Response to Comments on the
Private Security Industry Regulation
Bill,2012
November 2012
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
Scope
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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)
Responses to Comments
1
GENERAL OBSERVATIONS
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
• Examples of Companies Headquartered in SA and operating
and/or having links outside the Republic
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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
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
• Examples of Companies (Continued)
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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
Responses to Comments
4
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
• 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)
Responses to Comments
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SSG OPERATIONAL RISK SERVICES
(PTY) LIMITED
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
SUBMISSION
RESPONSE
Distrust Between PSIRA and • Historically, members of the Industry were part of the Board
the Private Security
which proved ineffective due to conflict of interest
Industry
• Members of the Council should be independent from the
private security with no financial interest in those companies
(S 7(b) of the PSIRA
XXXX
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
regulate
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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)
XXXX
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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)
Comments
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theResponses
objectsto of
the Authority
XXXX
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
Limitation of foreign • This limitation is justifiable in accordance with the security interests of
ownership and
the Republic
control is
unjustifiable
• Security interests of the Republic are paramount to incoming foreign
investments and not the other way round
XXXX
• 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
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
RESPONSE
XXXX
• 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”
Responses to Comments
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LOCKSMITH ASSOCIATION OF
SOUTH AFRICA
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
Definition of a locksmith is
incorrect such as the exclusion of
key cutters
RESPONSE
XXXX
• 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
Responses to Comments
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AFRICAN POLICING CIVILIAN
OVERSIGHT FORUM
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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.
XXXX
Regulating security services outside • Section 39 of the Principal Act allows for the extrathe Republic confuses function
territorial application of the Act
between PSIRA and SAPS
Responses to Comments
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SALUS PROTECTION SERVICES
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
Regulating security services outside • This submission was dealt with above
the Republic confuses function
between PSIRA and SAPS
Responses to Comments
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SOUTH AFRICAN INTRUDER
DETECTION SERVICES ASSOCIATION
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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
XXXX
• The partnerships are between the private security
industry and organs of state responsible for crime
prevention
The PSIRA director should
• The aim is to provide for delegation of powers subject to
delegate his/her power and duties
the approval by the Council
to a suitable and experienced
Responses to Comments
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person
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
Proposed amendment of S 25(5)(b)
is contrary to the Constitution and
the Promotion of Administrative Act
RESPONSE
XXXX
• Administrative Justice is catered for in section 5(3) of
the Principal Act
Responses to Comments
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CONTROL RISK SA (PROPRIETORY)
LIMITED
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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
XXXX
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
Clause 9 will violate the SAUK 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
to Comments can allow up to 100% Ownership 23
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the exemption
XXXX
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
There is no transitional
provision in Clause 11
RESPONSE
XXXX
• Legal drafters are attending to this submission in order to
allow for a transitional provision to be included under clause
11
Responses to Comments
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SECURITY INDUSTRY ALLIANCE
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
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 • The provision is not intended to be in violation with the South
that they do not conflict with
African Reserve Bank Act
the legislation of the South
• The context within which this provision is phrased is intended
African Reserve Bank
to only cover the protection and safeguarding of such
valuables
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
There is no legal basis for
precluding a person that is a
permanent resident from
participating in employment
opportunities
RESPONSE
XXXX
• 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
Responses to Comments
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AMERICAN CHAMBER OF
COMMERCE
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
All sectors are included in
• This Bill does not intent to include all sectors – refer above
the companies that should
• The Bill seeks to regulate the “rendering of security service”
comply with the the 51%
component of such companies and the “security equipment”
local ownership requirement
as defined
including manufacturers of
electronic equipment
XXXX
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
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
It is not clear who will benefit • The intention is not to benefit any particular individuals
if ownership is sold pursuant • The paramount consideration is the “security interest” of the
to the Bill/Act
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
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
The Bill might contravene the
provisions of WTO General
Agreement of Trade in Service
(GATTS)
• This provision has been addressed above
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
• 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”
Responses to Comments
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ADT SECURITY LIMITED
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
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…”
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
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-bycase basis by the Minister “taking into account the security
interest of the Republic”
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
The Bill will violate the
provisions of GATTS Article
XVII(1) & Article XVII(3)
RESPONSE
• This submission has already been addressed above
XXXX
The Bill will violate the
• This matter has already been addressed
provisions of the European
Union and South Africa
Trade, development and Cooperation Agreement
(TDCA)
The Bill will violate the
Bilateral Trade Agreement
between the UK and South
Africa
• This matter has already been addressed
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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
•
Clause 15 of the Bill does not
specify the information required
and the prescribed limits
• This submission is inaccurate
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
XXXX
We note the submission and welcome any revisions
that can strengthen the proposed clause
• The information is specified in Clause 15 (a) of the Bill
Responses to Comments
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GUN FREE SOUTH AFRICA
Responses to Comments
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PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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
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
to Comments
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AuditResponses
Committee,
and the Executive Authority
XXXX
1.
2.
3.
4.
5.
Number of security first registered;
Number of guards registered (per category and function);
Details of training of guards;
Number of firearms (lost and stolen);
All instances in which firearm discharged by guards (including
circumstances);
6. Detailed information on crime investigations involving the private
security industry
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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
XXXX
Clause 18 (Amendment of
• This recommendation is welcome and will be implemented
Schedule) must be expanded
accordingly
to include the Firearms Control
Responses to Comments
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Act/2000
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
COMMENT
RESPONSE
XXXX
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 • This submission is welcome and will be considered
functions undertaken by private
security companies
Responses to Comments
40
SAFER SOUTH AFRICA
FOUNDATION (SSAF)
Responses to Comments
41
PRIVATE SECURITY INDUSTRY REGULATORY BILL 2012
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
Accreditation of private
security sector organizations
whose operatives provide
policing type functions in
public places (such as the
case in the UK)
XXXX
This submission is welcome
• 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
Responses to Comments
42
THANK YOU
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