signals for foreign investors

• The security interests of the Republic is paramount to any foreign investment

• The Bill provides for exemptions to the ownership and control

Bill may result in oligopolies as the number of companies decreases

• This assertion is misleading • Nonetheless, the laws of the Republic provide for a

Commission that controls competition and trading established in terms of the Competition Act No. 89/1998

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ADT SECURITY LIMITED



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COMMENT RESPONSE

Definition of “security service” is too broad

• This submission has been addressed above

The insertion of paragraph 20(2)(c) is contrary to commitment that SA has to maintain an open environment for investment

• The security interest of the Republic is the primary consideration to any foreign investment in South Africa

There is an absence of the percentage to be determined by the Minister (what is the envisaged percentage to be determined?

• The Minister may exempt on good cause shown • The percentage may be between 50% up to 100% subject to

the Minister’s discretion• See Clause 9(b) “2A Despite subsection (2), the Minister may,

taking into account the security interests of the Republic, prescribe a different percentage of ownership and control in respect of different categories of the security business…”

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COMMENT RESPONSE

Clause 9 five (5) year period requirement is too restrictive

• This period is reasonable considering the need to address security interests of the Republic

Clause 9’s 51 % requirement constitutes a forced sale and shareholders will not receive a fair market value for their shares

• The security interest of the Republic dictates that the ownership and control of private security businesses be limited

The discretion of the Minister to exempt does not support fair treatment of industry participants

• This statement is inaccurate • Application for exemption will be dealt with on a case-by-

case basis by the Minister “taking into account the security interest of the Republic”

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COMMENT RESPONSE

The Bill will violate the provisions of GATTS Article XVII(1) & Article XVII(3)

• This submission has already been addressed above

The Bill will violate the provisions of the European Union and South Africa Trade, development and Co-operation Agreement (TDCA)

• This matter has already been addressed

The Bill will violate the Bilateral Trade Agreement between the UK and South Africa

• This matter has already been addressed

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COMMENT RESPONSE

The discretion given to the Minister in section 35(IA) and 35(sA) should be qualified – all stakeholders must be involved in developing the guidelines

• This submission relates to the section dealing with the powers of the Minister to make regulations. We did not propose any amendments herein however the Committee can look into the suggestion

Clause 14 (amending s 36 of the Principal Act) may be impractical given the challenges faced by the Central Firearms Register

• We note the submission and welcome any revisions that can strengthen the proposed clause

Clause 15 of the Bill does not specify the information required and the prescribed limits

• This submission is inaccurate

• The information is specified in Clause 15 (a) of the Bill

Clause 15 of the Bill adds an additional administrative burden to industry by requiring those who export services to provide the Director with information

• The nature of Regulation requires monitoring

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GUN FREE SOUTH AFRICA



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COMMENT RESPONSE

Regulations must specify the information to be included in the quarterly reports provided to the Minister

• This recommendation is welcome and will be factored into the regulations giving effect to the Bill/Act

• As recommended, the report will include 1. Number of security first registered;2. Number of guards registered (per category and function);3. Details of training of guards;4. Number of firearms (lost and stolen);5. All instances in which firearm discharged by guards (including

circumstances);6. Detailed information on crime investigations involving the private

security industry

The Act and Regulations should spell out the exact responsibilities of PSIRA in overseeing the industry

• The Act states clearly what PSIRA’s mandate is in section 3 & 4 of the Principal Act

A body to oversee PSIRA must be established

• The reporting mechanism is clearly provided in the Principal Act

• PSIRA has the following oversight bodies over it: Parliament, Auditor General of South Africa, the National Treasury, the Audit Committee, and the Executive Authority 39


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COMMENT RESPONSE

The contents of the Annual Report must be spelled out and the additional information in line with the recommendations for the quarterly reports

• This recommendation is welcome and will be implemented

The Firearms Control Act/2000 should be specifically listed in the Schedule

• This recommendation is welcome and will be implemented

PSIRA must be responsible to reporting information on the keeping of firearms by private security officers both in the quarterly and annual reports

• This recommendation is welcome and will be considered

Clause 18 (Amendment of Schedule) must be expanded to include the Firearms Control Act/2000

• This recommendation is welcome and will be implemented accordingly

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COMMENT RESPONSE

The client-level responsibility must be included in the PSIRA Act

• This is catered for by section 38(g) of the Principal Act • Responsibilities of security service providers are catered

for by the Code of Conduct for Security Service Providers• However we welcome any proposals to strengthen the

provision

The PSIRA Act and the Regulations must be aligned with the Firearms Control Act related regulations

• The Act is in fact aligned with the Firearms Control Act

Align and standardize training practices and qualifications

• The training standards have already been aligned with the NQF

Increase monitoring of policing functions undertaken by private security companies

• This submission is welcome and will be considered

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SAFER SOUTH AFRICA FOUNDATION (SSAF)



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COMMENT RESPONSE

Clause 2 on crime prevention partnerships must be amended so as to ensure that it is not open to a number of interpretations and potential understandings

• This submission is welcome

Accreditation of private security sector organizations whose operatives provide policing type functions in public places (such as the case in the UK)

• The industry is not matured enough to provide policing type functions

• The idea is not to blur the existing lines between public and private policing

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THANK YOUTHANK YOU

tittle goes here… response to comments on the private security industry regulation bill,2012...

Documents

adt security limited

security allianceresponse

comments tittle

new zealand responses

entrythe bill

uk agemaservices gmbh

general observations

submission response