Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, O'Regan J, Sachs J, Van Der Westhuizen J, Yacoob J and Kondile AJ
• Judgment Date: 12 December 2006
• Docket Number: CCT 39/06
• Hearing Date: 29 August 2006
• Counsel: P Kennedy SC (with A Katz and D Baguley) for the applicants. W Trengove SC (with S K Hassim) for the first to fourth respondents.
• Court: Constitutional Court

Kondile AJ:

Introduction G

[1] This application concerns the rights of refugees to work in the private security industry in South Africa. This industry is regulated by the Private Security Industry Regulation Act 56 of 2001 ('Security Act'). H The matter reaches this Court in the form of an application for leave to appeal against the judgment of Bosielo J in the Pretoria High Court.

[2] The first applicant is the Union of Refugee Women, a voluntary association acting in the interests of its members and in the interests of the class of people to whom the applicants belong. The second to I thirteenth applicants are refugees as defined in the Refugees Act 130 of 1998 ('Refugees Act'). [1]

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[3] A The first respondent is the Director of the Private Security Industry Regulatory Authority ('Authority') established in terms of s 2(1) of the Security Act. The second respondent is the Chairperson of the Private Security Industry Appeal Committee ('Appeal Committee') provided for in s 30 of the Security Act. [2] The third respondent is the Chairperson of the Council for the Private Security Industry Regulatory Authority B ('Council'). The Council was established in terms of s 5 of the Security Act. In terms of this section the Authority is governed and controlled by the Council. [3] The fourth respondent is the Minister of Safety and Security ('Minister'). In terms of s 11 of the Security Act, the Minister exercises overall supervision of the first respondent. [4] C

The legislative framework

[4] Section 20 of the Security Act says that no person may render a security service for reward unless he/she is registered as a security service provider in terms of the Act. Section 23(1) of the Security Act provides as follows: D

'Any natural person applying for registration in terms of s 21(1), may be registered as a security service provider if the applicant is a fit and proper person to render a security service, and -

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(a)

is a citizen of or has permanent resident status in South Africa; A

(b)

is at least 18 years of age;

(c)

has complied with the relevant training requirements prescribed for registration as a security service provider;

(d)

was not found guilty of an offence specified in the Schedule [5] within a period of 10 years immediately before the submission of the application to the Authority; B

(e)

was not found guilty of improper conduct in terms of this Act within a period of five years immediately before the submission of the application to the Authority;

(f)

submits a prescribed clearance certificate, together with such other information as the Authority may reasonably require, if the applicant is a former member of any official military, security, police or intelligence C force or service in South Africa or elsewhere;

(g)

is mentally sound;

(h)

is not currently employed in the Public Service in circumstances where such registration may conflict with a legislative provision applicable to the applicant;

(i)

has paid the relevant application fee; and D

(j)

is not a person referred to in ss (5).' [6]

(Footnotes added.)

[5] In terms of s 23(2) of the Security Act:

'A security business applying for registration as a security service provider in E

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terms A of s 21(1), may be so registered only if -

(a)

every natural person referred to in s 20(2) complies with the requirements of ss (1) and is not an unrehabilitated insolvent; and

(b)

such security business meets the prescribed requirements in respect of the infrastructure and capacity necessary to render a security service.'

[6] Section 23(6) of the Security Act, however, provides: B

'Despite the provisions of ss (1) and (2), the Authority may on good cause shown and on grounds which are not in conflict with the purpose of this Act and the objects of the Authority, register any applicant as a security service provider.'

Relevant facts C

[7] All the applicants except the first applicant applied to the Authority, in terms of s 21 of the Security Act, [7] to be registered as security service providers.

Second to sixth applicants D

[8] The second to sixth applicants were initially registered by the Authority as security service providers. On 20 December 2002, however, they all received notice of intention to withdraw their registration in terms of s 26(4)(c) of the Security Act [8] on the basis that they were granted registration in error inasmuch as they are neither citizens nor permanent residents of South Africa. E

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[9] The notice also contained an invitation to them to provide the A Authority with all relevant information as to why, despite the requirements of s 23(1)(a) not having been met, the Authority should not withdraw their registration. The written representations had to be made within 21 days.

[10] The second and fifth applicants' attorneys sent written submissions B to the Authority, in essence stating that a person who is neither a citizen nor a permanent resident of South Africa may be registered as a security service provider under the Security Act in the light of the wording of s 23(6) of the Security Act.

[11] In March 2003 the Authority replied to the second and fifth C applicants and advised that their written representations had been unsuccessful. At the same time the Authority formally withdrew the registration of the second to sixth applicants as security service providers.

[12] In June/July 2003 the second to fourth applicants appealed to the D Appeal Committee against the decisions of the Authority on the grounds that the Authority, in finding s 23(1) to be the sole reason not to maintain registration, committed an error of law and its decisions amount to irrational and unlawful administrative action. It was also contended that the decisions take no account of the provisions of s 23(6) of the Security Act or the Constitution of the Republic of South Africa, 1996, and in so doing E unfairly and unjustifiably violate the applicants' rights to equality, non-discrimination and dignity. Further that the decisions are inconsistent with the Constitution and accordingly invalid. The point was also taken that the requirements for registration set by s 23(1)(a) when read together with s 23(6) allow the Authority to maintain the registration of these applicants F as security service providers despite their being neither citizens nor permanent residents. The fifth and sixth applicants did not appeal.

[13] On 20 September 2003 the second to fourth applicants were advised that their appeals had been dismissed. The reasons given by the Appeal Committee were that it was common cause that the Authority G had made an error in registering these applicants. They also found that these applicants, notwithstanding the fact that they had been given an opportunity to do so, had failed to show good cause, and on grounds which are not in conflict with the purpose of the Security Act and the objects of the Authority, why they should be registered. They therefore had failed to justify the application of s 23(6). H

Seventh to thirteenth applicants

[14] The seventh to thirteenth applicants all applied to be registered as security service providers. The Authority advised that they had been rejected on the basis that they were neither citizens nor permanent I residents of South Africa.

[15] The applications of the twelfth and thirteenth applicants were each supported by an affidavit which can be summarised as follows: the applicants are recognised refugees in terms of s 24 of the Refugees Act. They are aware of the requirements of s 23(1)(a) and 23(6) of the J

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Security A Act, and reg 2(2)(b), 2(2)(c) and 2(6) made under the Security Act. They are unable to provide police or official criminal record clearance certificates from the Democratic Republic of Congo and Burundi embassies in South Africa, respectively, as the officials at those embassies would not be able to render unbiased information. The officials are not trustworthy. Neither of the applicants had been found B guilty of any offence specified in the Schedule nor had they been found guilty of improper conduct, nor had they been members of any national military, security, police or intelligence force or service, nor had they been employees of any of the national security services.

[16] The seventh to eleventh applicants lodged appeals to the Appeal C Committee on grounds similar to those advanced by the second to fourth applicants. These appeals were dismissed for reasons similar to those furnished to the second to fourth applicants. The twelfth and thirteenth applicants did not appeal the decision of the Authority.

Decision of the High Court D

[17] The applicants approached the High Court and sought to review and set aside the decisions of the Authority and the Appeal Committee. In the alternative they sought an order declaring s 23(1)(a) of the Security Act to be inconsistent with the Constitution and invalid. Their E application was dismissed with costs.

[18] The High Court held that s 23(1)(a) does indeed grant South African citizens and permanent residents preferential treatment, but it emphasised that this section cannot be read in isolation. It thus reached the conclusion that s 23(1)(a) was sufficiently tempered by s 23(6) to F render it constitutionally compliant. Reflecting on the rationale for s 23(1)(a), the High Court held that:

'It is understandable, in my view, that due to the high level of trust required by . . . private security officers, there must be some strict criteria as to who can qualify for such positions so as to exclude undesirable persons.' [9]

[19] G Although it expressed sympathy for the plight of refugees, particularly given their vulnerable position in society, the High Court was...