Zuma should refer PSIRA Bill back to parliament - Kohler Barnard

DA MP says legislation is an unconstitutional disaster, which will deter investment in SA

DA petitions President Zuma over PSIRA Bill 

The DA has petitioned President Jacob Zuma to refer the controversial Private Security Industry Regulatory Authority (PSIRA) Amendment Bill - which was pushed through by President Zuma's ANC - to the National Assembly in accordance to Section 79 of the Constitution. 

The PSIRA Amendment Bill is a disaster. It is unconstitutional. It will deter investment in South Africa, causing job losses. And the closure of many private security companies will add further pressure on an already over-burdened South African Police Service (SAPS). In short, crime will soar and jobs will be lost. 

This Bill cannot be passed into law, hence the urgent need for our petition.

Our petition outlines three key concerns: it is in contravention of the Bill of Rights; is in violation of international obligations; and has other constitutional concerns.

Bill of Rights

The Bill states that private security companies must have "at least" 51% of ownership and control exercised by South African citizens.

This is an infringement on at least two sections of the Bill of Rights:

It infringes on the right to equality in section 9, which provides that "everyone is equal before the law and has the right to equal protection and benefit of the law".

The second provision of the Bill of Rights that is infringed is s25. By providing that a security company may only be registered if at least 51% of the ownership and control is exercised by South African citizens, the Bill will affect existing security companies when they have to renew their registration as provided for in s22 of the main Act. This amounts to de facto expropriation, as was stated by several organisations which made public submissions on the Bill, and an arbitrary deprivation of property.

According to the Constitution, property may only be expropriated, for a public purpose or in the public interest, and subject to compensation agreed to or determined by a court.

International obligations

It was pointed out by several organisations which made submissions on the Bill that it contravenes international trade agreements such as the World Trade Organisation General Agreement on Trade in Services (GATS) and the EU and SA Trade, Development and Co-operation Agreement (TDCA). Section 20(2)(c) of the Bill will violate South Africa's agreement under GATS in that it will impose less favourable terms on those foreign companies involved in the security industry than on their domestic competitors. 

Section 233 of the Constitution requires courts to interpret legislation so that it is consistent with international law. The Bill as it stands will make such interpretation impossible because the Bill is contradictory to our international obligations. This is clearly unconstitutional and unlawful.

Other constitutional concerns

According to Section 237 of the Constitution, the National Assembly has an obligation to legislate diligently. 

This was not done. 

The Bill was introduced to the Police Portfolio Committee in October 2012. In November 2012 it was concluded that the Private Security Industry Regulatory Authority had not consulted the relevant stakeholders regarding the expropriation clause. The clause was thus removed and deliberations continued. Then on the very last day in 2013 when the Committee met for clause by clause voting, clause 20(2)(c) had been reinserted into the Bill by the Chairperson and the Secretary of Police without the Committee having discussed the matter or agreeing to such a reinsertion of the clause. The Bill was brought back to the Committee in January 2014 and reprocessed. The DA objected vehemently.

The ramifications of this Bill being signed into law has disastrous consequences for South Africa and our population. 

There is a reason why this is a R50 billion industry - private security companies are essential in the fight against crime. Private security companies free up capacity for the South African Police Service (SAPS) to focus on areas where violent crime is at its highest, and in communities which cannot afford private security at all. If private security firms leave, and some will after this Bill is passed, there will be more demand on an already over-stretched SAPS. In the end it will be the communities with the highest rates of crime that will feel the brunt.

There is also the question of jobs. If this Bill is passed into law, investor confidence will be harmed. Jobs will be lost as investment in South Africa will decrease due to this expropriation clause. 

This Bill tells the story of a government that is not committed to either job creation or the fight against crime. 

President Zuma must show that he is committed to ensuring the safety of South Africans. He must show he is committed to job creation. The President must send this Bill back to the National Assembly. 

Statement issued by Dianne Kohler Barnard MP, DA Shadow Minister of Police, March 13 2014

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