The Constitutional Court has declared that there is a disturbingly dark side to the often-stated miracle of South Africa’s constitutional democracy: The country is plagued by crime, often viciously violent, sometimes sophisticated and organised, often ridiculously random, but always audacious and contemptuous of the values the nation is supposed to believe in and the human rights enshrined in the Constitution.[1]
The Court observed that the Police Service is not always perceived to be capable of meeting its constitutional mandate,[2] and hence the private security industry is a large and powerful feature of South Africa’s crime-control terrain.[3] While the industry should and could not be a substitute for state services, it fulfils functions that once fell in the exclusive domain of the police,[4] and continues to do so.
The Court noted that it has been suggested that the private security industry had been the fastest-growing industry in South Africa since the early 1990s, and that security officers employed in the private industry greatly outnumber members of the Police Service.[5]
The Private Security Industry Regulation Act, 2001[6] states that it is an Act to provide for the regulation of the private security industry.[7] The Act established the Private Security Industry Regulatory Authority, with a head office in Pretoria.[8]
The stated primary objects of the Authority are[9] to regulate the private security industry and exercise effective control over the practice of the occupation of security-service provider “in the public and national interest”,[10] and for that purpose[11] to[12]—
[P]romote a legitimate private security industry which acts in terms of the principles contained in the Constitution and other applicable law;
ensure that all security service providers act “in the public and national interest” in the rendering of security services;
promote and encourage “trustworthiness” of security service providers;
determine and enforce minimum standards of occupational conduct i.r.o. security service providers;
encourage and promote efficiency in and responsibility w.r.t. the rendering of security services;
promote high standards in the training of security service providers and prospective ones;
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;
protect the interests of the users of security services; and
promote the development of security services which are responsive to the needs of users of such services and of the community.[13]
The Act states that no person[14] may[15] render a security service[16] for remuneration[17] unless he or she is registered as a “security service provider” i.t.o. the Act.[18]
Provisions about exemptions. The Act states that the Minister may, after consultation with the Authority, by notice[19] “exempt any security service provider”[20] from the operation of any provision of the Act.[21] It has been held that this authorises the Minister to grant indefinite exemption from the provisions of the Act.[22] The Minister has to date gazetted some 44 exemption notices.[23]
This provision[24] (that the Minister after consulting the Authority[25] may exempt a security-service provider from provisions of the Act) provides no criteria to guide the Minister in the exercise of this power of exemption.
This provision arguably violates the Rule of Law, by thus conferring an unduly wide discretion on the Minister in determining whether to exempt a security-service provider from provisions of the Act. Questions of legal right and liability should ordinarily be resolved by application of law, not the exercise of discretion. Discretions should ordinarily be narrowly defined. The broader and more loosely textured a discretion conferred on an official is, the greater the scope for subjectivity and arbitrariness, the antithesis of the Rule of Law.[26]
This exemption provision[27] is overlapped by the Act’s widely-stated provision that the Minister after consultation with the Authority may[28] exempt “any service, activity or practice or any equipment” or “any person or entity” from any or all the provisions of the Act.[29]
(This widely-stated provision is subject to an express qualifier that the Minister may use these exemption powers “as long as it does not prejudice the achievement of the objects of this Act.”[30] That express qualifier circumscribes to some degree these exemption powers, and hence probably legitimates, this widely-stated provision.)
However, this widely-stated provision (that the Minister may exempt any service, activity or practice, equipment, or person or entity from provisions of the Act) raises doubt about whether it entirely displaces the (first-mentioned) provision (that the Minister may exempt a “security service provider”[31] from the operation of provisions of the Act[32]).
This uncertainty, too, violates the Rule of Law: The Rule of Law entails that laws be accessible, and [33] intelligible, clear and predictable. [34]
Provision about registration despite non-compliance. Similar to those provisions (about the Minister’s exempting security-service providers from the Act) is a provision authorising the Authority to register any applicant as a security-service provider, despite lack of compliance with the requirements for registration in the Act.
(The Act’s requirements for registration as a security-service provider are:
(A natural person[35] may be registered as a security-service provider if he is a fit and proper person to render a security service, and meets the Act’s requirements for registration as a security-service provider (set out in this footnote[36]);
(a security business[37] may be registered as a security-service provider, only if every natural person performing executive or managing functions i.r.o. such business meets the Act’s requirements for registration as a security-service provider, is not an unrehabilitated insolvent[38] and is registered as a security-service provider,[39] and if the business meets the prescribed requirements i.r.o. the infrastructure and capacity necessary to render a security service;[40] and
(a company[41] may be registered as a security-service provider, only if every director of the company[42] is registered as a security-service provider.[43])
Provision about registration on “good cause” shown. But the Act also says that, despite these registration requirements, the Authority may, on “good cause” shown and on “grounds” which are “not in conflict with” the purpose of the Act and objects of the Authority, register “any applicant” as a security service provider.[44]
The provision does not say what might constitute “good cause”[45] or “grounds” for registering applicants who don’t meet the stipulated requirements (saying only that the grounds must “not [be] in conflict with” the Act’s purpose and Authority’s objects).
The provision thus violates the Rule of Law, in being vague. (As mentioned, the Rule of Law requires laws to be intelligible, clear and predictable. [46]
The undefined discretion also means that the provision in practice allows unequal treatment, in violation of the Rule of Law. (The Rule of Law dictates that laws should apply equally to all, save where objective differences justify differentiation.[47])
Minister may make regulations relating to “periodic applications for renewal” of registration and “conditions for granting such applications”. The Act states that the Minister may by regulation prescribe [48] “procedures and principles” i.r.o. “periodic” applications for the renewal of registration by registered security service providers and the “conditions and requirements for” the granting of such applications.[49] And the Minister may make regulations relating to[50] the periodic applications for renewal of registration and the conditions upon which such applications are to be granted.[51]
The Act does not lay down criteria to guide the Minister in prescribing any such procedures and principles” (i.r.o. periodic applications for renewal of registration by registered security-service providers).
Nor does the Act determine how frequently a registered security-service provider may be required to make such “periodic” applications for renewal of its registration.
Nor does it lay down any criteria to guide the Minister in prescribing how frequently such applications should be made.
These provisions hence violate the Rule of Law by effectively conferring on the Minister an undefined discretion to determine the frequency of applications for renewal of registration. (As stated, the Rule of Law requires that discretions be narrowly defined. [52] )
[1] Perhaps not unlike other young democracies.
The Court noted that in the 2012/2013 year more than 16,000 murders were reported to have taken place (almost 45 a day) and almost 106,000 armed robberies, and that commentators indicated that the total number of crimes including those which were never reported was far higher. Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (5) BCLR 511 (CC) par [2] and fn 5.
[2] The Constitution states that the objects of the police service are to: Prevent, combat and investigate crime; maintain public order; protect and secure the inhabitants of the Republic and their property; and uphold and enforce the law. Constitution s 205(3).
[3] Citing Irish “Policing for Profit: The Future of South Africa’s Private Security Industry” (United Nations Development Programme, New York 1999); Berg “The Private Security Industry in South Africa: A Review of Applicable Legislation” (2003) SACJ 178 at 178.
[4] The Court observed that this was in part due to history: From the late 1970s and throughout the 1980s the apartheid regime concentrated policing activities on state security and maintaining political control, and so the private security industry increasingly played a role in protecting private individuals’ safety and security.
[5] Citing Clarno and Murray “Policing in Johannesburg after Apartheid” (2013) Social Dynamics 210, 213, 222. Loureiro and others v iMvula Quality Protection (Pty) Ltd 2014 (CC) supra pars [2], [4].
[6] Private Security Industry Regulation Act 56 of 2001.
[7] And establish a regulatory authority, and provide for matters connected therewith. Private Security Industry Regulation Act, Long title.
[8] Private Security Industry Regulation Act s 2(1) and (2).
[10] And the interest of the private security industry itself.
[11] Subject to the Act.
[13] Private Security Industry Regulation Act s 3(a), (b), (e), (f), (g), (j), (n), (o) and (p).
The Authority’s objects are also to—
promote a private security industry characterised by professionalism, transparency, accountability, equity and accessibility;
promote stability of the private security industry;
promote, maintain and protect the status and interests of the occupation of security service provider;
ensure that the process of registration of security service providers is transparent, fair, objective and concluded timeously;
encourage ownership and control of security businesses by persons historically disadvantaged through unfair discrimination;
encourage equal opportunity employment practices in the private security industry;
promote the protection and enforcement of the rights of security officers and other employees in the private security industry; and
promote the empowerment and advancement of persons who were historically disadvantaged through unfair discrimination in the private security industry.
— Private Security Industry Regulation Act s 3(c), (d), (h), (i), (k), (l), (m) and (q).
[14] Except the Defence Force, the national Police Service and any intelligence services established i.t.o. the Constitution.
[16] I.e., any of the following services or activities:
— Private Security Industry Regulation Act s 1(1) svv “security service”.
[17] Or reward, fee or benefit.
[18] Private Security Industry Regulation Act s 20(1)(a) read with Constitution s 199(1).
The Defence Force, the national Police Service and any intelligence services established i.t.o. the Constitution may use persons employed by them who are not registered as security-service providers to render a security service. Private Security Industry Regulation Act s 20(1)(b) read with Constitution s 199(1).
[19] In the Government Gazette. Interpretation Act 33 of 1957 s 2 sv “Gazette”.
[20] Or security service provider belonging to a category or class specified in the notice.
[21] Generally, or subject to such conditions as may be specified in the notice. Private Security Industry Regulation Act s 20(5).
[22] Private Security Industry Regulatory Authority v Anglo Platinum Management Services Ltd and others [2007] 1 All SA 154 (SCA) par [21].
[23] Govt Notices R1500 of 6 Dec 2002; R515 of 17 Apr 2003; R966 of 11 Jul 2003; R1119 of 8 Aug 2003; R1186, R1187 and R1188 of 22 Aug 2003; R1472 of 17 Oct 2003; R1681 of 21 Nov 2003; R1015 of 3 Sep 2004; R381, R382, R383, R384, R385, R386, R387, R388, R389, R390, R391, R392 and R393 of 22 Apr 2005; 1234, 1235, 1236, 1237 and 1238 of 23 Dec 2005; 411 of 5 May 2006; 767 of 4 Aug 2006; 1276 and 277 of 15 Dec 2006; 1287, 1288 and 1289 of 22 Dec 2006; R939 of 2 Oct 2009; R10 of 14 Jan 2011; 149 of 1 Mar 2013; 489 of 15 Jul 2013; R647 of 30 Aug 2013; 444 of 6 Jun 2014; 742 of 26 Sep 2014; 341 of 23 April 2015; and 505 of 6 May 2016.
[24] Private Security Industry Regulation Act s 20(5).
[25] It has been held that a duty to consult requires no more than that serious consideration in good faith be given to views expressed. McDonald and others v Minister of Minerals & Energy and others 2007 (5) SA 642 (C).
[26] Rt. Hon Lord Bingham of Cornhill, The Sixth Sir David Williams Lecture (2006), Centre for Public Law, Univ of Cambridge. “The Rule of Law” (second sub-rule).
[27] I.e., that the Minister after consulting the Authority may exempt a security-service provider from provisions of the Act. Private Security Industry Regulation Act s 20(5).
[28] By notice in the Gazette.
[29] Private Security Industry Regulation Act s 1(2).
[30] See the said Private Security Industry Regulation Act s 1(2).
[31] Or security service provider belonging to a category or class specified in the notice.
[32] Generally, or subject to conditions specified in the notice. Private Security Industry Regulation Act s 20(5).
[33] So far as possible.
[34] Bingham (supra). “The Rule of Law” (first sub-rule).
[35] Applying for registration.
[36] 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, and—
— Private Security Industry Regulation Act s 23(1) read with s 23(5) (i.r.t. s 23(1)(j)).
[37] A “security business” is a person who renders a security service to another for remuneration etc, unless acting only as a “security officer”. Private Security Industry Regulation Act s 1(1) svv “security business”.
A “security officer” is a natural person who (generally) is employed or engaged in rendering a security service for remuneration. See (more specifically) Private Security Industry Regulation Act s 1(1) svv “security officer” pars (a)(i) and (ii), (b) and (c).
[38] Private Security Industry Regulation Act s 23(2)(a) read with s 20(2). There is unnecessary duplication in these provisions.
[39] Private Security Industry Regulation Act s 20(2)(a).
[40] The Authority may cause any inspection to be held which it deems necessary to establish whether an applicant meets these requirements, against payment by the applicant of an amount determined by the Authority for this purpose. Private Security Industry Regulation Act s 23(2)(b) and (3).
[41] Close corporation (“CC”), partnership, business trust, or foundation.
[42] Or, as the case may be, every CC member, partner, trustee, or foundation administrator.
[43] Private Security Industry Regulation Act s 20(2)(b).
[44] Private Security Industry Regulation Act s 23(6).
[45] In connection with this provision, the Constitutional Court has observed: “Ordinarily, ‘good cause’ will depend on the particular circumstances of each case.” Union of Refugee Women and others v Director: Private Security Industry Regulatory Authority and others 2007 (4) BCLR 339 (CC) at 360 per Kondile AJ, with Moseneke DCJ, Madala, Nkabinde, Sachs and Yacoob JJ concurring.
[46] Bingham (supra). “The Rule of Law” (first sub-rule).
[47] Bingham (supra). “The Rule of Law” (third sub-rule).
[48] Private Security Industry Regulation Act s 1(1) svv “prescribe”, “regulation” read with s 35 (regulations).
[49] Private Security Industry Regulation Act s 22.
[51] Private Security Industry Regulation Act s 35(1)(c).
[52] Bingham (supra). “The Rule of Law” (second sub-rule).
Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.
