Tuesday, June 19, 2012

South Africa: Salient Features of the Private Security Industry Regulation Amendment Bill

Private Security Industry in South Africa
Source: ISS

Salient Features of the Private Security Industry Regulation Amendment Bill

Sabelo Gumedze, Senior Researcher, Conflict Management and Peacebuilding Division, ISS Pretoria

According to the latest figures, there are over 1,78 million private security officers registered in South Africa. This poses a huge challenge to the police, since cooperation with the private security companies (PSCs) is of great concern. Equally, the exportation of security services beyond South Africa and foreign ownership of South African PSCs has become an issue of debate over the last number of years.

To address some of these issues the South African Cabinet on 30 May this year approved the Private Security Industry Regulation Amendment Bill 2012 for submission to Parliament. The Bill aims to introduce significant changes to the manner in which the private security industry is currently regulated, notably when it comes to the recruitment, funding and accountability of private security companies. The Bill resulted from a process in which gaps and weaknesses were identified in the current legislation, the Private Security Industry Regulation Act No. 56 of 2001. South Africans will be called upon to comment on the Bill in the not so distant future. The main questions to be asked is whether the Bill will be practically viable in effectively regulating and controlling the South African private security industry.

When the Minister of Police, Mr. Nathi Mthethwa, introduced the Bill during his budget vote speech on 9 May 2012, he stated that the increasing number of private security guards in South Africa poses a need for greater cooperation between the private security industry and the South African Police Service. This statement illustrates the point that the South African private security industry has become a force to be reckoned with.. According to the latest Private Security Industry Regulatory Authority (PSIRA) Annual Report, as on March 2011, the number of security officers registered with PSIRA stood at 1 780 874. As part of ensuring that the private security sector was effectively regulated, in 2011 the Ministry of Police also initiated a process to review the functioning of PSIRA. The processes of amending the PSIRA Act and reviewing the functioning of PSIRA are both welcomed.

The main objectives of the review of the PSIRA Act was to address gaps that are caused by the lack of effective regulation of the private security industry, in particular the threat to national security posed by the participation of foreign nationals in the security industry. National security is always paramount in so far as the provision of security is concerned. To this end, among other things, the Bill aims at regulating foreign ownership and controlling of private security businesses in South Africa; regulating operations of security firms outside the borders of the Republic; providing for the role of PSIRA in promoting crime prevention partnerships with organs of state; providing for accountability of the PSIRA Council; and providing for the funding of the Regulatory Authority by the State.

In so far as the regulation of foreign ownership and control is concerned, the Bill proposes that registration will only be possible provided the percentage of ownership and control exercised by South African citizens in respect of the security business is in the majority, as prescribed. This proposition will affect those security companies whose majority shareholders are non-South Africans. The Bill further provides that the companies whose majority shareholders are non-South Africans will be given a period of 20 years after the commencement of the Act to adhere to this requirement.

Regarding the regulating operations of security firms outside the borders of South Africa, the Bill proposes that any person who, within the Republic, recruits, trains, hires out, sends or deploys any other person to provide a security service outside the country must firstly provide the PSIRA director on a monthly basis, such information as may be prescribed regarding such recruitment, training, hiring out, sending or deployment within prescribed time limits, and secondly, comply with the provisions of the PSIRA Act (as will be amended). The Bill places emphasis on the fact that the individual covered by the Bill 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 27 of 2006 or the Regulation of Foreign Military Assistance Act 15 of 1989.

One of the most important aspects of the Bill is the provision for the role of the Regulatory Authority in promoting crime prevention partnership with organs of State. However, it is not clear how this partnership will be strengthened. Perhaps, the Regulatory Authority will have to convene meetings with the private security industry and the police to ensure that this partnership works. It will also be important to involve Community Policing Forums, as they are also involved in crime prevention initiatives. Other stakeholders such as civil society organisations involved in crime prevention should also be invited to such meetings in order to ensure that crime prevention partnerships are effective.

Relating to the provision for accountability of the PSIRA Council, including the formulation of regulations on the transportation of cash and other valuables, the Bill proposes that the Council will be accountable to the Minister for Police for the performance of its functions. To this end, the Council must supply the Minister with relevant information and particulars, which may be required by the latter in connection with the functions of the Authority. The Bill also proposes that Council must submit quarterly reports to the Minister of the Activities of the Regulatory Authority or on any matter required by the Minister.

Currently, the PSIRA is self-funded mainly through prescribed amounts in respect of applications for registration; annual amounts payable to it by members of the industry; fines imposed on account of improper conduct; and interest from investments. The Bill proposed to change this model to one that will see the Regulatory Authority funded by the State, over and above the self-funding model. The State funding will be appropriated by Parliament.

As the South African public waits for the tabling of the Bill before Parliament, the need to think through what the Bill proposes cannot be overemphasised. No doubt, before the Bill is passed into law, the need for South Africans to further engage in debates on the issues proposed in the Bill would be paramount.