Private Security Regulation Amendment Bill [B27-2012]: working draft after consultation

Meeting report

Committee Business
The Chairperson noted the proceedings for this meeting would begin by looking at the Private Security Industry Legislation Act (PSIRA) after which they would break for the Medium - Term Budget Speech. The Committee would thereafter immediately adopt the BRR Reports for the South African Police Service (SAPS) and the Independent Police Investigative Directorate (IPID). The Committee was granted permission to meet after the Budget Statement until 19h00 as with tomorrow where they would meet close to the chambers in case they needed to break for voting.

Private Security Industry Regulation Amendment Bill: working draft
The Chairperson expressed her dissatisfaction that the Committee had received the working draft of the Bill so late despite the fact that the technical team had 11 months for drafting. This placed the Committee under extreme pressure during a time when Committees were busy with BR Reports and Parliament was in the process of wrapping up its work. She did not take kindly to this.

Ms D Kohler - Barnard (DA) noted the cover of the Bill stated Minister of Police while in the Committee’s researcher’s notes it said Committee Bill which means it would need to go through a long process from the beginning with public hearings and she was worried this meant going back to scratch according to the regulations laid out by Parliament. She sought clarity on this.

The Chairperson replied it might be a mistake but it was not classified as a Committee Bill. It was a Bill introduced by the Minister to which the Committee had made changes and they had the public hearings. The changes were based on what was considered at the public hearings.

Arrangement of sections:
Chapter 2: Private Security Industry Regulation Authority
Gen Phillip Jacobs, SAPS Head: Legal Support and Crime Operations, noted as was usually done they would return to the long title of the Bill at the end of the deliberations. He noted the insertion of 12A “Secretariat” under Chapter 2 as well as change of 16 “Funds” to “Finances of Authority” and the new insertion of 16A “Annual Report”. The numbers 17 through 19 were deleted.

The Chairperson thought the Secretariat would refer to the matters for consultation. She first wanted feedback on consultations with Treasury and the Department of Trade and Industry (DTI) as the Committee had gone through the Bill and had seen sections which were removed which was in the introduced Bill but they did not want to assume why and wanted to hear the situation from the Secretariat.

Mr Amichand Soman, Civilian Secretariat for Police Director: Legislation, said they had engaged with DTI, the Department of State Security, Department of Home Affairs and Treasury for the key provisions on the funding of PSIRA as well as the matters relating to the prohibition of foreign involvement – which the Committee had decided they wanted removed. From this consultation with the stakeholders there was work in progress.

Ms M Molebatsi (ANC) asked how far they were in addressing the problems of consultation.

The Chairperson made a point of correction as the Committee "did not say withdraw anything" but to consult on the issues and come back to inform the Committee on the basis of these consultations.

Mr D Stubbe (DA) would have liked a copy of the notes of what should have been done as well as for an answer in writing.

The Chairperson said this could be provided. She wanted it to be clear as this was going on the record that the Committee did not say anything was to be withdrawn only that there had to be consultation on the issues.

Ms Jenni Irish-Qhobosheane, Secretary of Police, added consultation was held not only on the issue of foreign ownership but on the funding of PSIRA and citizenship. A joint team was put together for consultation with departmental stakeholders outlined. Consensus was reached on some issues through this process while other issues were still sticky like the ownership issue. Feedback on this was not brought to the Committee because they had not reached consensus on the issue. On the issue of financing and citizenship, consensus was reached and an amendment was added to the Bill.

The Chairperson wanted clarity, for the purposes of tightening the Bill, it would be going without the issue of ownership. Whenever consensus was reached, the Minister would introduce an amendment at that point in time.
Mr Soman added the Committee’s amendments and changes had been accommodated and they would provide a list of all the areas as per Mr Stubbe’s request.
The Chairperson wanted the summary of notes submitted to the Committee by tomorrow morning at the latest.
Chapter 3: Registration as Security Service Provider & Chapter 6: General Provisions
Gen Jacobs noted the insertions of 20A “Exception Advisory Committee” and 36A “Security services rendered outside Republic”.

The Chairperson wanted the deliberations to follow a systematic fashion page by page.
Ms Kohler-Barnard was concerned about confusion around the accountability structure between with the Minister, Authority and Council. She asked if this was corrected.

The Chairperson said they would check on it throughout. She asked that the technical team stop after each section for the Committee to discuss.
Chapter 1: Definitions
Gen Jacobs noted the insertion of the definition “Civilian Secretariat” means the national Civilian Secretariat for the Police Service established in terms of section 4 (1) of the Civilian Secretariat for the Police Service Act, 2011 (Act No. 2 of 2011). There was also an amendment to “company” means a company within the meaning of the Companies Act, 2008 (Act No. 71 of 2008). There was also a reference to “Levies Act”. The definition of “locksmith” had also been amended to mean a person who, for the benefit of another person, engages in any activity or business which is related to (delete the word “the) (a) designing and managing master key systems; (b) installing, maintaining, repairing and changing the combinations of safes, vaults and safety deposit boxes; (c) maintaining key code records; (d) cutting keys (delete “otherwise than by”) and duplicating existing keys; or (e) opening, closing or engaging of locking mechanisms of any nature, by means of a specialised device in any manner”.

The Chairperson raised a point about making provision for artisans in the locksmith industry. As the Act currently stood, an artisan would not be able to make keys but making keys was part of their training. The Committee had said this must be included.
Gen Jacobs noted this and said it would be included. He continued noting “National Treasury” means the National Treasury established by section 5 of the Public Finance Management Act while “organ of state” means an organ of state as defined in section 239 of the Constitution, 1996 but does not include the Security Services referred to in section 199 of the Constitution. There was an insertion of “Public Finance Management Act” means the Public Finance Management Act, 1999 (Act. No. 1 of 1999). “Security business” means, subject to subsection 25, any person who renders a security service to another for remuneration, reward, fee or benefit, except a person acting only as a security officer.
The Chairperson said this was not what was stated in the working draft of the Bill/Act the Members were following - it said the definition of “security business” was subject to subsection 2.
Gen Jacobs explained there were two definitions - the one highlighted in yellow was the proposed one while the preceding definition could be deleted.
The Chairperson asked if they should not refer to the relevant Act under the definition of “security equipment”.
Gen Jacobs did not think that was relevant for this definition.
He continued turning to the definition of “security officer” which means any natural person - (a) (i) who is employed by another person, including an organ of state, subject to section (20) (1) (a) and (b) of the Act, and who receives or is entitled to receive from such other person any remuneration, reward, fee or benefit, for rendering one or more security services; or (ii) who assists in carrying on or conducting the affairs of another security service provider, and who receives or is entitled to receive from such other security service provider, or any other person, any remuneration, reward, fee or benefit, as regards one or more security services.
Gen Jacobs noted the definition of “security service” (e) read “manufacturing, assembling, possessing, selling, purchasing or advertising of listed equipment contemplated in section 1 of the Regulation of Interception of Communication and Provision of Communication related Information Act, 2002 (Act No. 70 of 2002), authorised by the Minister of Justice and Constitutional Development under section 45 (2) and section 46 (1) (a) (ii) of the said Act. He explained this provision was drafted in alignment with the provisions of the Regulation of Interception of Communication Act (RICA) and the authorisation required by the Minister of Justice.
No amendments were made to (g) or (h) of “security service” so the text still read the same. Turning to (k) there was an amendment under the same definition in order for it to read “making a person or the services of a person available, whether directly or indirectly, for the rendering of any service referred to in paragraphs (a) to (j), (l) and (lA), to another person” (l) “managing, controlling or supervising the rendering of any of the services referred to in paragraphs (a) to (j) and (lA)”. There was also the insertion of (lA) “protecting or safeguarding of cash or goods with a high value, including precious metals or jewellery when transported on a public road, except when transported by a person at his or her own account, or by the South African National Defence Force or in the case of transport by escort of the Service” and (m) “creating the impression, in any manner, that one or more of the services in paragraphs (a) to (lA) are rendered”.
Ms Kohler-Barnard raised the issue of RICA in relation to the regulation of something which was prohibited. She asked how this tied in with another Act and if a problem was not going to be created.  

Gen Jacobs replied that prohibition under RICA was not a total prohibition but provides for the Minister of Justice to grant certificates of exception and this was outlined in section 46. He thought the Bill was not drafted in line with that prohibition.
Ms Kohler-Barnard questioned the differences between the definition of “security service provider” and “security business”.
Gen Jacobs said a security business could be a natural person or a business while a security officer could only be a natural person i.e. the actual officer who might be employed by a security business.
Ms Kohler-Barnard clarified that she was referring to the definitions of security service provider and security business. She thought the definitions seemed to say the same thing more or less.
Gen Jacobs said a security service provider could also be a natural person or a company whilst the same could be said for the security business.  
The Chairperson said the Member’s question was around a possible duplication between the definitions.
Gen Jacobs outlined that the definition for “security service provider” covered for the eventuality of “such a person who is not registered as required in terms of this Act”.
The Chairperson said they should take the “a” out before remuneration under the definition of “security service provider”.
Gen Jacobs noted the deletion of subsection 2 of this Bill marked in square brackets.
Chapter 2: Establishment of Private Security Industry Regulation Authority
The Chairperson question why they were stipulating where the head office of the Authority was going to be. Was there a reason for this?

Gen Jacobs replied that the head office was currently in Centurion but it had been proposed for deletion as it need not be stated where exactly it should be and might actually be a problem.
Objects of Authority
Gen Jacobs noted section 3 stated “The primary objects of the Authority are to regulate the private security industry and to exercise effective control over the practice of the occupation of security service provider in the public and national interest” and it was proposed the rest of the section be deleted and for it to be replaced by (a) ensure a legitimate private security industry which – (i) acts in terms of the principles contained in the Constitution and other applicable law; (ii) is characterised by accessibility, accountability, transparency, equity, professionalism and stability; and (iii) protects and serves the interests of members of the public who use or are affected by the security services. (b) determine and enforce minimum standards of occupational conduct in respect of security service providers; (c) ensure that the process of registration of security service providers in transparent, fair, objective and concluded timeously; (d) promote high standards in the training of security service providers and prospective security service providers; (e) promote the protection and enforcement of the rights of security officers and other employees in the private security industry; (f) ensure that compliance with existing legislation by security service providers is being promoted and controlled through a process of active monitoring and investigation of the affairs of security service providers; (g) promote the empowerment and advancement of persons who were historically disadvantaged through unfair discrimination in the private security industry by encouraging – (i) ownership and control of security businesses by such persons; and (ii) equal opportunity employment practice in the private security industry; and (h) promote awareness amongst the public and the private security industry on the functions and role of the Authority and the industry”.

Mr Stubbe presumed that section 3 would now become 2. He was concerned about “national interest” under section 3 and asked if this should be placed in the definitions as it was used in the Protection of State Information Bill.
The Chairperson wanted the Secretariat to take cognisance of the issue and come back to the Committee as there was now a definition.  
Ms Koher-Barnard thought that “historically disadvantaged through unfair discrimination” under section 3 (g) should be replaced by “broadly representative” as was decided with the Legal Practice Bill for an alignment of phrases.
Ms Molebatsi thought that section 3(h) should read “Authority in the industry” instead of “Authority and the industry”.
Ms D Sibiya (ANC) asked if PSIRA was expected to carry the costs of the awareness campaigns.

Mr V Ndlovu (IFP) questioned whether section 3(g) reflected what was said in the BEEE Bill.

Gen Jacobs said they would note the issue around the definition of “national interest”. For the numbering, subsection 2 would be reflected as a deletion. For section 3(g), it reflected the just of what was in the BEE and Employment Equity legislation and personally thought a repetition here would do no damage but it was a policy decision given that a change in the other legislation might require a change with this legislation as well. Also general Employment Equity legislation was applicable to the civil service and business.  
Mr Ndlovu asked why there was not specific reference to the employment equity legislation in the Act.

Ms Kohler-Barnard quoted the Legal Practice Bill on the issue of “historically disadvantaged” which was quite elegantly phrased as “broadly representative of the Republic’s demographics”. She thought referring to “historically disadvantaged” was almost past it sell-by date and what was phrased in the Legal Practice Bill might be more suitable here.
The Chairperson thought the crux of the matter was to refer to the relevant legislation as she was not necessarily in agreement with Ms Kohler-Barnard that the phrase was past its sell-by date as this was difference of opinion in terms of politics. She thought the way the subsection was currently drafted was very wide and it might need reference to the relevant Acts rather than trying to define it.
Mr Soman said that section 3(g) established empowerment in terms of ownership and control and referring to specific legislation might be limiting in proposing an amendment. They could look at the principle and refer to specific legislation without specifying the legislation itself. He emphasised the principle was to promote empowerment of the historically disadvantaged.
Mr Sisa Makabeni, State Law Advisor: Office of the Chief State Law Advisor, said the issue of broadly representative would be more relevant for membership and the constitution of boards while this section dealt with issues of ownership and control which could not be dealt with in terms of demographics.
 
The Chairperson asked that they look at the principle and come back with a solution.

Gen Jacobs noted and agreed to the proposal by Ms Molebatsi to change the wording in section 3(h). He said PSIRA was responsible for the awareness campaigns costs.
The Chairperson thought that section 3(d) needed to deal with uniform standards of training to provide for a minimum standard of measurement without losing the attainment of reaching the highest level of training. She suggested they look at redrafting the subsection. In section 3 she was missing the reference to ethical practices for service providers. She said the Secretariat could come back to these issues and indicate if they disagreed.
Functions of Authority
Gen Jacobs recalled that there were two options for this section. Section 4 read “The Authority must take steps to achieve its objects with the means at its disposal and may, subject to this Act and any other law, for the purpose of achieving its objectives - (a) exercise such powers and perform such duties as may be given or assigned to the Authority in terms of this Act or any other law; (b) enquire into and report to the Minister on any matter concerning the objects of the Authority; (c) advise the Minister on any matter deemed by the Authority to be necessary or expedient to be considered by the Minister in connection with the provisions of this Act or the Levies Act, or the application thereof, and on any other matter relating to security services which has been referred by the Minister to the Authority for the advice and recommendations of the Authority; (d) conduct an ongoing study and investigation of the rendering of security services and practices of security service providers in order to identify shortcomings in this Act and the Levies Act, or any policy or rule made in terms thereof, and to deal with any evasion, abuse or violation of the procedures and principles contained in this Act or the Levies Act, or any policy or rule made in terms thereof”. The proposal was to delete section 4 (e) until (k) (ii) and for it to be replaced with (e) “receive and consider applications for registration and renewal of registration as security service provider and grant or renew registration to applicants who comply with the requirements for such registration or renewal of registration in terms of this Act; (f) establish and manage branch offices; (g) provide or disseminate information promoting and encouraging compliance with this Act, the Levies Act and the code of conduct, by security service providers; (h) provide information to the users, prospective users or representatives of users of security services regarding the compliance if security service providers with the provisions of this Act and the Levies Act; (i) in the prescribed manner establish a complaints office to receive, process, refer or deal with complaints regarding the quality of service rendered by security service providers; (j) determine minimum internal control systems for security businesses, including but not limited to, accounting and reporting procedures and any other procedures or systems; (l) conduct, or cause to be conducted, hearings, investigations and inquiries with regard to any matter falling within the scope of its functions; (m) enter into agreements with or obtain the assistance of any department or organ of state to conduct or assist it in conducting any investigation or performing any other function in terms of this Act or the Levies Act; and (n) generally perform any act that contributes to the attainment of its objects.

Mr Ndlovu highlighted section 4(f) as he did not know the meaning of branch officers.

The Chairperson thought this was an important issue for the Committee to look at especially the financial implications of what was being said. The issue was also important because the Committee had concerns with the servicing of certain provinces – was the Bill saying there should be a provincial office in every single province or what were they saying? She sought clarity on these issues.
Mr Ndlovu said the issue could go even further where the provincial offices would want to be decentralised.  
Ms Molebatsi also said the structure of provincial offices needed to be clearer.
Gen Jacobs said at the point it was structured in terms of provincial offices but from a drafting point of view this could be inserted.
Mr M Chauke, PSIRA Director, agreed with this. Currently there were regional offices but they were not covering all the provinces of which three were not covered.
The Chairperson said there were more than three provinces not covered.
Mr Ndlovu did not know what was being referred to as “regional offices”.
The Chairperson said this was the problem – were they talking about regional or provincial offices?
Ms Irish-Qhobosheane said there may be cost implications but the principle was for regulation of the industry and to allow for provincial footprint.
Mr Ndlovu reiterated that there needed to be a clear differentiation of regional and provincial offices.
The Chairperson said the point was what the Committee wanted as they were drafting the legislation. She wanted there to be a provincial footprint but not for a provincial office in Gauteng with two or more offices and then other provinces with no offices at all. Whether this was called a provincial or regional office was irrelevant but the principle was to see PSIRAs footprint in every office. She asked Members how they felt about a redraft of this subsection.
Ms Kohler-Barnard felt this was the right way to go but it could turn out to be something nice to have which was not actually followed through with. She said it would be a directive with no time frame.
The Chairperson said there could not be timeframes with provinces which was a problem but they could look at transitional arrangements.
Mr Soman suggested they could draft the section to say offices where necessary or appropriate.
The Chairperson said this was exactly what they wanted to prevent as it was clear from the Annual Report some of the provinces were not receiving the attention they should be getting. She emphasised the Committee wanted to see a footprint in every province. They would leave the wording up to the Secretariat and come back to it.
The Chairperson was concerned about section 4(i) specifically the issue of service complaints which she felt should be directed to the company. She did not want the situation where PSIRA became a complaints box. She felt the subsection should be drafted more narrowly so that PSIRA could still receive complaints but not service complaints. If she had a problem with the service of a company she would take the compliant up with the company. She was concerned PSIRA would be flooded with general complaints.
Mr Ndlovu agreed with these concerns.
The Chairperson explained further that this was a free market environment where one could move from company Y to company X if one was unhappy with service. PSIRA needed to deal with complaints of contraventions to the regulations for example if a security service company were using unregistered security officers.
Ms Kohler-Barnard thought the three words “quality of service” were the crux of the matter. She thought the Chairperson was looking almost criminal behaviour and breaking of the legislation which PSIRA needed to deal with not if a security guard was late, for instance, as that was what quality of service meant.
The Chairperson asked the Secretariat to look at this and come back. She asked the technical team if they were certain that everything was captured under this list.
Mr Ndlovu questioned the meaning of section 4 (n).
Gen Jacobs explained that the clause did not add much but was intended to close a gap. He personally felt it did not contribute much to the text.
The Chairperson said it was basically a catch all phrase.
She was bothered by section 4 (b) “enquire into and report to the Minister on any matter concerning the objects of the Authority”. She felt there was a blurring of lines between the Council and the Authority referring to the Minister which needed to be cleared up. It needed to be clarified that the Authority reported to the Minister through the Council. She wanted to hear the technical team on this.  
Gen Jacobs agreed with this line of accountability.
The Chairperson said they should make this clear throughout the Bill. She felt section 4 (b) should read “…concerning the objects if the Authority through the Council”. This would also affect 4 (c). she asked Members to ensure other sections were highlighted to make this line of accountability clear throughout the Bill.  
Governance of Authority
Gen Jacobs highlighted the proposed insertion in section 5 of subsection (2A) “The Public Finance Management Act applies to the Council” in terms of the whole new dispensation and financial issues.
The Chairperson wanted to know more about the new dispensation they spoke of.
Gen Jacobs explained one PSIRA became a public entity they were applicable to the PFMA so the insertion was to align PSIRA as a public entity to the PFMA and the authority of the Audit - General.
The Chairperson asked because with the introduced Bill, Treasury said they were not consulted.
Ms Irish-Qhobosheane said there was a lot of discussion on this and the team had looked at the PFMA in terms of entities which said that entities could only borrow from the state and they had to pay funds back but they had now included a clause which did not make it a borrowing but also did not make it a requirement for Treasury to fund.  
The Chairperson said the simple question was this no longer a separate vote.
Ms Kohler-Barnard wanted the team to unpack of 5 (2) as she could not make sense of it.
The Chairperson suggested the team finish section 5 and come back to this issue.
Gen Jacobs moved on to the insertion of “and the Public Finance Management Act” in 4 (4) and the new insertion of sub (6) “Whenever members of the Council are unable to agree on a material financial, governance or operational issue which cannot be resolved by the Council, the Minister must mediate between the parties”.
Ms Kohler-Barnard raised her uncertainty about the meaning of 5 (2) “The Authority acts through the Council and all acts of the Council are regarded as acts of the Authority”.  
Gen Jacobs noted the Council was the accounting body in the whole set - up and remained accountable for all actions of the Authority as well.
The Chairperson asked if the team could give an example of a public entity where council was not the accounting authority. If they could not provide the answer now she would like them to go look at it and come back.
Ms Kohler-Barnard was confused about 5 (5) which stated the Minister issued guidelines and policy directives. She thought the Minister issued regulations not policy directions.
The Chairperson said ministers do issue policy directions and policy regulations which was their prerogative but she thought the clause was clumsily drafted as the last part of 5 (4) and (5) were almost repetitions. She suggested 5 (4) should refer solely to financial matters which 5 (5) referred solely to policy directives and guidelines. She asked if this made sense.  
Gen Jacobs thought the only reason for 5 (5) at the moment was to allow for the amendment of guidelines and policy directives.
The Chairperson clarified that the Committee did not mind 5 (5) but that 5 (4) was misdirected. She suggested the technical team remove the last part of 5 (4) “…and in accordance with such guidelines and policy directions as may be issued by the Minister from time to time by notice in the Gazette”. She asked that this be looked at.
Establishment and constitution of Council and appointment of councillors
Gen Jacobs noted the proposed insertion of 6 (2) “In the appointment of members of the Council, consideration must be given to appointing persons who have amongst them knowledge and experience in respect of at least, finance, law and governance”.

The Chairperson said the Committee was not happy with the changes here as they had completely ignored the Committee’s suggestion. They made it clear they wanted at least one of the councillors to have finance skills, one of the councillors have governance skills and one have skills in law not what the subsection currently said.  
Gen Jacobs said the “at least” was still there.
The Chairperson said one person could claim to have all of those skills which the Committee did not want. They also did not want the Minister to be given an option which was what “consideration” implied in the subsection. As the people drafting the legislation, the Committee wanted a chairperson, vice - chairperson, three councillors of which they must have the said skills – no consideration given. She wanted this subsection redrafted.
Requirements for appointment as councillor
Gen Jacobs noted the insertion of 6A “A member of the Council for the Authority must be a fit and proper person with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned”.  

The Chairperson wanted to know what this insertion meant and how it enriched the legislation.
Ms Irish-Qhobosheane explained this was in various pieces of legislation which made the appointment of persons more challengeable. There was similar wording in the DPCI legislation.
The Chairperson noted the criteria was very specific in the DPCI legislation and asked if this PSIRA Bill should not be going in the same direction in terms of the type of councillor.
Mr Ndlovu thought it might be more appropriate to bring the paragraph from the DPCI in here as it was clearer than the 6A of this Bill.
The Chairperson heard and did not have a problem with what the Secretary was saying and the subsection was not invaluable but she was still not clear how it enriched the legislation. She asked how Members felt about this.
Members were satisfied the subsection stayed.
The Chairperson noted this was the same kind of provision which the Freedom under Law group used to challenge the appointment of the previous head of Public Prosecutions.
Ms Irish-Qhobosheane explained if someone had a history of none performance indicated on their record, conscientiousness could be challenged under that record.
The Chairperson said the section could be kept as it was not doing any harm.
Disqualifications for appointments as councillor
Gen Jacobs noted section 7 stated “A person may not be appointed as a councillor if such person – (a) is not a citizen of the Republic”. What was deleted from this section was “or does not have a permanent resident status in”. This was discussed at length with the state law advisors given issues around national interest.
 
He noted 7 (c) was deleted.
Ms Kohler-Barnard sought clarification on 7 (a) and that a permanent resident had certain rights in terms of the constitution so the section could be opened for challenge in some way which was the last thing they needed. She wanted to know why this was removed from the section.
The Chairperson also wanted to hear the state law advisors on this issue.
Gen Jacobs explained the same argument applied here as the head of the DPCI which was a sensitive position and must be a citizen of the country. This applied to councillors as well.
Mr Makabeni said the main consideration was for the registration of security service providers which also required that people be citizens so it allowed for alignment.
The Chairperson said this was not what was being talked about.
Ms Irish-Qhobosheane clarified there were differences between what was required to be a councillor and what was required to be part of the industry. This was done in other pieces of legislation as the emphasis was on the councillor protecting the interests of the country and deal with highly sensitive information. This did not affect the industry itself but only the Council members. 
The Chairperson personally did not have a problem with this and it was not an unfair requirement as the bottom line was that this person was representing the country’s interests. She thought the section should be left as currently was and if anyone wanted to argue their point they could come back and were welcome to do so. She asked what about a criminal record as criteria in this section.
Ms Kohler-Barnard noted there was a lot more under disqualification. She said the criminal record had to be in this section as the entity already had two heads with criminal records.
The Chairperson said it should be stated upfront so that it could not be challenged.
Ms Irish-Qhobosheane suggested they include verification of qualifications.
The Chairperson said the point was there were a host of other inclusions. She felt the section needed to be tightened up.
Ms Kohler-Barnard said they might include pending charges seen this was as prima facie case by National Prosecuting Authority (NPA).
Terms and conditions of office, vacation of office and payment of remuneration and allowances
Gen Jacobs noted the change to this section was to change three years to five years so that 8 (1) read “A councillor is, subject to this section, appointed for a period not exceeding five years, on such terms and conditions as the Minister may determine in a letter of appointment, provided that all members of the Council serve on a part - time basis”.

Changes were also made to 8 (2) to now read “A councillor is eligible for reappointment upon the expiry of his or her term of office, for a period not exceeding one additional term, if he or she continues to meet the requirements for such appointment in terms of this Act”.
The “or” was removed after 8 (3) (c) and moved to after (d) with the insertion of a new paragraph (e) “he or she is no longer a fit and proper person as required in section 6A”, (3A) “When a councillor becomes subject to any disqualification referred to in section 7 or is absent from three consecutive meetings of the Council, the Chairperson, vice - Chairperson or acting chairperson contemplated in section 12 (10), as the case may be, must inform the Minister in writing within a reasonable time, but before the next meeting of Council, of such disqualification or absence”.
Sections 8 (4) and (5) were to remain with the insertion of 8 (6) “A councillor, or a member of a committee appointed by the Council referred to in section 13 91), who is not an employee of the Authority or an officer or employee in the Public Service, may be paid from the funds of the Authority such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance”. Section 8 (7) was proposed for deletion.
The Chairperson had a serious problem with 8 (5) “If a councillor ceases to be hold office the Minister must, with due regard to section 7, within a reasonable time appoint a person to fill the vacancy for the unexpired portion of the former councillor’s term of office”. She wanted “reasonable time” to be within a period of six months and she did not agree with the unexpired portion as this was the one way of getting continuity given how difficult it was to get people to serve on these councils especially part - time councils and it did not make sense as no one would serve on a council for six months. She acknowledged this was not raised before but the Committee had a problem with this.
 Gen Jacobs said the term was extended from three years to five years and could serve an additional term which was an effective period of ten years.
The Chairperson was referring to 8 (5) in that if she was a member of councillor and vacated her position with months left until the end of her contract there should be a new contract with a new position. She also thought the five year term was too long.
Ms Irish-Qhobosheane said three years was too short a period of time – a person was just beginning to understand issues then the term expires. The team looked at this in terms of other government boards and processes when considering five years.
Ms Kohler-Barnard thought filling a vacancy for a few months did not work and felt that 8 (5) should end with “…appoint a person to fill the vacancy”. She understood the general contract term was five years but with an additional term this became ten years which suddenly looked very long to her. She thought the second term she be shortened or even disallowed.
Mr Ndlovu understood where the Department was coming with five years but that calls into question a second term as ten years was a very long time.
Ms Kohler-Barnard highlighted another piece of legislation where it did not allow for a second term but it allowed them to come back after a certain time break to serve a second term which gave a perspective period. Considering the history of the entity she thought ten years was pushing it.
Ms Molebatsi aligned herself with a three year term.
Mr G Lekgetho (ANC) thought five years was fair but after that there would be a vacancy for the position and the person meeting the requirements should be considered.
Mr Ndlovu agreed with the first five term but then the second term should to be shortened as something had to give as ten years was too long.
The Chairperson felt personally that a middle ground needed to be found as there was argument for a second term to allow for continuity so a break before coming back would not serve continuity. But she also believed ten years was extremely long time given that these were not full - time positions. She asked if they could find each other on a term not exceeding four years which with a second term made it eight years which she was still a bit uncomfortable with. She thought Members needed to divorce themselves from history and focus on going forward.
Ms Irish-Qhobosheane said there were pros and cons with both. It would be a pity to lose expertise because a term of office expired but this was also a very pervasive interest with an ability to buy people off. She said the Minister could shorten the second term because the Act said not exceeding five years so the second term could be shorted to two years to allow for continuity and that there was not a movement from brand new council to council.
The Chairperson asked the technical team to look at this as the Secretary suggestion was maybe the option moving forward – a term not exceeding five years and a second term not exceeding two years so that jointly the term did not exceed seven years. This gave the Minister an opportunity to ask other people to prepare themselves to give continuity. She said they should come back to this issue.
Function of Council and chairperson
Gen Jacobs noted 9 (2) (a) “may, subject to the ratification of the Council, exercise any power of the Council or fulfil any of its duties” had been proposed for deletion because it discussed in the Committee that this was an unhealthy situation and must be rectified. 9 (2) (f) had also be changed to read “must maintain a working relationship with the Civilian Secretariat to cooperate on policing and policy matters related to the private security industry”.

Mr Ndlovu wanted an explanation on 9 (c) and 9 (2) (d).
The Chairperson added that under 9 (2) (e) and the potential for some sort of conflict especially in light that there was no longer a full - time chairperson.
Gen Jacobs replied that 9 (c) related to the powers of the Minister and his responsibility toward Parliament and contributed to the broader manner in which the Council carried out its responsibility.
The Chairperson asked if the PFMA should be included under 9 (c).
Gen Jacobs agreed. Regarding 9 (2) (d) and (e) he thought the whole Council and not just the chairperson should provide strategic direction. He thought that subsections should actually be removed.
The Chairperson wanted more discussion on 9 (2) (d) and subsection 2 in totally. She noted the Committee was in agreement that (e) should be removed but there was value in (d) but the director should be providing direction to the Authority through the Council as the Council was ultimately responsible.  
Accountability of council
Gen Jacobs noted section 10 (1) “The Council is accountable to the Minister for the performance of its functions and must – (a) supply the Minister with such information and particulars as the Minister may in writing require in connection with the functions of the Authority or any other matter relating to the Authority”. Sections 10 (b) through to (c) was proposed for deletion. There was the insertion of 1A “The Council must submit a report to the Minister - (a) on any matter required by the Minister under subsection (1) and on any matter which it is necessary or expedient to bring to the attention of the Minister; and (b) at least once a quarter in connection with the activities of the Authority, including –(i) the number of security service providers registered, sold, transferred, liquidated, suspended, dormant, merged, de - accredited and prosecuted; (ii) the number of security officers registered, including category and functions; (iii) the details of training undertaken by registered security officers and training institutions; (iv) the number of training institutions registered, sold, transferred, liquidated, suspended and dormant; (v) the number of firearms registered to, lost by, stolen from, transferred by security businesses or destroyed in terms of the Firearms Control Act, 2000 (Act No. 60 of 2000); (vi) instances in which firearms were discharged by a security officer in the performance of his or her duties causing death or injury; (vii) information of criminal complaints relating security service providers reported to the Service by the Authority; (viii) a report in terms of the Public Finance Management Act to the Minister”. Subsection 2 was proposed for deletion.

The Chairperson noted 10 (1A) (vii) in which there was a difference criminal complaints and investigations. The Committee recommended criminal investigations as not all complaints would lead to investigations and complaints could be unsubstantiated.
Ms Irish-Qhobosheane heard what the Committee was saying but could they not look at both complaints and investigations because there was a problem with complaints not being properly investigated.
The Chairperson said this was fine. Under 10 (1A) (viii) she noted that in terms of the PFMA it was a monthly report for entities to submit.
Ms Irish-Qhobosheane asked if the section could say monthly and quarterly as the PFMA required two types of reports.
The Chairperson agreed.
Ministerial supervision of Authority
Gen Jacobs noted section 11 “If the Council or the Authority cannot or does not maintain an acceptable standard in the fulfilment of one or more of its functions in terms of this Act, the Levies Act and the Public Finance Management Act, the Minister may intervene by taking any appropriate step to ensure proper fulfilment of that function, including –“. The “and” was deleted at the end of 11 (b) (ii) with the insertion of (d) “taking such corrective measures as required by the circumstances in the period whilst there is no appointed Council; and (e) the interim appointment of a person or persons meeting the requirements contemplated in section 6A to ensure the continuity of the affairs of the Authority” Provided that the interim appointment may not exceed six months”. He noted this was already discussed and was included as a temporary measure to ensure there was continuity of appointments being made.

The Chairperson felt there was double talk under 11 (a) between the Council and the Authority when referring to issuing of directives.
Ms Irish-Qhobosheane thought that 11 (d) dealt with this issue.
The Chairperson did not think so as it was two different things and it did not make complete sense to her. She asked if the state law advisor had an opinion on this.
Mr Makabeni said when there was no Council the directive should be issued to the Authority.
The Chairperson asked if (a) should not read issuing directives to the Authority through the Council while (d) dealt with this issue if there was no Council or were they being too bureaucratic with such drafting.
The technical team supported this.
Meetings and conflict of interest
Gen Jacobs noted the insertion of 12 (1) (c) “The Council must meet at least once every quarter”.

The Chairperson thought it was important that it be added Council was to report on these meetings and it also allowed for control for oversight.
Gen Jacobs moved onto to note 12 (2) (a) “The chairperson may at any time convene a special meeting of the Council and must also convene such a meeting if so directed by the Minister in writing”. There was deletion of subsection 7 (d) “the fact that a councillor is guilty of an act or omission justifying his or her removal from office” reading the entire subsection for context. He noted there was quite a long discussion on this and they had looked at other pieces of legislation which led to the proposal for (d) to be deleted.
Ms Kohler-Barnard was not sure why the clause was being deleted just because it did not exist in other legislation. She thought the Council should be able to speak to instances where a councillor was in possession of information.
Ms Irish-Qhobosheane said (c) covered that eventuality.
The Chairperson asked if they were not being too lenient by these provisions.
Gen Jacobs said this type of provision was to cover situation when the rest of council and minister was not aware so it kept the integrity of the decision taken in the meantime.
Ms Kohler-Barnard noted that lying about ones qualifications was fraud and stealing as she wanted to know what the follow - up on this was.
The Chairperson was concerned that 12 (3) “The quorum for any meeting of the Council is a simple majority of the councillors in office at the time” needed to be more specific as she noted last year there were two councillors and they could both take decisions.
Ms Irish-Qhobosheane said the way to resolve this was to stipulate a simple quorum of least three people not limited to people in office. She heard the concerns of Ms Kohler-Barnard but noted it could be placed somewhere else but it would not fit into this section.  
Ms Kohler-Barnard asked if the issue could be flagged and raised at a later stage as there could not be no repercussions.
The Chairperson was concerned about a situation where two or three councillors did not declare interests and they took a decision favouring a certain company, for instance. She stressed the issue of a quorum needed to be addressed first then the other matters became less of an issue.
Gen Jacobs added they should consider 12 (7) and the words “not invalid merely by reason of” as this left open there might be reasons for other legal grounds.
The Chairperson wanted subsection 3 to be rectified to stipulate a quorum for any meeting of the Council should be three serving councillors or members of the Council.
The Committee was in agreement with this.
Secretariat
Gen Jacobs noted 12A (1) “The Council must appoint a secretariat consisting of not more than three members/ (2) The secretariat must perform administrative and secretarial functions pertaining to the Council in terms of this Act. (3) A member of the secretariat appointed by the Council may be paid from the funds of the Authority such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance”.

The Chairperson wanted a specific explanation of what they envisaged for the secretariat as there would no longer be a full - time chairperson so therefore someone needed to prepare documents on behalf of the Council etc. She was worried about level of appointments and if this would be a full - time job because just last week again the Committee heard of appointments of people for more than R1 million of which they could see nothing that they had delivered. The Committee was also worried that last year, current secretaries were earning more than senior investigators within the Authority even when investigations were core to the Authority. She sought clarity on this issue.
 
Ms Kohler-Barnard saw bizarre situations. She asked if the so - called secretariat could be pulled together from existing employees rather than creating yet another level with huge expenses with one of the worst audit reports from the entity they knew nothing about yet again.
Ms Irish-Qhobosheane responded that it was envisaged for a company secretary to support the now part - time Council as was case with most other boards and entities. She said a company secretary was different to a personal assistant (PA) but was someone a bit higher powered.
The Chairperson was now more worried if the Authority was in the right place for the appointment of a secretary and if it was not there the where did it go?
Ms Irish-Qhobosheane said the secretary needed to be doing Council work not Authority work in ensuring the agenda items were correct, that reports were received, summarised and presented to Council etc. other company boards had a secretary which performed these functions.
The Chairperson asked in the examples looked at, who appointed the company secretary?
Ms Irish-Qhobosheane replied it was the board.
The Chairperson asked if the secretary was full - time or linked to the board’s term of office.
Ms Irish-Qhobosheane said it was often full - time to allow for continuity if a new council came in.
The Chairperson would like to see a clarification of roles of the executive director and company secretary on the one hand and agreement to the secretary by the Minister on the other because the Minister determined the salary anyway through the Minister of Finance. She also thought the process of appointment needed to be clear here - open advertising, applications etc. she noted the Committee’s concerns were informed by experience. She asked if this was possible or was the Committee asking for the impossible?
Gen Jacobs said the section could be expanded.
The Chairperson said they would come back to this section after the team had looked at it.
Committees to assist Council
Gen Jacobs noted section 13 (1) “The Council may appoint one or more committees consisting of – (a) one or more councillors (delete “or”), (b) one or more councillors and one or more other persons; or (c) one or more other persons, to advise the Authority in relation to any matter referred to it by the Council and to report on that matter to the Council. (2) the Council must establish committees representing different sectors, disciplines or interests in the private security industry to advise it regarding the regulation of the private security industry, provided that no remuneration or allowances a contemplated in section 8 (6) may be paid to a member of a committee in terms of this subsection”. The rest of the section remained as it was.

Ms Molebatsi asked what “one or more” councillors meant.
Ms Kohler-Barnard felt this section was so vague. She was not sure what was actually being envisaged for this committee in terms of its length and time given there was no remuneration or allowance being contemplated.
The Chairperson problem with 13 (1) because it was not stating fees payable, what personnel was specifically being spoken about - Council members or outside people? She was also concerned because the committee in section 13 (1) was short - term.
Ms Kohler-Barnard read the section as one entity and was now even more worried as it could be a committee for anybody, anywhere, paid any amount and the section was way too vague for her liking considering the history of this entity.
The Chairperson really thought the team did not apply their minds properly to this section. She said they would have to come back to the Committee on this section.
Gen Jacobs referred back to section 8 (6) “A councillor, or a member of a committee appointed by Council referred to in section 13 (1), who is not an employee of the Authority or an officer or employee in the Public Service, may be paid from the funds of the Authority such remuneration and allowances as the Minister may determine with the concurrence of the Minister of Finance”. He thought this section addressed some although not all of the Member’s concerns.
The Chairperson requested that the team cross reference section 8 (6) under section 13 and there still needed clarification that these were not full - time committees but short - term committees dealing with specific issues and that if the need arises that they re - apply for extension of terms and remuneration from the Minister because otherwise they were really opening a can of worms. She wanted to section to be addressed and come back to because it needed to be tightened up.
Staff of Authority
Gen Jacobs noted section 14 (1) “The Council must appoint a director of the Authority, as well as three deputy directors, who are - (a) citizens of the Republic; and (b) fit and proper persons, with due regard to their experience, conscientiousness and integrity to be entrusted with the responsibilities with regard to their respective offices. (1A) Persons appointed under subsection (1) must be made on such conditions and terms as may be determined by the Council”. He thought the wording of these subsections needed to be tightened up.

The Chairperson was again worried about this section - it allowed for consultation with the Minister but it allowed the Council to determine the salaries when there was a current investigation into this vey issue. She had a problem that at the end of the day the Minister sat with egg on his face as he had no say in the matter. She also wanted to see a role for Parliament in the process similar to the role with the Independent Police Investigative Directorate (IPID) for the acceptance or rejection of such appointments. She wanted to hear Members on this issue.
Ms Kohler-Barnard asked why they took out “suitably qualified and experienced person” under section 14 (1) and replaced with “due regard to their experience” when experience did not necessarily mean they had the right qualifications.
The Chairperson asked the team to take the concerns of the Committee on board as she thought they definitely needed a redraft of the section. This was especially because there would no longer be a full - time chairperson so there would be more responsibility on the director in many ways for the day to day running of the work of the Authority so surely this section needed to be more specific. She asked them to look at what was placed in the Hawks legislation in terms of the appointment of the head of the Hawks and the criteria that needed to come into play - security clearances, suitably qualified, honourable etc.  
Ms Irish-Qhobosheane noted that this would change the contract period.
The Chairperson said this was fine and maybe not a bad thing.
Mr Ndlovu highlighted that most such positions were for contract periods.
The Chairperson agreed and said there must be a mechanism for recourse when people did not perform as expected to or an extension of the contract if they did perform. She thought they should look at limitations around the appointment as this was an industry with billions of Rands with a turnaround close to the budget of the South African Police Service (SAPS) so money was available and they did not want people in these positions to become influenced by the industry. She asked that they look at these suggestions and redraft the section.
Ms Kohler-Barnard asked the team not to forget that this was also applicable to the three deputy directors. She said there was best practice with the position of certain posts and they would have to pull it together and control finances and run processes from scratch so they would have to have extreme experience given that millions of Rands were flooding into this bizarre industry.
The Chairperson appealed for the team to look at the Hawks legislation, apply their minds and come back on this issue.
Gen Jacobs noted section 14 (2) “and deputy directors” were removed to place the accountability on one specific person and not have it as a broad power.
The Chairperson noted they were already starting to change the job around the director - this was the point.
Gen Jacobs continued noting a consequential amendment in 14 (2) (c) “ensure that the functions of the Authority are performed in terms of this Act, the Levies Act and the Public Finance Management Act”. 14 (2) (f) “prepare the strategic and annual performance plan of the Authority I accordance with the Public Finance Management Act” and 14 (3) “The director (removed “and deputy directors”) of the Authority may in writing, with the approval of the Council, delegate any of his or her powers, and assign any of his or her duties, to a staff member of the Authority”.
The Chairperson asked if they really wanted the director, given they were redefining this position, to go to Council to get authority to delegate duties.
Ms Irish-Qhobosheane said there was nothing wrong with Council signing the delegation list off as they as heads also had to have the Minister sign off their lists for delegation.
The Chairperson said then it needed to be stated more clearly as it seemed as if this was a day to day thing to run to Council first. They should clearly stipulate the delegation lists should be approved by Council at the beginning of the year with an additional once every now and then. She asked them to tighten this subsection.
Ms Kohler-Barnard asked what would happen if the director was hit by a bus as there was no reference to an acting director or delegation of full powers to one of the three deputy directors.
Gen Jacobs said there was provision for this.
He continued noting section 14 (4) (a) “The director of the Authority may appoint, subject to this Act and to the general or special directions of the Council, the staff of the Authority that may be necessary to perform the work arising from or connected with the Authority’s functions in terms of this Act, the Levies Act and the Public Finance Management Act”. 14 (5) “Staff appointed in terms of this section may either be appointed as employees or in terms of a contract for a fixed period” was proposed for deletion. (6) “The terms and conditions of service of the Authority’s staff and their remuneration, allowances, subsidies and other service benefits must be determined by the Council in consultation with the Minister” and (7) “The fixed establishment, the number and grading of posts of the Authority must be determined by the Council with the approval of the Minister after consultation with the Minister of Public Service and Administration”. The deletion of 14 (5) was a result of the preceding subsections tightening the controls over the appointment.
Ms Kohler-Barnard withdrew her earlier statement saying “historically disadvantaged” was past its sell by date but she thought the phrase “broadly representative of the Republic’s demographics” from the Legal Practice Bill was more suitable when looking at 14 (4) (b).
The Chairperson asked if it was necessary to repeat this phrase here as it was stated earlier and that all the legislation relating to employment equity applied to these entities as well. She highlighted that at the time when this Act was written it was necessary but now that it was being reviewed there is applicable legislation which was not there when the Bill was initially drafted.
Ms Irish-Qhobosheane said the phrase had particular historical context with certain legislation now governing the appointment of senior heads with PSIRA now being a public entity.
The Chairperson thought they could be less wordy around this issue and just make reference to the relevant legislation. She had a problem with 14 (a) (a) and “special directions” of the Council. She thought this now became Council determining who and where you must appoint which should be the responsibility of the executive director.
Ms Irish-Qhobosheane thought 14 (7) addressed this with the fixed establishment.
The Chairperson then questioned if 14 (4) was still needed.  
Gen Jacobs thought it was needed because (7) related to the fixed establishment while (4) related to the staff themselves so it was actually two different issues.
The Chairperson was concerned about Council interference.
Gen Jacobs thought that general guidelines by the Council were fine but appointments should not be subject to special directions from the Council.
The Chairperson thought they should look at the section again and move 14 (7) earlier and for the subsection to be tightened. The Committee was saying Council could not decide on the fixed establishment by itself and then go to Public Service and Administration to grade the post, instead, it should be a joint process.
Mr Makabeni was slightly concerned with the Chairpersons suggestion and thought it would be more proper for the Minister of Police to consult with the Minister of Public Service and Administration on what Council had determined.
The Chairperson said he was not listening to what she said - she said the Council in consultation with Public Service and Administration - she left the Minister of Public Service and Administration out as she was saying official to official and then approval. She asked if Treasury should not come in here.

Ms Irish-Qhobosheane said the Minister of Public Service and Administration actually does ask Treasury in the process for approval before going to the Minister of Police.
Ms Molebatsi sought an explanation on the grading of posts.
Ms Irish-Qhobosheane explained the Department of Public Service and Administration (DPSA) gets sent the job description and what the person was meant and then would grade the posts at certain levels depending on what the person was meant to do. If the level was to be changed, the Department would have to motivate DPSA as to why the grading should be changed. This was part of the process of job evaluation during the fixed establishment.
The Chairperson suggested alternative wording for section 14 (7) and suggested (7) move up to before subsection 4. This would mean the Bill first spoke about the process of establishment before going to the appointment.
Members were in agreement on this.
Delegation of powers and assignment of duties by Council
Gen Jacobs noted section 15 (1) “subject to subsection (5), the Council may assign any of its functions or duties and delegate any of its powers except the power to make rules, to its chairperson, or to nay committee appointed in terms of section 13”. He wondered, in view of the previous discussion, whether this power was too broad.

The Chairperson said this was quite correctly so.
Ms Kohler-Barnard absolutely agreed as it was ringing warning bells in her head. She had a huge problem with leaving this section so wide open as it was a disaster waiting to happen.
The Chairperson added that there was now no longer a full - time chairperson so the team should just relook at the entire section and come back to it. She noted tomorrow’s meeting would only begin at 14h00 so they had the whole morning to look at these issues.
Finances of Authority
Gen Jacobs noted 16 (1)” the Authority is financed from – (a) registration fees, levies or moneys from any legitimate source which have accrued to the Authority in terms of this Act or any other law; and (b) money that may be appropriated by Parliament, where necessary, appropriate and justifiable. (2) The Council must, subject to the Public Finance Management Act and section 16A - (a) account for money received or paid on account of the Authority; and (b) cause the necessary accounting and other related records to be kept. (3) The records referred to in subsection (2) (b) must be audited by the Auditor - General. (4) The director must report to the Council in respect of the financial affairs of the Authority as and when required”.

The Chairperson thought 15 (4) “as and when required” was too lenient and suggested a standing item on the agenda should be the financial statements for reporting at least quarterly to the Council. She emphasised that Council should start playing its role in terms of responsibility in terms of finances.
Mr Ndlovu asked what 15 1 (b) “money that may be appropriated by Parliament, where necessary, appropriate and justifiable” meant.
The Chairperson explained it was registration, licences, accreditation fees, levies and moneys from any legitimate source that companies and security service providers pay over. She reminded the Member this was supposed to be a sound funding entity through levies which was a tax that Parliament had oversight over in terms of 15 (1) (a). She said (b) was more important for the Committee because it allowed for Treasury to offer financial assistance if the Authority was in trouble but it had to come through Parliament. She used the example of the South African Airways (SAA) appealing for help for funds to continue their work.
She asked about the wording/drafting of 15 (1) (b) “money that may be appropriated by Parliament, where necessary, appropriate and justifiable” as it did not quite make sense.
Ms Irish-Qhobosheane said it might be drafting by Treasury wanted to ensure they were not obliged to do it.
The Chairperson understood this but thought there was one “appropriate” too many.
Gen Jacobs suggested, in terms of consistency, they add the Levies Act under 15 (1) (a).
The Chairperson asked if the Levies Act was not in existence.
Gen Jacobs replied that it was not operational.
The Chairperson asked them to note in the transitional arrangements a date for when the Act would operational at the latest.  
Ms Kohler-Barnard thought the word “appropriate” was probably correct under 15 (1) (b) in line with being proper and suitable.
The Chairperson thought the Member was correct and withdrew her statement but the subsection still read funnily to her.
Annual report
Gen Jacobs noted 16A (1) “The Council must prepare and submit to the Minister an annual report in terms of section 55 (1) (d) of the Public Finance Management Act. (2) The annual report referred to in subsection (1) must include the following documents: (a) The audited financial statements prepared in terms of the Public Finance Management Act; (b) the Auditor - General’s report prepared in terms of the Public Finance Management Act; and (c) a report on the activities of the Authority undertaken during the year to which the audit relates including matters – (i) referred to in section 10 (A); and (ii pertaining to the exceptions granted or refused and the reasons thereof (3) The Minister must table in Parliament a copy of the annual report, financial statements and the audit report on those statements, within one month after receipt thereof if Parliament is in session or, if Parliament is not in session (4) The director must publish the annual report, financial statements and audit report on those statements once tabled in Parliament”.

Ms Kohler-Barnard questioned 16 (3) and if this was the general phrasing for the tabling of annual reports in legislation. She asked about the situation where Parliament may not actually sit for some months then there would not be a need to table it.
The Chairperson suggested the section refer to the prescribed in terms of the PFMA because there was a deadline for all departments by when the reports should be submitted. Parliament was in any case not happy with the deadline and felt it should be submitted one month earlier because that would give Committee’s enough time to deal with it before the adjusted appropriations were done.
She asked them to look at 16 (2) (c) as she thought the cross - reference to another section here had changed and to include a reference to 26 (9) and 32 (3). She also asked why they were not putting in an obligation for PSIRA to report on their investment account in its annual report.
Ms Irish-Qhobosheane asked if they could check with PFMA but she understood all moneys had to be reported on.
The Chairpersons concern was that they did not know what money went into and came out of the investment account and every year the Committee had to ask the balance of the investment account which in itself was not good enough in terms of oversight. She made it clear this was nobody’s personal account. Even if it was not a requirement she asked that they look at reporting on the investment account. The Committee knew from previous experience that PSIRA would plead poverty March/April, ask the Minister to intervene in terms of salaries when meanwhile they had an investment account of currently R40 million so they wanted a declaration on the investment account or maybe even audited statements on this account.
Under 16 (4) the Chairperson asked where the reports would be made public as this was the one entity where it was not even made public on their website. It was literally on the copies in Parliament but the Committee knew there were copies kept locked away. She emphasised this was public money as levies and fees were taxes. She said they needed to be more clear on this section and come back to the Committee on it.
The Chairperson asked the executive director of PSIRA where his delegation had gone as he was the only one left. She said the normal procedure for when people left was to inform the Chairperson.
Mr Chauke replied that the council member had to collect his laptop which was swapped with another person’s on the plane and he assumed the chairperson went to the bathroom. The Western Cape head could only stay for two hours.
The Chairperson did not take kindly to that disrespect. She expected that when a delegation was introduced to the Committee and if someone from that delegation had to leave that they make it clear in the beginning of the meeting or at least inform her as the Chairperson through the Committee secretary.
Ms Irish-Qhobosheane asked if the Committee wanted alignment to have the annual report on meeting of Council.
The Chairperson agreed. She said there should actually be duplication between what was reported to the Minister and what was reported in the annual report. She thought reporting on the investment should also be done to the Minister also on a quarterly basis and duplicate that it was also part of the annual report reporting.
Gen Jacobs noted in line with regime change with the PFMA, section 17, 18 and 19 of the Act were proposed for deletion as was indicated as such in the text.
The Chairperson asked if this was because now everything would be done according to the PFMA.
Gen Jacobs indicated this was so.
Ms Kohler-Barnard re - raised the issue of an acting director and asked where this was hiding somewhere.
Gen Jacobs noted on reconsideration it was an issue they needed to look at for a temporary appointment of a director.
The Chairperson asked that they look at this in terms of how the process was handled in other entities for alignment of provisions in the case of incapacity, sudden vacating etc.
Chapter 3: Registration as Security Service Provider
Obligation to register and exemptions
Gen Jacobs noted the insertion in section 20 (1) of (c) “A security business may not use the services of a person who is not registered in terms of this Act to render a security service”. 20 (2) “A security business may only be registered as a security service provider – (a) if all the persons performing executive or managing functions in respect of such security business are registered as security service providers, unless such person is exempted in terms of this Act”. 20 (5) “The Minister may, after having regard to the recommendations of the Exemption Advisory Committee referred to in section 20A, by notice in the Gazette exempt any - (a) security service provider pr security service provider belonging to a category or class specified in the notice, either generally or subject to such conditions as may be specified in the notice, from the operation of any provision of this Act; or (b) service, activity, practice, equipment, person or entity from any provision of this Act, as long as it does not prejudice the achievement of the objects of this Act (6) The Minister must take a decision within 90 days of receipt of the application for exemption contemplated in this Act, and in the case of refusal provide the applicant with reasons within 30 days of the date of receipt of a request for reasons”.

The Chairperson wanted them to include the publication in the government gazette of the exemptions and reasons for exemption.
Ms Molebatsi asked why gazette part was removed.
Gen Jacobs confessed he did not know why. The Chairperson asked that it be put back.
Ms Kohler-Barnard thought that section 199 of the Constitution was very long in its reference under section 20 (1) (b) so she asked if there was a specific subclause to refer to narrow it down. Under 20 (2) (a) she felt it was not clear what was referred to as “executive or managing functions” suggesting it could possibly be cleared up by adding “on a day to day basis” at the end.
Gen Jacobs explained there must be a case for the exemption and degree but the section was wide enough to cater for all levels of involvement.
The Chairperson remembered the issue was more about matters of ownership but they also needed to look at national interest and she understood this as nothing more than the registering of companies.
Gen Jacobs agreed noting they did not receive a huge number of cases for exemption. He personally left the cases for exemption could be limited by just looking at the level of the person’s involvement as it was open to the Minister’s discretion in terms of motivation for exemption.
Ms Kohler-Barnard was concerned there may be a security companies with a non - executive director who was not hands on yet now under this section it seemed would have to go through the processes. This also raised concerns with the UK - SA bilateral agreement and the impact on non - executive.
The Chairperson was concerned that, for example, if Osama Bin Laden was a non - executive director of a security company, surely the country would want to know that and they could not open a loophole here either.
Ms Irish-Qhobosheane said that currently if one was a non - executive director, one applied to the Minister for exemption based on the provisions and there was no problem with the bilateral in terms of this.
Gen Jacobs said section 199 referred to the SAPS defence at state security agencies so they needed to capture all three of them so the current reference under 20 (1) (b) was correct.
Ms Kohler-Barnard noted this was a massive part of the Constitution and thought reference to specific clauses in the section would make more sense.
The Chairperson said it needed to refer to the whole section.
Ms Kohler-Barnard highlighted 20 (3) “any contract, whether concluded before or after the commencement of this Act, which is inconsistent with a provision contained in subsections (1), (2) or section 44 (6), is invalid to the extent to which it is so inconsistent” and that she could not make sense of this section.
The Chairperson said it was legal jargon, correctly drafted but did not make for easy reading. She explained the total thing was not invalid but the extent to which it is inconsistent which became invalid.
Gen Jacobs thought this section was intended as a transitional provision.
In reply to the Chairperson asking if it was still necessary, Gen Jacobs said it needed to be part of the Act.
The Chairperson summarised that under this section the Committee wanted to see names of exemptions received and the outcome thereof published in the government gazette. In terms of layout, she asked if the exception advisory committee section should not come before this one on the registering of exemptions.
Mr Soman thought it should remain as it was. The Chairperson said this was fine.  

Exemption Advisory Committee
Gen Jacobs noted 20A (1) “The Exemption Advisory Committee is hereby establishment (2) The Committee consists of a representative of the – (a) Authority; (b) Civilian Secretariat; (c) Department of Home Affairs; (d) Service; (e) Department of Trade and Industry; and (f) State Security Agency, appointed by the Minister (3) The representative of the Civilian Secretariat must be legally qualified person and must chair the Committee (4) The Committee must make recommendations to the Minister in respect of exemptions referred to in section 20 (5) (5) The Minister may prescribe procedural matters and the factors to be considered in relation to the function of the Committee referred to in subsection (4) (6) The regulations referred to in subsection (5) must be tabled in the National Assembly for scrutiny and adoption – (a) within 6 months of promulgation of this Act; and (b) thereafter at least 30 days before promulgation of the regulations, while it is in session or after the next session starts”. He suggested they might need to write out the specific name of this Act here.

The Chairperson noted this was a Committee suggestion as it was. She noted 20 (6) (b) the “the” must come out in the line “while the it is in session or after the next session starts”.

Afternoon session
Ms Irish-Qhobosheane noted that during lunch she spoke to National Treasury about the investment fund and said it might be a good idea to put it in the Bill but the Accountant-General was also looking into it himself.

The Chairperson said it was one of the Committee’s recommendations in the BRR Report for PSIRA and for the AG to audit that Fund as part of recommendations. The report was not adopted yet but it was one of the Committee’s recommendations.

Application for registration
Gen Jacobs noted 21 (1) “An application for registration as a security service provider must be made to the Authority in the prescribed manner and must be accompanied by – (b) the application fee as determined by the Council (bA) a certified copy of a valid identity document of a person referred to in paragraph (a); (bB) a design of the security service provider’s insignia, emblem, title or symbol whether on a uniform, vehicle pr otherwise; and (c) any other document or certificate required in terms of this Act or by the Authority be submitted with an application for registration”.

Mr Ndlovu asked if this was the paragraph where the Committee spoke about uniform where it was found some private security companies were wearing uniform the same as the South African National Defence Force (SANDF) and others.
The Chairperson said it could be accommodated here but this section spoke to insignia on the uniform. She said the Committee wanted to go further than insignia because there were too many uniforms out there from private security companies which looked very similar particularly to SAPS field clothes. She suggested 21 (1) (bB) make specific provision for the uniform.
Gen Jacobs responded that it fell part of the big picture because they were addressing the issue in the regulations. This section was to allow for company emblems etc when they registered while the regulations had specific provisions prescribing the type of uniforms etc that may be used.
The Chairperson took this point but even if it was just a photograph submitted of the uniform with registration allowed for intervention at that registration point already. The provisions in the regulations could remain but could also be included here in the Bill.
Mr Ndlovu asked if this section applied to vehicles too. He was concerned about vehicles looking very similar to SAPSs and intimidating customers and beneficiaries of the service providers.
The Chairperson said the section referred to the insignia on the vehicles but maybe the same arrangement could apply with the submission of graphics. She noted there was a security company in the area where she stayed that if the vehicles did not have white lights instead of blue lights one would think it was the police. She asked the team to make provision for uniform and vehicle marking in this section.
Ms Molebatsi asked where they accommodate the lights issue as some vehicles looked so much like police vehicles.
Gen Jacobs said the lights issue was accommodated in the Road Transport Act with prescriptions on the different colour lights and offences. They had been battling for some time to get an offence for blue lights but the issue would need to be addressed in that specific piece of legislation. The use of blue lights was restricted to SAPS, metro police and the military police.
The Chairperson asked PSIRA what colour lights private security companies were supposed to be using.
Mr Chauke replied that there were no regulations on the colour.
The Chairperson said this was a serious problem. It did not have to be dealt with in the Act specifically but should be dealt with in the regulations at least.
Ms Irish-Qhobosheane said there were prescripts in the Transport Act which affected private security companies because they were asking at one stage to by - pass the Transport Act. She asked that they check this Act and come back to the Committee on it tomorrow morning.
The Chairperson had a problem with what was said as she thought the executive director was supposed to know.
Mr Chauke thought the question was if PSIRAs legislation made provision for those regulations.
The Chairperson sad the question was quite clear - what colour lights were allowed to be used by the private security companies and his reply was that there was no limitation from their side. She felt this could not be right.
Gen Jacobs outlined intermittent lights were specifically regulated and if a private security company was using coloured lights it would be in contravention of the Road Safety Act.
The Chairperson said then all the private security companies currently operating could be arrested because they all used intermittent and coloured lights.
Mr Ndlovu noted the answers were not good and he was concerned about the problem of lights.
The Chairperson suggested the team look at the Road Traffic Act and refer to the relevant section of the Act. She asked what happened currently when registered companies contravened the restrictions on insignia etc in this section.
Gen Jacobs explained within the Road Traffic Act it was already an offence so it should not be a problem to repeat the relevant sections.
Mr Ndlovu felt Gen Jacobs was not answering the Chairperson’s question.
Gen Jacobs said there were draft regulations on uniforms of security officers considered some six or eight years ago but there were some practical issues with these regulations being passed at the time. If a company was found to be using illegal uniforms there would be financial implications so it was important to have system to lay down some rules beginning at registration so that companies started off on the right foot.
The Chairperson’s problem was that PSIRA allowed for it even though the company would be in contravention and this was a failure on PSIRAs part.
Mr Stubbe felt a private security company could not be disqualified for having a certain type of uniform at this stage even after the new law came into being. He thought that future applications must have a certain standard as there would be many problems with telling security companies to change their apparel, insignia etc which would end up in court.
The Chairperson clarified they were trying to figure out the consequences for contravention.
Ms Irish-Qhobosheane suggested putting in a provision into the transitional provisions.
The Chairperson agreed because the fact was that companies were in contravention and not because they were being malicious but because PSIRA allowed the contravention. The private security companies and PSIRA needed to get their house in order by making provision for a three or five year period of phasing out. They also needed to be careful because the security companies would make it the responsibility of the individual security officer.  
Mr Stubbe asked if there was an Act which stated the company could only use a certain colour uniform. He knew there was an Act which prohibited the use of a camouflage uniform but he was not sure if that Act was still there. He felt if the Act was still around that it be looked into.
Gen Jacobs responded there was specific legislation in place for many years protecting the special camouflage of the SANDF and the SAPS task force but this applied to a very specific colour pattern of camouflage even published in the Gazette. Other types of camouflage were not regulated and could be bought anywhere.
The Chairperson questioned the field blues used in uniforms.
Gen Jacobs said if the uniform largely resembled the police uniform, a person could be prosecuted in terms of section 68 but one would need to prove a large degree of overlap in the uniform being used and resemblance with the police service uniform.
The Chairperson highlighted the different lights used which was blue for SAPS and military police, green for emergency and disaster management, red ambulance and fire department and orange breakdown, building and heavy vehicles. She noticed orange was one of the most popular lights for the private security companies.  
Mr Stubbe added construction vehicles also used orange lights.
Mr Ndlovu suggested they look at the transitional period and discuss its implementation as it was very worrisome.
The Chairperson added they should still include the uniform requirements in the main Act with transitional arrangements for it as well. Lights were already governed in other legislation and were different to the costs of a big security company changing its uniforms.  
Ms Molebatsi asked about metro police. She knew there was one in the Western Cape where their uniform was 90% like SAPS.
Gen Jacobs was not sure about the metro police and their registration of uniforms but he thought the insignia on the badges were quite distinct from the police.
Ms Irish-Qhobosheane said this was currently regulated under the SAPS Act and was part of the provisions for metros to follow procedures which were actually approved by the National - Commissioner including uniform and vehicle information so if the uniform was similar it had actually been approved by the National - Commissioner.
The Chairperson said that as much as PSIRA was failing on the private security then the National - Commissioner was failing on metro policing as insignia was quite insignificant. She stressed that she was not talking about the Western Cape metro but in general similarities. When faced with a police officer on the road one would not know the insignia unless close - up and she noted some private security had very similar insignia to police with the star.
Renewal of registration
Gen Jacobs noted there was no amendment under this section.

The Chairperson asked under what circumstances would there be renewal. She asked why this was being kept weak and not putting conditions in the Act for renewal because that would also addressed some of the problems the Committee had just raised.

Ms Irish-Qhobosheane noted that PSIRA would have to prepare for the costs for renewal which was going to be prescribed in the regulations and enable the Minister. She knew renewal was a big issue of discussion and was one way of criminally checking everybody again. She asked that they check PSIRAs capacity on this.
The Chairperson said they did not fill critical posts so they did not have the capacity.
Mr Chauke said the regulations regarding renewal of registration were prepared some three or four years ago but he was informed the industry and trade unions were up in arms over the registration because they saw it as a way of getting rid of security officers. The other issue was the costs incurred in terms of infrastructure needed to be put in place. The regulations were not currently published.
Mr Stubbe said nobody would say they would want to be a security company for three or four months so periodic should actually be scrapped.
The Chairperson said renewals were always good to have but it needed to be sensible.
Ms Kohler-Barnard stated the entity was dysfunctional and would not be able to cope with renewals so they could not pass legislation they knew would fall flat. She agreed with the need for re - registration but with the chaos of fees etc it would have to be left until this entity finally got off the ground.
Mr Ndlovu felt the principle question was what reason a company would have for renewal of registration. What would the company get out of it? What time frame did they have for renewal? How would they know what the outcome was?
Ms Molebatsi questioned if there would be a moratorium on renewals.
The Chairperson said the point was that it was in the Act already.
Ms Kohler-Barnard felt the issue of renewals needed to tie in with the Firearms Act and the obligation to have firearms licences renewed and those controls were already in place.
Mr Stubbe thought they needed to look at what was meant by “periodic application” and if there was not going to be a reason for it, why should they keep up with it?
Mr Chauke alluded to the practical challenges associated with non - renewal of applications. Currently companies registered with the Authority and were issued with a certificate and when they did not pay their annual licences it was often found the company was not operating from the original premises or complying with the infrastructure. The renewal of registration would allow for companies to still say they were in compliance with the Act and regulations.
The Chairperson asked when PSIRA did inspections to find these things out.  
Ms Irish-Qhobosheane said initial drafting of periodic was five years and the rationale behind this regulation back then was that the cornerstone of dealing with the private security industry, internationally, was through registration and training –the two most fundamental aspects of regulating the industry. International experience had shown that registration for life brought out issues like guards initially not having criminal records at registration subsequently acquiring such records. Renewal of registration allowed for another check and balance like with the drivers licence or any other serious licences which required a renewal process without negating the need to do compliance checks and inspections etc.
Mr Stubbe felt that if periodic applications were needed, the Act needed to state that as there was nothing binding as the legislation currently stood.
The Chairperson added this was why she questioned why the legislation was written in that way. In order to move forward, she asked the team to bring the Committee the relevant regulations so that they could see it for themselves. She did not want this renewal to be a cumbersome exercise but for the matter to be simplified as far as possible but there was value in renewal of registration but the value needed to be stated in such a way that it was not overshadowed by the process and cost of renewal. She was worried that no move had been made in this direction given that this was a 12 year old Act. She also asked what “periodical application” meant. She emphasised that the team needed to come back with the relevant regulations as there was clearly differences in opinion even amongst themselves on the issue. She asked the team go through the regulations themselves and come back with a firm proposal to be specific about what it was required because the way it was currently drafted proved why PSIRA did not feel obligated to move on the issue.  
Requirements for registration
Gen Jacobs noted 23 (1) “Any natural person applying for registration in terms of section 21 (1), may be registered as a security service provider if the applicant is a fit and proper person to render a security service” with changes to 23 (1) (d) “was not found guilty of an offence specified in the Schedule” with the last part of the clause deleted.

Ms Molebatsi questioned 23 (1) (c) and what “relevant training requirements” were.
The Chairperson said this was in the regulations but these relevant regulations should also be brought to the Committee to see what it said and what was this training spoken about.
Mr Stubbe thought something did not sound right with the word “infrastructure” under 23 (2) (b) and what was actually meant by the word infrastructure –did this apply to certain vehicles or premises? He also asked what “capacity” meant especially when comparing small to bigger companies. He asked how these issues would be regulated and prescribed if they were not in the Act. If this was in the regulations he wanted to see it.  
The Chairperson said this was something which the team needed to apply their minds to as this Act gave no indication on the type of security business can register and it might need to be in the Act while the different requirements could be detailed in the regulations with different renewal requirements depending on the type of business. Currently the Committee was legislating while the sub - legislation (the regulations) had more than what was contained in the Act and this was her problem. Clarity was needed on this because it was the crux of the matter.
Mr Lekgetho asked what happened if a natural person had passed on after the process of registration.
Ms Irish-Qhobosheane explained the person would no longer be registered because the registration was specific to the natural person that no one else could use it.
The Chairperson said this could not be because the company did not cease to exist.
Mr Stubbe agreed that a company did not die with the natural person, it carried on but if it was the case that the company ceased to exist, there must be something in the Act to speak to this.
The Chairperson said it was clear this section was incomplete and in order to save time, the team needed to look at the regulations and come with a re - draft of this section at least by next week Tuesday. She asked that they continue with the rest of the Bill because they had actually made good progress and this section was really the first problem area. They needed to spend more time on this section because it was the crux of the Bill - the make or break or everyone, even Members needed to apply their minds to the section, when they came back she wanted to know the types of security business and the minimum criteria for each of these businesses in a one or two page document so that the Committee could see and understand to apply their minds.   
Ms Kohler-Barnard sought some law advice on drafting around the problems of detailing specifics. Was there a way to draft the specifics without painting oneself into a corner?
Gen Jacobs said there were no rules on this but was a matter of common sense in terms of how detailed the regulations in the Act should be and the empowerment of the regulations needed to define how wide that power was and the circumstances and requirements of each specific Act. It was free to the legislator to decide which issues needed to be taken up in the Act itself.
The Chairperson outlined they would not go into the nitty-gritty but surely they had the common sense to outline the minimum requirements in the Act while the detail was in the regulations. She said this was one of the sections which detailed the history of the country when the Bill was drafted with the industry moving from a self - regulated to regulated authority with some obvious serious differences in opinion. For instance when the Bill was drafted, assistance in foreign countries was not an issue but two or three years later it became an issue with the drafting of the Mercenary Bill but it was still covered here which was the problem.
Gen Jacobs noted 23 (4) “The Authority may refuse the registration of any person who at the time of submission or consideration of the application, is under State investigation in respect of an offence specified on the Schedule or who is being criminally prosecuted in respect of such an offence”. Under 23 (5) “the Directorate of Special Operations” was deleted.
Mr Stubbe felt there should be some word changes to this section for some of the entity names like the National Intelligence Agency needed to change to the State Security Agency.
The Chairperson asked if the Hawks should be included under this section or were they covered under the SAPS Act.
Gen Jacobs thought the Hawks were covered under the SAPS Act. Where there were references to National Intelligence Agency elsewhere in the Act it would be aligned.
Gen Jacobs noted there were no amendments to sections 24 “register of security service providers” and 25 “registration and identification certificates”.
Suspension, withdrawal and lapsing of registration
Gen Jacobs noted 26 (1) “The Authority may suspend the registration of a security service provider if – (a) there is a prima facie case of – (i) improper conduct in terms of this Act; or (ii) the commission of an offence referred to in the Schedule; (b) the security service provider fails to comply with the obligation to pay the levy in terms of section 4 of the Levies Act; or (c) a security service provider fails to comply with any provision of this Act (2) The Authority my suspend the registration of a security business if any of the ground contemplated in subsection (1) pertain to a [with the “natural” deleted] person referred to in section 20 (2)”.

The Chairperson noted there were issues with section 26 the first of which was why 26 (2) was “may” and not “must”.
Mr Stubbe thought 26 (1) (c) “a security service provider fails to comply with any provision of this Act” and the use if “must” may be too harsh.  
The Chairperson noted there was a differentiation between when to use “may” and when to use “must” for the different clauses in this section.  
Ms Kohler-Barnard felt there may be a problem with the section as there was no definition on what constituted a prima facie case nor to the provision that a service provider be notified there was a prima facie case against them which could result in problems for PSIRA. She thought this needed to be clarified. She suggested sections 55 and 56 out of the Firearms Control Act might be useful here to detail a procedure.
Mr Stubbe asked if this was a prima facie case which PSIRA may have against a company or was it any other prima face case.
Gen Jacobs agreed with the proposal for changing “may” to “must” under 26 (1) (2) while 1 (c) should be a “may” as it may have unintended consequences.
Mr Stubbe asked about the timelines for the payments of levies.  
The Chairperson reiterated 26 (1) (b) needed to have a provision in terms of the administration of justice with a period of time to inform the company before de - registration.
Gen Jacobs was in agreement with this as well and they would look at the administration justice process before a decision to suspend. He noted under 26 (5) there was provision for lapsing of registration. 
Gen Jacobs noted 26 (4) “The Authority may, subject to section 5 (3), withdraw the registration of a security service provider by written notice served on the security service provider if – (a) the security service provider has furnished to the Authority information [“in or” deleted] in connection with the application for registration which is false”.
The Chairperson asked again why “may” was allowed for under this section. This section would also be subject to the processes of administrative justice.
Gen Jacobs said it was the drafting style over a long period of time but he did not see a problem with changing the “may” to “must”.
The Chairperson asked the team to bring in the administrative justice again if necessary.  
Gen Jacobs noted 26 (5) “Subject to the provisions of the Promotion of Administrative Justice Act, 200 9Act No. 2 of 2000), the registration of a security service provider if - (a) it is not renewed as contemplated in section 22; or (b) the amount payable for levies in terms of section 2 of the Levies Act is not paid to the Authority within three months of the date of suspension of the registration of the security service provider concerned, unless the Authority determines otherwise (5A) If the registration of a security service provider has lapsed in terms of subsection (5) the Authority must publish a notice in the Gazette, indicating – (a) the name of the security service provider; (b) the period after which the registration has lapsed; (c) the reason for the lapsing of registration; and (d) the effect of the lapsing of registration. He noted the issue of renewals came in here again.
The Chairperson said they were again referring to renewals which had never been applied and it was a joke and actually disgusting. She emphasised the issue of renewals needed to be sorted out and if it was to be there it needed to be clear. This would be dealt with when the team came back on the issue of renewals in section 22.
Ms Irish-Qhobosheane gave an example of how important renewals were – four years ago there was a voluntary vetting of security companies with a 123 000 guards vetted in the process and it was found 20% of them had criminal convictions post - registration. Re - registration would allow or this issue to be dealt with.
The Chairperson humorously asked how many of the 20% were former SAPS members.

Mr Stubbe said the periodic application was the problem.
The Chairperson said they would not discuss it until the team had come back with clarity around this issue. She would have thought that after 11 months of working on this legislation that it would have been sorted out already.
Gen Jacobs noted 26 (9) “The Authority [and he proposed inserting “through the Council” given earlier discussion] must report any suspension or withdrawal of registration made in terms of subsection (7) and any upliftment of suspension of registration made in terms of subsection (8) to the Minister within 30 days of the suspension, withdrawal or upliftment (10) The Authority must include any report referred to in subsection (9) in its annual report”.
The Chairperson agreed as it addressed the Committee’s concerns on the double lines of reporting.
Application for court order in respect of a security service provider
Gen Jacobs said there were no amendments under this section 27.

The Chairperson asked Ms Kohler-Barnard if under 27 (1) (a) the correct word was “interdicting” or “interdict”.

Ms Kolher-Barnard responded that it was interdicting.
The Chairperson asked if the team had taken on board the situation of the original applicant passing on and what happened then. She noted there might be guidance in the Companies Act.
Chapter 4: Proper Conduct and Appeal
Code of conduct
Gen Jacobs noted 28 (2) “The code of conduct is legally binding on all security service providers [proposal to delete “irrespective of whether they are registered with the Authority or not and”], to the extent provided for in this Act, on every person using his or her own employees to protect or safeguard merely his or her own property or other interests, or persons or property on his or her premises or under his or her control”. He thought it was somewhat contradictory to say there was a code of conduct and whether the company was illegal or legal they had to comply with the code of conduct - it gave some sort of recognition to the illegal activities.

The Chairperson agreed as there could not be a code of conduct for illegal companies - the Act stipulated registration, bottom - line.
The Committee agreed.
The Chairperson sough clarity on what was meant by using his or her own employees to safeguarding and protecting his or her own property or other interests under 28 (2).
Gen Jacobs explained it spoke to an in - house type of security arrangement.
The Chairperson asked how it affected the security guards now employed by SAPS.
Gen Jacobs highlighted the exclusion under section 199 referred to earlier in the meeting so he did not think it was applicable.
The Chairperson said Mr Chauke should visit the security guards protecting Bishop Lavis College who were wearing the same set of uniform since November and it needed to be corrected.
Appeal against decisions
Gen Jacobs noted 30 (2) “An appeal committee contemplated in subsection 1 is appointed by the Minister” - with the proposed deletion of “for every appeal and” as already approved by the Committee but the problem was now that with each and every appeal the Minister must appoint an appeals authority. 30 (2) (a) “a person with not less than five years’ experience as an attorney, advocate or magistrate, who is the presiding officer, and may also include (b) two other persons if [“it is” was deleted as it was deemed linguistically strange in the clause] considered appropriate by the Minister. (2A) (a) An appeal committee is appointed to function on a part0time basis for a period not exceeding three years on such terms and conditions as determined by the Minister (b) A member of the appeal committee may resign by notice in writing to the Minister”.

The Chairperson asked if they should not combine the exemption and appeal committees as she was worried because she knew the challenges of getting people to serve on these bodies.
Ms Irish-Qhobosheane noted that if they compared the number of appeals vs. the number of exemptions, there was a huge amount of appeals on sanctions that PSIRA had meted out so almost on a bi - weekly basis the Minister was appointing a new appeals committee and that the moment SAPS was not happy with bearing the costs of PSIRAs appeals.
The Chairperson stated this was not being said in the legislation so how would they convince PSIRA to pay for it.
Gen Jacobs added they obtained a legal opinion from the state law advisors saying even as the Act currently stood the obligation was that of PSIRAs.
The Chairperson noted this was under 30 (8).
Ms Kohler-Barnard pointed out that they should retain “and” under the proposal to delete “for every appeal and” under 30 (2).
The Chairperson agreed. She asked if all the Members were happy with this.
Mr Ndlovu asked why it was proposed for the appeals committee to function for three years.
The Chairperson said it was similar to the firearms appeal board. Many people serving on such boards did not want to serve longer than three years as it was not financially profitable as the amount of money they got for serving was not huge. She asked the team to go through this section to thoroughly go through all issues.
Gen Jacobs noted 30 (3) “Every person serving as a member of an appeal committee must be independent from the Authority and may have no personal interest in the private security industry or in the affairs if an appellant (4) The procedure in connection with the lodging and prosecution of an appeal in terms of this section must be prescribed (5) The amounts payable by an appellant to the Authority in respect of the reproduction of records and related matters in the lodging and prosecution of an appeal in terms of this section must be prescribed (6) The appeal committee hearing an appeal in terms of this section may confirm, set aside or vary the decision or substitute for such decision any other decision which in the opinion of the appeal of the appeal committee ought to have been taken and direct the Authority to do everything necessary to give effect to the decision of the appeal committee (7) A member of the appeal committee may be paid such remuneration and allowances as the Minister may, from time to time, determine with the concurrence of the Minister of Finance (8) All costs related to the appeals procedure must be borne by the Authority.
The Chairperson wanted sections 30 (4) and (5) to be more explicit by adding to the end of the clauses: “prescribed by the Minister through regulations”.
Gen Jacobs noted there were now prescripts in terms of costs of documentation etc in the legislation which could be looked at.
The Chairperson said the point was not to have another situation like the 900% levies increase.
Mr Ndlovu felt it should be standardised so that everyone understood it.
Chapter 5: Monitoring and Investigation
Gen Jacobs noted there were no amendments proposed under section 31 “Appointment of inspectors”.
Code of conduct for inspectors
Gen Jacobs noted the proposed insertion of 32 (4) “The Authority must include any penalties imposed under subsection (3) in the Annual Report”.

Mr Stubbe thought that “information” be included under 31 (4) so that people knew what was transgressed.
The Chairperson supported this. She asked how many inspectors PSIRA had.
Mr Chauke responded it was in the region of 64.
The Chairperson asked if 31 (5) “The Council, or the director if he or she has been authorised generally or specifically by the Council, may, if it is considered necessary in the circumstances to acquire special expertise or to augment the capacity of the Authority temporarily, appoint any person, who is not in the full - time employment of the Authority, as an inspector for a particular inspection or to assist a inspector with a particular inspection” could not be simplified. This subsection also raised the issue of the Authority vs. the Council - why should the Council give permission give permission for such an inspection?
Mr Ndlovu asked why they would appoint a person who did not qualify as an inspector.
Mr Stubbe questioned which director was being referred to under 31 (5). He felt the entire subsection needed to change.  
The Chairperson asked the team to look at the section and she would mark it for redraft. She asked how often PSIRA had appointed such a person?
Mr Chauke responded that they had not appointed such services but they had offered the head of security to appoint some of their officials to do inspections of companies in possession of monitoring devices with no formal requests for them but virtually the service had never been used.
The Chairperson said the problem was there were no such formal requests because they did not have to go through PSIRA.
Mr Stubbe asked what monitoring devices were being referred to as he would love to know that.
The Chairperson would also like to know the companies because monitoring devices were supposed to be illegal.
Mr Chauke said he was referring to cases where state security would like to look at security service providers in possession of such devices which might be outlawed.
The Chairperson emphasised there was no way state security would obtain inspector certificates in order to do what was needed. The issue was that they and their own powers to act on service providers with without PSIRA – they did not have to go through PSIRA.
Ms Irish-Qhobosheane said state agencies had their own powers and this section did not refer to them. It spoke to cases where a computer expert might be needed for assistance or if serious forensic audit skills were needed to aid inspectors. This was also in the DPCI legislation were it was noted a DPCI investigator may not have all the skills so they could call in assistance. The section needed to be simpler and clearer and that Council should not make the decision but the director.
The Chairperson asked if they really wanted to employ such a person to be an inspector. The team needed to relook at this section especially given that it had never been used even though that did not mean it was not needed but it needed to be specific. She did not understand this section.
Ms Molebatsi asked if the inspectors were all on the same level.
The Chairperson responded there were two senior inspectors at national office which earned less than the Council chairperson secretary and the director’s secretary’s which would be a problem in terms of DPSA.
Mr Chuake noted there were quite a number of these senior investigators.
The Chairperson noted they had two specific inspectors.
Mr Chauke said the Chairperson was referring to investigators.
The Chairperson said this was even worse. She asked what the investigators were doing and where in the Act were provisions made for investigators.
Mr Chauke said the current investigators did internal investigations and investigations related to internal offences but basically they were appointed more like inspectors to investigate criminality and corruption in the industry.
The Chairperson asked if this was not SAPS responsibility while they just needed to report cases to SAPS.
Mr Chauke explained the investigators contacted complainants, review matters and compile affidavits on behalf of PSIRA to lay criminal charges against those who had contravened the Act while the police would proceed with the investigation.
The Chairperson asked where in the Act was there provision made for investigators.
Mr Chauke said it was under section 34.
The Chairperson was concerned that according to the constitution, the investigating responsibility lied with SAPS.
Gen Jacobs said SAPS had the same powers as inspectors of PSIRA.
The Chairperson was not surprised because PSIRA appointed researchers, event managers and event officers. In the transitional arrangements, who wanted the team to look at the changes and responsibilities put in place as she felt they were moving into the same direction as they did with the Hawks and IPID with people in certain positions having to reapply for those positions because the criteria and responsibilities for those positions were changing. She was seriously worried.
Powers of inspectors relating to security service providers
Gen Jacobs noted 34 (1) “In order to carry out an inspection of the affairs of a security service provider or another person contemplated in section 33, an inspector may at any reasonable time (a) without prior notice, subject to subsection (6), enter any premises”. Subsection (6) stated “An inspection of private dwellings may only be carried out when authorised by a warrant issued but a competent court”. An insertion of commas were added to amend 31 (1) (a) (iii) “where, or from where, a security service is rendered or the director has reason to believe such a service is rendered”. There was a proposal to delete “and matters incidental thereto” under 34 (3) (b) to tighten the subsection.

The Chairperson felt that 34 (6) was important because entering premises without a warrant was just not on.
Chapter 6: General Provisions
Regulations
Gen Jacobs noted 35 (1) “The Minister may make regulations relating to - (a) any matter which in terms of this Act is required or permitted to be prescribed; (b) the registration by the Authority of security service providers, [with the proposal to include] including the procedures in relation to the suspension, withdrawal and lapsing of registration; (c) the periodic applications for renewal of registration and the conditions upon which applications are to be granted (which would be looked at in context of the previous discussion) (d) the obligatory undergoing of security training by security service providers; (e) ensuring the quality of training as contemplated in section 4 (k) or any other law, in respect of security service providers and prospective security service providers; proposed insertion of (eA) guidelines in respect of insignia, emblem, title or symbol whether on a uniform, vehicle or otherwise; (f) the registration and identification certificates of security service providers; (g) the types of uniforms, insignia, emblem, title, symbol, distinctive badges or buttons which may not be supplied to, used or worn by, a security service provider” which would also be looked at in terms of the transitional provisions.

The Chairperson wanted to know the difference between 35 (eA) and (g).
Gen Jacobs said (eA) was guidelines in respect of insignia, emblem and title while (g) was the types of uniforms which may not be supplied.
The Chairperson asked if these subsections could be combined to avoid what seemed like repetition.
Gen Jacobs replied that this could be looked at.
Ms Kohler-Barnard noted it was said earlier companies could submit photographs of uniforms but this section was useful for outlining what absolutely may not be used.
The Chairperson said this still did not take away from establishing uniforms etc and acting early during registration. She noted the team needed to look at the “may” and “must” differentiation between the subsections as per earlier discussion.  
Gen Jacobs went on note all the proposed insertions to these regulations. 35 (1) (lA) “the types of information which security service providers must furnish to the Authority when rendering a security service outside the Republic”. He noted 35 (1) (m) “the issuing, possession and use of firearms and other weapons by security service providers” because the previous Committee highlighted that firearms needed to be dealt with under the Firearms Control Act and he was not sure whether the Committee would like to retain this provision or rely on this Firearms Control Act.
The Chairperson said, firstly, the security provider must apply to PSIRA for a certificate based on the type of security service which would require a firearm so it could not be taken away completely. Thereafter the company could apply for firearms through the Firearms Control Act. She said this should be made clear to not take away PSIRA’s obligation to issue the business to allow them to provide armed guarding.
The Committee agreed.
Gen Jacobs noted the insertion of 35 (1) (sA) “minimum standards applicable to security service providers responsible for the safe transportation of cash or goods with a high value, including precious metals or jewellery; and (sB) minimum standards for the provision of security services at national key points as referred to in section 1 of the National Key Points Act, 1980 (Act No. 102 of 1980)”.
The Chairperson asked if private security companies were still protecting national key points.
Gen Jacobs confirmed they were.
Ms Kohler-Barnard thought 35 (1) (sA) needed to be more specific around what a “high value” was.
The Chairperson reminded Members it was defined earlier in the Act under 1 (lA) so it should not be a problem.  
Gen Jacobs noted 35 (3) “Regulations made in terms of subsection (1) may, in respect of any contravention thereof or failure to comply therewith, prescribe as a penalty a fine or imprisonment for a period not exceeding five years” (which was an increase from 24 months). (4) “The Minister may, after consultation with the Council, issue guidelines or policies in relation to the governance of the Authority (5) Any regulation made under this section must be tabled in Parliament for notification”.
The Chairperson asked that the “may” be changed to a “must” under 35 (4) as it was now more desperate than ever.
Ms Irish-Qhobosheane asked that 35 (4) the “may” be changed to “must” while the “must” under 35 (5) be changed to “may”.
The Chairperson said this was fine.
Gen Jacobs noted 35 (4) “The Authority must inform the Registrar as defined in section 1 of the Firearms Control Act, 2000 (Act No. 60 of 2000) at the time of any new registration, suspension, sale, transfer, liquidation, merger, lapsing or termination of the registration or ownership of a security service provider or any other reason that would necessitate the licensing, relicensing or disposal of firearms in the possession of such security service provider (a) The Registrar mentioned in subsection (3), must, at the written request if the director, submit a list of all firearms registered to a particular security service provider, to the Authority within 30 days of the request being made”. He noted this was also related to arming inspectors with firearms to they can be checked while 35 (3) was an attempt to address the present problem with firearms and changes in companies regarding paperwork.
The Chairperson said registrar was not defined and it should be in beginning of Act. She asked if the question raised earlier of the applicant dying would fall under “transfer” in 35 (3).
Gen Jacobs noted this section dealt with possible factors and eventualities leading to reregistration of firearms.
Ms Kohler-Barnard asked if this was not all covered under the firearm legislation already.
The Chairperson explained this was more about changes of status to determine PSIRAs responsibility of informing the central firearm registrar of changes of ownership, lapsing of a company etc. her question around the provisions relating to death had still not been answered.
Ms Irish-Qhonsheane suggested they use the term “any other material changes” relating to unanticipated events.
Gen Jacobs added this section would contribute a lot to enforcement for events for SAPS to follow up on to ensure that they happened or did not.
The Chairperson proposed an additional subsection for the Authority to report on these matters in their Annual Report so that the Committee could follow happenings with changes and problems.
Ms Kohler-Barnard’s immediate reaction was yes but the cases dealt with in a year could be very many in which case it could not be detailed.
The Chairperson said they could discuss the detail at a later stage. She asked how many cases were dealt with in a year.
Mr Chauke noted quite a lot of suspensions were dealt with even on a weekly basis.
The Chairperson asked how may licences for firearms were dealt with on a monthly basis.
Mr Chauke responded that the licences for firearms were dealt with by central firearms while PSIRA dealt with a number of enquiries on a weekly basis.
The Chairperson explained the process was already outlined where before a company could register with central firearms they needed to apply for a firearm certificate from PSIRA to provide armed security services –correct?
Mr Chauke said this was incorrect.
The Chairperson stated that PSIRA and Gen Jacobs were then saying two different things. She asked Mr Chauke to explain it from PSIRAs point of view.
Mr Chauke said the applications for security service providers were general applications.
The Chairperson said it was no wonder they did not know how many firearms were in the private security industry.
Ms Irish-Qhobosheane understood the section needed to empower PSIRA to ask what services were being provided as it would assist the central firearms registry (CFR). She understood that when a company applied for firearm licences from the central firearm registry that they were checked to be in good - standing with PSIRA.  
The Chairperson said this did not address the problem because now it did not matter what kind of security service was being provided just that the company was registered with PSIRA. This was her concern and formed the basis of why more and more private security officers were using personal firearms. This made it clear why the audited figures on this matter could not be provided.
Mr Stubbe thought the purpose was to regulate firearms and thought there must be some sort of oversight to help the police determine who was in possession. He thought more time needed to be spent on this matter.
The Chairperson took his point on board but she was concerned that this was not what the Firearms Act intended. She did not see the synergy between PSIRAs responsibility and the Central Firearms responsibility which needed to be worked out because they were currently talking past each other.
The Chairperson ruled they would come back to this issue tomorrow as it was very, very serious. It kept being said there were more firearms in the private security industry than in the police but was this statement based on? Because currently it was a thumb suck. This section needed to talk to and complement the Firearms Control Act because there was a dual responsibility for both PSIRA and the Central Firearms Registry
Mr Stubbe thought it was vital that in the case of deregistration of companies that those firearms were immediately taken into possession to prevent them landing up on the street. This was the crux of regulation of firearms to prevent them lying around.
The Chairperson said this was the first part was to determine who was in the business of acquiring firearms and secondly if there was a change in status which was PSIRAs responsibility.
SAPSs/Central Firearms Registry responsibility was to note the number of firearm licences issued so that PSIRA could check the numbers against their inspections. SAPS were also responsible for disposal of firearms. The biggest source of illegal firearms in this country was previously legal firearms. She wanted this section to be redrafted.
Security services rendered outside Republic
Gen Jacobs noted 36A (1) “Any person who, within the Republic, recruits, trains, hires out, sends or deploys any other person to provide a security service outside the Republic must - (a) provide to the director on a quarterly basis such information as may be prescribed regarding such recruitment, training, hiring out, sending or deployment or nature of the security service within the prescribed time limits; and (b) comply with the provisions of this Act (2) A person referred to in subsection (1) may not engage in any activity, or render any assistance, that is prohibited in terms of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006 (Act No. 27 of 2006) or the Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998) (3) Any person who - (a) is employed by another person from outside the Republic, and (b) is deployed from the Republic to perform armed guarding services outside the Republic, must at least two weeks before the deployment inform the Authority of such deployment in the prescribed manner (4) The information referred to in subsection (3) must be submitted by the Authority to the Service within seven days of receipt of the notification”. This section was an attempt to regulate services outside which many times were suspect mercenary activities and to pick up such activity.

Mr Stubbe pointed out 36A (1) (a) and questioned what happened if the information referred to was not prescribed then the section was not of any use.
The Chairperson asked PSIRA if there was something currently available.
Mr Chauke noted there was nothing currently available as this was a new provision all together.
Mr Stubbe noted this “prescribed manner” was also contained in 36A (3) (b) without making reference to what was prescribed or needed. He asked if this was contained somewhere in the regulations in order for compliance.
The Chairperson thought there may be something in the Mercenaries Act but she agreed with the Member. Again the “may” became “must” for the Minister to regulate on.  
Mr Ndlovu questioned “may not” under 36A (2).
The Chairperson said this was a clear directive that someone may not do something as it was against the law.
Ms Kohler-Barnard questioned if the regulations existed or if they were ready, drawn up and good to go as the regulations were constantly being referred to.
The Chairperson said there were some regulations but obviously for the new provisions there would not be and this section was one of these provisions.
Ms Irish-Qhobosheane thought it might be a wording issue.
The Chairperson emphasised it should be said that this was a wording issue because it should have been “must”.
Ms Irish-Qhobosheane noted they should be taking about State Security not the Service under 36A (4) as State Security not SAPS should be dealing with foreign intelligence issues.
The Chairperson thought this was correct as SAPS was not supposed to deal with foreign intelligence.  
Ms Kohler-Barnard asked the regulations be made available at the next meeting in order to compare because there were now huge areas covered in the regulations.
The Chairperson said this had already been done. She also wanted to know the status of the regulations.
Mr Stubbe highlighted 36A (3) questioning how this would be regulated as it would be very difficult. He it did not make sense that the onus should be placed on the officer going overseas to report to the Authority.
The Chairperson said these issues were discussed in the Mercenary Act as well as she remembered this very same debate when the Act was passed.
Gen Jacobs said it was a matter of definition between foreign military assistance or defence and military services. He understood the section to say that the onus was on the person placing the guard not the officer himself. 36A (2) was objected to stipulate that being registered with PSIRA did not relieve one of in terms of the mercenary legislation.
Mr Stubbe had a problem with the fact that 36A (3) (b) specifically stated “any person who - is employed by another person from outside the Republic”. He thought it was something nice to put into the legislation without a way in which it actually could be regulated.
The Chairperson asked the team to look at the Mercenary Act and Foreign Military Act as there was provision in one of these Acts. She remembered the debate from many years ago.
Gen Jacobs respond that the subsection was to fill the gap of a person responding to an internet advert for armed guarding where SAPS was actually asked by the Committee on Defence to look at how to fill the gap of people being recruited in SA for armed guarding. It was not to criminalise those recruiting from outside but for there to be knowledge and to cross - check that it was not in country of conflict. There was a role for the police for crime committed in a country of conflict.
Mr Stubbe said there must be a penalty somewhere if someone did not adhere to this otherwise the subsection was of no value.
The Chairperson agreed. She asked the team to look at the two Acts referred to. She did not have a problem with the subsection and thought it was very important that it be there. She noted this affected engineers working in these countries who were targeted as being part of the security guys even though that was not what they were doing. She said if someone left the country and did not know what they were doing it became human trafficking quite frankly.  
The Chairperson said they had made good progress for the day despite the problems with some sections. The Committee would adopt the SAPS and IPID BRR Reports at 14h00 tomorrow given the mix up between the different versions of the report at this morning’s meeting. She would literally go through the reports page by page and immediately thereafter they would continue with the Bill.

Police / IPID Budgetary Review & Recommendation Reports - BRRR
Mr Irvin Kinnis, Committee Content Advisor, noted there was a new version of the SAPS BRRR Report because minor changes had been made.
The Chairperson said there was no such thing as extreme pressure when it came to the BRRR as they would work throughout night and day to get them done.

The Chairperson was happy as all the issues that the Committee had raised about the Department for many years, such as big delegations and the use of consultants, had now been addressed in the Medium Term Budget Policy Statement speech held this afternoon.
The meeting was adjourned.