‘A security (officer) may not infringe any right of a person as provided for in the Bill of Rights and… may not … enter premises, conduct a search, seize property, arrest, detain, restrain, interrogate, delay, threaten, injure or cause the death of any person, demand information or documentation from any person, or infringe the privacy of the communications of any person, unless such conduct is reasonably necessary in the circumstances and is permitted in terms of law.’ Reg 8(2) Code of Conduct for Security Service Providers, 2003.
What is the Role of Private Security during mass action?
Where private security officers are involved in protecting property and controlling crowds during protests they act analogously to the police and other state security agencies. The core of the analogy lies in the private security officer fulfilling the public function of safety and security, by exercising its associated powers. Acting essentially as an extension of the state means it is critical for security officers to respect the Bill of Rights and applicable legislation, particularly the Criminal Procedure Act (CPA).
What can private security legitimately do during a protest?
Private security can legitimately act to ensure the protection of their client’s, or general public’s, safety and property. This includes being present at the premises and acting against threats. The responses available include the use of force and arrest. However, the use of any of these must be exercised within at least the same limitations as the police. For example, private security officers, like the police, must comply with the section 49 of the CPA’s restrictions on use of force during arrest.
Private security officers can arrest protestors engaged in illegal activity or violence, such as destruction of property, under section 42 of the CPA. This section empowers any private person to effect an arrest where:
- They reasonably suspect a criminal offence to have been committed;
- They reasonably believe the person to be trying to escape, after committing a criminal offence; and
- Where the person is involved in an “affray” (fight/commotion/disturbance).
For more info on rights when being arrested click here.
Private security officers are permitted to use force where this is reasonably necessary and done in a way which is proportional to the threat. For more on the use of force during protests click here. However, they must not engage in conduct which unlawfully endangers the safety of anyone, act in a manner which threatens public order or safety, or as outlined in the above quote. Where a security officer acts beyond this it is improper conduct, under the Private Security Industry Regulatory Authority Act. The person affected by the improper conduct, in addition to ordinary criminal/civil remedies, can approach the Private Security Industry Regulatory Authority (PSiRA) to pursue a complaint.
Q: What to do if you are assaulted or threatened by a private security officer?
A: Note all the details you possibly can and put these into the affidavit that you will submit to PSiRA.
What is the process?
After the incident, you should approach a police station or legal representative to assist with the affidavit to be submitted to PSiRA.
The affidavit must contain the following:
- Your full name, work address and residential address;
- The security officer’s full name, work address and residential address;
- The name, work address and residential address of a director of the security company, or such person that could act as a representative of the security company; and
- Details of the incident, including date and place, providing PSiRA with enough information to decide that the contents, if proven true, would constitute improper conduct by the security officer.
After submission, a PSiRA prosecutor takes control of the matter, but you may be requested by the prosecutor to provide additional information or called as a witness to testify at the enquiry.
If called as a witness there is a possibility that PSiRA will cover your related expenses.
What will the outcome be?
The enquiry can lead to the suspension or termination of the PSiRA registration of the company or security officer, meaning they will not be able to sell their security services for that period. A fine of up to R10 000 may be imposed and details of the conviction and penalty may be published.
However, you may still pursue ordinary criminal charges against the security officer themselves or a civil claim against the security officer and/or their employer.
How to contact PSiRA?
The list of PSiRA Office addresses where the affidavit can be submitted can be found here.
For general enquiries:
PSiRA Call Centre: 086 133 3850
Fax: 086 242 7180
Prepared by Tsanga Mukumba
Constitutional Litigation Unit, Legal Resources Centre