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)

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)

The court held that the Private Security Industry Regulation Act must be interpreted contextually, focusing on its purpose to regulate the private security industry and those engaged in the occupation of security service provider. The Act does not extend to employees performing incidental security tasks for their employers outside the private security industry. The provisions in section 28(2) and 28(3)(b) that purport to bind employers using their own employees for in-house security are unconstitutional and invalid, as they lack rational connection to the Act's purpose and would result in overbroad regulation of virtually all employers and employees in South Africa. The appropriate remedy...

Citation
[2008] ZAGPHC 290
Parties
Applicant: Bertie Van Zyl (Pty) Ltd; Applicant: Montina Boerdery (Pty) Ltd; Respondent: Minister of Safety and Security; Respondent: National Commissioner of South African Police Service; Respondent: Provincial Commissioner: Limpopo Province of the South African Police Service; Respondent: Captain Malapo; Respondent: The Private Security Industry Regulatory Authority
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
29 August 2008
Case Number
11806/2005
Procedural Posture
Constitutional Application / First Instance Judgment
Outcome
The application succeeded in part; the impugned phrases in section 28(2) and 28(3)(b) of the Private Security Industry Regulation Act were declared unconstitutional and invalid, and struck out. Costs were awarded to the applicants.
Judges
K Satchwell
Legal Topics
Private Security Industry Regulation Act, Constitutional Invalidity, Code of Conduct, Minimum Wages, Employment Regulation
Constitutional Law Commercial and Corporate Private Security Industry Regulation Act Constitutional Invalidity Code of Conduct Minimum Wages Employment Regulation

Case Brief

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Parties

Bertie Van Zyl (Pty) Ltd

Applicant

Montina Boerdery (Pty) Ltd

Applicant

Minister of Safety and Security

Respondent

National Commissioner of South African Police Service

Respondent

Provincial Commissioner: Limpopo Province of the South African Police Service

Respondent

Captain Malapo

Respondent

The Private Security Industry Regulatory Authority

Respondent

Procedural Posture

Constitutional Application / First Instance Judgment

Legal Issues

  1. 1 Whether employees performing security duties for their employer on the employer's premises are 'security service providers' under the Private Security Industry Regulation Act and required to register.
  2. 2 Whether the Ministerially prescribed Code of Conduct is binding on such employees and their employers.
  3. 3 Whether the relevant sections of the Private Security Industry Regulation Act and regulations are unconstitutional due to overbreadth and lack of rational connection to legitimate government purpose.

Ratio Decidendi

The court held that the Private Security Industry Regulation Act must be interpreted contextually, focusing on its purpose to regulate the private security industry and those engaged in the occupation of security service provider. The Act does not extend to employees performing incidental security tasks for their employers outside the private security industry. The provisions in section 28(2) and 28(3)(b) that purport to bind employers using their own employees for in-house security are unconstitutional and invalid, as they lack rational connection to the Act's purpose and would result in overbroad regulation of virtually all employers and employees in South Africa. The appropriate remedy...

Court Disposition

The application succeeded in part; the impugned phrases in section 28(2) and 28(3)(b) of the Private Security Industry Regulation Act were declared unconstitutional and invalid, and struck out. Costs were awarded to the applicants.

Orders

  • 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 unconstitutional and invalid...
  • 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 unconstitutional and invalid and is struck out.