The Private Security Industry Regulation Act 56 of 2001. The - - PowerPoint PPT Presentation

 Introduction.  The Key Regulatory Framework.  The Private Security Industry Regulation Act 56 of 2001.  The Constitution of the Republic of South Africa, 1996.  The South African Police Service Act 68 of 1995.  The Criminal Procedure Act 51 of 1977.  The basic principles of private defence (self-defence)  Limitations on the powers of members attached to Neighbourhood Watches.  Operational functions of members attached to Neighbourhood Watches.  Conclusion.  Questions and answers.

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 Any partnership established in a Police Station area that involves safety and security related matters, must be coordinated by members attached to the South African Police Service.  A Neighbourhood Watch is a structure for community involvement in policing.  Operational functions of members attached to a Neighbourhood Watch are community orientated activities supported by members attached to the South African Police Service with the aim to prevent crime.

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 Based on the assumption of partnership-policing and collective responsibilities to prevent crime, the following legislation and policies must be adhered to:  The Private Security Industry Regulation Act 56 of 2001;  The Constitution of the Republic of South Africa, 1996;  The South African Police Service Act 68 of 1995;  The Criminal Procedure Act 51 of 1977;  The Merchandise Act 17 of 1941;  The Heraldry Act 18 of 1962;  The National Road Traffic Act 93 of 1996;  The Firearms Control Act 60 of 2000;  Common Law principles applicable to private defence;  National Instruction 3/2013 regulating Sector Policing.

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 Private Security refers to those efforts by individuals and

• rganisations to protect assets from loss, harm or reduction in value,

due to criminality.  The Private Security Industry Regulations Act, places an obligation on any person, natural or legal, to be registered with the Private Security Industry Regulatory Authority (PSIRA) as a Security Service Provider when they are rendering any Security Service for remuneration, reward, fee or benefit.  A Neighbourhood Watch whereby local residents co-ordinate themselves to patrol and to protect their property, may approach PSIRA in writing and apply for exemption from the provisions of the Private Security Industry Regulation Act.

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 However, a Neighbourhood Watch duly established, recognised as a local Community Crime Prevention Structure, registered with the local Community Police Forum and who comply with the limitations as far as their powers are concerned, is not under an obligation to register with PSIRA.  A local Community Crime Prevention Structure such as a Neighbourhood Watch, is not a recognised legal entity and does not have legal competence to institute or defend a lawsuit.  Members of a Neighbourhood Watch act in their own capacity as individuals and will be liable in that capacity.

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 The Constitution of the Republic of South Africa, 1996 contains a Bill

• f Rights that, amongst others, promotes human dignity, equality,

freedom and privacy.  A distinct feature of the Constitution of the Republic of South Africa, 1996 is therefore the inclusion of a Bill of Rights that entrenches the fundamental rights of every person.  Members attached to a Neighbourhood Watch must, as members of the community, respect the human rights of everyone at all times in their area of jurisdiction as set out in the Constitution of the Republic

• f South Africa, 1996. The area of jurisdiction of a Neighbourhood

Watch is defined as a specific, predetermined and demarcated residential or industrial area within the boundaries of a Municipality, which may include the Central Business District of a particular Municipality.

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 Section 13 of the South African Police Service Act deals with the powers, duties and functions of members of the South African Police Service.  Section 48 of the South African Police Service Act regulates the appointment of Reservists.  A Reservist appointed under Section 48 of the South African Police Act, has the same powers as a member of the South African Police Service, such as the power to affect an arrest; to conduct search and seizure operations and to investigate offences.  A Reservist appointed under Section 48 of the South African Police Service Act, receives, amongst others, training in firearms; legal aspects; basic Police functions and relevant and applicable legislation.

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 A member attached to a local Community Crime Prevention Structure, such as a Neighbourhood Watch, who is not an appointed Reservist, has limited powers.  This means that an ordinary member of the Neighbourhood Watch who is not an appointed Reservist, may act only within the powers conferred on or assigned to a normal citizen by legislation and the common law.  However, this may only be exercised subject to the Constitution and with due regard to the fundamental rights of every person.  Although a citizen’s arrest is allowed in certain situations (limited arresting powers), members attached to the South African Police Service are still the

• nly designated persons with legal power to perform law enforcement

functions and duties.  Members attached to a Neighbourhood Watch, do not have special policing powers.  In carrying out a citizen’s arrest, the requirements as set out in the relevant sections of the Criminal Procedure Act 51 of 1977, must be complied with.

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 General remarks  The Criminal Procedure Act contain strict conditions and provisions relating to the arrest of an individual, and failing to comply with these provisions, may result in an arrest being unlawful.  If this is the case, the person who effected the arrest, may be guilty of a criminal offence which may render him or her liable.  Powers of members attached to a Neighbourhood Watch  As a general rule, the purpose of arrest must therefore be to bring the accused person before a Court so that he/she can be tried for the charge that has been brought against him/her.  Arrest is one of the methods in which the accused person’s presence can be secured in Court for the purposes of a trial.

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 Section 42 of the Criminal Procedure Act sets out the instances in which a private person, such as a member of a Neighbourhood Watch, may arrest someone without a Warrant of Arrest.  Section 42 of the Criminal Procedure Act stipulates as follows: (1) Any private person may, without warrant, arrest any person- (a) who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule 1; (b) whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence; (c) whom he is by any law authorized to arrest without warrant in respect

• f any offence specified in that law;

(d) whom he sees engaged in an affray. (2) Any private person who may without warrant arrest any person under subsection (1) (a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein. (3) The owner, lawful occupier or person in charge of property on or in respect

• f which any person is found committing any offence, and any person

authorized thereto by such owner, occupier or person in charge, may without warrant, arrest the person so found.

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 Section 47 of the Criminal Procedure Act sets out the instances in which a private person, such as a member of a Neighbourhood Watch, are under an obligation to assist a Police Official in arresting a suspected person and detaining that arrested person.  Section 47 of the Criminal Procedure Act stipulates as as follows: (1) Every male inhabitant of the Republic of an age not below 16 and not exceeding 60 years shall, when called upon by any police official to do so, assist such police official- (a) in arresting any person; (b) in detaining any person so arrested. (2) Any person who, without sufficient cause, fails to assist a police

• fficial as provided in subsection (1), shall be guilty of an
• ffence and liable on conviction to a fine not exceeding R300 or

to imprisonment for a period not exceeding three months.

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 Section 39 of the Criminal Procedure Act deals with the methods and effect of arrest, and stipulates as follows: (1) An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body. (2) The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested, hand him a copy of the warrant. (3) The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.

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 “Lawful arrest” therefore has five requirements. (a) The arrest must be duly authorised. (b) The person being arrested must be taken into custody physically. (c) The arrested person must be informed of the reason for the arrest. (d) The arrested person must be taken to the prescribed authority as soon as possible. (e) The rights of the arrested and detained person as stipulated in Section 35(1) and (2) must be explained to him/her, in a language that he/she understands.

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 Section 48 of the Criminal Procedure Act deals with the breaking open

• f premises for purpose of affecting an arrest, and stipulates as follows:

Any person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he first audibly demands entry into such premises and notifies the purpose for which he seeks entry and fails to gain entry, break open, enter and search such premises for the purpose of effecting the arrest.  “Lawful entering” therefore has three requirements: (a) Entry to the premises must be demanded audibly. (b) The purpose for which entry is required must be announced. (c) Only if entry is refused or cannot be obtained, may the premises be broken open, entered and searched in order to execute the arrest.

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 Section 49 of the Criminal Procedure Act deals with the use of force in effecting an arrest.  The following basic requirements are important for members attached to Neighbourhood Watches: (a) The suspected person must have committed an offence. (b) The arrester must be lawfully entitled to arrest the suspected person. (c) The arrester must attempt to arrest the suspected person. (d) The arrester must have the intention to arrest the suspected person and not to punish him. (e) The offender must attempt to escape by fleeing or offering resistance. (f) The suspected person must be aware that an attempt is being made to arrest him and must in some way be informed of the intention, and continue to flee or resit the attempted arrest, despite being aware thereof. (g) There must be no other reasonable means available to effect the arrest

• f the suspected person.

(h) The degree or force that may be used in order to effect the arrest, must be reasonably necessary and proportional in all the circumstances. (i) The force used must be directed at the suspected person.

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 Additional areas of concerns as decided in S v Walters and Another 2002(4) SA 613 (CC) (a) The purpose of arrest is to bring before Court for trial persons suspected of having committed offences. (b) Arrest is not the only means of achieving this purpose, nor always the best means of doing so. (c) Arrest may never be used to punish a suspect. (d) Where arrest is called for, force may be used only when it is necessary in order to carry out the arrest. (e) Where force is necessary, only the least degree of force reasonably necessary in order to carry out the arrest, may be used. (f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspected person poses to the arrestor or others, and the nature and circumstances of the offence the suspected person is suspected of having committed. (g) Shooting a suspected person in order to carry out an arrest, is permitted in very limited circumstances only.

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(h) Ordinarily shooting of a suspected person is not permitted, unless the suspected person poses a threat of violence to the arrestor or others, or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm, and there are not other reasonable means of carrying out the arrest, whether at that time or later. (i) These limitations in no way detract from the rights of an arrestor attempting to carry out an arrest, to kill a suspected person in self- defence or in defence of another person.  The power to search an arrested person and the subsequent seizure of an article found in the possession of an arrested person Section 23 of the Criminal Procedure Act deals with the search of arrested persons and the seizure of articles.

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Section 23 of the Criminal Procedure Act stipulates as follows: (1) On the arrest of any person, the person making the arrest may- (a) if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official; or (b) if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police

• fficial.

(2) On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which may be used to cause bodily harm to himself or others. Section 20 of the Criminal Procedure Act regulates, amongst others, the seizure of anything concerned in the commission of an offence, anything which may afford evidence of the commission of an offence, or anything which is intended to be used in the commission of an offence.

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 Definition  Private- or self-defence is a ground of justification upon which a person can rely if he protects his own or another person’s interests against an unlawful attack which has commenced or is imminent at the time he protects the interests.  General principles  A person act in private defence if he defend himself or somebody against an unlawful attack on life; limb; property or dignity.  A person who acts in private defence, acts lawfully although his act may appear to be contrary to law, provided that he complies with the requirements for private defence laid down by law.  Private defence is therefore a ground of justification.

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 The requirements of private defence  Requirements of the attack launched by the suspected person (a) The attack must be unlawful and must emanate from a human being. (b) The attack must be directed at an interest that is protected by law (legal interest). (c) The attack must have commenced or be immediately threatening (imminent). (d) The attack may consist in a positive act or an omission.  Requirements for the act of defence launched by the person claiming the defence (a) The act of defence must be directed against the attacker. (b) The defence must be necessary to protect the interest threatened. (c) The defence may not be more harmful than necessary to ward

• ff

the attack (reasonable and proportional in the circumstances). (d) The person attacked must be aware of the fact that he is acting in private defence.

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 The use of an emblem materially resembling an emblem of the South African Police Service is prohibited by Section 66(1) of the South African Police Service Act 68 of 1995; Section 14 of the Merchandise Act 17 of 1941 and the provisions of the Heraldry Act 18 of 1962.  The use of any rotating/reflecting light of any colour on a private vehicle for the purpose of visibility during patrols and the use of amber, blue, green and red lamps emitting an intermittently-flashing light on unauthorised motor vehicles, is prohibited by Regulation 176

• f the National Road Traffic Act 93 of 1996.

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 The use or wear of the South African Police Service uniform, pieces thereof or insignia in any way, is prohibited in terms of the provisions of the South African Police Service Act.  The masquerading and false representation as being a member of the South African Police Service, is prohibited in terms of Section 68 of the South African Police Service Act.  The interference with members of the South African Police Service in the exercising or performance of his/her duties, is prohibited in terms of Section 67 of the South African Police Service Act.  The participation in crime prevention operations and activities such as Stop-and-Search Operations; vehicle patrol duties; roadblocks; checkpoints; shebeen-raidings; investigation duties; visits to licensed liquor outlets etcetera, is prohibited in terms of various provisions of the Criminal Procedure Act and the South African Police Service Act and such activities may only be executed and conducted by trained Police Officials attached to the South African Police Service.

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 The utilization, in any manner, of a Police vehicle by any member attached to a Neighbourhood Watch, is strictly prohibited in terms of the provisions of the South African Police Service Act.  The supply and distribution of any official equipment to any member attached to a Neighbourhood Watch, is prohibited in terms of the provisions of the South African Police Service Act.  A member attached to a Neighbourhood Watch has no power of command and control over the South African Police Service as an Organisation or any member employed by the South African Police Service.  A member attached to a Neighbourhood Watch may wear an approved reflector jacket as approved and prescribed by the Community Police Forum and in consultation with the relevant and applicable Police Sector Commander, to be identifiable as a member of a particular Neighbourhood Watch.

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 The following traditional operational functions are encouraged and should be performed by members attached to a Neighbourhood Watch.  Become the eyes and ears of the South African Police Service.  If the need arises, carry out a lawful citizen’s arrest in terms of Section 39 and 42 of the Criminal Procedure Act.  If the need arises, assist a Police Official in arresting a suspected person in terms of Section 47 of the Criminal Procedure Act.  Conduct and perform observation patrol duties that will serve as a crime deterrent. Members are conducting these duties at their

• wn risk without Police being present and/or Police escorting

them.  Embark on campaigns whereby individual property is marked and registered with appropriate serial numbers captured on a centralised electronic database.

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 Gather information/intelligence that may assist the South African Police Service in additional crime prevention initiatives.  Preserve crime scenes for investigation purposes and observe and report solvability factors such as witnesses to a crime; knowledge of a suspect’s name; location of stolen property and descriptions that identifies the vehicles used by suspected persons.  Reduce opportunities for criminals to commit crime.  Facilitate good relations in the neighbourhood and in the community.  Render a voluntary, unpaid and non-vigilante service to the community.  Report crime and suspicious activities to the South African Police Service.  Create crime prevention awareness and home security among community members and in the neighbourhood.  Promote basic traffic- and pedestrian safety principles in the community.  Maintain and promote good relationships with domestic workers and neighbours and establish channels for the flow of information.

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 Every empowering provision stipulates in the Criminal Procedure Act should be read and carefully executed in the light of the provisions of the Constitution.  Since the majority of the empowering provisions confer only a discretion to act, members attached to Neighbourhood Watches should consider the impact of their powers on individuals.  Focus on operational functions that will promote co-operation between the South African Police Service and the community at large in fulfilling the needs of the community regarding policing.

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HARTBEESPOORTDAM COMMUNITY POLICING FORUM