Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
• Judgment Date: 07 May 2009
• Citation: 2010 (2) SA 181 (CC)
• Docket Number: CCT 77/08
• Hearing Date: 04 November 2008
• Counsel: JL van der Merwe SC (with LB van Wyk) for the applicants. JH Dreyer SC and BR Tokota SC for the first and fifth respondents.
• Court: Constitutional Court

Mokgoro J:

[1] This matter has been referred to this court by the North Gauteng High Court (the High Court), previously known as the Pretoria High Court. It concerns the interpretation of ss 20(1)(a) and 28 of the Private E Security Industry Regulation Act (the Act) [1] as it relates to employers using their own staff as private security service providers to protect the employers and their property and premises. Specifically, the declaration of invalidity of certain parts of s 28 has been referred to this court for confirmation. Additionally, the applicants appeal directly against the High Court's interpretation of s 20(1)(a) of the Act and its consequent refusal to declare s 20(1)(a) unconstitutional and invalid. [2] F

The parties

[2] The first applicant is Bertie Van Zyl (Pty) Ltd, a large farming company that grows approximately 30% of the tomatoes marketed in the G country. The company employs over 6000 employees across a number of farms in the Limpopo Province, with some of these farms up to 250 km apart. The second applicant is Montina Boerdery (Pty) Ltd, also operating a farming enterprise in the Province of Limpopo, and employing about 2000 workers.

[3] The first respondent is the Minister for Safety and Security, the H Minister responsible for the impugned legislation. The second to fourth respondents are the National Commissioner of the South African Police Service (the SAPS), the Limpopo Provincial Commissioner of the SAPS,

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A and Captain Malapo of the Monitoring and Auditing Team of the SAPS, respectively. The fifth respondent is the Private Security Industry Regulatory Authority (the Authority), a statutory body established by s 2 of the Act to regulate the private security industry.

B [4] Only the first and fifth respondents are involved in the appeal against the order of constitutional invalidity and the costs order of the High Court.

Facts

C [5] The applicants run significant farming enterprises in the Limpopo Province. Given their sizeable assets and the extent of their operations, they have been the target of criminals. Theft of motor vehicles, other equipment and cash have been most common.

[6] As a result, the applicants employed some of their general workforce D as security personnel. These employees work as security guards from time to time when needed, and their work includes operating access-control booms and patrolling the premises. The security guards of the first applicant are uniformed and, although the guards of the second applicant are not, they are known on its premises as security guards. E These security guards are unarmed and the SAPS are contacted in cases of emergency. The High Court noted as common cause that -

'included in the duties of some of the applicants' employees is the specific (as opposed to an inherent and general) responsibility to safeguard the applicants' premises, property, operations and even to F protect their fellow employees.' [3] [Footnote omitted.]

[7] In terms of s 20(1)(a) of the Act, only registered security service providers may perform security services. [4] The second to fourth respondents, viewing the security guards of the applicants as well as the managers G in charge of supervising security for the applicants, as unregistered security officers under the Act, arrested some of them.

[8] After their release on bail, the fourth respondent, Captain Malapo, continued to harass and repeatedly threaten the applicants with further arrests of all their directors and/or partners, including the farm workers H employed by them as security guards. After the first applicant had successfully interdicted the respondents against further arrests, the second applicant continued to be subjected to similar treatment by

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Captain Malapo. This incorrigible conduct created particular A operational difficulties for the applicants and their employees. [5]

[9] Discussions between the applicants and Captain Malapo failed to resolve these difficulties. Consequently, the applicants launched proceedings in the High Court seeking a declaration that the Act is not applicable to them and their farm workers. Alternatively, they sought a B declaration that the Act or its relevant provisions, insofar as they were applicable to them, were overbroad and therefore unconstitutional and invalid.

[10] The High Court, per Satchwell J, held that s 20(1)(a), if read C contextually and restrictively, was not unconstitutionally overbroad. However, she also held that the provisions of s 28, which extend the Code to cover in-house security personnel and their employers, were an unnecessary and unconstitutional expansion. [6] She severed from the section all reference to in-house security personnel and employers, and ordered costs against the respondents. D

[11] The first and second applicants filed an application seeking confirmation of the order of the High Court declaring portions of s 28(2) and s 28(3)(b) of the Act unconstitutional and invalid. The first and fifth respondents filed an appeal against this order of constitutional invalidity and the costs order made in the High Court. E

[12] The first applicant filed an application seeking leave to appeal directly to this court against the High Court's ruling on s 20(1)(a) of the Act, and condonation for late filing of this application. A similar application was filed by the second applicant. In these applications the applicants sought to challenge the constitutionality of s 20(1)(a) of the F Act on the same basis as they had in the High Court.

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Condonation A

[13] The application for condonation relates only to the applicants' application for leave to appeal against the High Court's order regarding s 20(1)(a). The first applicant lodged its condonation application about B one month late. The second applicant, who filed its application for leave to appeal even later, gives no reasons for the delay other than that it was 'unfortunately impossible' for it to attend the consultation with the applicants' counsel on 17 October 2008. [7] This despite the second applicant's submission that it has 'always been unhappy with the finding of the High Court'. There is no explanation for why there was no attempt C at an earlier filing. The limited justifications for late filing offered by the applicants are inadequate and, generally, would militate against granting condonation.

[14] However, in determining whether condonation may be granted, D lateness is not the only consideration. The test for condonation is whether it is in the interests of justice to grant condonation. [8] In this case the interpretation of s 28 is already before us for confirmation. The questions relating to s 20(1)(a) raise similar interpretative questions. Furthermore, the lateness of the applications does not appear to have E caused substantial prejudice to the respondents, who do not oppose the condonation application. The respondents are already familiar with the issues articulated in the court a quo. More importantly, for purposes of legal certainty it is opportune to resolve the question of the proper construction of s 20(1)(a) with a view to settling the dispute between the parties. For these reasons, condonation is granted in the interests of F justice.

The issues

[15] There are two major issues to resolve. First is the constitutionality G of s 20(1)(a) of the Act. I refer to this as the 's 20(1)(a) issue'. Second is the constitutionality of s 28 of the Act, and in that regard, determining whether the High Court was correct in finding that the regulation of

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employers of in-house security is not rationally related to a legitimate A government purpose. I refer to this issue as the 's 28 issue'. [9]

The s 20(1)(a) issue

[16] The applicants' contention is that the definition of 'security service' in the Act is overbroad in that it encompasses almost all employees in B almost all industries, requiring them to register, and therefore be regulated under the Act, as security service providers. [10] The High Court's interpretation of s 20(1)(a), they submit, is also impractical in that it brings countless other people who do not in the true sense provide security services into the ambit of the Act, including, for example, child minders who protect and safeguard their wards, requiring them to C register as security service providers. [11] They contend that s 20(1)(a) is therefore overbroad and irrational, violating the rule of law enshrined in s 1 of the Constitution. It must thus be declared unconstitutional and invalid, and be set aside.

[17] In the alternative the applicants argue that, assuming that the High D Court was correct in its construction of s 20(1)(a), that interpretation is not obvious from the plain reading of the Act. The meaning given by the High Court, they conclude, violates the rule of law, which requires that legislation be stated in reasonably clear terms. This, they argue, is particularly true when the provision in question creates a criminal E offence.

[18] Relying on the preamble and other relevant provisions of the Act to provide legislative context, the High Court read s 20(1)(a) as applying only to people in the private security industry, and excluded in-house security from the reach of the Act. The respondents supported the F decision of the High Court, contending that that interpretation would indeed restrict the application of the Act and save it from overbreadth.

[19] The question facing this court is whether, properly construed, s 20(1)(a) passes constitutional muster. The appropriate place to begin is with the constitutional and jurisprudential principles that govern the G task of statutory interpretation before us.

The relevant statutory interpretation principles

[20] The Constitution requires courts...