Private Security: a law unto themselves?

Over the last few years this industry has drawn public attention, but not always for positive reasons. Images, for example, of security guards beating an elderly lady (suspected of shoplifting) in the back of a store have created a negative impression of the industry. Recent news reports of shootings by security guards have also raised concerns over gun violence and its link to the industry.

It is alarming that many media articles of shootings by private security guards reported that guards were using their personal firearms. The security industry is regulated by the Private Security Industry Regulatory Authority (PSIRA). PSIRA regulations forbid guards from using their own personal firearms while on duty. In 2012 PRISA investigated 106 armed security guards; it found that 19% of them were using their own personal firearms and at least 12% did not have proper training to use them. This is concerning because it increases the risk of injury or death because of improper use of the firearm. It is also a violation of the Firearms Control Act, which stipulates that a firearm can only be issued once the person has received proper training and been issued a competency certificate.

The prevalence of firearms and a lack of proper regulation within the industry are even more worrying when considering the concurrent evidence of criminality. According to PSIRA, 240 criminal cases were reported against members of the industry last year, and 771 cases were still outstanding.

There is currently no publicly available data about when a firearm is discharged by a guard, or on injuries or deaths because of the actions of security guards. By contrast, the police are required to make this information available to the Independent Police Investigative Directorate (IPID), which publishes it annually. Private security guards are increasingly required to perform policing functions, such as making arrests or searching people. This significantly increases their interaction with the public and increases the risk that negligent behaviour will cause injury to members of the public. Therefore, a strong argument can be made for this data to be made publicly available.

Another concern is the possible diversion of firearms from the industry to criminal entities. In a 2003 parliamentary hearing, Eugene Vilakazi (then Director of PSIRA) stated that, because of capacity constraints, firearm licenses are not always cancelled when private security companies de-register. He said that in some cases companies intentionally register and then deregister to obtain licensed firearms.

The Firearms Control Act requires companies that deregister as security providers to inform the Central Firearms Registry of all its firearms and how it will dispose of them. If it fails to do so within ninety days, the police are supposed to confiscate and destroy the firearms. Tracking of firearms was raised in parliamentary questions in 2006 and 2010. Firearms are still slipping through the cracks when companies deregister. No data is currently being made available on the number of firearms being diverted from the private security industry. However, the 2008 Small Arms Survey reported that the loss and theft of firearms from the private security industry is a significant source of firearms for the criminal sector.

The Private Security Industry Regulation Act puts the obligation on PSIRA to make security companies comply with legislation and PSIRA regulations through “active monitoring and investigation.” However, PSIRA itself has serious financial difficulties that constrict its capacity to investigate and monitor security providers. They currently do not receive parliamentary funding, and the revenue comes primarily from annual fees. However, although PSIRA ran deficits of R24 million and R9 million in 2011 and 2012 respectively, the management have consistently given themselves annual pay rises significantly above the rate of inflation. The Director of PSIRA currently earns approximately R120,000 per month, while operational investigators earn approximately R24,000 per month.

These and other factors led parliament to raise serious concerns over wasteful expenditure. In parliamentary hearings in November, the Police Portfolio Committee insisted that PSIRA withdraw its 2011/2012 Annual Report to correct false financial information and agreed to refer PSIRA’s financial situation to SCOPA.

The Private Security Industry Regulation Amendment Bill is currently being tabled in Parliament. This bill should be debated as soon as possible. Although some of the proposed amendments (such as limiting foreign ownership of security providers to 49%) have received widespread criticism, it provides an opportunity to meaningfully develop and enhance regulation in the industry:

The bill would increase the oversight of the Minister of Police over PSIRA by, among other things, requiring that it report to the Minister quarterly.

It would also require the Central Firearm Registry to keep a database of every firearm issued to security providers, which would assist PSIRA to track firearms.

To promote financial accountability, the bill also requires that the annual financial statements be audited by the Auditor-General, and included in the Annual Report.

The private security industry is incredibly well resourced. However, in order for it to promote safety and security, rather than fuelling violence, it must be reformed. The industry must be held accountable to the Constitution, law and PSIRA regulations.

Private security companies, unlike most other private entities, are asked to perform functions that are traditionally within the realm of public services like the police. These actions include making arrests, crowd control, conducting searches and even investigating crime. Increased contact with the public creates more risks of abuse and violence. Private companies are not subject to the same level of oversight or reporting requirements as public entities. Therefore, there are significant risks when delegating policing powers to these companies. When these companies are asked to exercise policing powers, they should be held to the same level of accountability as the police.

Security companies should be required to report misconduct, the number of firearms in their possession, when a firearm is discharged, actions of security guards that lead to death or injury and any other statistics that will assist in ensuring better oversight of the industry. The amendment bill is the first step in this process. Civil society, members of the public and all other interested stakeholders should put pressure on Parliament to push for greater accountability in the private security industry.

Craig Oosthuizen is a researcher for Ndifuna Ukwazi and the secretary for the Campaign for Safe Communities. You can follow him on Twitter @cjoosty.