Bertie Van Zyl (Pty) Ltd and Another v Minister of Safety and Security and Others; Montina Boerdery v Minister of Safety and Security and Others (11806/2005) [2008] ZAGPHC 290; 2008 (6) SA 562 (T) (29 August 2008)

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 11806/2005

In the matter between:

BERTIE VAN ZYL (PTY) LTD Applicant and

MINISTER

OF SAFETY AND SECURITY First Respondent

NATIONAL

COMMISSIONER OF SOUTH AFRICAN POLICE SERVICE Second Respondent

PROVINCIAL COMMISSIONER: LIMPOPO PROVINCE OF THE SOUTH AFRICAN POLICE SERVICE Third Respondent

CAPTAIN

MALAPO Fourth Respondent

THE

PRIVATE SECURITY INDUSTRY REGULATORY AUTHORITY Fifth Respondent

CASE NO: 12989/2005

In the matter between:

MONTINA BOERDERY (PTY) LTD Applicant and

MINISTER

OF SAFETY AND SECURITY First Respondent

NATIONAL

COMMISSIONER OF SOUTH AFRICAN POLICE SERVICE Second Respondent

PROVINCIAL COMMISSIONER: LIMPOPO PROVINCE OF THE SOUTH AFRICAN POLICE SERVICE Third Respondent

CAPTAIN

MALAPO Fourth Respondent

THE

PRIVATE SECURITY INDUSTRY REGULATORY AUTHORITY Fifth Respondent

JUDGMENT

SATCHWELL J:

INTRODUCTION

This application raises certain intriguing questions regarding persons who provide security services for reward. Firstly,

whether each and every person who, for reward, provides some form of protection or safeguarding of people or property is a ‘security service provider’ (as provided for in the Private Security Industry Regulation Act, 56 of 2001 (‘the Private Security Act’)? Secondly, whether employees who perform security duties for their employer on their employer’s premises or property are to be regarded as such “security service providers” and required to register as such? Thirdly, whether the Ministerially prescribed Code of Conduct is binding on all such persons – whether employees or not? Finally, whether employers who utilize their employees to perform security duties on the employer’s premises or property are governed by the Private Security Industry Code of Conduct and Regulations ?

The applicants employ a large number of farm workers on their various farms some of whom, it is common cause, carry out security

functions for their employers on or about these farms. The applicants seek, inter alia, declaratory orders that the Private Security Act is not applicable to their farm workers who provide security services to their employers1. Alternately, the applicants seek to have the entire Private Security Act or certain sections of the Private Security Act and the regulations relating to appeals and applications for exemptions be declared unconstitutional and invalid.2

The applicants sought relief in separate applications but the facts upon which all parties rely are substantially the same and the legal issues raised are exactly the same. Accordingly, both matters have been argued at one hearing with the opposing parties each relying on the same sets of heads of argument.

THE DISPUTES

The applicants have raised a number of challenges to the application of the Private Security Act to themselves as employers

and to their security personnel and seek an order that the Act, or sections, thereof be declared constitutionally invalid.

Much of the applicants founding and supplementary founding affidavits and their heads of argument were directed towards arguments that were not pursued at the hearing of this matter. In addition, the applicants appear to have set out one approach to interpretation of the relevant provisions in its heads of argument but adopted another view at the hearing of this matter. Further, it was only at the hearing of this matter that the applicants addressed the specific ‘in-house security’ provisions of the Private Security Act. I have not had the benefit of any considered or prepared argument on the relevant provisions of section 28. At the hearing I expressed my concern that the submissions appeared somewhat off-the-cuff and that I might not properly have appreciated the import thereof. In the light of these various difficulties, I trust that I have done justice to the argument which was eventually outlined. At the end of the day, I have scrutinized the Private Security Act and it’s relevant provisions more widely and independently of the argument advanced by the applicants.

Dispute: ‘Security service providers’ - Section 20(1)(a) and Section 28(2)

The first issue concerns the ambit of section 20(1)(a) of the Private Security Act which provides that “no person…may in any manner render a security service for remuneration….unless such a person is registered as a security service provider in terms of this Act”.

The ‘security services’ which are the subject of this prohibition are encompassed in some thirteen defined activities.3 Both the applicants and the respondents have argued this matter by reference only to the security service identified in sub section (a) which is “protecting or safeguarding a person or property”. It is common cause that included in the duties of some4 of the applicants’ employees is the specific (as opposed to an inherent and general) responsibility to safeguard the applicants’

premises, property, operations and even to protect their fellow employees.

The respondents contend that these employees are both “security service providers”5 and “security officers”6 as defined in the Private Security Act and are required to register as security service providers. It then follows, according to the respondents, that the Code of Conduct prescribed by the Minister is binding on “all security service providers,

irrespective of whether they are registered with the Authority or not..”7

The main thrust of the applicants’ challenge to the application of section 20(1)(a) is that the plain meaning of the subsection

enacts such a wide prohibition that this could not have been intended by Parliament and is absurd in the context of practical

realities. The absurdities resulting from such over wide application include that its present ambit covers threats originating from animals or natural phenomenon; any individual performing any security service on an irregular or ad hoc basis for a limited period of time and ancillary to their main occupation would be required to register. Furthermore, employees

serving their own employers are sought to be so regulated whereas the purpose of the Private Security Act is to regulate the public arena.

In their heads of argument , the applicants argued for a purposive and hence more restrictive interpretation of the Act. However, at the hearing the applicants took the view that the subsection is not capable of being restrictively interpreted and applied so as to accord with the purpose of the Private Security Act and to avoid these over broad results. Accordingly, the applicants submit that the Act, or sections thereof, are invalid and unconstitutional because these provisions exceed the purpose of the Act, infringe the applicants right to property, contain no rational connection between the legitimate objectives of the Act and its scope, the law has not been stated in a clear and accessible manner, such necessary limitations as are to be found are contained in arbitrary granting of exemptions on an undefined and unknown basis.

Dispute: Employers of in-house security - Section 28 (2)

The second issue concerns the applicability of Section 28(2) which renders the Ministerially prescribed Code of Conduct binding 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”.8

Although the applicants are neither security services officers or providers, the respondents contend that the applicants are required to comply with the Private Security Act, the Code of Conduct and the Regulations promulgated thereunder because they use their own employees as ‘in–house security’ because these employees protect the employer’s interests on the employer’s premises as provided for in section 28(2).

The applicants dispute that the Act could, by reasons of the provisions of subsection 28(2) apply to themselves or their

employees who provide protection of only their employers property or persons on this property. This subsection should be restrictively

interpreted. To apply the Act and the Code to the applicants and their employees would lead to a number of absurd results if it obliged drivers, cashiers, receptionists, domestic servants, users of equipment to register as security service providers.

Furthermore, such application would exceed the purpose of the Act which is intended to regulate the private security industry which offers services to the public in the public arena. If not restrictively interpreted, this subsection is unconstitutional

because it infringes the applicants’ right to property, there is no rational connection between the legitimate objectives of the Act and its scope, the law has not been stated in a clear and accessible manner, such necessary limitations as are to be to be found are contained in arbitrary granting of exemptions on an undefined and unknown basis.

Certain other issues were raised which do not neatly fall into the above contentions. They include reference to the burdens imposed on employees who would be obliged to register as security service provider and burdens on the employers who would have to meet certain minimum wage conditions. Concern is expressed as to the cumbersome nature of processes of both registration and applications for exemption.

Applicants initially contended9 that their employees are farm workers whose employment is governed by a Ministerial Sectoral Determination made in term so the Basic Conditions of Employment Act and that the Private Security Act could not and did not apply to their employment. That argument was not pursued at the hearing of this application.

THE PRIVATE SECURITY ACT

“Security Service Provider”

The disputes pertinently concern those provisions of the Private Security Act which seek to regulate persons who are ‘security

service providers’. A proper construction and understanding as to the persons who are covered by the statutory definition will determine the outcome of the disputes as to the requirement of registration (section 20(1)(a)) and the applicability of the Code of Conduct to such ‘providers’ (section 28()2)).

In identifying such persons, I must construe the definition of ‘security service provider’ on its ordinary language10 which language should be given its ordinary grammatical meaning.11 Even if the words used are clear and unambiguous I must have regard to the context in which these words occur.12 Such context includes the “the matter of the statute, its apparent scope and purpose and, within limits, its background…”13 This ‘technique’ is required by the Constitution, in particular by section 39(2) thereof.14

A “security service provider” is defined as “a person who renders a security service to another for a remuneration, reward,

fee or benefit and includes such a person who is not registered as required in terms of this Act”. Persons include “natural

person’15, a security officer16 and “security businesses”.17 “Security service’ is widely defined to mean one or more of thirteen detailed services or activities. One such service or activity is “protecting or safeguarding a person or property in any manner”.

No reason has been suggested why these activities should be understood in anything other than their plain meaning.18 There is nothing unclear about these activities. The qualification “in any manner” makes it clear that the means

whereby19 such activities are carried out are unlimited.

Accordingly, the ordinary meaning of the definition covers any individual who protects or safeguards persons or property . Such person would be required to comply with the requirements for registration as a ‘security service provider’20 and the Code of Conduct.21

It is common cause that a security service provider includes a security officer. The parties’ heads of argument and

submissions at the hearing also covered security officers22 as security service providers. This judgment takes the same approach.

On the face of it, the Private Security Act would apply to any person who protects or safeguards person or property whether they do so on a permanent or temporary basis, as an employee or on contract, fulltime or parttime, continuously or erratically,

regularly or on an ad hoc basis, exclusively or in conjunction with or ancillary to other activities. On the face of it, the Private Security Act would apply to safeguarding directed against the lawful or unlawful behaviour of human beings, the menace of animal instincts, the vagaries of natural forces, the perils of geography. On the face of it, the Private Security Act could apply to protection carried out through placement of scarecrows in fields, pelting baboons with stones, admonishment of bullying schoolchildren with words, restraint of demented patients with straitjackets or medication, verbal tips from a bookmaker to gambler.

I question whether a contextual reading of the Private Security Act would permit of such unrestrained and all encompassing application.

Meaning overbroad

The applicants submit the purport of the definition of ‘security service providers’ is ‘too wide’ and leads to ‘absurdities’.

The respondents argue that there is room for a restrictive reading of the definition which cures such absurdities. At the

hearing of this matter, the applicants replied that the Private Security Act contains no provisions which allow for such

restrictive interpretation, that any limitations sought to be inserted would not cure the absurdities and accordingly that there must be a declaration of constitutional invalidity.

Applicants have suggested some examples of security activities which all relate to tasks performed by employees for the

protection of an employer’s property or persons on the employer’s premises. It is argued that these all result in the ‘absurdity’

(never intended by Parliament) that these individuals would be required to register as ‘security service providers’. They

are useful illustrations of the over-broad application which would result if a non-contextual approach to interpretation were followed. These examples also indicate where and how one finds guidance in a contextual approach to interpretation.

Applicants23 identify the driver of an employer’s vehicle who is expected to safeguard the vehicle and its contents by locking it and parking it in a safe place; cashiers in stores must protect money in tills, keep watch for customers who attempt to evade tendering payment; receptionists/switchboard operators in offices who control entrances to offices; domestic servants who ensure that homes are locked, strangers not granted entry, care for the safety of children; any user of his employer’s equipment who protects it from disappearance or damage.

Purpose of the Private Security Act – “industry’ and “occupation”

The Private Security Act was enacted “to provide for the regulation of the private security industry”. The Act purports

to reconcile complementary tensions as set out in the Preamble to the Private Security Act. On the one hand , the Constitution

affirms “fundamental rights to life and security as well as the right not to be deprived of property” but on the other hand it has been necessary for the private security industry to step in where the State has failed to ensure those rights. On the one hand “every citizen has the right to freely choose an occupation, including the occupation of security service provider” but on the other hand there is a need to “achieve and maintain a trustworthy and legitimate private security industry” through regulation of those who choose such occupation.

The Private Security Act seeks to regulate the private security industry in order to reconcile public rights with private measures and individual occupational freedom with general controls. There is recognition of the need to balance individual freedoms with organizational regulation.

Private Security Industry

Central to the purpose of the Act is the “industry” which it regulates. Throughout the Private Security Act, references to this ‘industry’ assert its existence as an identifiable entity with particular attributes and even interests24. “Industry” is understood as organized or collective labour or manufacture in an identified sphere25 or “a class of productive work”.26

The private security industry is the collective endeavour of all those individuals engaged in the business of protecting people and property. It is now identifiable as a system of individuals and businesses operating throughout the country and over all sectors of the economy. Common to such enterprise is the protection and safeguarding of life, security and property for remuneration. The industry comprises individuals and entities with such activity in common.

Occupation of security service provider

As opposed to this collective endeavour or aggregate of business enterprise are individual aspirations. These are recognized in the Preamble as the right of every citizen “to freely choose an occupation” namely the ‘the occupation of security service provider” to which both the Preamble and sections 3 and 4 of the Private Security Act refer 27 .

An occupation is the identified means whereby an individual habitually earns a living28 or a “regular line of productive work”.29 In Tsatsinyane v Cadle 1951 (1) 425 WLD, Clayden J found that receipt of remuneration was not determinative of an “occupation”. Where a person spent “his whole time in philanthropic work” he could be said to have a lawful occupation, and a town councillor who “devoted all his time to his duties as such” could be said to have a lawful occupation. In casu, the court found that an applicant who was “substantially devoting his time and energies” to certain affairs was carrying in a lawful occupation (432 D).

Pursuant to the purpose of the Private Security Act, a “security service provider” is one who follows the occupation of rendering security services for reward. If the individual does not follow this ‘occupation’ then he or she will not form part of the private security ‘industry’. The industry is the broader context within which the individual carries out this particular occupation and, by so doing, creates and perpetuates the identified industry.

Contextual interpretation of ‘security services’ and ‘security service provider’

The possibly overbroad reach of legislation which would require registration and regulation of every individual who may render

security services for reward has already been identified. Indeed the respondents do not assert their right to require the registration of every one of the applicants’ employees whose employment is linked to rendering security services for their employers.

It is trite that there exists ex lege a fiduciary relationship of good faith between employer and employee.30 All persons in employment are expected and even required to protect and safeguard their employer’s interests and property and

co-employees.31

To require almost every employee in the country to register as a security service provider would lack rational connection to a legitimate government purpose. The distinction between all employees generally and those who are required to register as ‘security service providers’ may easily and reasonably be found in the pursuit by the latter group of the “occupation” of security service provider as provided for in the Private Security Act.

The individual(s) or business engaged in the ‘occupation’ of security service provider provides or performs one or more of a very detailed set of services or activities. As a whole these thirteen activities suggest skills and competencies probably

beyond the normal ken of most employees. The activity of ‘protecting and safeguarding’ should be viewed in that context.

A person in an occupation is recognized and identified by the class of work performed. This is because occupational competencies are exercised on an regular not an ad hoc or sporadic basis. The attention and energy and time of a person in an occupation is predominantly allocated to the activities of such occupation as opposed to intermittent ancillary activities which are the by-product of employment. A person in such occupation usually exercises these skills to the exclusion of all else rather than in an intermittent and casual fashion.

The distinction between employees whose work includes certain security activities and the occupation of security service

provider is easily apparent. Teachers protect their pupils; domestic servants watch out for children in the house; shop

assistants keep an eye out for shoplifters; bus drivers caution hooligans; underground miners ensure fellow miners are not injured; clinic nurses restrain patients against self harm. Yet they are all identified as teachers, nurses, shop assistants, bus drivers, miners, domestic servants and not as ‘security officers’ or ‘security service providers’. They are so identified because their primary activity is teaching, nursing, selling, driving, mining, housework. Any security activity is a by-product of their principal employment responsibilities.

However, security service providers are identifiable as such either because they wear a uniform or carry a baton or because

they are dedicated to deter or prevent harm to persons or property. Their attention and expertise is usually directed primarily

towards security duties and they do not usually perform other tasks because they should not be distracted in these tasks or caught up in other loyalties. They usually have authority to act to protect or safeguard either by controlling access to places, halting and searching individuals or vehicles, giving instructions with regard to safety. This authority is accepted because they are identified (by title, uniform, dominant tasks) as persons following this occupation and because the public recognize these activities are undertaken for the common good.

As has been pointed out by the Constitutional Court, the private security industry “is a very particular environment”32 which “has its own special requirements for qualification: trustworthiness, reliability, genuine devotion to and readiness to defend the paramount interest of the community or the public including life, limb and property”.33 The purposes served by stringent requirements for registration were articulated by myself in Probe Security CC v the Security Officers Board.34

I am not in agreement with the applicant’s argument that the Legislature would have inserted the word “occupation” into

section 20(1)(a) if the Legislature had intended the Private Security Act to be limited in this way. It is argued that, since there is no reference to calling or occupation in the definition of security service or security officer or the prohibition in section 20(1)(a), there is no foundation in the Private Security Act to circumscribe it in this manner. I have not found it necessary to ‘read in’ the word ‘occupation’ because the Act itself has made it very clear that to be a security service provider is to follow an occupation. Such meaning achieves the apparent scope and purpose of the legislation,35 the phrase ‘security service provider’ taking “its colour, like a chameleon, from its setting and surrounds in the Act”.36

I do not believe that such interpretation of the legislation is at all strained.37 Accordingly, I am satisfied that a contextual reading of the Private Security Act, (as it appears from the expressed purpose

thereof, the Preamble thereto, several sections therein and the wording thereof) indicates that it exists to regulate only those persons engaged in the occupation of security service provider within the private security industry.

Criminal activity by human actors

Applicants assert that the Private Security Act regulates the industry which is unquestionably directed against human criminal behaviour. Accordingly, ‘security service providers’ cannot regulate persons whose activities are directed against natural disaster or animal threats. The applicants contend that the wording of the Private Security Act allows it to regulate the activities of farm workers guarding crops against hailstorms, the sun, the wind, rain, snow, baboons or birds. The absurdity [rational] of regulating such activity cannot be cured by a restrictive interpretation because no basis for such limitation

can be found in the Act.

I am in agreement that the Private Security Act is not intended to regulate the response to hazards from nature or harm from animals. I am of the view that the Act makes this clear and provides the basis for such restriction.

The Preamble affirms certain ‘fundamental rights’ to ‘life and security of the person as well as the right not to be deprived of property’. Rights exist in relation to actors who are themselves capable of appreciating the existence and ambit of such rights and acting in accordance therewith. Rights are affirmed against other holders of rights and obligations. Rights cannot be affirmed against the forces of nature or wild animals. It is not possible to demand of the jackal that it recognizes the owner’s right that the sheep be not eaten. It is not possible to expect the donga to respect the owner’s right that the cow not fall in. The rain cannot be expected to acknowledge the owner’s right to unflooded lands.

The Private Security Act regulates the industry which developed in order to protect and safeguard rights of actors against other actors. The “safety and security” of which the Preamble speaks can only be in the context of controllable human behaviour. The Preamble cannot envisage an industry directed towards ensuring greater absence of natural and animal hazards.

Indeed the very activities which comprise “security service” generally involve equipment and devices which assist in providing order and safety – human rather than natural or animal concepts.

I am of the view that the Private Security Act provides the basis for a restrictive interpretation which cures the overbroad

results and many possibly unintended applications to which the applicants have referred. The Act does not apply to persons acting against threats emanating from non-human conduct.

In House Security services

The applicants initially approached this matter on the basis that their employees do not work outside the confines of their premises or for the public38 and that the Private Security Act could only regulate the security industry insofar as it pertains to a service to the public and not within the environment of a private employer. When confronted with the provisions of section 28 of the Private Security Act, the applicants submitted that the relevant subsections of (or the Act itself) are unconstitutional if held to be applicable to persons who merely protect their employer’s persons and property. It is complained that persons will not be able to effectively look after their own property or have it protected by their own employees which would be inconsistent with the right to property set out in section 25 of the Constitution. The overwhelming scope of these provisions is not rationally related to any legitimate government purpose. These wide provisions are so vague and wide that persons will not know if they are contravening the provisions of the Private Security Act when entrusting certain everyday tasks to their own employees.

Section 28, to which the applicants have objected, contain the only references in the entire Private Security Act to so-called

‘in-house’ security personnel. The Minister is required39 to prescribe a Code of Conduct which will be binding on two classes of persons.40 Firstly, the Code of Conduct will bind all security service providers whether or not registered with the Authority.41 Secondly, the Code of Conduct will be binding on certain employers. It is to this latter application that there is

objection.

Section 28(2) provides for the Code of Conduct to be binding “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” (“in-house security personnel”).

The wording of the subsection clearly indicates that security service providers and the employers of in-house security personnel

are not necessarily one and the same actors. Security service providers may not be employers and, even if they are employers,

they may not employ in-house security personnel. Employers of in-house security personnel may not be providers42 and may not operate within the private security industry. This distinction is reinforced when one has regard to the provisions of subsection 28(3)(b) which distinguishes between employees in the private security industry and in-house security employees.43

In short, in-house security personnel are employees who do not follow the occupation of security service provider44 which means that they are neither in this occupation nor in the security service industry. Employers of in-house security personnel

would not themselves be engaged in the private security industry or they would be security service providers.

The decision to include these two references to employers of in-house security personnel suggests that the Legislature intended

the same distinction to be made in respect of ‘security officers’ otherwise the Legislature could merely have referred to ‘employers of security officers’.

The Code is binding on such employers of in-house security only “to the extent provided for in this Act”.45 The only reference to these employers is found in section 28 of the Act. The parameters of the application of the Act to employers of in-house security personnel (who are not themselves security service providers) are therefore the provisions of section 28 of the Private Security Act. Put differently, the only section of the Private Security Act which applies to employers of in-house security personnel, where neither the employer nor the employee is a security service provider, is section 28 of the Act.

Subsection 28(3)(b) sets out the purpose and ambit of application of the Code to employers of in-house security personnel who are not security service providers46. The Code must contain rules “to ensure the payment of minimum wages and compliance with standards aimed at preventing exploitation of abuse of employees” whether they are in the private security industry or in-house security personnel.

Notwithstanding the respondents’ reference to specific regulations and chapters and paragraphs of the Code,47 it is to the Private Security Act that one must look to ascertain the application of the Act to employers of in-house security

personnel (who are not security service providers). That Act refers to no more than the Code of Conduct which will be applicable and to rules which will govern minimum wages and compliance with standards aimed at preventing the exploiting of abuse of employees.

Matters beyond the purview of those specified areas (wages and standards) are not applicable to employers of in-house security

personnel who are not security service providers.

The applicants’ affidavits covered the difficulties which would ensue if they were obliged to pay minimum wages in the security

industry and meet standards aimed at preventing abuse of employees. These may indeed be inconvenient, expensive or onerous.

However, the test is whether or not any of the applicants’ Constitutional rights, especially the right to property to which

they have averted, have been infringed.

The applicants did not develop the argument that their property rights have been infringed save to state in their heads of

argument that they would not be able to effectively look after their own property or have it protected by their own employees

and, at the hearing, make reference to the inability to have an employee press a security button for assistance when needed. I find it difficult to conceive any deprivation of property in the provisions of section 28 of the Private Security Act.

The applicants did not address any impact which these provisions of subsections 28(2) and (3) might have on any rights for which provision is made in section 22 of the Constitution, namely “the right to chose their trade, occupation or profession freely”. I have been provided with neither facts nor argument which specifically addressed whether the regulation of employers of in-house security personnel falls within the purview of section 22 of the Constitution. It may well be that regulation of such employers may put constraints upon the economic activity upon which they rely to earn a living. I have not been asked to make any such determination.

Of course, there is a legitimate objective in enacting legislation which would allow for prescription of minimum wages

for employees and ensure compliance with standards to prevent exploitation or abuse of employees. These are legitimate

objectives in a constitutional democracy founded on values which include human dignity, equality and freedom.48 “Provided it is in the public interest and not arbitrary or capricious, regulation of vocational activity for the protection

both of the persons involved in it and of the community at large affected by it is to be both expected and welcomed”49.

However, there is nothing in the Private Security Act which indicates that it was ever intended that the Minister of Safety and Security and/or the Private Security Authority Regulatory Authority should have the power to regulate the affairs of employers or employees operating outside the private security industry.

The purpose of the Private Security Act is to “regulate the private security industry”; the primary objects of the Regulatory Authority are “to regulate the private security industry and to exercise effective control over the practice of occupation of security service providers”;50 the Minister is empowered to prescribe a code of conduct for “security service providers”;51 the code of conduct which regulates security service providers is directed to the private security industry and the objects of the Regulatory Authority;52 the code of conduct must contain rules to ensure payment of minimum wages and compliance with standards preventing abuse of employees “in the private security industry”;53 the code of conduct must be drawn up with regard to the objects of the Regulatory Authority and categories of security service

providers;54 there may be penalties in respect of different categories of security service providers or persons employing security officers.55

The Act is clear as to its purpose and the provisions of the Act are directed thereto. However, this reference to the employers of in-house personnel is unrelated to and unconnected to the purpose of the Act or the objects and powers of the Regulatory Authority.

The method of inclusion of such employers is clumsy. The code of conduct is to be binding on all security service providers “and, to the extent provided for in this Act” on employers of in-house security personnel. The only provision in the Private Security Act is a further subsection which requires the code of conduct to ensure the payment of minimum wages and compliance with standards aimed at preventing exploitation or abuse of “employees in the private security industry”. Those employees “in the private security industry” are then expanded the words “including employees used to protect or safeguard merely the employers own property or other interests, or persons or property on the premises of, or under the control of the employer”.

No basis has been laid in the Act for expansion of the private security industry in this way. This judgment has already commented

on examples where employees may protect or safeguard their employer’s property or interests on an irregular, casual basis

ancillary or consequential to their primary responsibilities to their employers. This occurs in circumstances where neither the employers nor the employees operate within the private security industry and where the employees do not follow an occupation of rendering security services. Teachers, nurses, shop assistants, domestic workers, miners, game keepers, bus drivers and many other employees immediately come to mind.

These employers and employees may already be regulated by the standards applicable to different sectors of the economy in which

they are primarily employed. The relevant trades union and employer’s organizations may already have negotiated in the appropriate bargaining chamber and reached agreement on wages and conditions of employment. The wages and standards sought to be introduced by the code of conduct of the private security industry may well be in conflict with and irreconcilable with those applicable to the nursing or teaching professions, farming or mining operations, domestic service or the transport industry.

This attempt to expand the scope of the code of conduct and hence the powers of the Regulatory Authority finds no support in the purpose or the wording of the Private Security Act.

No basis has been laid in the Private Security Act for intervention in the wages paid or the conditions of employment of teachers,

miners, shop assistants, domestic workers and so on by the Private Security Regulatory Authority. These individuals do not form part of the private security industry. These workers do not follow the occupation of security service provider (as a business or as a security officer).

No apparent rational connection to a legitimate government purpose56 has been argued which would justify extension of the ambit of the Private Security Act and its Code of Conduct to industries and fields of endeavour other than the private security industry, indeed to virtually every employer in South Africa. The considerations referred to in Refugee Women supra at para [40] and elsewhere; in Private Security Industry Regulatory Authority and Others v Association of Independent Contractors and Another 2005 (5) 416 SCA at para 1; in Probe Security CC supra indicate the concerns of the Legislature with regard to the private security industry and it’s true arena of operations which are not replicated in other industries or fields of endeavour. Encapsulation of almost the entire economy of the country within the purview of the Private Security Regulatory Authority cannot be rationally explained.57

Accordingly, I find that the provisions of Section 28, insofar as they apply to employers who employ their own personnel to protect or safeguard the employer’s property or other interests on the employers premises or under the employers control, to be invalid and unconstitutional.

I am not in agreement with the applicants that there should be a reading of words into the definitions of security officer and

security service provider and elsewhere in the Private Security Act to the effect that this excludes persons who employ and who are employed merely to protect or safeguard their employer’s property or interests on the employer’s property or under the employer’s control. It is my view that the Private Security Act clearly provides for regulation of the industry in which those who pursue the occupation of security service providers are to be regulated wherever they may operate.

The appropriate remedy is to strike down everything after the words “…with the Authority or not...” in section 28 (2)

thereby deleting the phrase “...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” from section 28(2) and to strike down everything after the words “…in the private security industry...” in section 28(3)(b) thereby deleting “…including employees used to protect or safeguard merely the employer’s own property or other interests, or persons or property on the premises of, or under the control of the employer.”

These two phrases may easily be severed from the rest of the Private Security Act without destroying regulation of the private

security industry. What is left behind in subsection 28(2) and subsection 28(3)(b) passes constitutional muster .

EXEMPTIONS

Section 1(2) of the Private Security Act permits the Minister to grant exemptions from all or any of any provision of this Act, while subsection 20(5) allows for specific exemptions and subsection 23(6) for discretionary registration.

The applicants complain that neither the Act nor the regulations58 promulgated thereunder59 prescribe objective requirements or guidelines for such exemptions. The result is that the Minister, in consultation with the Regulatory Authority, has carte blanche to determine whom shall be exempt. Applicants argue that the powers granted to the Minister in respect of exemptions is overbroad with the result that the true scope and effect of the Act is not decided in Parliament but by the Minister. Such broad and unrestricted power bestowed upon the Minister is arbitrary and results in vague legislation which violates the legality principle and the rule of law. It does not meet the minimum degree of certainty in laws, fair notice to citizens and limitation of enforcement discretion as required by the rule of law.

The respondents submit that it is both impracticable and impossible to lay down requirements or guidelines for the merits of

exemptions which have, by their very nature, to be dealt with on a case by case basis depending on the varied and different

circumstances of every such application. The Regulations provide that the applicant for exemption should give full and detailed

grounds for such application. That applications can be successfully made (apparently for a variety of security service providers)

appears from the exemptions attached to the papers.

In the present case there is, as yet, no application before the Minister. The applicants have not identified the applications

which they would wish to make nor on what facts or considerations. There is no indication that such application cannot be formulated. Any difficulties which the applicants anticipate are hypothetical in nature and have not been formulated for this court.

The exercise of the Minister’s discretion is subject to constraints emanating both from the Act, the common law and the

Constitution.60 There is, as yet, no indication that the Minister’s discretion will not be properly exercised. The applicants do not yet know if these constraints will prove insufficient to ensure proper administrative action as and when they bring any applications for exemption.61

To my mind, this challenge to the exemptions provisions is premature. This is an internal remedy as provided for in the

Promotion of Administrative Justice Act. Absent, implementation and exhaustion of this remedy, this Court is not called upon to make any determination on the granting of any exemption.

APPLICANTS’ OPERATIONS

In the main, the applicants and the respondents seem to be in agreement as to the facts. However, those facts set out in the applicants’ founding affidavits were directed towards support of certain arguments or legal propositions rather than setting out clearly and fully all the facts which would assist this court in its decision. Somewhat belatedly, at the time of filing their replying affidavits, the applicants provided further and more useful information to which the respondents have not had an opportunity to respond. The applicants are not permitted to make out their case in reply. I shall not have regard to the facts raised in reply save for the one instance where such facts were set out to correct the apparently erroneous understanding of the respondents.

The respondents raised the point in their heads of argument that the applicants were not only and primarily involved in farming

operations but also in packaging factories, transportation and developing products from of tomatoes. The respondents did not pursue this issue just as the applicants did not pursue their argument that their employees were all included in the sectoral determination applicable to farm workers issued by the Minister of Labour in terms of the Basic Conditions of Employment Act.

Applicant – Van Zyl

Van Zyl62 is a major farming company supplying approximately 30% of the total tomato produce in South Africa. It employs in excess of 6000

employees in all aspects of its farming operations which are spread over four Magisterial districts in Limpopo province, some of the farms being as far as 250km apart. With vast farming operations spread over vast distances and many assets involved, Van Zyl is subject to security risks including theft of motor vehicles, equipment and robberies of cash . Van Zyl “has sought to deal with this by employing some of its general force of farm workers specifically to enhance security”63. “This is done by, as the need arises; detailing employees, i.e. farm workers male and female to perform the duties relating

specifically to security”64. “In the company they are known as security guards, wear specific uniforms designating them as such, perform duties like manning

access control booms as well as patrolling of property. They do not carry any weapons at all”65.

Attached to the Fifth Respondent’s (Security Industry Regulatory Authority) answering affidavit are copies of conditions of employment and a contract of employment utilized by Van Zyl. Van Zyl allocates certain of its employees to a loss control division.66 The rules pertaining to loss control are set out in clause 7 of the conditions of employment applicable to all employees.67 These loss control rules cover general duties and responsibilities, residential arrangements and environmental controls.

It is apparent from these rules that loss control does not only, in the eyes of Van Zyl, encompass security services in the sense of protecting or safeguarding persons or property in the immediate sense. These are rules for general cohabitation on Van Zyls property and employment on that property. However, amongst these rules are prohibitions on causing injury to other persons, acts of sabotage or burning, use of firearms without permission, hunting, setting fires. There are also rules pertaining to control of access to and exit from Van Zyls property which cover the employees, their visitors and any other person.

In reply to these documents and the fifth respondent’s answering affidavit, Van Zyl has explained that the loss control employees

fulfill the main task of loss control. Van Zyl does not explain exactly what is meant by such “task of loss control”. It is pointed out that they do not carry firearms or weapons, they have no authority over other employees, they do not render a service to the public, they are not granted access to private dwellings, they do not have any powers of arrest. Some of the loss control employees ask visitors to sign a book on entry but do not stop people from entering or leaving and would report suspicious persons entering. To my mind this is a security service as defined. Van Zyl maintains that the “loss control employees’ main task is to be alert and serve as the applicant’s eyes and ears and to report strange behaviour or suspicious circumstances to management, or in some exceptional cases, directly to the South African Police Service”. Again, this suggests the provisions of a security service.

Applicant – Montina

Montina68 is a farming partnership which operations are conducted on farms situated in the Magisterial districts of Polokwane, Bylsteel and Letaba. In excess of 2000 employees are employed in all aspects of these farming operations. (FA7) Montina’s operations are subject to theft of vehicles and equipment, merchandise at markets, theft of crop in the field. As a result Montina has “employed some of its general force of farm workers to provide security services on the farm and on the fresh fruit and vegetable markets”.69 This is done “as the need requires, detailing employees, i.e. farm workers, male and female, to perform the duties relating

specifically to security”.70 At the operations in Letaba, “various other employees in their capacities as manager and employees from the general force of farm workers, are tasked with providing security services”.71 These employees are known as security guards on the farm but do not wear a specific uniform and do not carry weapons. Any security breach is reported to the managers of Montina. In total approximately 50 employees are utilized “from time to time”72 in this capacity. To clarify an apparent misunderstanding, in Reply Montina explained that it uses “ordinary farm workers, as and when required, to fulfill certain functions which may in general terms be regarded as security work” , “these tasks are being done by the ordinary farm labourers on a rotational basis, and labourers are used for these tasks as and when required” and further “the applicant does not use 50 in-house security officers… there are merely a pool of approximately 50 ordinary farm workers who are from time to time utilized to provide one or other form of security services”.73

Attached to the fifth respondents answering affidavit is a copy of a contract of employment between Montina and Walter Ramalepe which makes no specific reference to security but does deal with issues of Discipline and Damage to Employer.74 Mr Ramalepe is employed as a ‘farm labourer”. Under the heading of ‘discipline’ it is recorded that certain ‘offences’

include absence without leave, failing to obtain instructions, intimidation, victimization. Also included is “failure to report loss or damage to company property or property for which the company is responsible”. Under the heading of ‘damage to employer’ is reference to ‘unlawful act which causes damages to the Employer”.

CONCLUSION

On the facts before it, this court cannot determine which individual employees of the applicants may or may not be security

officers or security service providers.

On the limited facts before me, it is not possible for me to make a determination as set out in the Notice of Motion. That will have to be determined on establishing the factual situation of each employee.

COSTS

The Fourth Respondent, in his capacity as servant of the first and second respondents, arrested employees of the applicants which action necessitated the urgent applications for interim interdicts. The third respondent confirmed the actions of the fourth respondent. The applicants were obliged to have these rules nisi extended on a number of occasions.

I am mindful that the circumstances of the arrests were not fully canvassed before me and that the reasonableness of these actions was not an issue I am required to decide. However, I should note my displeasure at what appears to have been arrests of Montina staff made with full knowledge of the interdict already obtained from this court in respect of arrested Van Zyl staff.

It would have been impossible to have separated those portions of the papers prepared for purposes of the interdictory relief and those portions prepared for the purposes of this hearing.

However, in the result, I do not have to make any allocation of costs on the basis of the interdictory as opposed to the declaratory

relief.

The applicants have been substantially successful in having the ‘in-house own employee’ portions of subsection 28(2) and

subsection 28(3)(b) set aside. They are entitled to their costs.

ORDER

Orders are made as follows:

The phrase “…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” in subsection 28(2 is declared to be unconstitutional and invalid and is struck out of subsection 28(2) of the Private Security Act.

The phrase “…including employees used to protect or safeguard merely the employer’s own property or other interests, or persons or property on the premises of, or under the control of the employer” in subsection 28(3)(b) is declared to be unconstitutional and invalid and is struck out of subsection 28(3)(b) of the Private Security Act.

The respondents are to pay the applicants’ costs, payment to be made jointly and severally, the one paying the other to be

absolved.

This order is subject to confirmation by the Constitutional Court.

DATED AT PRETORIA 29th August 2008

_______

K. SATCHWELL

Hearings: 19th and 20th August 2008

Applicants’ Counsel:

Adv. J L van der Merwe SC

Adv L B Van Wyk

Instructed by Attorneys Rooth Wessels Maluleke

Fifth Respondent’s Counsel:

Adv. J H Dreyer SC

Adv B R Tokota SC

Instructed by Attorneys Savage Jooste & Adams Inc

First to Fourth Respondents Represented by the State Attorney

1 See the substituted prayers (1) at page 245 of Van Zyl pleadings and page 180 of Montina pleadings.

2 Prayers 2 to 4 of the substituted prayers at page 245 of Van Zyl pleadings and page 180 of Montina pleadings.

3 Chapter I of the Private Security Act is the definitions section. ‘Security service’ means “one or more of services or

activities” set out in subsections (a) to (m). (b) to (j) are detailed activities of a more sophisticated nature, (k) to (m) refers to those activities set out in (a) to (j).

4 It is accepted that some 200/250 of Van Zyl’s employees and some 50 of Montina’s employees either protect or safeguard their

employer’s person or property. The frequency of such protection and its relationship to the employment as a whole is

part of the subject of this dispute.

5 “Security service provider” is a person who renders a security service to another for remuneration”.

6 “Security officer” means “any natural person (a) (i) who is employed by another person … and who receives ..…from such other person any remuneration… for rendering one or more security services”.

7 Section 28(2).

8 The Code of Conduct must contain rules which section 28(3)(b) requires “ to ensure the payment of minimum wages and compliance

with standards aimed at preventing exploitation or abuse of employees in the private security industry, including employees used

to protect or safeguard merely the employer’s own property or other interests, or persons or property on the premises of, or under the control of the employer”.

9 This was a major thrust of both the founding affidavits and the applicants’ heads of argument.

10 African Christian Democratic Party v Electoral Commission [2006] ZACC 1; 2006 (3) SA 305; Thoroughbred Breeders’ Association v Price Waterhouse 2001 (4) SA 551 (SCA); Manyasha v Minister of Law and Order `1999 (2) SA 179 (SCA at 185

11 Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990 (1) SA 925 (A)

12 University of Cape Town v Cape Bar Council 1986 4 SA 903 (A) at 914D-E; Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990 1 SA 925 (A) at 943C-944B. Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs & Others [2004] ZACC 15; 2004 (4) SA 490 (CC). Department of Land Affairs v Goedgelegen Tropical Fruits [2007] ZACC 12; 2007 (6) SA 199 (CC) (para 52)

13 Jaga v Dönges NO; Bhana v Dönges NO 1950 4 SA 653 (A) 662H-663A

14 See Bato Star supra

15 Definition of “person”.

16 Defined as “any natural person who is employed by another person …and who receives …any remuneration…for rendering one or more security services”.

17 Defined as “any person who renders a security service for remuneration…except a person acting only as a security officer”.

18 To ‘protect’ means “to defend or guard against injury or danger’, ‘ shield from attack or assault’, ‘support,

assist, give immunity or exemption’, ‘ keep safe, take care of ‘, ‘aim to preserve’ (The New Shorter Oxford English

Dictionary). To ‘safeguard’ encompasses ‘ keep secure from danger or attack’, ‘guard, protect, defend’, ‘send or conduct in safety’, ‘ anything that offers security from danger, a defence , a protection’(The New Shorter Oxford English Dictionary).

19 The Afrikaans version of the Statute reads “ op enige wyse”.

20 As set out in section 23 of the Private Security Act.

21 As provided for in subsections 28(2) and (3)(a).

22 Defined as “any natural person who is employed by another person for reward for rendering one or more security service” [my abridgement]

23 Heads of argument- paragraph 44.

24 From the title of the Act to the Objects of the Regulatory Authority set out in section 3 which are primarily to “regulate

the private security industry’ in the public and national interest “and the interest of the private security industry itself”.

The “industry” is to be trustworthy, legitimate, acting in accordance with Constitutional principles; characterised by professionalism, transparency, accountability, equity and accessibility; be stable; follow equal employment practices;

25 See the New Shorter Oxford English Dictionary definitions : “system of work or labour”, “habitual employment in useful work”, “particular form or branch of productive labour”, “a particular activity”, “work in manufacturing and production”,

“trade and manufacture collectively”.

26 As suggested in the respondents’ heads of argument.

27 Section 3 sets out the Objects of the Regulatory Authority which is to “exercise control over the practice of the occupation of security service provider” including to “determine and enforce minimum standards of occupational conduct’ and to

“promote, maintain and protect the status and interests” of “the occupation of security service providers”. Section 4 permits the Regulatory Authority to take steps to “develop and maintain standards and regulate practices” and to “gather information relevant” to the “occupation of security service provider”.

28 New Shorter Oxford English Dictionary - “what a person is habitually engaged in especially to earn a living”, “a job, a business, a profession, a pursuit, an activity”. Collins Dictionary – “a person’s regular work or profession”

29 As suggested in the respondents heads of argument .

30 Sappi Novoboard (Pty) Ltd v Bolleurs 1998 ILJ 784 (LAC). See also CSIR 1996 (2) SA 1 at 9 H-J, Standard Bank v CCMA 1998 (19) ILJ 903 at 913, Wallis M, ‘Labour and Employment Law’ .

31 See LAWSA Vol 13(1) Over and above the duty to perform assigned tasks are the duties to take care in handling the property and business of the employer, to act in good faith and without conflict of interests, to commit no act of dishonest conduct, not use an employer’s property for own purposes, keep confidential information secret, not commit acts of misconduct ranging from “assaults upon fellow workers” to “maliciously damaging the employer’s property “ (para 231)

32 Per Kondile AJ in Union of Refugee Women v Director: Security Industry Authority 2007(4) SA 395 CC at para 37.

33 Per Mokgoro and O’ Regan , Union of Refugee Women supra at para 61.

34 Unreported case number 98/13943, 17 August 1998 and affirmed in Union of Refugee Women supra at para 40.

35 Standard General Insurance Co Ltd v Commissioner Insurance Co Ltd v commissioner for Customs and Excise 2005(2) SA 166 SCA

36 Std General supra at para 25

37 See Daniels supra; see Hyundai supra.

38 Repeatedly stated in their affidavits.

39 By subsection 28(1).

40 Subsection 28(2).

41 I have already set out why the Act should be interpreted to read that the Code would apply only to persons pursuing the occupation

of security service provider.

42 As discussed previously in this judgment.

43 Subsection 28(3)(b) requires the Code to make rules with regard to “employees in the private security industry, including employees used to protect or safeguard merely the employer’s own property or other interests, or persons or property on the premises of, or under the control of the employer”.

44 As discussed previously in this judgment.

45 Section 28(2).

46 Subsection 28(3)(a) sets out the purpose of and ambit of application of the Code to security service providers.

47 Including those requiring employers of in house security personnel to only use employees registered as security service providers.

48 It is always through the prism of the Bill of Rights, the spirit, purport and objects of the Bill of rights that legislation must be interpreted- see Bato Star supra; Investigative Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC) at para 21.

49 Per Ngcobo J in Affordable Medicines Trust v Minister of Health 2006(3) SA 247 CC at para [60].

50 Section 3.

51 Section 28(1)

52 Section 28(3)(a)

53 Section 28(3)(b);

54 Section 28(4)

55 Section 28(5)

56 New National Party of South Africa v Government of the Republic of South Africa and Others 1999(3) SA 191 CC at para [19]; see Affordable Medicines Trust supra para [74]

57 S v Makwanyane and Another 1995(3) SA 391 CC; Affordable Medicines Trust supra at [74]

58 Section 5 of the Regulations Relating to Appeals and Applications for Exemptions.

59 Regulations re exemption promulgated 11 April 2003

60 See Affordable Medicines Trust and Others vs Minister of Health and Others [2005] ZACC 3; 2006 (3) SA 247 CC.

61 I note the critique of the exemptions provisions in the Act in the judgment of Kondile AJ in Affordable Medicines Trust supra at paras [75] to [87] but that case concerned persons who wished to be registered under the ‘good cause’ exemption of section 23(6) for which no provision was made in the relevant documentation and the Court had expressed its view as to the vulnerable position of those particular applicants.

62 These factual averments are set out in Van Zyls founding affidavit and the respondents answering affidavit..

63 Paragraph 6.3 of Van Zyl’s founding affidavit.

64 Paragraph 6.4 of Van Zyl’s founding affidavit

65 Paragraph 6.4 of Van Zyls Founding Affivadit.

66 See the employment contract NM7 between Van Zyl and Onicca Lediga.

67 Annexure NM5.

68 These factual averments are set out in Montina’s founding affidavit and the respondents answering affidavit .

69 Paragraph 7.3 of Montina founding affidavit.

70 Paragraph 7.4 of Montina founding affidavit.

71 Paragraph 8 of Montina founding affidavit

72 Paragraph 8 of Montina founding affidavit.

73 Paragraph 4 of the Montina replying affidavit.

74 Annexure NM4.