State’s undermining of Rule of Law in private security regulation puts safety at risk

06 March 2019
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The Constitutional Court has declared that there is a disturbing 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 enshrined in the Constitution.

The Court observed that the Police Service is not always perceived as capable of meeting its constitutional mandate, and hence the private security industry is a large and powerful feature of South Africa’s crime-control terrain. While the industry cannot substitute state services, it continues to fulfil functions that once fell in the exclusive domain of the police.

It has been suggested that the private security industry is the fastest-growing industry in South Africa since the early 1990s, and that security guards greatly outnumber police officers.

The Private Security Industry Regulation Act of 2001 regulates the private security industry through a Private Security Industry Regulatory Authority based in Pretoria.

The Authority’s function is to control the industry “in the public and national interest”, encourage “trustworthiness” of security-service providers, and protect the interests of users of the services.

The Act states, ambitiously, that no-one (other than the Anchormilitary, police and intelligence services) may for remuneration render a “security service” without being registered as a security-service provider under the Act.

But the Act authorises the safety-and-security minister (after consulting the Authority) to “exempt any security service provider” or class thereof, from any provision of the Act. The courts have interpreted this as allowing the Minister to grant indefinite exemptions from the Act. The Minister has gazetted nearly four dozen exemptions.

This provision contains no criteria to guide the Minister in the exercise of his power to exempt. The provision violates the Rule of Law by conferring an unduly wide discretion in determining whether to exempt a security provider or not. Questions of legal right and liability should ordinarily be resolved by application of law, not the exercise of discretion, and discretions should be narrowly defined. The broader a discretion conferred on an official, the greater the scope for subjectivity, corruption, and arbitrariness, the antithesis of the Rule of Law.

This exemption provision is overlapped by the Act’s more-general provision that the Minister (after consulting the Authority) may exempt “any service, activity or practice or any equipment” or “any person or entity” from any or all of the Act’s provisions.

This general provision (that the Minister may exempt any service, activity or practice, equipment, or person or entity from the Act) raises doubt about whether it entirely displaces the first-mentioned provision (that the Minister may exempt a “security service provider”) from the Act. This uncertainty, too, violates the Rule of Law, which requires laws to be clear and predictable.

The Act would, ordinarily, require applicants for registration to be “fit and proper” to render a security service, to have met training requirements stipulated in regulations made by the Minister, have a clean criminal record, not have been found guilty of improper conduct under the Act in the last five years, and not be a member of a state security service.

And, ordinarily, companies and other businesses would be registered as security-service providers only if their directors and managers are not unrehabilitated insolvents, meet the Act’s requirements for registration as security-service providers, and are registered, and if the business meets requirements in the regulations about the infrastructure and capacity necessary to render a security service.

But despite all these requirements for registration in the Act, it authorises the Authority, on “good cause” shown and on “grounds” which are “not in conflict with” the purpose of the Act and objects of the Authority, to register “any applicant” as a security service provider.

The provision does not say what might constitute “good cause” or the “grounds” for registering applicants who do not meet the stipulated requirements (saying only that they must not conflict with the Act’s purpose and Authority’s objects). The Constitutional Court has said about this provision that “good cause” will have to depend on the particular circumstances of each case.

This provision is vague and thus violates the Rule of Law, as laws are required to be intelligible and clear. This vagueness means that the provision in practice allows unequal treatment, also 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.

But there is more. The Act allows the Minister to make regulations prescribing “procedures and principles” about periodic applications by registered security service providers for the renewal of their registration, and the conditions and requirements for granting such applications. The Act does not lay down criteria to guide the Minister in prescribing any such “procedures and principles”. Further, the Minister may make regulations relating to such “periodic” applications for renewal of registration and the “conditions and requirements for” granting such applications.

The Act does not 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 violate the Rule of Law by effectively conferring on the Minister an undefined discretion to determine how frequently registered security-service providers will need to apply for renewal of their registration.

The Act imposes strict requirements on security companies and guards, but the Minister and Regulator have unfettered discretions to overlook requirements, putting companies and guards at risk of arbitrary and unequal treatment. The Act’s loopholes allow officials to pick and choose unfairly when to apply it and when not to, giving artificial comfort that the private security industry is well regulated. With an industry as important to safety and development as this, there must be a better way to regulate it rather than to infringe on the principles of the Rule of Law.

Gary Moore is a senior researcher for the Rule of Law project (www.ruleoflaw.org.za) of the Free Market Foundation

 

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