Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
Prof PJ Visser has studied a number of issues related to South Africa’s vast and strategically important private security industry. One of these issues concerns the development of a legal framework to regulate the industry. Initially the private security industry was itself deeply involved in attempts to regulate it.
In 2000, however, the government reversed its policy in this regard and decided to exclude the security industry from any involvement. The study found that this decision was justified for a number of reasons.
First, the size and diversity of the industry precludes the possibility of assembling a truly representative body of industry stakeholders. Second, attempts at involving industry representatives tend to undermine the credibility of the regulator and provoke accusations of a conflict of interest.
It is concluded that the national and public interest can best be served by a body such as that provided for in the Private Security Industry Regulation Act 56 of 2001 – in other words, a body that is independent of the industry itself. Such a regulatory model is also more in accordance with international standards and examples.
In another study, Visser examined the legal barriers that prevent persons who were formerly employed in, for example, the South African Police Service and the National Intelligence Agency from entering the private security industry.
These prohibitions are embodied in the Private Security Industry Regulation Act 56 of 2001 and the Intelligence Services Act 65 of 2002 respectively and they are intended to lower the risk of corruption, the misuse of state intelligence and resources and criminal, unethical or undesirable co-operation between present and former members of the state's security apparatus.
After a critical examination of the relevant legal provisions, the study concludes that they are probably too wide-ranging, and that they should receive expert attention from the legislature to render them more sophisticated and realistic.
They should also be tested against various provisions in the Constitution, such as section 9 (right to equality), section 14 (right to privacy) and section 22 (right to choose occupation). Another bone of contention is legislation applicable to the private security industry regarding the issuing and possession of firearms. The Private Security Industry Regulatory Authority exercises stringent control over the possession, carrying, storage and use of firearms by private security officers.
The regulatory discipline enforced by the Authority is viewed as a bureaucratic nuisance by many who have to comply with all its rigorous procedures. It has also been argued that the State has legislated unreasonable measures regarding firearms that unconstitutionally limit the rights to life and to security of the person.
This argument is based on the premise that the fundamental right to life and the right to “security of the person” (embodied in sections 11 and 12 of the Constitution, respectively) allow people to take reasonable steps to protect their security and the security of others, and that “reasonable steps” include the lawful possession of firearms.
However, experience has demonstrated that the professional possession and use of firearms by private security officers may often lead to abuse, and that there are criminal elements that use security businesses merely as a pretext to obtain large numbers of firearms.
Visser examined actual and proposed legislation regarding better regulation of fire-arms. He came to the conclusion that the restrictions, procedures and conditions contained in this legislation represent important legal safeguards against possible abuses, and that they meet with the legal requirements spelled out in section 36 of the Constitution – namely, that any limitation of fundamental rights must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Prof PJ Visser
Private Law
+27 (0) 12 420 2343
visserpj@telkomsa.net
A case discussion was developed in which a judgement dealing with the legality of stopping and driving in the emergency lane of a highway was subjected to scrutiny. In the case in question, the defendant was being sued for damages after having parked in the emergency lane. The plaintiff had driven into the defendant’s vehicle from behind.
During the trial court, it was decided that the defendant had been negligent in stopping in the emergency lane while it was possible to park in the veld next to the highway.
The court of appeal, however, delivered a judgement that differed markedly from that of the trial court. It was ruled that negligence had been lacking on the defendant’s part, and the claim against him was dismissed.
The case discussion concluded that the difference in judgements by the court of appeal and the trial court can effectively be explained with reference to the different judges' interpretation of the facts and points of law.
The disparities in their respective interpretations can be ascribed to what the school of American realists would call “rule scepticism” (which entails doubt as to whether any legal rule really exists), “fact scepticism” (which holds that lawyer and client can never be sure as to which facts are beyond dispute, as the trial proceedings might always reveal that the facts are quite different) and “illusive factors” (factors such as the judge’s personal convictions, which may play an indirect role in influencing his or her judgements).
Prof TJ Scott
Private Law
+27 (0) 12 420 2307
johan.scott@up.ac.za
|
