STATE OF THE SOUTH AFRICAN PRIVATE SECURITY INDUSTRY

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CHAPTER FOUR THE REGULATION DEBATE

Introduction

This Chapter deals with the debate regarding the regulation of the South African Private Security Industry. There are a number of important issues that need to be answered before one reaches the stage where the scope and depth of the regulatory framework can be determined. With the scope of regulation, reference is made to which services should be included in the new framework, and by the depth of regulation reference is made to how much authority the regulatory body should have. The single most important question that needs to be answered is: Why do we need regulation, as it is already clear that it is to the detriment of both the public and the Industry to have regulation, just for the sake of having regulation? The same also applies to over-regulation or under-regulation.

The need for regulation

The purpose of regulation is central to the question of: Why do we regulate?The question should thus be posed: Is regulation for the protection of the Industry or for the protection of the public?   After it has been determined, the next questions should be:

• Who should be responsible for regulating the Industry?
• What should the constitution of such a regulatory body be?
• What should the objectives and functions of such a regulatory body be?
• What should the powers of such a regulatory body be to enforce the regulations?

According to the Interim Board (SOIB: 2000a:41), the need for regulation is owing to the following:
« It is self evident that persons placed in such a position of relative power over other members of society should be closely regulated and monitored to ensure that members of society are not harmed by them.Persons who are not even their clients rely on their integrity and competency ».
Regulation, at its simplest, is described by Francis (George and Button: 1998:2), as Government intervention.If one accepts this definition of Francis, it basically rules out the possibility of self-regulation by the Industry because regulation, by implication, means  Government  intervention.     Because of the complex political  history of the country and the history of the Industry, the question regarding who should regulate the Industry in South Africa,  is subsequently more accurate  if it asks: To what extent should  Government  be   involved  in  the  regulation  of the  Industry?  In  the  period preceding the drafting of the Security Industry Regulation Bill (August 2000), there has been very limited involvement of Government in the regulation of the Industry.As shown in the previous Chapter, Government itself had gradually, since the introduction of the  Security  Officers’   Act  (Act 92  of  1987  in 1989, reduced its role in the regulation of the Industry.
This Chapter thus looks very critically at the proposals made by both Government and the Industry and examines what are the commonalities, differences and where, if any, common ground can be obtained.

Does regulation lead to a better industry?

According to Irish (1999:34), the comprehensive regulatory model can be described as follows:
« The state extends regulation beyond controlling the type of person who enters the industry.    Substantive regulation is introduced to raise the standards and quality of service provided by the private security industry.  »
In terms of Irish’ s definition, referring to the advantages of a comprehensive regulatory model, it will be shown that there are a number of arguments from various role players questioning  whether  comprehensive regulation does indeed lead to  the raising of standards  in the  Industry.  It  is also clear from  other  submissions  made by Irish (SOIB:2000c:28) and the rest of the   anti-Industry school of thought, that comprehensive regulation can’t be separated from an independent regulatory authority,with no Industry  representation. These  sentiments  are echoed   by Government, although  it appears  as  if the  concept of independent regulation only refers to the exclusion of Industry and not « independent » in the true sense of the word.
Standaert (1999: 8), argues that the level of mistrust within Government circles towards the Industry, plays a major role in the intensity of regulation. Standaert continues  by stating the following:
« The higher the degree of mistrust is clearly demonstrated by the treatment of the British Parliament of the industry in Northern Ireland as opposed to its treatment of the industry on the mainland.   In England and Wales, there is no regulation of the industry,  but in Northern Ireland,  Parliament has enacted restrictions upon who can enter the industry and it has enacted these restrictions under the Northern Ireland (Emergency Provisions) Act. »
In contradiction to this,Christianson(CromerPost:1980:26),states that the marketplace should be the place were the standards be determined. This implies that the regulatory standards should also be determined in the Industry .As stated earlier, comprehensive regulation implies that the standards are determined by Government.
As proposed by a number of individuals both within and outside of the Industry¹ , the future regulatory body should exclude the Industry.
Jenny Irish, Jenny Ibbotson and the Department of Safety and Security From own observations during Government discussions regarding the future regulation of the Industry² , it is clear that Government is not necessarily in the best position to determine the standards, as the expertise to regulate the Industry rarely exists outside the Industry. This does not imply that there are not legal experts to draft legislation on the behalf of Government. It is merely stated that an in-depth knowledge of the Industry is required to determine the minimum operational standards of the Industry.
Thus, in terms of setting standards in the marketplace, the obvious question which then arises is:  Does this  imply self-regulation, or is participation by the Industry in the regulatory authority sufficient?    In the South African context it is clear that the second option is the only viable one.

The objectives of regulating the Private Security Industry in South Africa

This is an attempt to answer one of the most prominent questions posed in the process of assessing the current legislation, and also when one needs to draft principles for a new  regulatory  framework.    The  questions  asked  are:   What are  the  objectives  of regulation? In other words, do we need to regulate the Industry for the purpose of protecting the public, to control the standards in the Industry, to determine national standards in the case of countries with a federal dispensation? Or do we need regulation to protect the traditional policing role of Government or the so-called The author formed part of the Inter-Departmental Working Group formed on request of the Cabinet to draft the principles for the regulation of the Private Security Industry national interest? These questions are fundamental  in determining  the approach towards the criteria of the new framework.
Standaert (1999:77), gives a very good indication of what the purpose of regulation should be, namely:
 » … there seems to be a universal concern with the two central concerns: the public safety and the improvement of the industry.These two goals  work together  in spiraling  (sic)   motion,  each  improving  upon each  other. » (Own italics).
Cromer Post (1980:26), supports the comments made by Standaert when she states the following
« In most cases regulations attempt to serve a two-fold purpose by protecting the public interest and reinforcing a positive, professional stance for the industry that enhances  its  growth   …   The  balance  is   normally  not  achieved  when Governmental bodies create and implement regulation for regulation sake ».
The second part of the statement made by Cromer Post, will be discussed in more detail when discussing the issue of the future composition of a regulatory body in Chapter Seven.    Cromer Post (1980:28),  sees an additional purpose of regulation, namely to create uniformity in the Industry. The uniformity she refers to is in terms of the different US State laws. The fact that South Africa is a unitary state, dissolved the potential  of this issue becoming a problem. Australia  and  the  United States are examples  of still having  a situation  where  they  do  not  have  national  legislation regulation the standards in the Industry³ •
The statement made by Standaert (1999:77), regarding the fact that public safety and improvement of the Industry should work together in motion, is very import, especially when one is establishing the basis for a new regulatory framework. The questions asked are: Does one need to legislate both objectives to ensure that they happen.Do you only legislate the standards in the Industry and thereby imply that it will protect the public? Does one legislate specific issues that will protect the public and in the South African case, leave the issue of standards to the relevant line-functional departments?
A decision should be taken on which principles  will  form  the premise of the new, regulatory framework before issues regarding the scope of regulation can be drafted.
According to Cunningham and Taylor (1985:228), in the well-known Hallcrest report:
« Some researchers  agree  that regulatory bodies  of various  industries  often represent a ‘problematic approach to solving social and economic transactions they   are   designed   to   improve’. However, the  economic  and social consequences of security personnel actions extend beyond simply the ‘business Australia and the United States are not unitary states and therefore the different states are allowed to set legislation to set their own standards.
transactions’ covered by the regulatory controls of most other industries ».
This point is reiterated by the Private Security Advisory Council to the Law Enforcement Assistance Administration (Cunningham and Taylor: 1985:229):
« In an occupation where error of judgement or incompetence can cause serious social and economic consequences, every effort need to be extended to embrace forceful remedies ».

CHAPTER ONE GENERAL ORIENTATION
1.1 Introduction
1.2 Regulation of private security as a subject of research
1.3 Objectives of researching the subject
1.4 The research rationale
1.5 Research demarcation
1.6 Research methodology
1.7 Research challenge: The role of perceptions
1.8 Definition of key concepts
1.9 Division of research chapters
1.10 Summary
CHAPTER TWO POLICING: A THEORETICAL OVERVIEW
2.1 Introduction
2.2 Historic overview of policing
2.3 Policing
2.4 The private security concept
2.5 Finding a balance between private and public police service
2.6 Summary
CHAPTER THREE STATE OF THE SOUTH AFRICAN PRIVATE SECURITY INDUSTRY
3.1 Introduction
3.2 The Truth and Reconciliation Commission
3.3 The period preceding the Security Officers’ Act (Act 92of1987)
3.4 The National Key Points Act (Act 102 of 1980)
3.5 The establishment of the Security Officers’ Board (SOB)
3.6 Establishment of the Security Officers’ Interim Board
3.7 Summary
CHAPTER FOUR THE REGULATION DEBATE
4.1 Introduction
4.2 The need for regulation
4.3 Does regulation lead to a better industry?
4.4 The objectives of regulating the Private Security Industry in South Africa
4.5 Regulatory legislation in foreign countries
4.6 Finding the balance in South Africa
4.7 The protection of the State’s interest
4.8 Regulation and the sovereignty of the State
4.9 Summary
CHAPTER FIVE THE SCOPE OF REGULATION
5 .1 Introduction
5 .2 Scope of regulation
5 .3 Regulating the electronic security industry
5 .4 The scope ofregulation in the manned guarding sector
5.5 Occupations not included in the guarding and electronic sector
5.6 Training institutions
5.7 Summary
CHAPTER SIX REGULATING THE PRIVATE INVESTIGATION SECTOR
6.1 Introduction
6.2 Defining the private investigator
6.3 Development of the investigation industry
6.4 South Africa’s private investigators
6.5 Reasons for growth in this sector
6.6 Regulating the private investigation sector
6. 7 Entrance requirements
6.8 Summary
CHAPTER SEVEN REGULATION: PROPOSED SCENARIOS
7.1 Introduction
7.2 Models for regulating the Industry
7.3 The Interim Board versus Government’s view on self-regulation
7.4 Government or Industry domination of the regulatory authority
7.5 An ideal regulatory authority for South Africa?
7.6 Model B (Fully Integrated Wide Model)
7. 7 Distribution of Industry representatives
7.8 Employer organisation representation
7.9 The issue of Government representation
7.10 Appointment ofBoard members
7.11 Regional representation
7.12 Selection of members from the community and consumers
7.13 Summary
CHAPTER EIGHT CONCLUSIONS AND RECOMMEND A TIO NS
8.1 Introduction
8.2 Conclusions
8.3 Recommendations
8.4 A model for South Africa?
8.5 Regulating the regulator?
8.6 Accountability
8.7 Final comments and further research
9. Bibliography
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REGULATION OF THE PRIVATE SECURITY INDUSTRY